Petition for Writ of Certiorari — Emiliano Emmanuel Flores-González, Petitioner v. United States

No. ______

In the Supreme Court of the United States

_____________________

EMILIANO EMMANUEL FLORES-GONZÁLEZ, PETITIONER,

v.

UNITED STATES OF AMERICA, RESPONDENT.

_____________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

Rachel Brill

Franco L. Pérez-Redondo

Kevin E. Lerman

Counsel of Record

FEDERAL PUBLIC DEFENDER,

DISTRICT OF PUERTO RICO

241 F.D. Roosevelt Ave.

San Juan, PR 00918

787-492

Kevin_Lerman@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

The right to direct review of a federal sentence is codified

at 18 U.S.C. § 3742. The constitution obligates Article III

courts to entertain cases they have jurisdiction over.

A First Circuit panel met these obligations: it reviewed

and vacated a procedurally infirm sentence under binding

circuit precedent.

But a three-act sequence of subsequent en banc orders nullified the panel’s work.

First, the court granted a government-filed petition

for rehearing en banc.

Second, it vacated the panel opinion and judgment.

Third, a six-judge en banc court deadlocked three-tothree, issuing an order affirming the sentence.

The cited justification for this affirmance was the disagreement over what to do about outcome-determinative circuit precedent. The questions presented are:

1. Did the court’s fealty to ministerial en banc procedures justify abdication of its constitutional and

statutory obligations to adjudicate an as-of-right

sentence appeal?

2. If so, should this Court summarily vacate and remand with instructions to either conduct reasonableness review under applicable law or dis-en

banc the case and reinstate the properly entered

panel opinion and judgment?

i

PARTIES

Emiliano Emmanuel Flores-González, Petitioner, was the

defendant-appellant below.

The United States of America, Respondent, was the

plaintiff-appellee below.

RELATED PROCEEDINGS

United States Court of Appeals (1st Cir.):

United States v. Flores-González, No. 19-2204 (1st Cir.

2023) (en banc) (per curiam) (affirming judgment).

United States v. Flores-González, 34 F.4th 103 (1st Cir.

2022) (vacating judgment and sentence) reh’g en banc

granted, op. withdrawn, 46 F.4th 57 (1st Cir. 2022).

United States District Court (D.P.R.)

United States v. Flores-González, No. 3:19-cr-00335FAB (Oct. 24, 2019) (judgment).

ii

CONTENTS

PAGE

Questions Presented ............................................................... i

Parties .................................................................................... ii

Related Proceedings............................................................... ii

Authorities ............................................................................ vi

Introduction ............................................................................1

Opinions Below .......................................................................2

Jurisdiction .............................................................................2

Constitutional and Statutory Provisions................................2

Statement................................................................................3

A. District of Puerto Rico Sentencing.........................3

B. First Circuit Panel Opinion (Majority) ..................4

C. First Circuit Panel Opinion (Concurrence)............5

D. Government Petition for Rehearing En Banc........5

E. Rehearing En Banc and Panel Opinion

Withdrawal ............................................................5

F.

Deadlock-Nullification Order.................................6

G. Mr. Flores’s Petition for Rehearing En Banc.........8

iii

REASONS WHY IT’S IMPERATIVE TO GRANT CERTIORARI ..........11

I.

The En Banc Court’s Deadlock-Nullification Order

Violates the Sentencing Reform Act of 1984, 18 U.S.C.

§ 3742, Article III, § 2, and En Banc Procedural

Provisions.....................................................................11

A. The Deadlock-Nullification Order Violates the

Spirit of Rule 35(a), If Not the Letter of the

Rule. .....................................................................12

B. The Deadlock-Nullification Order Abdicates the

Court’s Duty to Decide Cases Before It. ..............14

C. The Deadlock-Nullification Order Reflects an

Unreasonable Interpretation of Rule 35(a) and 28

U.S.C. § 46(c)........................................................14

II.

Stare Decisis Principles and Due Process Cannot Be

Protected If the Deadlock-Nullification Order Is Left

Standing.......................................................................15

A. Jurisprudence Regarding Divided Decisions Must

Be Given a Carve-Out for Appeals as of Right and

Panel Opinions Dictated By Precedent................16

B. The Deadlock-Nullification Order Is Critically

Flawed and Warrants Immediate Summary

Correction or Full Review by This Court.............17

C. Circuit Courts Have Varying Approaches to

Avoiding Actual and Perceived Intra-Circuit

Conflicts................................................................19

CONCLUSION ..........................................................................20

iv

APPENDIX

APPENDIX A—First Circuit’s En Banc Per Curiam Order

and Concurring Opinions (Nov. 7, 2023) ........................1a

APPENDIX B—First Circuit’s Order Denying Petition for

Rehearing En Banc (Dec. 6, 2023) ................................91a

APPENDIX C—District Court’s Judgment (Oct. 24, 2019) .92a

APPENDIX D—Statutory and Constitutional Provisions ...99a

APPENDIX E—Pet. for Reh’g En Banc (Nov. 13, 2023) ....109a

v

AUTHORITIES

PAGE

United States Supreme Court Authorities

Arizona v. Rumsey,

467 U.S. 203 (1984) .................................................... 15, 16

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .......................................... 14

Evitts v. Lucey,

469 U.S. 387 (1985) .......................................................... 10

Gall v. United States,

552 U.S. 38 (2007) ........................................................ 8, 11

Griffin v. Illinois,

351 U.S. 12 (1956) ............................................................ 10

New Orleans Public Service, Inc. v. Council of the City of

New Orleans,

491 U.S. 350 (1989) ...................................................... 9, 14

Textile Mills Sec. Corp. v. Commissioner,

314 U.S. 326 (1941) ...................................................... 1, 12

United States v. Will,

449 U.S. 200 (1980) ...................................................... 9, 14

Welch v. Texas Dep’t of Highways & Pub. Transp.,

483 U.S. 468 (1987) .......................................................... 15

Western Pac. R.R. Corp. v. Western Pac. R.R.,

345 U.S. 247 (1953) .................................................... 13, 17

vi

Appellate Court Authorities

Atl. Thermoplastics Co. v. Faytex Corp.,

974 F.2d 1279 (Fed. Cir. 1992) ......................................... 16

Clarke v. United States,

915 F.2d 699 (D.C. Cir. 1990)........................................... 10

Critical Mass Energy Project v. NRC,

975 F.2d 871 (D.C.Cir.1992) (en banc) ............................. 16

Drake Bakeries, Inc. v. Local 50, Am. Bakery Workers,

294 F.2d 399 (2d Cir. 1961) (per curiam) ................... 17, 18

Educadores Puertorriqueños En Acción v. Hernández,

367 F.3d 61 (1st Cir. 2004) ............................................... 19

Irons v. Diamond,

670 F.2d 265 (D.C. Cir. 1981)........................................... 19

San Juan Cable LLC v. P.R. Tel. Co.,

612 F.3d 25 (1st Cir. 2010) ......................................... 15, 16

Savard v. Rhode Island,

338 F.3d 23 (1st Cir. 2003) (en banc) ................... 6, 7, 9, 10

United States v. Brutus,

505 F.3d 80 (2d Cir. 2007) ................................................ 19

United States v. Carrasquillo-Sánchez,

9 F.4th 56 (1st Cir. 2021) .......................................... passim

United States v. Díaz-Diaz,

No. 19-1274 (1st Cir. Aug. 21, 2021) .................................. 4

vii

United States v. Flores-González,

34 F.4th 103 (1st Cir. 2022) ........................................... ii, 4

United States v. Flores-González,

86 F.4th 399 (1st Cir. 2023) (en banc) (per curiam)....... 2, 6

United States v. Flores-Machicote,

706 F.3d 16 (1st Cir. 2013) ............................................. 5, 7

United States v. García-Pérez,

9 F.4th 48 (1st Cir. 2021) ............................................. 4, 19

United States v. Rivera-Berríos,

968 F.3d 130 (1st Cir. 2020) ...................................... passim

United States Constitutional Provisions

Article III, § 2....................................................................... 14

United States Code Sections

18 U.S.C. § 3742............................................................ passim

18 U.S.C. § 3742(e)................................................... 11, 12, 13

18 U.S.C. § 922(o)(2)(B) ......................................................... 3

28 U.S.C. § 1254(1) ................................................................ 2

28 U.S.C. § 2106................................................................... 13

Federal Rules of Appellate Procedure

Fed. R. App. P. 2(a) .............................................................. 10

viii

Research Articles

Judah I. Labovitz, En Banc Procedure in the Federal Courts

of Appeal,

111 U. PA. L. REV. 220 (1962) ..................................... 13, 18

Neal Devins & Allison Orr Larsen, Weaponizing En Banc,

96 N.Y.U. L. REV. 1373 (2021).......................................... 13

Other Rules and Authorities

1st Cir. Internal Op. Procedure X(D)................................... 10

7th Cir. R. 40(e).................................................................... 19

The Federalist No. 78 at 168 (Alexander Hamilton) ........... 15

ix

No. ______

In the Supreme Court of the United States

_____________________

EMILIANO EMMANUEL FLORES-GONZÁLEZ, PETITIONER,

v.

UNITED STATES OF AMERICA, RESPONDENT.

_____________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

INTRODUCTION

En banc review in the federal courts of appeal was first

approved by this Court in 1941. Textile Mills Sec. Corp. v.

Commissioner, 314 U.S. 326, 335 (1941). It was then incorporated into the Judicial Code and Federal Rules of Appellate

Procedure. When rehearing of a panel decision is done by an

even number of judges — as occurred below — deadlock leaves

the court’s duty to adjudicate cases unfulfilled. And it leaves

review of an appeal as of right unexecuted. Worse, when precedent has dictated the outcome of an appeal, en banc rehearing — without the safeguards discussed below — nullifies

proper panel review, generating a single decision that’s arbitrarily out of step with precedent.

This Court should grant certiorari and summarily vacate

and remand with instructions to the First Circuit to either

conduct reasonableness review under applicable law or dis-en

banc the case and reinstate the properly issued panel opinion

and judgment. Alternatively, this Court should grant certiorari and evaluate what additional procedural safeguards

should be imposed so that the virtues of en banc hearing and

rehearing may be balanced against courts’ duty to decide

cases and controversies and appellants’ right to direct appeal

under 18 U.S.C. § 3742.

OPINIONS BELOW

Emiliano Emmanuel Flores-González (Mr. Flores) respectfully petitions for a writ of certiorari to review the judgment

of the First Circuit. App. 1a-90a. It’s reported at 86 F.4th 399.

JURISDICTION

The court of appeals entered judgment in a per curiam

order dated November 7, 2023. App. 2a. Mr. Flores petitioned

for en banc rehearing on November 13, 2023. See App. 109a122a; 2023 WL 9958291. Rehearing was denied December 6,

2023. App. 91a.

By order dated February 22, 2024, this Court extended the

time within which to file a petition for a writ of certiorari to

April 4, 2024. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Cited constitutional and statutory provisions are included

at App. 99a-108a.

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STATEMENT

A. District of Puerto Rico Sentencing

In 2009, a then-19-year-old Emiliano Flores pleaded guilty

to unlawfully possessing — but not illegally using — a Glock

pistol altered to fire as a “machinegun.” App. 18a. His possession was unauthorized because the firearm, a semiautomatic

pistol, had been modified to fire in automatic mode. Such arms

are unlawful to own unless manufactured before May 19,

1986, and held pursuant to a license. See 18 U.S.C.

§ 922(o)(2)(B).

Mr. Flores had no criminal priors. App. 18a. The district

court calculated Mr. Flores’s advisory sentencing range as 24

to 30 months. Mr. Flores and the government recommended

sentences within that range. The judge, however, imposed a

48-month term — 60% above the top of the range. App. 19a.

Nothing about Mr. Flores’s own past conduct or the individual way he committed the crime — other than his having

committed it in Puerto Rico — drove the judge’s sizable upward variance. App. 19a.

The judge’s sentencing wording illustrated the court’s

reasons. “The [c]ourt,” said the judge, did “not purport to establish that ... Flores’[s] crime itself was more harmful than

others similar to his.” App. 19a. Rather, the judge explained,

what triggered the major variance was that Mr. Flores’s crime

fell “within a category of offenses, gun crimes, that the [c]ourt,

considering the particular situation in Puerto Rico [involving

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violence], views as more serious here than if they had occurred

in a less violent society.” App. 19a.

Before revealing Mr. Flores’s sentence, the judge played

an audio and video recording of a “recent” machine-gun “massacre” that even he agreed had no relation to Mr. Flores’s own

specific conduct apart from his having illegally possessed the

gun in Puerto Rico. App. 19a.

B. First Circuit Panel Opinion (Majority)

On appeal, the First Circuit’s original panel vacated

Mr. Flores’s sentence as procedurally unreasonable under

United States v. Rivera-Berríos, 968 F.3d 130 (1st Cir. 2020),1

and United States v. Carrasquillo-Sánchez, 9 F.4th 56 (1st

Cir. 2021). See United States v. Flores-González, 34 F.4th 103,

118 (1st Cir.), withdrawn on grant of reh’g en banc, 46 F.4th

57 (1st Cir. 2022).

To oversimplify slightly, the panel so ruled because the

judge based Mr. Flores’s upward variance solely on the community characteristics of the crime’s locale — without connecting his decision to “a ‘special characteristic attributable

either to the offender’ or the circumstances of ‘the offense.’”

See id. at 118 (quoting Rivera-Berríos, 968 F.3d at 137).

1 The First Circuit decisions that were alleged to conflict with precedent

include Rivera-Berríos and Carrasquillo-Sánchez. App.16a. Additional decisions followed Rivera-Berríos, including United States v. García-Pérez, 9 F.4th

48 (1st Cir. 2021), and United States v. Díaz-Diaz, No. 19-1274 (1st Cir. Aug.

21, 2021). These all became final without the First Circuit choosing sua sponte

to rehear any of those cases en banc. Nor did any of those cases see a petition

for hearing en banc by the United States.

4 of 20

C. First Circuit Panel Opinion (Concurrence)

A concurring panelist “agree[d] that” that the First Circuit’s “most recent precedent under Rivera-Berríos and

Carrasquillo-Sánchez preclude[d]” the panel “from affirming.” See id. at 121 (Kayatta, J., concurring) (emphases

added). But the concurring judge thought that those two decisions should be overruled when compared against United

States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013). See

Flores-González, 34 F.4th at 119 (Kayatta, J., concurring).

Flores-Machicote is a decade-old opinion that lets judges impose upwardly variant sentences based on “community characteristics,” so long as they do not go “too far” by focusing “too

much on the community and too little on the individual.” See

Flores-Machicote, 706 F.3d at 24.

D. Government Petition for Rehearing En Banc

Similarly, federal prosecutors argued that Rivera-Berríos

had injected “error into” First Circuit “caselaw that has since

metastasized”; the government asked the circuit to cure that

perceived flaw through en banc review. App. 20a.

E. Rehearing En Banc and Panel Opinion

Withdrawal

Without allowing Mr. Flores the opportunity to respond to

the government’s petition for rehearing, the court of appeals

granted it and, citing “custom,” ordered the panel opinion

withdrawn.

5 of 20

Having granted the petition, the en banc court ordered the

parties to brief twenty-four separate questions along with

other corollary questions.

Among these questions, the First Circuit did not seek

briefing as to what action was required under the Constitution, under 18 U.S.C. § 3742, and under precedent should the

en banc conglomeration of judges lack a majority to overrule

the cases and principles that underlay the panel opinion.

F. Deadlock-Nullification Order

After briefing by the parties, the submission of four separate amicus briefs, 2 and oral argument, the en banc court

issued a per curiam order replacing the panel opinion’s order

vacating judgment with an order affirming the district court

judgment: “The judgment entered in the district court is

affirmed by an equally divided en banc court.” App. 3a (citing

Savard v. Rhode Island, 338 F.3d 23, 25 (1st Cir. 2003) (en

banc)). This unsigned affirmance order appears to have the

backing of all six participating judges. See App. 1a-3a. 3

See Br. of Macarthur Justice Ctr., et al., 2022 WL 16833185; Br. of

NAACP Legal Def. Fund, 2022 WL 16833192; Br. of Federal Defenders for D.

Mass., D.N.H., & D.R.I., 2022 WL 16833188; Br. of P.R. Assoc. Crim. Def.

Lawyers, 2022 WL 16833194.

3 The Appendix to this Petition contains the First Circuit’s slip opinion.

The printed opinion at 86 F.4th 399 erroneously placed the text of the per

curiam order underneath the first concurrence by Kayatta, J., joined by Lynch,

J., and Gelpí, J. While the error in West’s printed reporter could not be corrected, we note that West’s online version reflects the en banc’s separate per

curiam order before the start of the Kayatta, J., concurrence.

2

6 of 20

Following the six-judge per curiam order, the en banc

judges issued two separate, three-judge concurring opinions.

The first — by Kayatta, J., joined by Lynch, J., and Gelpí, J.

— agrees with the per curiam order without analysis. “Given

the unfortunate 3-3 split of our court in this case,” Judge

Kayatta wrote, “it is fair to ask, ‘what next?’” App. 16a. The

answer: “the sentence in this case is affirmed.” App. 16a (citing Savard, 338 F.3d at 25).

Before reaching the conclusion that the en banc court had

to automatically affirm the district court’s “sentence in this

case,” the Kayatta, J. concurrence explained its three judges

had “voted to proceed en banc in order to overrule those panel

decisions” that the Flores-González panel had relied on to decide Mr. Flores’s direct appeal. App. 7a. Unable to garner sufficient votes, however, the Kayatta, J. concurrence lamented

that Carrasquillo-Sánchez, Rivera-Berríos and FloresMachicote “remain controlling circuit precedent unless and

until a majority in an en banc hearing or the Supreme Court

rules otherwise.” App. 16a; see United States v. RiveraBerríos, 968 F.3d 130 (1st Cir. 2020), United States v.

Carrasquillo-Sánchez, 9 F.4th 56 (1st Cir. 2021); United

States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013).

The second three-judge concurrence explained why existing circuit and Supreme Court precedent dictated the outcome

of the three-judge panel decision. See App. 17a-90a (Thompson, J., joined by Barron, C.J., Montecalvo, J.).

Like the first concurrence, this one agreed with the per

curiam statement that the district court judgment had to be

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affirmed. See App. 90a. The Thompson, J. concurrence pointed

out that the affirmance meant binding precedent — left unaltered by en banc rehearing — was not being applied to

Mr. Flores’s direct appeal. App. 90a. “[W]ith these opinions

[Rivera-Berríos and Carrasquillo-Sánchez] still on the books,

Flores’s upward variance — lacking as it does that necessary

case-specific connection — should not stand.” App. 90a.

This second concurrence therefore argued the court should

have “vacate[d] the disputed sentence and remand[ed] for resentencing” under applicable precedent. App. 90a. But, the

Thompson, J. concurrence concluded, the First Circuit’s intervening “grant of rehearing en banc” had irreversibly “vacated

the prior panel’s opinion,” meaning the full court must

“affirm[] the erroneous variance by operation of law.” App.

90a. This meant nothing less than the denial to Mr. Flores of

“the benefit of … preexisting and still-binding precedent.”

App. 90a.

G. Mr. Flores’s Petition for Rehearing En Banc

Less than a week later, Mr. Flores petitioned for rehearing

en banc. Pet. for Reh’g, 2023 WL 9958291 (Nov. 13, 2023);

App. 109a-122a. He argued, in part, that replacing a

precedent-dictated panel decision with an en banc order

whose outcome conflicts with such precedent “would effectuate a complete denial of Mr. Flores’s right to appeal.” App.

116a. Such denial would be unlawful under appellate courts’

mandate to “‘review all sentences’ for reasonableness.” Id.

(quoting Gall v. United States, 552 U.S. 38, 41 (2007) (citing

18 U.S.C. § 3742)).

8 of 20

Mr. Flores further argued that the en banc order “had contravene[d] the long-established rule that ‘federal courts lack

the authority to abstain from the exercise of jurisdiction that

has been conferred.’” App. 116a (quoting New Orleans Public

Service, Inc. v. Council of the City of New Orleans, 491 U.S.

350, 358 (1989)). Mr. Flores added that more is needed “to fulfill ‘the absolute duty of judges to hear and decide cases within

their jurisdiction.’” App. 116a (quoting United States v. Will,

449 U.S. 200, 215 (1980)).

It was undisputed that Mr. Flores’s direct appeal had invoked the court’s jurisdiction under § 3742(a), so the court had

“the obligation to evaluate the case and issue a decision.” App.

116a.

Mr. Flores addressed the lack of foundation for the per

curiam order’s automatic affirmance. App. 117a-122a.

First, the case that purportedly drove the en banc’s affirmance order did not call for rigid and permanent withdrawal

of the panel opinion. See Savard v. Rhode Island, 338 F.3d 23

(1st Cir. 2003). Savard merely observed that panel-opinion

withdrawal is “customary” when en banc rehearing takes

place. Savard, 338 F.3d at 25. Such a “custom” should not prevail when it impedes direct review of a criminal judgment,

which is a matter of right.

Because direct appeal in a criminal matter (Savard

addressed a civil matter) is “‘an integral part of the … system

for finally adjudicating the guilt or innocence of a defendant,’

… the procedures used in deciding appeals must comport with

the demands of the Due Process and Equal Protection Clauses

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of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393

(1985) (quoting Griffin v. Illinois, 351 U.S. 12, 18 (1956)).

Indeed, argued Mr. Flores, the Federal Rules of Appellate

Procedure and First Circuit rules shows flexibility in what

Savard calls custom. App. 118a-119a (citing Fed. R. App. P.

2(a) (allowing courts of appeal to suspend their local rules “for

good cause”); 1st Cir. Internal Op. Procedure X(D) (“Usually

when an en banc rehearing is granted, the previous opinion

and judgment will be vacated.”).

Second, Mr. Flores argued the Savard-driven affirmance

was not a foregone conclusion because courts may “dis-en

banc” a case. App. 119a-120a. In order to ensure review of the

subject sentencing proceeding under § 3742, the en banc court

could have simply issued an order to “dis-en banc” the case.

See Clarke v. United States, 915 F.2d 699, 707 (D.C. Cir. 1990)

(explaining the court “can dis-en banc a case that it has ordered heard en banc….”) (citation omitted). Such a result,

Mr. Flores further argued, would be highly appropriate because — without the votes to overrule precedent — the en

banc court ultimately found itself without a Rule 35(a) justification to intervene in a direct appeal that had already been

adjudicated by three judges who agreed unanimously that reversible error demanded vacatur.

With no basis for en banc intervention, a court is left only

with the Rule 35 admonishment that “en banc hearing or

rehearing is not favored and ordinarily will not be ordered....”

Fed. R. App. P. 35(a).

This petition for a writ of certiorari follows.

10 of 20

REASONS WHY IT’S IMPERATIVE TO GRANT CERTIORARI

As the en banc court of appeals diligently sought to reach

the right answer on the merits of a sentencing appeal, it put

virtually no effort into considering what it should do if the

judges wishing to overrule precedent couldn’t reach the necessary votes to do so. Whatever one may think of First Circuit

precedent, the court of appeals needed to fulfill its obligation

to review the sentence before it for reasonableness. See Gall

v. United States, 552 U.S. 38, 41 (2007); 18 U.S.C. § 3742.

I. The En Banc Court’s Deadlock-Nullification

Order Violates the Sentencing Reform Act of

1984, 18 U.S.C. § 3742, Article III, § 2, and En

Banc Procedural Provisions.

In the most basic and obvious sense, the en banc affirmance order below fails to carry § 3742(e), which provides as

follows: “Upon review of the record, the court of appeals shall

determine whether the sentence” is reversible based on any of

four enumerated factors. 18 U.S.C. § 3742(e)(1)-(4). This includes reviewing whether a sentence “was imposed in violation of law.” Id., § (e)(1). It includes assessing whether a sentence is “outside the applicable guideline range, and … based

on a factor … not authorized under section 3553(b)” or “not

justified by the facts of the case.” Id., § (e)(3). And it includes

looking at whether “the sentence departs to an unreasonable

degree from the applicable guidelines range, having regard for

the factors to be considered in imposing a sentence, as set

forth in section 3553(a) … and the reasons for the imposition

of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c).” Id. at (e)(3)(C).

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The per curiam order — read alongside the two concurring

opinions — illustrates the § 3742(e) mandate was not accomplished. Hence, the Kayatta, J. concurrence’s lamentation

that the split was “unfortunate.” App. 16a. Similarly, the

Thompson concurrence regretfully states that the circuit must

“affirm[] the erroneous variance by operation of law,” such

that Mr. Flores would be denied “the benefit of … preexisting

and still-binding precedent.” App. 90a.

Review under § 3742(e) is not optional. Nor does any case

or statute allow an en banc court — let alone one sitting in a

small circuit, like the First — to arbitrarily supplant a reasoned panel decision.

A. The Deadlock-Nullification Order Violates

the Spirit of Rule 35(a), If Not the Letter of the

Rule.

Consider the framework for en banc procedures, which

was initially developed to resolve intra-circuit conflict. En

banc review was first sanctioned by dictum in Textile Mills

Sec. Corp. v. Commissioner, 314 U.S. 326, 335 (1941). Previously, en banc procedure was a device that the judges themselves fashioned. See id. at 334 n.14. Congress approved en

banc proceedings only after the Supreme Court confirmed, in

Textile Mills, the implied authority of all five judges of the

Third Circuit to sit together. See Act of June 25, 1948, ch. 646,

§ 46, 62 Stat. 869, 871 (codified as amended at 28 U.S.C.

§ 46(c)).

The Judicial Code gives no detail on en banc procedure,

and this Court has provided only general parameters. See

12 of 20

Western Pac. R.R. Corp. v. Western Pac. R.R., 345 U.S. 247

(1953). Historically, the First Circuit and other small circuits4

were not considered in the development of rules and guidance

for en banc procedures. See Judah I. Labovitz, En Banc

Procedure in the Federal Courts of Appeal, 111 U. PA. L. REV.

220, 222 n.13 (1962).

While Western Pacific, § 46(c), and Rule 35(a) leave a large

area of discretion for en banc procedures, nothing allows a

court of appeals to shirk its duty to review a case before it,

apply precedent to it, and, when necessary, remand for corrective action. See § 3742(e)-(f); see also 28 U.S.C. § 2106 (providing remedial discretion to reviewing courts “as may be just

under the circumstances.”).

Already, en banc decisions “are uniquely awkward among

judicial acts.” Neal Devins & Allison Orr Larsen, Weaponizing

En Banc, 96 N.Y.U. L. REV. 1373, 1376 (2021) (footnote omitted). “By definition, a judge sitting en banc is sitting in judgment of a colleague on the same court…. An en banc decision

literally nullifies a prior decision made by members of the

same court ….” Id. (footnotes omitted).

4 Today, the First Circuit, by statute, has six seats for active judges. See

28 U.S.C. § 44(a). It had only three seats until 1978 when a fourth was added.

Pub. L. 95-486, § 3(a), 92 Stat. 1629, 1632 (Oct. 20, 1978). A fifth and sixth seat

were added in 1984. Pub. L. 95-353, § 201(a)(1), 98 Stat. 333, 346 (Jul. 10,

1984).

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B. The Deadlock-Nullification Order Abdicates

the Court’s Duty to Decide Cases Before It.

Courts have an “absolute duty to hear and decide cases

within their jurisdiction.” United States v. Will, 449 U.S. 200,

215 (1980). In New Orleans Public Service, Inc. v. Council of

the City of New Orleans, 491 U.S. 350 (1989), this Court

catalogued support for the proposition that “federal courts

lack the authority to abstain from the exercise of jurisdiction

that has been conferred.” Id. at 358. This rule derives from

Article III, § 2, which “declares, that ‘the judicial power shall

extend to all cases in law and equity, arising under this

constitution, the laws of the United States, and treaties made,

or which shall be made, under their authority.’” Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 375 (1821) (quoting U.S.

Const., Art. III, § 2). As this Court reasoned, “We have no

more right, to decline the exercise of jurisdiction which is

given, than to usurp that which is not given.” Id. at 404.

The en banc court’s reflexive affirmance of an erroneous

district court judgment abandoned the duty to adjudicate the

case before it.

C. The Deadlock-Nullification Order Reflects an

Unreasonable Interpretation of Rule 35(a)

and 28 U.S.C. § 46(c).

Under 28 U.S.C. § 46(c), “[c]ases and controversies shall be

heard and determined by a court or panel of not more than

three judges … , unless a hearing or rehearing before the court

in banc is ordered by a majority of the circuit judges of the

circuit who are in regular active service.”

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Rule 35(a), in turn, states that “en banc hearing or rehearing is not favored and ordinarily will not be ordered unless”

one of two statements is true: either “(1) en banc consideration

is necessary to secure or maintain uniformity of the court's

decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a).

As argued in Mr. Flores’s petition for rehearing, the en

banc order served no Rule 35(a) purpose and violates the

mandate to hear and determine cases and controversies. See

App. 120a-121a.

II. Stare Decisis Principles and Due Process

Cannot Be Protected If the DeadlockNullification Order Is Left Standing.

Alexander Hamilton declared that, “[t]o avoid an arbitrary

discretion in the courts, it is indispensable that they should

be bound by strict rules and precedents, which serve to define

and point out their duty in every particular case that comes

before them.” The Federalist No. 78 at 168 (Alexander Hamilton) (Frederick Quinn ed., 1997). As this Court similarly emphasizes: ‘‘the doctrine of stare decisis is of fundamental importance to the rule of law.’’ Welch v. Texas Dep’t of Highways

& Pub. Transp., 483 U.S. 468, 494 (1987). ‘‘[A]ny departure

from the doctrine … demands special justification.’’ Arizona v.

Rumsey, 467 U.S. 203, 212 (1984).

“The ‘law of the circuit’ rule is a subset of stare decisis.”

San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir.

2010). A court of appeals sitting en banc may set aside its own

circuit precedent ‘‘if, on reexamination of an earlier decision,

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it decides that the panel’s holding on an important question

of law was fundamentally flawed.’’ Critical Mass Energy

Project v. NRC, 975 F.2d 871, 876 (D.C.Cir.1992) (en banc).

Since an en banc decision nullifies a prior panel decision,

only a majority of judges of judges should be able to change

the outcome if precedent dictated the panel’s decision. “The

law of the circuit rule promotes important virtues, including

humility, stability, and predictability of outcomes within a

judicial circuit.” San Juan Cable, 612 F.3d at 34.

Yet the en banc’s per curiam order leaves the demands of

stare decisis unmet. The panel did not withdraw its own

opinion, and a majority of en banc jurists did not overrule it.

The court’s order therefore falls outside the lines of precedent

with no “special justification” to do so. Rumsey, 467 U.S. at

212.

A. Jurisprudence Regarding Divided Decisions

Must Be Given a Carve-Out for Appeals as of

Right and Panel Opinions Dictated By

Precedent.

As all members of the Flores-González panel acknowledged, their decision was dictated by the panel opinions of

United States v. Rivera-Berríos, 968 F.3d 130 (1st Cir. 2020),

and United States v. Carrasquillo-Sánchez, 9 F.4th 56 (1st

Cir. 2021). Yet the per curiam order en banc completely discarded this precedent.

“This is not only insulting to the” prior “panel[s] … , it is

mutiny. It is heresy. It is illegal.” Atl. Thermoplastics Co. v.

Faytex Corp., 974 F.2d 1279, 1281 (Fed. Cir. 1992) (Rich, J.,

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dissenting from denial of rehearing en banc). Whatever gaps

are left by Rule 35(a) and § 46(c), etcetera, they must be filled

in with a rule that adequately promotes the application of

binding precedent to appeals of right under § 3742.

Soon after the passage of § 46(c), this Court held its review

is not just to interpret the scope of en banc review but that it

also “decide[s] whether the en banc issue has been adequately

treated by the Court of Appeals.” Western Pac., 345 U.S. at

263. Here, treatment by the court of appeals was completely

inadequate for the reasons discussed throughout: appellate

review cannot be said to have taken place if a procedurally

infirm sentence is reflexively affirmed based solely on the a

lower court’s interpretation of an en banc procedural rule.

B. The Deadlock-Nullification Order Is Critically Flawed and Warrants Immediate

Summary Correction or Full Review by This

Court.

The issue of en banc gridlock leading to affirmance has

been an uncorrected problem since as early as 1962. That

year, in the Drake Bakeries case, the Second Circuit en banc

court was evenly divided on the merits after a panel had reversed the trial court. Drake Bakeries, Inc. v. Local 50, Am.

Bakery Workers, 294 F.2d 399 (2d Cir. 1961) (per curiam)

aff’d, 370 U.S. 254 (1962).

A year after Drake Bakeries was decided, a scholarly article observed the following: “A split decision by an en banc

court cannot ensure the uniformity normally resulting from

en banc decision since any change in the composition of the

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court may alter the result of a similar case in the future.”

Judah I. Labovitz, En Banc Procedure in the Federal Courts

of Appeal, 111 U. PENN. L. REV. 220, 229-230 (1962).

The article continued, foreshadowing the arbitrary and

unlawful decision in this case six decades later: once a group

of en banc judges ascertain that they lack a majority to do

majority-required business, the “[c]orrectness of decision in

the particular case becomes, therefore, more significant than

the goal of uniformity, and in theory, correctness of decision

is more apt to occur when the view of a majority of the judges

who have heard the case prevails.” Id. at 230.

And, like in the 1961 Drake Bakeries case, “[a]ffirming the

panel in this case would have given conclusive weight to the

votes of the original panel members. But by affirming the trial

court, the [First] Circuit reached the result supported by a

majority consisting of one-half of the active circuit judges and

the district court judge who originally heard the case.”

Labovitz¸ supra, 111 U. PENN. L. REV. at 222. Why is it that

one could understand the district judge as casting the tiebreaker vote? Because appellate court deadlock preserves

that judge’s decision below. So the deciding factor in this case

is that the district court erred such that a three-to-three

appellate vote preserves that error. App. 90a.

The process applied here nullified a properly issued panel

decision driven by precedent, which affirmed “the erroneous

variance by operation of law,” and deprived Mr. Flores of “the

benefit of … preexisting and still-binding precedent.”

App. 90a.

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C. Circuit Courts Have Varying Approaches to

Avoiding Actual and Perceived Intra-Circuit

Conflicts.

Circuits take different approaches to ensure panels comply

with stare decisis. Unlike in the First Circuit, in the Seventh

Circuit, the doctrine of stare decisis is embodied in Circuit

Rule 40(e), which requires a majority of the entire court to

approve opinions rendered by three-judge panels that conflict

with existing Seventh Circuit precedent or create a split with

the precedent of the other courts of appeals. 7th Cir. R. 40(e).

Analogous rules are embraced by the Second and D.C. Circuits. See, e.g., United States v. Brutus, 505 F.3d 80, 87 n.5 (2d

Cir. 2007) (overruling prior panel precedent outside formal en

banc process after consulting “all active members” of the

court); Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir.

1981). While the First Circuit has stated that its judges occasionally circulate a “proposed panel opinion” to all active

judges, it lacks such a formal rule. Educadores

Puertorriqueños En Acción v. Hernández, 367 F.3d 61, 67 n.2

(1st Cir. 2004). Nor does the record show any such informal

circulation of relevant opinions. Not in 2020 when RiveraBerríos was decided. Not in 2021 when decision in

Carrasquillo-Sánchez, García-Pérez, and Díaz-Díaz were

issued. And not in 2022 when the now-vacated FloresGonzález panel opinion was published.

Had Mr. Flores’s case, or Rivera-Berríos, or CarrasquilloSánchez, or other relevant decisions been addressed in those

mandatory-draft-circulation circuits, judges concerned about

a perceived intra-circuit conflict could have made their views

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known before litigants and circuit judges had multiple years

of precedent to base their expectations upon. This inconsistency is yet one more reason why this Court should take

action to correct the at-issue deadlock-nullification order and

prevent such orders from emerging in the future.

CONCLUSION

Based on the reasons above, the petition for a writ of certiorari should be granted.

Respectfully submitted.

Rachel Brill

Franco L. Pérez-Redondo

Kevin E. Lerman

FEDERAL PUBLIC DEFENDER,

DISTRICT OF PUERTO RICO

241 F.D. Roosevelt Ave.

San Juan, PR 00918

787-474-6389

Kevin_Lerman@fd.org

Counsel for Petitioner

April 4, 2024

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