Opposition Brief — Jondell Middlebrooks, Petitioner v. United States

No. 23-7587

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JONDELL MIDDLEBROOKS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether petitioner’s prior New York conviction for attempted

second-degree murder is a crime of violence under Sentencing

Guidelines § 4B1.2(a) (2021).

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (N.D.N.Y.):

United States v. Middlebrooks, No. 22-cr-390 (Mar. 31, 2023)

United States Court of Appeals (2d Cir.):

United States v. Middlebrooks, No. 23-6320 (Feb. 28, 2024)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-7587

JONDELL MIDDLEBROOKS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A3) is not

published in the Federal Reporter but is available at 2024 WL

825621.

JURISDICTION

The judgment of the court of appeals was entered on February

28, 2024.

The petition for a writ of certiorari was filed on May

24, 2024.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the Northern District of New York, petitioner was convicted on

one count of possessing cocaine base (crack cocaine) with intent

to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C).

Pet. App. A4.

He was sentenced to 192 months of imprisonment, to

be followed by six years of supervised release.

The court of appeals affirmed.

1.

source

Id. at A5-A6.

Id. at A1-A3.

On three occasions in May and June 2022, a confidential

purchased

crack

cocaine

from

Investigation Report (PSR) ¶ 10.

petitioner.

Presentence

Each time, law enforcement

officers observed petitioner leave his residence and travel to the

meeting location. Ibid. The confidential source purchased a total

of 138.9 grams of crack cocaine from petitioner.

On

June

23,

2022,

law

enforcement

PSR ¶ 11.

officers

arrested

petitioner as he arrived at his probation office for a drug test.

PSR ¶ 13.

During a post-arrest interview, petitioner admitted

that he routinely sold crack cocaine.

PSR ¶ 14.

Petitioner also

revealed that he had placed a two-ounce bag of crack cocaine in

the basement of his building before traveling to the probation

office.

Ibid.

After obtaining petitioner’s consent, the officers

searched the basement and recovered a bag containing 83.3 grams of

cocaine base, a digital scale, and multiple cell phones.

¶¶ 14-15.

PSR

3

2.

In a superseding information, the government charged

petitioner

with

one

count

of

possessing

cocaine

base

(crack

cocaine) with intent to distribute, in violation of 21 U.S.C.

841(a)(1) and (b)(1)(C).

guilty.

C.A. App. 96-97.

Petitioner pleaded

Id. at 78 (Mar. 29, 2023 minute entry).

The Probation Office determined that petitioner had “at least

two prior felony convictions of either a crime of violence or a

controlled substance offense” and therefore qualified as a career

offender under Sentencing Guidelines § 4B1.1(a) (2021).

PSR ¶ 27.

Under the version of the Guidelines then in effect, Section

4B1.2(a) defined “‘crime of violence’” to include “any offense

under federal or state law, punishable by imprisonment for a term

exceeding one year, that

* * *

has as an element the use,

attempted use, or threatened use of physical force against the

person of another,” Sentencing Guidelines § 4B1.2(a)(1) (2021)

(the

“elements

clause”),

“or”

is

one

of

several

offenses, including “murder,” id. § 4B1.2(a)(2).

enumerated

Application Note

1 to Guidelines § 4B1.2 further stated that the term “‘[c]rime of

violence’

* * *

includes the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses.”

comment. (n.1).

id. § 4B1.2,

In recommending the career offender enhancement,

the Probation Office cited petitioner’s prior New York conviction

for attempted second-degree murder and prior federal conviction

4

for possession with intent to distribute, and distribution of,

heroin and fentanyl.

PSR ¶ 27.

Petitioner objected to the career offender enhancement.

He

argued that attempted New York second-degree murder does not

require the use, attempted use, or threatened use of physical force

against the person of another and therefore does not qualify as a

“crime of violence” under Sentencing Guidelines § 4B1.2(a)(1)

(2021).

does

C.A. App. 114-115.

not

Guidelines

constitute

§

the

4B1.2(a)(2)

Petitioner also argued that the crime

enumerated

and

that

offense

the

of

“murder”

Sentencing

in

Commission

exceeded its authority when it promulgated Application Note 1

defining a “crime of violence” to include attempt offenses.

C.A.

App. 115-117.

At sentencing, the district court overruled petitioner’s

objections,

applied

the

career

offender

enhancement,

and

calculated petitioner’s Guidelines range as 188 to 235 months of

imprisonment.

C.A. App. 194-195, 199.

After considering the

sentencing factors in 18 U.S.C. 3553(a), the court imposed a 192month sentence, to be followed by six years of supervised release.

C.A. App. 199-200.1

The district court also separately sentenced petitioner

to an 18-month term of imprisonment, to be served consecutively to

the 192-month term, for violating the conditions of his supervised

release imposed in a different case. See Pet. App. A1.

1

5

3.

The court of appeals affirmed in an unpublished summary

order, finding that the district court had properly applied the

career offender enhancement.

Pet. App. A1-A3.

The court cited

its recent decision in United States v. Pastore, 83 F.4th 113 (2d

Cir. 2023), cert. granted sub nom. Delligatti v. United States,

No. 23-825 (June 3, 2024), in which the court had recognized that

“attempt to commit second-degree murder under New York law [as

incorporated

into

a

federal

racketeering

offense]

is

* * *

categorically a crime of violence” under the definition in 18

U.S.C. 924(c)(3)(A), which is similar to Sentencing Guidelines

§ 4B1.2(a)(1)’s elements clause.

See 83 F.4th at 120-121; compare

18 U.S.C. 924(c)(3)(A), with Sentencing Guidelines § 4B1.2(a)(1)

(2021).

The court of appeals had explained in Pastore that because

the New York offense “requires both an intent to use physical force

and a substantial step towards the use of physical force,” 83 F.4th

at 121, it satisfies Section 924(c)(3)(A)’s requirement that it

“ha[ve] as an element the use, attempted use, or threatened use of

physical force against the person or property of another.”

U.S.C. 924(c)(3)(A); see 83 F.4th at 120-121.

18

And in this case,

the court reasoned that Pastore’s “analysis squarely applies to

the question whether attempted second degree murder is a ‘crime of

violence’ for purposes of [Guidelines] § 4B1.1(a).”

Pet. App. A2.

6

ARGUMENT

Petitioner contends that his prior New York attempted murder

conviction does not make him a career offender under Sentencing

Guidelines § 4B1.2(a) (2021) on the theory that the crime does not

require the use, attempted use, or threatened use of physical force

against another (Pet. 6-12), and that the text of the Guidelines

definition of “crime of violence” does not include attempt offenses

(Pet.

12-18).

Both

questions

presented

involve

only

the

interpretation of the Guidelines, as to which circuit conflicts

can be resolved by the Sentencing Commission, which has recently

done so with respect to the second issue.

And although the former

issue may be informed by this Court’s forthcoming decision in

Delligatti v. United States, cert. granted, No. 23-825 (June 3,

2024), it is irrelevant to the disposition of this case, because

even if petitioner were correct in his interpretation of Section

4B1.2(a)(1)’s

elements

independently

qualify

clause,

as

a

his

crime

attempted

murder

would

violence

under

Section

of

4B1.2(a)(2)’s enumerated-offenses clause.

The petition for a writ

of certiorari should be denied.

1.

This

Court

ordinarily

does

not

review

decisions

interpreting the Guidelines, because the Sentencing Commission can

amend the Guidelines to eliminate any conflict or correct any

error. See Braxton v. United States, 500 U.S. 344, 347-349 (1991).

Congress has charged the Commission with “periodically review[ing]

7

the work of the courts” and making “whatever clarifying revisions

to the Guidelines conflicting judicial decisions might suggest.”

Id. at 348; see United States v. Booker, 543 U.S. 220, 263 (2005)

(“The Sentencing Commission will continue to collect and study

appellate court decisionmaking.

It will continue to modify its

Guidelines in light of what it learns, thereby encouraging what it

finds to be better sentencing practices.”).

Review by this Court

of Guidelines decisions is particularly unwarranted in light of

Booker, which rendered the Guidelines advisory only.

543 U.S. at

245.

The Commission has devoted considerable attention in recent

years to the “statutory and guideline definitions relating to the

nature

of

a

defendant’s

prior

conviction,”

including

Guidelines’ definition of a “‘crime of violence.’”

37,241, 37,241 (June 9, 2016).

the

81 Fed. Reg.

In 2016, the Commission amended

the definition of a “crime of violence” in Section 4B1.2(a), see

Sentencing Guidelines App. C Supp., Amend. 798 (Aug. 1, 2016), and

eliminated an analogous “crime of violence” provision in Section

2L1.2, see id. Amend. 802 (Nov. 1, 2016).

More recently, the

Commission amended Section 4B1.2, effective November 1, 2023, to

incorporate the substance of former Application Note 1 into the

guideline

text

itself.

Id.

Amend.

822

(Nov.

1,

2023);

see

Sentencing Guidelines § 4B1.2(d) (2023) (“The terms ‘crime of

violence’ and ‘controlled substance offense’ include the offenses

8

of aiding and abetting, attempting to commit, or conspiring to

commit any such offense.”).

Finally, the Commission continues to

study “the impact of such definitions on the relevant statutory

and guideline provisions” and to work “to resolve conflicting

interpretations of the guidelines by the federal courts.”

81 Fed.

Reg. at 37,241; see 83 Fed. Reg. 30,477, 30,477-30,478 (June 28,

2018).

2.

The career offender guideline applies when “the instant

offense of conviction is a felony that is

* * *

a controlled

substance offense” and the defendant “has at least two prior felony

convictions of either a crime of violence or a controlled substance

offense.”

Sentencing Guidelines § 4B1.1(a) (2021).

Petitioner’s

challenges to the lower courts’ application of that guideline do

not warrant further review.

Petitioner first contends (Pet. 6-9) that his prior attempted

murder conviction is not a “‘crime of violence’” because it does

not have “as an element the use, attempted use, or threatened use

of physical force against the person of another.”

Guidelines § 4B1.2(a)(1) (2021).

Delligatti,

supra

(No.

Sentencing

This Court has granted review in

23-825),

to

decide

whether

attempted

murder, as incorporated into a conviction for violating the Violent

Crimes in Aid of Racketeering statute, 18 U.S.C. 1959(a)(5), “has

as an element the use, attempted use, or threatened use of physical

force against the person or property of another,”

18 U.S.C.

9

924(c)(3)(A).

Given the similar definitional language in Section

924(c)(3)(A), this Court’s forthcoming decision in Delligatti may

inform the question whether petitioner’s prior attempted murder

conviction qualifies as a “crime of violence” under Guidelines

§ 4B1.2(a)(1) (2021).

Holding

the

petition

in

this

case

for

Delligatti

is

unnecessary, however, because petitioner’s prior attempted murder

conviction

is

also

Guidelines

§

4B1.2(a)(2)

4B1.2(a)(1)’s

a

elements

“crime

of

violence”

(2021).

clause,

Section

under

Independent

4B1.2(a)(2)

Sentencing

of

Section

separately

defines a “‘crime of violence’” as any state or federal felony

offense that “is murder.”

Ibid.

As the government explained in

its brief below (at 38-43), the generic crime of murder referenced

in Section 4B1.2(a)(2) encompasses causing a death purposely or

knowingly, and the New York murder offense at issue criminalizes

intentional causation of death.

Former Application Note 1 to

Section 4B1.2, in turn, interprets the definition of “crime of

violence” to include inchoate offenses, including attempt offenses

like petitioner’s.

See Sentencing Guidelines § 4B1.2 comment.

(n.1) (2021) (“For purposes of [the career offender] guideline[,]

‘[c]rime of violence’ and ‘controlled substance offense’ include

the offenses of aiding and abetting, conspiring, and attempting to

commit such offenses.”) (emphasis omitted). And although the court

of appeals did not address the question whether petitioner’s prior

10

conviction is a “crime of violence” under Sentencing Guidelines

§ 4B1.2(a)(2) (2021), it is well-settled that a “prevailing party

may defend a judgment on any ground which the law and the record

permit that would not expand the relief it has been granted.”

United States v. New York Tel. Co., 434 U.S. 159, 166 n.8 (1977);

see Gov’t C.A. Br. 38-43 (raising Section 4B1.2(a)(2) as an

alternative argument).

Petitioner

does

contest

(Pet.

12-18)

Application Note 1 to the 2021 Guidelines.

the

validity

of

But the court of

appeals had previously “upheld the authority of the Sentencing

Commission to adopt Application Note 1” and “preclude[d] any

further argument ‘that Application Note 1 improperly conflict[ed]

with the guideline text.’”

United States v. Richardson, 958 F.3d

151, 154 (2d Cir.) (citation omitted), cert. denied, 141 S. Ct.

423 (2020).

the

And while petitioner urges (Pet. 15-16) certiorari on

question

whether

that

determination

conflicts

with

this

Court’s decision in Kisor v. Wilkie, 588 U.S. 558 (2019), which

concerns the degree of deference to an agency’s interpretation of

its own regulations, that question does not warrant this Court's

review

for

reasons

set

forth

in

the

government’s

brief

in

opposition to the petition for a writ of certiorari in Ratzloff v.

United States, cert. denied, 144 S. Ct. 554 (2024) (No. 23-310).

See Br. in Opp. at 12-18, Ratzloff, supra (No. 23-310).

11

In

particular,

petitioner

overstates

the

degree

of

any

conflict about whether and how Kisor applies in the distinct

context of the Commission’s commentary to the Guidelines.

See

Gov’t Br. in Opp. at 15-17, Ratzloff, supra (No. 23-310).

In

addition, as noted above, the Commission recently amended Section

4B1.2 to incorporate the substance of former Application Note 1

into the guideline text itself.

owed

to

former

Application

See p. 7, supra.

Note

1

is

thus

The deference

of

diminishing

importance.2

As that episode illustrates, the Commission is fully

capable

resolving

of

disputes

concerning

the

application

of

particular commentary by amending the text of the Guidelines.

Indeed, the Commission has announced that one of its policy

priorities for the immediate future is the “[c]ontinuation of its

multiyear study of the Guidelines Manual to address case law

concerning

commentary.”

the

validity

and

enforceability

of

guideline

88 Fed. Reg. 60,536, 60,537 (Sept. 1, 2023); cf.

Braxton, 500 U.S. at 348 (explaining that this Court should be

“restrained and circumspect in using [its] certiorari power” to

resolve guidelines issues in light of the Commission’s “statutory

In circuits that previously declined to defer to former

Application Note 1, the government has agreed that the 2023

amendment should not be applied to defendants who committed their

offenses before its effective date. See Peugh v. United States,

569 U.S. 530, 544 (2013) (finding that Ex Post Facto Clause is

implicated for Guidelines enhancements enacted between the time of

the crime and the time of sentencing).

2

12

duty

‘periodically

to

review

and

revise’

the

Guidelines”)

(brackets and citation omitted).

This Court has repeatedly and recently denied petitions for

writs of certiorari seeking review of questions concerning the

applicability of Kisor to the Guidelines, see Gov’t Br. in Opp. at

8 n.2, Ratzloff, supra (No. 23-310) (collecting cases),3 and the

same course is warranted here.

And without plenary review and

reversal of the court of appeals’ approach to that issue, the

disposition of petitioner’s case will remain unchanged regardless

of

the

outcome

of

Delligatti.

The

petition

for

a

writ

of

certiorari should accordingly be denied.

See also, e.g., Rodriguez v. United States, No. 23-7522

(June 17, 2024); Alexander v. United States, 144 S. Ct. 1470 (2024)

(No. 23-7122); Melancon v. United States, 144 S. Ct. 1468 (2024)

(No. 23-7107); Thomas v. United States, 144 S. Ct. 1369 (2024)

(No. 23-6907); Maloid v. United States, 144 S. Ct. 1035 (2024)

(No. 23-6150); Smith v. United States, 144 S. Ct. 868 (2024)

(No. 23-6486); Shaw v. United States, 144 S. Ct. 867 (2024)

(No. 23-6485); Rivera v. United States, 144 S. Ct. 861 (2024)

(No. 23-6421); Reese v. United States, 144 S. Ct. 848 (2024)

(No. 23-6312); Ratzloff v. United States, 144 S. Ct. 554 (2024)

(No. 23-310).

3

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

DAVID M. LIEBERMAN

Attorney

SEPTEMBER 2024