Petition for Writ of Certiorari — Raquel Delgado Chavez, Petitioner v. United States

NO. _________

In the Supreme Court of the United States

________________

RAQUEL DELGADO CHAVEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

________________

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC

DEFENDER’S OFFICE

600 South Tyler Street

Suite 2300

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

Counsel for Petitioner

February 20, 2025

i

QUESTIONS PRESENTED

1.

Does the “depraved heart” theory of federal seconddegree murder require a causal connection between

the defendant’s “depraved” conduct and the victim’s

death?

2.

Some sentencing judges routinely assert that they

would have selected the exact same sentence

regardless of any error in applying the Sentencing

Guidelines. Should an appellate court rely on those

routine assertions when deciding whether an error is

harmless?

ii

DIRECTLY RELATED PROCEEDINGS

United States v. Raquel Delgado Chavez, No. 5:23-CR29 (N.D. Tex. Nov. 16, 2023)

United States v. Raquel Delgado Chavez, No. 23-11173

(5th Cir. Oct. 17, 2024)

iii

TABLE OF CONTENTS

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

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

Table of Authorities ..... Error! Bookmark not defined.

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

provisions Involved ..................................................... 2

Statement ................................................................... 2

A. Facts .............................................................. 2

B. District Court Proceedings ........................... 4

C. Appeal ........................................................... 5

Reasons for Granting the Petition ............................. 7

I.

THE DECISION BELOW DEPARTED

FROM

CENTURIES

OF

ANGLOAMERICAN LEGAL TRADITION AND

EVERY KNOWN FEDERAL OR STATE

APPELLATE CASE ABOUT “DEPRAVED

HEART” MURDER ............................................. 7

A. This case turns on the federal statutory

definition of “murder.” .................................. 7

B. Murder requires concurrence between

the mens rea and actus reus. ........................ 9

C. Ms. Chavez did not commit murder. ......... 10

D. This appears to be the first and only case

in which an American court held that a

defendant committed murder based

malicious conduct after the victim was

accidentally but mortally wounded

beyond any hope of help. ............................ 11

iv

II. THE COURT SHOULD GRANT THE

PETITION AND HOLD THAT A DISTRICT

COURT

CANNOT

OPT

OUT

OF

APPELLATE REVIEW BY ROUTINE

DISCLAIMER. ................................................... 12

A. The lower courts are divided. ..................... 13

B. Experience and data suggest that most

guideline disclaimers are wrong. ............... 16

C. This case is an ideal vehicle for the Court

to address routine guideline disclaimers... 19

Conclusion................................................................. 19

Petition Appendix

Appendix A:

Fifth Circuit Opinion ................................................ 1a

Appendix B:

District Court Sentencing Transcript ...................... 4a

Appendix C:

District Court Judgment ........................................ 44a

Appendix D:

Fifth Circuit Order Denying Rehearing ................ 51a

Appendix E:

Provisions Involved ................................................ 52a

Appendix F:

Excerpts of Sentencing Transcripts ....................... 58a

v

TABLE OF AUTHORITIES

Cases

Lewis v. United States,

523 U.S. 155 (1998) ................................................ 8

Marlowe v. United States,

129 S. Ct. 450 (2008) ............................................ 12

Molina-Martinez v. United States,

578 U.S. 189 (2016) .................................. 16, 17, 18

Morissette v. United States,

342 U.S. 246 (1952) ................................................ 9

People v. Knapp,

113 A.D.2d 154 (N.Y. App. Div. 1985) ................. 12

Peugh v. United States,

569 U.S. 530 (2013) .............................................. 16

State v. Shane,

No. A06-1581, 2008 WL 660543

(Minn. App. Mar. 11, 2008) .................................. 12

United States v. Bailey,

444 U.S. 394 (1980) ................................................ 9

United States v. Conatser,

514 F.3d 508 (6th Cir. 2008) ................................ 12

United States v. Davis,

583 F.3d 1081 (8th Cir. 2009) .............................. 13

vi

United States v. Duhon,

541 F.3d 391 (5th Cir. 2008) ................................ 12

United States v. Escobedo-Moreno,

781 F. App’x 312 (5th Cir. 2019) .......................... 11

United States v. Feldman,

647 F.3d 450 (2d Cir. 2011).................................. 14

United States v. Gieswein,

887 F.3d 1054 (10th Cir. 2018) ............................ 15

United States v. Grady,

18 F.4th 1275 (11th Cir. 2021) ............................ 13

United States v. Guzman-Rendon,

864 F.3d 409 (5th Cir. 2017) ................................ 16

United States v. Henry,

1 F.4th 1315 (11th Cir. 2021) .............................. 13

United States v. Hicks,

389 F.3d 514 (5thCir. 2004) ................................. 11

United States v. Keene,

470 F.3d 1347 (11th Cir. 2006) ............................ 13

United States v. Kerlin,

No. 21-4619, 2023 WL 2010754 (4th

Cir. Feb. 15, 2023) ................................................ 12

United States v. Lemus-Gonzalez,

563 F.3d 88 (5th Cir. 2009) .............................. 7, 11

United States v. Martinez-Romero,

817 F.3d 917 (5th Cir. 2016) ................................ 15

vii

United States v. Medel-Guadalupe,

987 F.3d 424 (5th Cir. 2021) ................................ 16

United States v. Mills,

126 F.4th 470 (6th Cir. 2025) ................................ 7

United States v. Munoz-Camarena,

631 F.3d 1028 (9th Cir. 2011) ........................ 14, 15

United States v. Pena-Hermosillo,

522 F.3d 1108 (10th Cir. 2008) ............................ 15

United States v. Peterson,

887 F.3d 343 (8th Cir. 2018) ................................ 13

United States v. Redmond,

965 F.3d 416 (5th Cir. 2020) ................................ 16

United States v. Reyna-Aragon,

992 F.3d 381 (5th Cir. 2021) ................................ 16

United States v. Richardson,

676 F.3d 491 (5th Cir. 2012) .......................... 12, 16

United States v. Ritchey,

117 F.4th 762 (5th Cir. 2024) .............................. 15

United States v. Sarracino,

340 F.3d 1148 (10th Cir. 2003) ............................ 12

United States v. Seabrook,

968 F.3d 224 (2d Cir. 2020).................................. 14

United States v. Still,

6 F.4th 812 (8th Cir. 2021) .................................. 13

viii

United States v. Tanksley,

848 F.3d 347 (5th Cir. 2017) ................................ 15

United States v. Vega-Garcia,

893 F.3d 326 (5th Cir. 2018) ................................ 16

United States v. Williams,

5 F.4th 973 (9th Cir. 2021) ............................ 14, 15

United States v. Wright,

642 F.3d 148 (3d Cir. 2011).................................. 14

Statutes

8 U.S.C. § 1324(a)(1)(A)(ii) ...................................... 2, 4

8 U.S.C. § 1324(a)(1)(B)(iv) ..................................... 2, 4

18 U.S.C. § 1111(a) .............................................. 2, 7, 8

18 U.S.C. § 3553(a) .............................................. 14, 17

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

U.S.S.G. § 2L1.1(b) .................................................. 4, 7

U.S.S.G. § 2L1.1(b)(7)(D)

.............................................................. 6, 16, 18, 19

Sentencing Guidelines

U.S.S.G. § 2A1.2 .................................................... 4, 17

U.S.S.G. §§ 2A1.2(a) & 2L1.1 ...................................... 2

U.S.S.G. § 2L1.1(a) .................................................. 4, 7

ix

U.S.S.G. § 2L1.1(b)(6) ...................................... 6, 16, 19

U.S.S.G. § 2L1.1(c)(1) .................................................. 4

Rules

Federal Rule of Criminal Procedure 51 ...................... 2

S. Ct. R. 13.1 ................................................................ 1

S. Ct. R. 13.3 ................................................................ 1

S. Ct. R. 30.1 ................................................................ 1

Other Authorities

Joel P. Bishop, Commentaries on the

Criminal Law (3d ed. 1865) ................................... 9

O.W. Holmes, Jr., The Common Law 3

(1882) ...................................................................... 9

U.S. Sentencing Commission’s

Individual Sentencing Datafiles,

online at

https://www.ussc.gov/research/datafil

es/commission-datafiles ....................................... 18

Wayne R. LaFave, Substantive Criminal

Law (3d ed.) ................................................ 8, 10, 11

William Blackstone, Commentaries on

the Laws of England (St. George

Tucker ed. 1803) ..................................................... 9

x

In the Supreme Court of the United States

_________________________

No. ______

RAQUEL DELGADO CHAVEZ,

v.

Petitioner,

UNITED STATES OF AMERICA,

_________________________

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________

Raquel Delgado Chavez respectfully asks for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion below was not selected for publication.

It can be found at 2024 WL 4512339. The decision is

reprinted at pages 1a–3a of the Appendix. The district

court did not issue any written opinions, but its oral

findings are reprinted at pages 19a–26a and 36a–42a

of the Appendix.

JURISDICTION

The Fifth Circuit entered judgment on October 25,

2024, and denied rehearing on November 22. Pet. App.

51a. This petition is timely under S. Ct. R. 13.1 & 13.3.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

2

PROVISIONS INVOLVED

This case involves 8 U.S.C. § 1324(a)(1)(A)(ii) &

(a)(1)(B)(iv); 18 U.S.C. § 1111(a); Federal Rule of

Criminal Procedure 51; and U.S.S.G. §§ 2A1.2(a) &

2L1.1. These provisions are reprinted on pages 52a–

57a of the Appendix.

STATEMENT

A. Facts

On a cold, blustery, and rainy day in November

2022, Petitioner Raquel Chavez and her husband were

driving someone else’s pickup truck across Texas,

using backroads to avoid attention. Four unauthorized

migrants were crowded onto a rear bench seat made

for three. Pet. App. 20a–21a. As the truck approached

the small town of Tahoka, Texas, a faster vehicle came

up behind them. Ms. Chavez pulled to the right

shoulder to allow that other car to pass. As she merged

back into the main traffic lane, tragedy struck. The

tires lost traction on the wet pavement. As the truck

slid off the highway and tumbled, one of the

passengers was ejected. He landed face-down on the

ground, and the truck came to rest—upside down—on

top of his body. 5th Cir ROA 138, 178, 198.1 Other

motorists immediately stopped to help and called 9-11. Authorities arrived within minutes, but they were

too late: the victim suffered a “relatively quick death”

1

The Presentence Investigation Report and related materials

were filed under seal in the lower courts, so they are not reprinted

in the Petition Appendix.

3

due to massive blunt-force trauma to the head and

neck. Pet. App. 25a.

Everyone else survived. Responding motorists told

emergency dispatchers that they saw three back seat

passengers climb out of the truck and begin to flee on

foot. Ms. Chavez was knocked unconscious and unable

to free herself. App. 21a. After her husband pulled her

from the wreckage, they, too, ran away. Authorities

began to arrive “about 13 minutes” after the accident,

but they were too late to save the victim. Pet. App. 21a.

That night, Ms. Chavez and her husband huddled

together in a cold, abandoned house without medical

attention. 5th Cir. ROA 199. The next day, authorities

discovered the couple walking along the highway near

the site of the crash. 5th Cir. ROA 181–82. Ms. Chavez

was immediately hospitalized for “injuries to her head,

face, chest, upper back, and both hips.” 5th Cir.ROA

144.2 While she recovered in the hospital, a state

investigator conducted a lengthy bedside interview.

Ms. Chavez admitted that she was driving the

migrants to Dallas for money. She also told the

detective that she saw the victim trapped under the

truck but still alive and trying to free himself; that she

“tried to help move the truck”; but “the truck didn’t

move.” 5th Cir. ROA 199. No other witness reported

anything like this to police. App. 22a; see 5th Cir. ROA

181–82.

2

According to Ms. Chavez’s Presentence Investigation

Report, she suffered “a concussion, right knee contusion, minor

blunt

chest

injury,

multisystem

trauma,

and

pneumomediastinum (air in the chest cavity.” 5th Cir. ROA 151.

4

B. District Court Proceedings

Ms. Chavez pleaded guilty to “transportation of an

illegal alien resulting in death.” Pet. App. 1a; see 8

U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(iv).

The parties extensively litigated whether Ms.

Chavez should be sentenced as though she had

committed murder. The Sentencing Guideline for

alien-smuggling offenses includes a cross-reference to

“the appropriate homicide guideline” if “death

resulted” that applies “if the resulting offense level is

greater than” U.S.S.G. § 2L1.1(a)–(b). See U.S.S.G.

§ 2L1.1(c)(1).

The district court decided that Ms. Chavez had

committed second-degree murder, so it sentenced her

under U.S.S.G. § 2A1.2. App. 20a. The court

recognized that her actions before the accident would

not constitute murder: “[I]f it were just a rollover—an

inadvertent rollover crash and one too many in the

back seat, I doubt the government or the probation

officer would be advocating for the second-degree

murder cross-reference.” App. 11a. The court also

recognized that nothing Ms. Chavez should have done

for the victim after the crash would have saved him.

Other motorists had already called 9-1-1 while Ms.

Chavez was still trapped inside the truck; when

authorities arrived minutes later, the victim was

already deceased. Pet. App. 22a, 25a.

Ms. Chavez objected that a death and extremely

reckless behavior are not sufficient to prove seconddegree murder: the “extreme recklessness required”

for second-degree murder “has to contribute to the

death.” Pet. App. 10a (emphasis added). The district

5

court disagreed: When Ms. Chavez fled the scene, “she

did not know that any attempt to save [the victim]

would be futile. We know that now, but she did not

know that then.” Pet. App. 25a. The second-degree

murder guideline called for a sentence of 168–210

months in prison. Pet. App. 27a.

After emphasizing that her abandonment of the

victim was “depraved-heart, second-degree murder,”

The court sentenced her to 192 months of

imprisonment, followed by five years of supervised

release. Pet. App. 38a–40a. Despite a lengthy and

contested hearing over the propriety of the crossreference to second-degree murder, the court asserted

a belief that the elevated guideline range did not affect

the sentence:

I inform both sides that, although I believe the

guideline calculations announced today were

correct, to the extent they were incorrectly

calculated, I would have imposed the same

sentence without regard to that range, and I

would have done so for the same reasons, in

light of the 3553(a) factors.

Pet. App. 40a.

C. Appeal

On appeal, Ms. Chavez renewed her argument

that, as a matter of law, second-degree murder

required proof of concurrence between mens rea

(depraved heart) and actus reus (an act or omission

that causes, or at least contributes to, the victim’s

death). See Chavez C.A. Initial Br. 19–29; Chavez C.A.

Reply Br. 1–11. She also challenged the district court’s

6

assertion that it would have imposed the “same

sentence without regard to” the erroneous guideline

range. Chavez C.A. Initial Br. 29–34; Chavez C.A.

Reply Br. 11–21. On the second point, she emphasized

that the judge who sentenced her routinely asserts

that he would have imposed the same sentence

regardless of the guideline range. She provided

quotations from seventeen sentencing transcripts to

prove the point. See Pet. App. 58a–63a. She also

pointed out that the district court never considered the

how the alien-smuggling guideline accounts for both

risky behavior and the causation of death in the

absence of a cross-reference, and therefore never

considered the 57–71 month range that would apply

after both enhancements. See U.S.S.G. § 2L1.1(b)(6),

(b)(7)(D). She pointed to Sentencing Commission data

revealing that 82% of smuggling cases involving a

“death” enhancement were sentenced within or below

the advisory guideline range. Chavez C.A. Initial Br.

29–34.

The Fifth Circuit rejected Ms. Chavez’s arguments

and affirmed her murder-predicated sentence: “The

district court did not err in concluding that Delgado

Chavez acted in the extreme when she neglected her

duty to render aid to her passenger and callously left

him to die to avoid any consequences.” App. 2a. The

court held in the alternative that “any error” in

sentencing her as a murderer “was harmless.” App. 2a.

The court relied on its precedent holding that “a

guidelines calculation error is harmless when the

district court considers the correct guidelines range

and indicates that it would impose the same sentence

if that range applied.” App. 2a. The appellate court did

not mention the 57–71 month range that would have

7

applied under U.S.S.G. § 2L1.1(a)–(b). The court

relied heavily on the district court’s statement “that it

would have imposed the same sentence for the same

reasons even if the involuntary manslaughter

guideline had applied.” App. 3a.

Ms. Chavez sought rehearing en banc, but the Fifth

Circuit denied her petition. Pet. App. 51a. This timely

petition follows.

REASONS FOR GRANTING THE PETITION

I.

THE DECISION BELOW DEPARTED FROM

CENTURIES

OF

ANGLO-AMERICAN

LEGAL TRADITION AND EVERY KNOWN

FEDERAL OR STATE APPELLATE CASE

ABOUT “DEPRAVED HEART” MURDER

Ms. Chavez did not commit second-degree murder.

Nothing she did (or didn’t do) before the crash even

approached the level of “wanton disregard” of human

life that would support a finding of “depraved heart”

murder. And nothing she did (or didn’t do) after the

crash changed, or could have changed, the tragic

outcome of the accident itself. She was innocent of

murder as a matter of law.

A. This case turns on the federal statutory

definition of “murder.”

When deciding whether to apply a guideline crossreference for murder, “[c]ourts look to the federal

murder statute,” 18 U.S.C. § 1111(a). United States v.

Mills, 126 F.4th 470, 474 (6th Cir. 2025); accord

United States v. Lemus-Gonzalez, 563 F.3d 88, 92 &

n.7 (5th Cir. 2009). Under that definition, “[m]urder is

the unlawful killing of a human being with malice

8

aforethought.” 18 U.S.C. § 1111(a). The statute

“divides murderous behavior into two parts: a

specifically defined list of ‘first-degree’ murders and

all ‘other’ murders, which it labels ‘second-degree.’”

Lewis v. United States, 523 U.S. 155, 169 (1998).

Malice

aforethought

includes

intentional,

purposeful murders, but also includes killings caused

by a so-called “depraved heart.” Professor LaFave

provides a laundry list of actions that have presented

“the very high degree of unjustifiable homicidal

danger” necessary for depraved-heart murder:

firing a bullet into a room occupied, as the

defendant knows, by several people; starting a

fire at the front door of an occupied dwelling;

shooting into the caboose of a passing train or

into a moving automobile, necessarily occupied

by human beings; throwing a beer glass at one

who is carrying a lighted oil lamp; playing a

game of “Russian roulette” with another person; shooting at a point near, but not aiming

directly at, an-other person; driving a car at

very high speeds along a main street; shaking

an infant so long and so vigorously that it cannot breathe; selling “pure” (i.e., undiluted)

heroin.

2 Wayne R. LaFave, Substantive Criminal Law

§ 14.4(a) (3d ed.). “A very risky omission will suffice

where there is a duty to act.” Id.

9

B. Murder requires concurrence between

the mens rea and actus reus.

A basic tenet of Anglo-American criminal requires

proof of concurrence between mens rea and actus reus.

“Criminal liability is normally based upon the

concurrence of two factors, ‘an evil-meaning mind and

an evil-doing hand.’” United States v. Bailey, 444 U.S.

394, 402, (1980) (quoting Morissette v. United States,

342 U.S. 246, 251 (1952)) (cleaned up).

From William Blackstone3 to Joel Prentiss Bishop4

to Oliver Wendell Holmes5 to Robert Jackson6 to

3

“And, as a vitious will without a vitious act is no civil crime,

so, on the other hand, an unwarrantable act without a vitious will

is no crime at all. So that to constitute a crime against human

laws, there must be, first, a vitious will; and, secondly, an

unlawful act consequent upon such vitious will.” 5 William

Blackstone, Commentaries on the Laws of England 21 (St. George

Tucker ed. 1803) (emphasis added).

4

“The doctrine is also a general one, probably universal, that,

to constitute an offence, the act and intent must concur in point

of time.” 1 Joel P. Bishop, Commentaries on the Criminal Law

204 & n.5 (3d ed. 1865).

5

“[E]ven a dog distinguishes between being stumbled over

and being kicked.” O.W. Holmes, Jr., The Common Law 3 (1882);

see also id. at 54 (“On the other hand, there must be actual

present knowledge of the present facts which make an act

dangerous. The act is not enough by itself.”).

6

“Crime, as a compound concept, generally constituted only

from concurrence of an evil-meaning mind with an evil-doing

hand, was congenial to an intense individualism and took deep

and early root in American soil.” Morissette v. United States, 342

U.S. 246, 251–52 (1952).

10

Wayne LaFave7—all agree that a wrongful action

must flow from a wrongful state of mind.

C. Ms. Chavez did not commit murder.

According to Professor LaFave, the “easiest cases”

to illustrate the absence of concurrence “are those in

which the bad state of mind follows the physical

conduct, for here it is obvious that the subsequent

mental state is in no sense legally related to the prior

acts or omissions of the defendant.” 1 LaFave, supra,

§ 6.3.

Here, the district court correctly found that “any

attempt to save” the victim after he was ejected from

and crushed by the tumbling pickup truck “would be

futile.” Pet. App. 25a. “We know that now” because

multiple other people called for help, even before Ms.

Chavez escaped from the truck. Authorities were

already on their way, but they would not arrive in time

to save the victim. Thus, as a matter of law, even if Ms.

Chavez’s flight from the scene was malicious, it did not

contribute to the victim’s death. Returning to the

elements, her actions before and leading up to the

accident caused or contributed to his death, but they

were not malicious. And her actions after the death did

not “kill” the victim or contribute to his death in any

way. She did not kill him with malice aforethought.

7

1 Wayne R. LaFave, Subst. Crim. L. § 6.3 (3d ed.).

11

D. This appears to be the first and only case

in which an American court held that a

defendant committed murder based

malicious conduct after the victim was

accidentally but mortally wounded

beyond any hope of help.

It is always hard to prove a negative, but the

parties to this case have yet to identify even a one

other case in which an American court found that a

defendant killed “with malice aforethought” based on

actions (or omissions) after the victim’s death became

inevitable. In every one of Professor LaFave’s

examples of “depraved heart” murder, the extremely

reckless action actually caused the victim’s death. See

2 LaFave, supra, § 14.4(a) at nn. 23–32.

This was also true of previous Fifth Circuit

decisions applying a second-degree murder crossreference: the “extremely reckless” conduct actually

caused the victim’s death. See Lemus-Gonzales, 563

F.3d at 91 (Defendant crashed during a drunken,

high-speed, and insanely reckless attempt to evade

police in a minivan packed to the brim with

migrants.); United States v. Escobedo-Moreno, 781 F.

App’x 312, 317 (5th Cir. 2019) (Defendant failed to

inform Border Patrol that a migrant was trapped

inside a cramped compartment, where he eventually

asphyxiated.); United States v. Hicks, 389 F.3d 514,

529–30 (5thCir. 2004) (Defendant shot at the

illuminated light bar atop an occupied police car; one

of the shots struck one of the officers and killed him).

To be sure, courts have affirmed homicide

convictions where the defendant failed to render aid to

an already injured victim. But in every one of those

12

cases, the victim could have survived with timely

assistance. See United States v. Conatser, 514 F.3d

508, 517–18 (6th Cir. 2008); United States v. Kerlin,

No. 21-4619, 2023 WL 2010754, at *2–3 (4th Cir. Feb.

15, 2023); United States v. Sarracino, 340 F.3d 1148,

1157–58 (10th Cir. 2003); People v. Knapp, 113 A.D.2d

154, 157 (N.Y. App. Div. 1985); State v. Shane, No.

A06-1581, 2008 WL 660543, at *5 (Minn. App. Mar.

11, 2008).

II. THE COURT SHOULD GRANT THE

PETITION AND HOLD THAT A DISTRICT

COURT CANNOT OPT OUT OF APPELLATE

REVIEW BY ROUTINE DISCLAIMER.

The Fifth Circuit held that “any error” in

sentencing Ms. Chavez as a murder “was harmless.”

Pet. App. 2a. That is a hard pill to swallow. Murder

has long been regarded as among the most heinous

crimes, and categorically different from other types of

homicide. See e.g. Marlowe v. United States, 129 S. Ct.

450, 450–51 & n.2 (2008) (Scalia, J., dissenting)

(discussing the vast differences in appropriate

punishment between murder and negligent homicide).

The Fifth Circuit reached its surprising “harmless”

holding based on a line of precedent allowing a

sentencing judge to opt out of appellate review by

asserting that he would have imposed the same

sentence, regardless of any guideline error. Pet. App.

2a–3a (citing United States v. Richardson, 676 F.3d

491, 511–12 (5th Cir. 2012) & United States v. Duhon,

541 F.3d 391, 396 (5th Cir. 2008)). The decision below

thus followed the wrong side of an entrenched circuit

split.

13

A. The lower courts are divided.

1. In the Eighth and Eleventh Circuits, a

sentencing decision is automatically insulated from

appellate review if “the district court explicitly states

that it would have imposed the same sentence of

imprisonment

regardless

of

the

underlying

Sentencing Guideline range.” United States v.

Peterson, 887 F.3d 343, 349 (8th Cir. 2018) (quoting

United States v. Davis, 583 F.3d 1081, 1094–95 (8th

Cir. 2009)). The decision below is very similar to

United States v. Still, 6 F.4th 812, 818 (8th Cir. 2021):

“Even if applying the voluntary manslaughter crossreference was procedural error, we conclude that such

error was harmless because the district court stated

that it would have varied upward had it not applied

the cross-reference.”

Like the Eighth Circuit, the Eleventh Circuit

allows sentencing judges to disclaim any reliance on

the sentencing guideline range, even after extensive

litigation about the guidelines. In the court’s own

words, a routine disclaimer is “‘all we need to know’ to

hold that any potential error was harmless.” United

States v. Henry, 1 F.4th 1315, 1327 (11th Cir. 2021)

(quoting United States v. Keene, 470 F.3d 1347, 1349

(11th Cir. 2006)); accord United States v. Grady, 18

F.4th 1275, 1291 (11th Cir. 2021) (citing Keene, 470

F.3d at 1348–49) (“[A] guidelines error is harmless if

the district court unambiguously expressed that it

would have imposed the same sentence, regardless of

the guidelines calculation.”).

14

2. The Second, Third, Ninth, and Tenth Circuits

have all rejected routine disclaimers like the one

below. Sentencing judges in the Second Circuit should

“not try to answer the hypothetical question of

whether or not it definitely would impose the same

sentence on remand if [the court of appeals] found

particular enhancements erroneous.” United States v.

Feldman, 647 F.3d 450, 460 (2d Cir. 2011). “Nor do we

believe that criminal sentences may or should be

exempted from procedural review with the use of a

simple incantation: ‘I would impose the same sentence

regardless of any errors calculating the applicable

Guidelines range.’” Id.; see also United States v.

Seabrook, 968 F.3d 224, 233–34 (2d Cir. 2020) (“[T]he

district court cannot insulate its sentence from our

review by commenting that the Guidelines range

made no difference to its determination when the

record indicates that it did.”).

In the Third Circuit, a disclaimer statement

doesn’t render a guideline error harmless. The

sentencing court would have to conduct a full, threestep sentencing process before selecting a valid

alternative sentence: (1) calculate the correct

guideline range as a starting point; (2) decide whether

to depart under the guidelines; and then (3) weigh the

18 U.S.C. § 3553(a) factors to determine whether a

variance is appropriate. United States v. Wright, 642

F.3d 148, 155–54 & n.6 (3d Cir. 2011).

The Ninth Circuit agrees: a guideline error is

harmless only if the district court “performs its

sentencing analysis twice.” United States v. Williams,

5 F.4th 973, 978 (9th Cir. 2021) (quoting United States

v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir.

15

2011)) (cleaned up). A “mere statement” that the court

would impose the same sentence “‘no matter what the

correct calculation cannot, without more, insulate the

sentence from remand’ if “the court's analysis did not

flow from an initial determination of the correct

Guidelines range.’” Id. (quoting Munoz-Camarena,

631 F.4d at 1031).

Unlike the court below, the Tenth Circuit would

give “little weight to the district court’s statement that

its conclusion would be the same ‘even if all of the

defendant’s objections to the presentence report had

been successful.’” United States v. Gieswein, 887 F.3d

1054, 1062–63 (10th Cir. 2018). The Tenth Circuit

“has rejected the notion that district courts can

insulate sentencing decisions from review by making

such statements.” Id. (citing United States v. PenaHermosillo, 522 F.3d 1108, 1109 (10th Cir. 2008)).

3. The Fifth Circuit cannot easily be sorted into one

camp or the other. Some panels agree with the Second,

Third, Ninth, and Tenth Circuits. See, e.g., United

States v. Ritchey, 117 F.4th 762, 767 (5th Cir. 2024)

(“This statement is relevant to the harmless error

inquiry, but it is not decisive.”); United States v.

Tanksley, 848 F.3d 347, 353 (5th Cir. 2017)

(“Nonetheless, it is not enough for the district court to

say the same sentence would have been imposed but

for the error.”); United States v. Martinez-Romero, 817

F.3d 917, 925–26 (5th Cir. 2016) (“The court stated

three times that even if the 16–level enhancement for

the attempted kidnapping was incorrect, it would

nonetheless impose the same 46–month sentence.”

Even so, the “sentencing error [was] not harmless.”).

16

Most published decisions follow the Eighth and

Eleventh Circuits’ approach—a district court’s

guideline disclaimer is enough to make the error

harmless. See, e.g., United States v. Reyna-Aragon,

992 F.3d 381, 387–89 (5th Cir. 2021); United States v.

Medel-Guadalupe, 987 F.3d 424, 429 (5th Cir. 2021);

United States v. Redmond, 965 F.3d 416, 420–21 (5th

Cir. 2020); United States v. Vega-Garcia, 893 F.3d 326,

328 (5th Cir. 2018); United States v. Guzman-Rendon,

864 F.3d 409, 411–12 (5th Cir. 2017). In United States

v. Richardson, 676 F.3d 491, 512 (5th Cir. 2012), the

court suggested that the district court must first have

“considered all of the possible guidelines ranges that

could have resulted if it had erred” in calculating the

guidelines. But, as this case shows, that requirement

is negotiable. The district court here never considered

how U.S.S.G. § 2L1.1(b)(6) and (b)(7)(D) would apply

given its findings about Ms. Chavez’s state of mind,

and it never considered the (probable) guideline range

of 57–71 months.

B. Experience and data suggest that most

guideline disclaimers are wrong.

“[W]hen a Guidelines range moves up or down,

offenders’ sentences tend to move with it.” MolinaMartinez v. United States, 578 U.S. 189, 199 (2016)

(quoting Peugh v. United States, 569 U.S. 530, 544

(2013)) (cleaned up). This Court has recognized that,

“in most cases” where the “court mistakenly deemed

applicable an incorrect, higher Guidelines range,” that

error will affect a defendant’s substantial rights. Id. at

200.

17

In an “ordinary case,” the Sentencing Guidelines

“serve as the starting point for the district court’s

decision and anchor the court’s discretion in selecting

an appropriate sentence.” Id. at 204. Until the very

end of the sentencing hearing, this case followed the

ordinary path. The district court told Ms. Chavez it

needed to resolve the dispute about murder “to figure

out what the advisory guideline range is before we can

go on.” Pet. App. 7a. (emphasis added). After

argument from both attorneys, the court made

detailed findings that were relevant to the murder

cross-reference and to the guideline calculation. Pet.

App. 19a–26a.

After overruling Ms. Chavez’s objection and

adopting the U.S.S.G. § 2A1.2 guideline range, the

court continued to refer to that range when

considering the parties’ arguments under 18 U.S.C.

§ 3553(a). See Pet. App. 31a (32 months would be a

large “percent reduction” from the 2A1.2 range); Pet.

App. 32a (Sentencing statistics relied upon by the

defense were “not from the second-degree murder

cross-reference”); Pet. App. 39a (The parties’

arguments convinced the court to sentence below the

top and above the bottom of the calculated range).

Aside from its references to the guideline range,

the district court also repeatedly referenced its

erroneous conclusion that Ms. Chavez committed

murder: Though her crime was not as bad as others,

“make no mistake, it is still depraved-heart, seconddegree murder under these circumstances. Pet. App.

38a.

The court’s closing disclaimer—that it “would have

imposed the same sentence without regard to that

18

range” and “would have done so for the same

reasons”—was the first suggestion that the court

would impose a significant upward variance in the

alternative.

As Ms. Chavez demonstrated below, the vast

majority

of

courts

that

applied

U.S.S.G.

§ 2L1.1(b)(7)(D) ultimately selected a sentence within

or below the resulting guideline range.8 This Court has

observed the same pattern for all sentences: “The

Commission’s statistics demonstrate the real and

pervasive effect the Guidelines have on sentencing.”

Molina-Martinez, 578 U.S. at 199.

That means judges who routinely make guideline

disclaimers almost certainly understate the

guidelines’ effect on the ultimate sentence and

overestimate the probability of an above-range

departure if the error had not been committed. And

the evidence available in this case suggests that the

sentencing court makes the same or a similar

disclaimer in all or nearly all sentencing hearings. See

Pet. App. 58a–63a. Far from identifying “unusual

circumstances,” these statements suggest a hostility

to the important process of appellate review.

8

For Fiscal Years 2018–2022, district courts applied

Guideline 2L1.1(b)(1)(D) in 108 cases. In 98 of those cases

(92.5%), the court also applied a cumulative enhancement for

“creating a substantial risk of death or serious bodily injury to

another person.” And of the 108 cases where death resulted, 66

were sentenced within the resulting guideline range and 23 were

sentenced below the range without a government motion. Chavez

C.A. Initial Br. 34 (discussing the U.S. Sentencing Commission’s

Individual

Sentencing

Datafiles,

online

at

https://www.ussc.gov/research/datafiles/commission-datafiles .

19

C. This case is an ideal vehicle for the Court

to address routine guideline disclaimers.

The district court mistakenly believed that Ms.

Chavez committed murder, and mistakenly believed

that the Sentencing Commission recommended a

sentence of 168–210 months in prison. Consistent with

those beliefs, it ordered her to serve 192 months in

prison.

The court was wrong. In fact, the Sentencing

Guideline for her smuggling offense provided

enhancements for creation of risk and for causation of

death. See U.S.S.G. § 2L1.1(b)(6), (b)(7)(d). Unlike

second-degree

murder,

these

cumulative

enhancements do not require concurrence between the

risky conduct and the tragic result. Applied correctly,

the guidelines recommended a sentence of between

57–71 months. The median sentence for a smuggling

crime where death resulted was 71 months. See

Chavez C.A. Reply Br. 34.

Without knowledge of any of this, the district court

asserted it would have imposed the same 192-month

prison sentence even without the error. Pet. App. 40a.

This Court should grant the petition for certiorari to

decide whether a routine disclaimer is enough to

insulate an erroneous sentence from appellate review.

CONCLUSION

This Court should grant the petition and set this

case for a decision on the merits.

20

Respectfully submitted,

________________________

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC

DEFENDER’S OFFICE

600 South Tyler Street

Suite 2300

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

February 20, 2025