Petition for Writ of Certiorari — Stanley Ray Lubkin, Petitioner v. United States

No. __________

IN THE

Supreme Court of the United States

STANLEY RAY LUBKIN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Suha S. Najjar

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER’S OFFICE

1901 Assembly Street, Suite 200

Columbia, South Carolina 29201

Telephone: 803-724-6426

Email: Suha_Najjar@fd.org

Counsel of Record for Petitioner

QUESTIONS PRESENTED

I.

Whether an erroneous application of the ACCA enhanced penalty

constitutes a sentence imposed in excess of the statutory maximum

penalty.

II.

Whether a criminal defendant's waiver in his plea agreement of the right

to appeal his “sentence” covers an appeal of an erroneous application of

the ACCA enhanced penalty.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW ......................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISION INVOLVED ...................................................................... 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 5

REASONS FOR GRANTING THE PETITION ............................................................ 7

I.

The Pervasive Use Of Appeal Waivers In Plea Agreements Underscores The

Need For This Court's Intervention. ................................................................. 7

II.

The Questions Presented Are Important And On Which National Uniformity

Is Needed. ........................................................................................................... 8

III. The Decision Below Is Wrong And Violates The Separation Of Powers

Doctrine............................................................................................................. 10

IV. The Case Provides An Appropriate Vehicle To Answer The Question Left

Open In Garza. ................................................................................................. 16

CONCLUSION............................................................................................................. 19

APPENDIX

Published Opinion of the United States Court of Appeals

for the Fourth Circuit entered December 4, 2024 ........................................... 1A

Judgment of the United States Court of Appeals

for the Fourth Circuit entered December 4, 2024 ......................................... 17A

Judgment in a Criminal Case of the United States District Court

for the District of South Carolina entered March 16, 2023........................... 18A

ii

TABLE OF AUTHORITIES

Cases

Ableman v. Booth, 62 U.S. 506 (1859) ........................................................................... 9

Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013)..................................................... 10

Class v. United States, 583 U.S. 174 (2018)............................................................ 3, 13

Garza v. Idaho, 586 U.S. 232 (2019) ................................................................. 5, 16, 17

King v. United States, 41 F.4th 1363 (11th Cir. 2022) ............................................... 18

Lafler v. Cooper, 566 U.S. 166 (2012)................................................................ 7, 11, 13

Rinaldi v. United States, 434 U.S. 22 (1977) .............................................................. 15

Roe v. Flores-Ortega, 528 U.S. 470 (2000) .................................................................. 16

Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) ........................................... 18

United States v. Adkins, 636 F.3d 432 (8th Cir. 2011) ................................................. 9

United States v. Andis, 333 F.3d 886 (8th Cir.) ................................................ 8, 12, 17

United States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000) ......................... 15

United States v. Barlow, 17 F.4th 599 (5th Cir. 2021) ........................................... 8, 17

United States v. Bownes, 405 F.3d 634 (7th Cir.) ......................................................... 8

United States v. Broce, 488 U.S. 563 (1989) ................................................................. 3

United States v. Brown, 232 F.3d 399 (4th Cir. 2000) ............................................... 10

United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993) ........................................... 8

United States v. Carson, 855 F.3d 828 (7th Cir. 2017) ................................................. 9

United States v. Chem. & Metal Indus., Inc., 677 F.3d 750 (5th Cir. 2012) .............. 17

United States v. De-La-Cruz Castro, 299 F.3d 5 (1st Cir. 2002) ................................ 17

United States v. Doe, 49 F.4th 589 (1st Cir. 2022) ....................................................... 9

iii

United States v. Elliott, 264 F.3d 1171 (10th Cir. 2001) ............................................ 17

United States v. Gray, No. 23-11334, 2025 WL 459196 (11th Cir. Feb. 11, 2025) ...... 9

United States v. Green, 346 F. Supp. 2d 259 (D. Mass. 2004) .................................... 14

United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009) ............................................ 18

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) ............................................... 8

United States v. Heikes, 525 F.3d 662 (8th Cir. 2008) ................................................. 9

United States v. Hollins, 97 F. App’x. 477 (5th Cir. 2004) ........................................... 8

United States v. Jones, 743 F.3d 826 (11th Cir. 2014) ................................................. 9

United States v. Kelly, 915 F.3d 344 (5th Cir. 2019) .................................................... 8

United States v. Khattak, 273 F.3d 557 (3d Cir. 2001) ................................................ 8

United States v. Kim, 988 F.3d 803 (5th Cir. 2021) ..................................................... 8

United States v. Marin, 961 F.2d 493 (4th Cir. 1992) ............................................ 8, 11

United States v. Moore, No. 6:24-CR-40-RBD-EJK, 2024 WL 5011842 (M.D. Fla.

Dec. 6, 2024) ............................................................................................................. 14

United States v. Morefield, No. 1:18-CV-03054-SAB, 2018 WL 3945605 (E.D. Wash.

Aug. 16, 2018) ........................................................................................................... 14

United States v. Newbold, 791 F.3d 455 (4th Cir. 2015) ............................................ 10

United States v. Pearson, 570 F.3d 480 (2d Cir. 2009) ............................................... 17

United States v. Phillips, 174 F.3d 1074 (9th Cir. 1999) ............................................. 8

United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995) ........................................ 15

United States v. Rosa, 123 F.3d 94 (2d Cir. 1997). ....................................................... 8

United States v. Sistrunk, 432 F.3d 917 (8th Cir. 2006) ............................................ 17

United States v. Taylor-Sanders, 88 F.4th 516 (4th Cir. 2023) ................................. 17

iv

United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) ............................................... 8, 18

United States v. Thompson, 54 F.4th 849 (5th Cir. 2022) ............................................ 8

United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) .............................................. 9

United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. Mar. 30,

2010) ......................................................................................................................... 14

United States v. Walker, 423 F. Supp. 3d 281 (S.D.W. Va. 2017) .............................. 14

United States v. White, 584 F.3d 935 (10th Cir. 2009) ............................................... 17

United States v. White, 987 F.3d 340 (4th Cir. 2021) ................................................... 9

United States v. Wilmore, 282 F. Supp. 3d 937 (S.D.W. Va. 2017) ............................ 14

United States v. Yung, 37 F.4th 70 (3d. Cir. 2022) ............................................... 15, 18

United States v. Zink, 107 F. 3d 716 (9th Cir. 1997) .................................................. 17

Vowell v. United States, 938 F.3d 260 (6th Cir. 2019) ................................................. 9

Welch v. United States, 578 U.S. 120 (2016) ........................................................... 3, 13

Whalen v. United States, 445 U.S. 684 (1980) .............................................................. 4

Statutes

18 U.S.C. § 922(g) ...................................................................................................... 3, 5

18 U.S.C. § 3742 ............................................................................................................. 5

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

28 U.S.C. § 2255 ............................................................................................................. 5

Pub. L. 117-159 .............................................................................................................. 5

Other Authorities

Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons

from Administrative Law, 61 Stan. L. Rev. 869 (2009) ...................................... 7, 11

v

Ronald Wright & Marc Miller, Honesty and Opacity in Charge Bargains, 55 Stan. L.

Rev. 1409 (2003) ................................................................................................... 7, 15

John H. Langbein, On the Myth of Written Constitutions: The Disappearance of

Criminal Jury Trial, 15 Harv. J.L. & Pub. Pol'y 119 (1992) .................................. 14

Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909 (1992) ................ 11

Kevin Bennardo, Post-Sentencing Appellate Waivers, 48 U. Mich. J.L. Reform 347

(2015) .......................................................................................................................... 7

Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev.

989 (2006) ................................................................................................................... 4

Klein et al., Waiving the Criminal Justice System: An Empirical and Constitutional

Analysis, 52 Am. Crim. L. Rev. 73 (2015) ........................................................... 7, 16

Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books

(Nov. 20, 2014) ............................................................................................................. 13

H. Lee Sarokin, Why Do Innocent People Plead Guilty?, HuffPost

(May 29, 2012, 4:39 PM) .............................................................................................. 13

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Stanley Ray Lubkin, respectfully prays that a writ of certiorari

issues to review the opinion and judgment of the United States Court of Appeals for

the Fourth Circuit in Case No. 23-4190, entered on December 4, 2024.

OPINION BELOW

The Fourth Circuit’s opinion (App. 1A-16A) is reported at 122 F.4th 522. Mr.

Lubkin did not file a petition for rehearing or rehearing en banc. The district court’s

judgment (App. 18A-27A) is unreported.

JURISDICTION

The Fourth Circuit issued its opinion and entered its judgment on December

4, 2024. App. 17A. This Court has jurisdiction under 28 U.S.C. § 1254(1). This

petition is filed within 90 days of December 4, 2024

STATUTORY PROVISION INVOLVED

Section 924(e)(1) of Title 18 of the United States Code provides:

In the case of a person who violates section 922(g) of this

title and has three previous convictions by any court

referred to in section 922(g)(1) of this title for a violent

felony or a serious drug offense, or both, committed on

occasions different from one another, such person shall be

fined under this title and imprisoned not less than fifteen

years, and, notwithstanding any other provision of law, the

court shall not suspend the sentence of, or grant a

probationary sentence to, such person with respect to the

conviction under section 922(g).

1

INTRODUCTION

An appeal waiver is not an absolute bar to appellate review. This Court has

held that a court “lacks the power to exact a penalty that has not been authorized

by any valid criminal statute,” Welch v. United States, 578 U.S. 120, 134 (2016), and

has reiterated “that a guilty plea does not bar a claim on appeal ‘where on the face

of the record the court had no power to . . . impose the sentence,’” Class v. United

States, 583 U.S. 174, 181 (2018) (quoting United States v. Broce, 488 U.S. 563, 569

(1989)). And though this Court has yet to rule on the scope of their validity, circuit

courts have uniformly agreed that an appellate waiver may not bar a defendant

from contesting “a sentence imposed in excess of the statutory maximum.” In the

decision below, the Fourth Circuit rejected this principle in the context of enhanced

penalties under the Armed Career Criminal Act (“ACCA”). The remaining circuit

courts are divided.

Petitioner pled guilty to one count of felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g), pursuant to a plea agreement that included an

appellate waiver. At sentencing, and over Petitioner’s objection, the district court

found he committed three prior South Carolina state offenses that qualified as

“serious drug felonies” under ACCA. Therefore, the court imposed the enhanced

fifteen (15) year minimum penalty rather than the non-ACCA ten (10) year

maximum penalty.

Petitioner waived his right to appeal or collaterally attack his 18 U.S.C. §

922(g) conviction or sentence as part of a written plea agreement. However, because

the district court erroneously applied ACCA's enhancement, Petitioner’s sentence

2

constitutes an illegal sentence, a claim outside the scope of a boilerplate appeal

waiver.1 In its opinion below, the Fourth Circuit characterizes this fundamental

defect as “mere legal error.” App. 13A. It is not. Defining crimes and prescribing

penalties is a legislative function, not a judicial function. A district court exceeds its

judicial power by imposing a sentence in excess of the statutory maximum

proscribed by the legislature because the authority to define and fix the punishment

for crime “resides wholly with Congress.” Whalen v. United States, 445 U.S. 684,

689 (1980).

Coincidentally, the lack of judicial oversight in the pervasive plea-bargaining

system—which allows prosecutors to dictate the charge, conviction, and penalty—

has reduced the role of courts to merely ascertaining whether a plea was entered

knowingly and voluntarily. “It is an administrative system where the prosecutor

combines both executive and judicial power--posing the very danger the Framers

tried to prevent.” Rachel E. Barkow, Separation of Powers and the Criminal Law, 58

Stan. L. Rev. 989, 1048 (2006). And expansive appeal waivers have only further

solidified the state of virtually unchecked executive power in our criminal justice

system. See The Federalist No. 47. (“The accumulation of all powers, legislative,

executive, and judiciary, in the same hands, whether of one, a few, or many, and

whether hereditary, selfappointed, or elective, may justly be pronounced the very

definition of tyranny.”).

1

Petitioner uses the term “illegal sentence” to refer to a sentence imposed in

excess of the statutory maximum.

3

This case provides the appropriate vehicle to answer the question left open in

Garza v. Idaho, 586 U.S. 232 (2019): what rights and claims remain “unwaivable”

regardless of a broad appeal waiver. Id. at 239, n. 6.

The Court should grant certiorari.

4

STATEMENT OF THE CASE

Petitioner pled guilty to a violation of 18 U.S.C. § 922(g) pursuant to a

written plea agreement. The agreement included an appeal waiver which provided:

The Defendant is aware that 18 U.S.C. § 3742 and 28

U.S.C. § 2255 afford every defendant certain rights to

contest a conviction and/or sentence. Acknowledging those

rights, the Defendant, in exchange for the concessions

made by the Government in this Plea Agreement, waives

the right to contest either the conviction or the sentence

in any direct appeal or other post-conviction action,

including any proceedings under 28 U.S.C. § 2255. This

waiver does not apply to claims of ineffective assistance of

counsel, prosecutorial misconduct, or future changes in

the law that affect the Defendant’s sentence.

At sentencing, Petitioner objected to his ACCA classification arguing that

because the South Carolina definition of “methamphetamine” is categorically

broader than the federal definition of “methamphetamine” under the Controlled

Substances Act, his three prior South Carolina convictions do not qualify as

predicate serious drug offenses. The district court overruled his objection and

imposed a sentence of fifteen (15) years.2

On appeal to the Fourth Circuit, Petitioner renewed his argument that he did

not qualify as an armed career criminal. The government argued that his ACCA

claim fell within the scope of the appeal waiver. By way of a published opinion

dated December 4, 2024, the Fourth Circuit dismissed the appeal. Without

2

The Bipartisan Safer Communities Act, which took effect on June 25, 2022,

increased the maximum penalty for §922(g) offenses from ten (10) years to fifteen

(15) years’ imprisonment. Pub. L. 117-159, 136 Stat. 1313, 1329. Petitioner’s offense

occurred prior to its enactment.

5

considering Petitioner’s arguments on the merits, the Fourth Circuit determined

that the waiver was enforceable because the sentence “plainly does not exceed the

statutory maximum.” App. 10A. The Fourth Circuit further found that Petitioner’s

argument “boils down to a claim of legal error” which “fall firmly outside [the]

exception for ‘illegal’ sentences and do not circumvent valid appeal waivers.” App.

13A.

This petition follows.

6

REASONS FOR GRANTING THE PETITION

I.

The Pervasive Use Of Appeal Waivers In Plea Agreements

Underscores The Need For This Court's Intervention.

The question of the enforceability of appeal waivers is recurrent and

important. Lafler v. Cooper, 566 U.S. 166, 170 (2012) (“Criminal justice today is for

the most part a system of pleas, not a system of trials.”). Since their introduction in

the early 1990s, appeal waivers have spread “like wildfires.” See Klein et al.,

Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52

Am. Crim. L. Rev. 73, 76-88 (2015). As a condition for a negotiated guilty plea, the

vast majority of criminal defendants are compelled to forego their rights to

appellate review. Kevin Bennardo, Post-Sentencing Appellate Waivers, 48 U. Mich.

J.L. Reform 347, 348 (2015). Given the ever-growing “accumulation of adjudicative

and executive powers in the prosecutor's office,” Rachel E. Barkow, Institutional

Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan.

L. Rev. 869, 887 (2009) [hereinafter Policing Prosecutors], the need for this Court’s

intervention in this matter is most critical. See also Ronald Wright & Marc Miller,

Honesty and Opacity in Charge Bargains, 55 Stan. L. Rev. 1409, 1415 (2003) (“We

now have not only an administrative criminal justice system, but one so dominant

that trials take place in the shadow of guilty pleas.”). As a consequence of the rapid

rise of appeal waivers, widespread disagreement and confusion about their

meaning, scope, and enforceability exists within and among the circuit courts.

7

II.

The Questions Presented Are Important And On Which National

Uniformity Is Needed.

Despite circuit courts’ near uniform position on the unenforceability of appeal

waivers in the context of illegal sentences,3 there remains great uncertainty and

confusion about what constitutes an “illegal sentence”—including whether an

erroneous ACCA designation constitutes an illegal sentence. In fact, the Fifth

Circuit has repeatedly elected not to address this specific issue due to its

complexity. See United States v. Barlow, 17 F.4th 599, 602 (5th Cir. 2021)

(“[R]esolution of the waiver issue would be more difficult than resolving whether

[defendant's] state convictions were serious drug felonies.”); United States v.

Thompson, 54 F.4th 849, 851 (5th Cir. 2022) (“follow[ing] the wisdom” of the Barlow

panel). But see United States v. Kelly, 915 F.3d 344 (5th Cir. 2019) (concluding

appeal waiver bars ACCA enhancement challenge).

The Sixth Circuit has determined that a sentence imposed as a result of an

erroneous ACCA enhancement is a sentence imposed in excess of the statutory

3

See, e.g., United States v. Kim, 988 F.3d 803, 810 (5th Cir. 2021); United

States v. Bownes, 405 F.3d 634, 637 (7th Cir.), cert. denied, 546 U.S. 926 (2005);

United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004); United States v. Andis,

333 F.3d 886, 891 (8th Cir.), cert. denied, 540 U.S. 997 (2003); United States v.

Teeter, 257 F.3d 14, 25 n. 10 (1st Cir. 2001); United States v. Phillips, 174 F.3d

1074, 1076 (9th Cir. 1999); United States v. Bushert, 997 F.2d 1343, 1350 n. 18 (11th

Cir. 1993), cert. denied, 513 U.S. 1051 (1994); United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992); see also United States v. Khattak, 273 F.3d 557, 563 (3d Cir.

2001); United States v. Rosa, 123 F.3d 94, 100 & n. 5 (2d Cir. 1997). Cf. United

States v. Hollins, 97 F. App’x. 477, 479 (5th Cir. 2004) (“[A] § 2255 waiver does not

preclude review of a sentence that exceeds the statutory maximum.”).

8

maximum, a claim that remains outside the scope of an appellate waiver. See

Vowell v. United States, 938 F.3d 260, 268 (6th Cir. 2019). See also United States v.

Jones, 743 F.3d 826, 828 (11th Cir. 2014).

The Fourth, Seventh and Eleventh Circuits have barred defendants from

appealing their ACCA designation as a result of broad appeal waivers. App. 1A;

United States v. Carson, 855 F.3d 828, 831 (7th Cir. 2017). These circuits, however,

have determined that an appeal waiver that explicitly reserves a defendant’s right

to appeal an illegal sentence or any sentence in excess of the statutory maximum,

sufficiently preserves the right to challenge an erroneous ACCA designation. See

e.g. United States v. White, 987 F.3d 340, 342 n.2 (4th Cir. 2021); United States v.

Gray, No. 23-11334, 2025 WL 459196, at *4 (11th Cir. Feb. 11, 2025); United States

v. Adkins, 636 F.3d 432, 434 (8th Cir. 2011); United States v. Heikes, 525 F.3d 662,

664 (8th Cir. 2008).

And while the First Circuit has also hinted at the enforceability of broad

appellate waivers when challenging a district court’s erroneous ACCA designation,

United States v. Doe, 49 F.4th 589, 598 (1st Cir. 2022), the Tenth Circuit appears to

disagree, United States v. Titties, 852 F.3d 1257, 1263 n. 4 (10th Cir. 2017).

The divergence among the circuits is both confusing and arbitrary, defying

the fundamental principle of uniformity in federal law. See Ableman v. Booth, 62

U.S. 506 (1859) (“[I]t is manifest that this ultimate appellate power in a tribunal

created by the Constitution itself was deemed essential . . . to make the

Constitution and laws of the United States uniform.”). Petitioner should not be

9

compelled to serve an illegal sentence simply because he resides in Columbia, SC

and not Nashville, TN. This Court’s guidance is desperately needed given the

ubiquity of appeal waivers and the lack of clarity and uniformity among the circuits

as a result.

III.

The Decision Below Is Wrong And Violates The Separation Of

Powers Doctrine.

Enforcing waivers that preclude review of ACCA enhancements allows courts

to impose sentences beyond what Congress has authorized, effectively permitting

the judicial branch to overstep its constitutional boundaries. By allowing

prosecutors to insulate sentences from appellate review, this practice can also lead

to executive overreach; waivers will result in unchecked executive power,

undermining the judiciary’s role in ensuring lawful sentencing.

The Fourth Circuit previously ruled that “a defendant who does not

constitute an armed career criminal has received a punishment that the law cannot

impose upon him.” United States v. Newbold, 791 F.3d 455, 460 (4th Cir. 2015)

(cleaned up). Echoing the Eleventh Circuit, it went on to state that “[i]t is axiomatic

that ‘there are serious, constitutional, separation-of-powers concerns that attach to

sentences above the statutory maximum penalty authorized by Congress,’ for it is as

if the defendant ‘is being detained without authorization by any statute.’” Id. (citing

Bryant v. Warden, 738 F.3d 1253, 1283 (11th Cir. 2013). See also United States v.

Brown, 232 F.3d 399, 405 (4th Cir. 2000) (court “troubled” by government’s

“fail[ure] to state that the waiver did not preclude an appeal of a sentence in excess

of the statutory maximum”).

10

In the opinion below, however, the Fourth Circuit’s constitutional concerns

dissipated entirely. The Fourth Circuit instead focused on how the government was

“deprive[d]” of its side of the bargain, admonishing that “the government should not

have to brief merits claims like Lubkin's when they are plainly foreclosed by valid

appeal waivers.” App. 15A.

The Fourth Circuit’s reasoning contradicts not only its own precedent, see

Marin, 961 F.2d at 493 (“[A] defendant could not be said to have waived his right to

appellate review of a sentence imposed in excess of the maximum penalty provided

by statute.”), but also the reality of plea bargaining in the federal criminal system:

the government’s immensely superior bargaining power. “To a large extent … horse

trading [between prosecutor and defense counsel] determines who goes to jail and

for how long. That is what plea bargaining is. It is not some adjunct to the criminal

justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as

Contract, 101 Yale L. J. 1909, 1912 (1992). From mandatory minimums to trial

penalties—and now all-encompassing boilerplate appeal waivers—prosecutors wield

the ability to effectively coerce a defendant into a plea agreement. See Policing

Prosecutors, supra, at 878; Lafler, 566 U.S. at 185 (Scalia, J. dissenting) (Plea

bargaining “presents grave risks of prosecutorial overcharging that effectively

compels an innocent defendant to avoid massive risk by pleading guilty to a lesser

offense.”). A divided panel of the Eighth Circuit addressed these concerns two

decades ago:

As a practical matter, however, I doubt criminal defendants have the

prescience and bargaining power necessary to participate as full and equal

11

players in the contractual process [relating to plea agreements]. Applying

pure contract theory in the plea bargain context insufficiently accounts

for the imbalance of power between prosecutors and defendants.

Nor does contract theory acceptably govern the disparate consequences to the

parties should they misjudge the risks. I am particularly troubled by the risk

of an egregious and unbounded sentencing decision that could not be foreseen

even by diligent counsel.

Andis, 333, F.3d at 886 (Bye, K. concurring) (emphasis added).

Given the power disparity between Petitioner and the Government of the

United States of America and the resultant playing field that is acutely tilted in the

Government’s favor, this court should scrupulously police appeal waivers,

particularly when those waivers are interpreted to bar an appeal from an illegal

sentence.4

4

Moreover, “the prosecutor-dictated plea bargain system, by creating such

inordinate pressures to enter into plea bargains, appears to have led a significant

number of defendants to plead guilty to crimes they never actually committed.” Jed

S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014). The

pressure often comes from their own defense attorneys, too. The plea-bargaining

process often involves “intimidation by the prosecution and incompetence by the

defense.” H. Lee Sarokin, Why Do Innocent People Plead Guilty?, HuffPost (May 29,

2012, 4:39 PM), https://www.huffingtonpost.com/judge-h-lee-sarokin/innocentpeople-guilty-pleas_b_1553239.html (last updated July 29, 2012). Judge Sarokin

goes on to state,

The defendant, frightened, most often poor, uneducated, a

minority member is advised that a trial is likely to end with a

conviction and a long sentence, whereas a plea will guarantee a

much shorter sentence. Despite his protestations of innocence,

the defendant seeks guidance frequently from an over-worked,

underpaid defense lawyer who would much prefer a quick deal

rather than a long drawn out trial. Of course, not all defense

counsel fit that description. Many do not, but even the best and

most devoted are required to put this draconian choice to their

clients—a guaranteed short sentence versus a potentially long

one—possibly life in prison.

12

The Fourth Circuit’s opinion also violates the separation of powers principle.

“Because the ordinary maximum sentence for a felon in possession of a firearm is 10

years, while the minimum sentence under the Armed Career Criminal Act is 15

years, a person sentenced under the Act will receive a prison term at least five years

longer than the law otherwise would allow.” Welch, 578 U.S. at 122–23. Petitioner

received a prison term five years longer than the law otherwise would allow. It is an

illegal sentence. The Court must not allow prosecutors, the executive branch, to

enter plea agreements which impose conditions that allow courts, the judicial

branch, to encroach into the legislature’s constitutional domain. In this case, the

district court illegally extended Petitioner’s sentence. Thus, “the court had no power

to . . . impose the sentence.” Class, 583 U.S. at 181.

Given the trivialized threat to one of the core tenants of our democracy, it is

no surprise that district court judges have also sounded the alarms about executive

aggrandizement in criminal matters. In a recent order, Judge Dalton expressed his

concerns regarding executive encroachment of the judiciary, stating

Much ink has been spilled on how mandatory minimums are

inherently flawed, encroach on the separation of powers, and rob

judges of the means to impose fair sentences. And when the

Legislature's failures collide with the Executive's, we are all

tarnished by the result. In this case, the prosecution has done an

end-run around equity, significantly overplayed its hand, and

failed to exercise its prosecutorial discretion to allow the

imposition of a just sentence.

13

United States v. Moore, No. 6:24-CR-40-RBD-EJK, 2024 WL 5011842, at *2

(M.D. Fla. Dec. 6, 2024) (internal citations omitted). See also United States v.

Morefield, No. 1:18-CV-03054-SAB, 2018 WL 3945605, at *6 (E.D. Wash. Aug. 16,

2018) (“Rule 11(c)(1)(C) plea agreements and statutory mandatory minimums alter

the separation of power dynamic and tend to tip the scales toward the executive

branch, which can create the danger of too much prosecutorial discretion over the

sentencing decision.”); United States v. Wilmore, 282 F. Supp. 3d 937, 945 (S.D.W.

Va. 2017) (“Such an administrative system where the prosecutor acts as judge and

jury poses a danger that the Framers intended to prevent.”) (citing John H.

Langbein, On the Myth of Written Constitutions: The Disappearance of Criminal

Jury Trial, 15 Harv. J.L. & Pub. Pol'y 119, 124 (1992) (“Plea bargaining achieves

just what the Framers expected the jury to prevent, the aggrandizement of state

power.”)); United States v. Walker, 423 F. Supp. 3d 281, 293 (S.D.W. Va. 2017) (“We

now resolve almost every criminal case by a process that is no longer justified by the

circumstances making it acceptable in the first place.”); United States v. Vasquez,

No. 09-CR-259 (JG), 2010 WL 1257359, at *5 (E.D.N.Y. Mar. 30, 2010) (“[T]here was

no judging going on at [defendant]’s sentencing . . . the prosecutor's refusal to

permit consideration of a lesser sentence ended the matter, rendering irrelevant all

the other factors that should have been considered to arrive at a just sentence.”);

United States v. Green, 346 F. Supp. 2d 259, 313 (D. Mass. 2004), vacated in part

sub nom. United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005), and vacated and

remanded sub nom. United States v. Pacheco, 434 F.3d 106 (1st Cir. 2006)

14

(recognizing that “prosecutorial abuse is possible, that it was by no means unknown

to the framers of the Constitution, and that when an individual's liberty is at stake,

it is not sufficient to rely on the Department's well-deserved professional

reputation”).

Petitioner does not suggest abolishing plea bargaining, plea agreements, or

even reasonable appeal waivers. Rather, he urges this Court to consider the

tremendous bargaining power the prosecutor wields, and how appellate courts play

a crucial role in checking that power. Because “[e]ven if the defendant consents,

[courts] cannot turn a blind eye to punishment for acts not criminalized by

Congress. The judiciary must safe-guard the separation of powers.” United States v.

Yung, 37 F.4th 70, 82 (3d. Cir. 2022). Broadly drafted boilerplate appeal waivers are

“clearly contrary to manifest public interest,” Rinaldi v. United States, 434 U.S. 22,

30 (1977), as they effectively gut this necessary judicial oversight—and the

separation of powers principle—in the criminal arena, where “trials [continue to]

take place in the shadow of guilty pleas,” Wright & Miller, supra, at 1415.5

5

This is particularly true given courts’ heightened caution against limiting

prosecutorial independence under the separation of powers doctrine. See e.g. United

States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir. 2000) (“Courts generally

have no place interfering with a prosecutor's discretion regarding whom to

prosecute, what charges to file, and whether to engage in plea negotiations.”);

United States v. Robertson, 45 F.3d 1423, 1438 (10th Cir. 1995) (“[W]hile district

courts may reject charge bargains in the sound exercise of judicial discretion,

concerns relating to the doctrine of separation of powers counsel hesitancy before

second-guessing prosecutorial choices.”)

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IV.

The Case Provides An Appropriate Vehicle To Answer The Question

Left Open In Garza.

In Garza, this Court held that the presumption of prejudice announced in Roe

v. Flores-Ortega, 528 U.S. 470 (2000), applies where trial counsel fails to file a

notice of appeal upon a defendant’s request, even though the defendant's plea

agreement included an appeal waiver. 586 U.S. at 232. This Court went on to clarify

that “no appeal waiver serves as an absolute bar to all appellate claims” and “while

signing an appeal waiver means giving up some, many, or even most appellate

claims, some claims nevertheless remain.” Id. at 238. While surveying the circuit

courts’ exceptions to appeal waivers, this Court “ma[de] no statement [ ] on what

particular exceptions may be required.” Id. at 239 n. 6.

This case provides an appropriate vehicle to answer that question. First, the

appellate waiver language in the plea agreement represents one of the broader

boilerplate provisions used in the country. See Klein et al., supra, at 86. Notably,

during the oral argument in the matter sub judice, Judge Wilkinson expressed

confusion at the language contained within the plea agreement, calling it “mushy”

and “vague.” 6 During this colloquy, the government admits that the language

contained within the subject plea agreement is “standard” for the District of South

Carolina. Id. Clarity for the bench and bar is needed in order to interpret these plea

agreements with precision.

6

Oral argument dated November 1, 2024 (28:00-30:40)

https://www.ca4.uscourts.gov/OAarchive/mp3/23-4190-20241101.mp3 (last accessed

March 2, 2025).

16

Second, the ACCA element of the challenge would resolve much confusion in

other appeal waiver challenges. As previously explained, the question of whether an

erroneous ACCA enhancement qualifies as an illegal sentence has vexed the circuit

courts. See e.g. Barlow, 17 F.4th at 602. Another example arises in the question of

whether a criminal defendant's waiver of the right to appeal their “sentence” covers

an appeal of an order of restitution. Compare United States v. Taylor-Sanders, 88

F.4th 516, 519 (4th Cir. 2023), United States v. Chem. & Metal Indus., Inc., 677

F.3d 750, 752 (5th Cir. 2012), and United States v. Zink, 107 F. 3d 716, 718 (9th Cir.

1997), with United States v. Pearson, 570 F.3d 480, 485 (2d Cir. 2009), and United

States v. Sistrunk, 432 F.3d 917, 918 (8th Cir. 2006). The ACCA element of this case

will provide guidance on how to address more nuanced questions such as the

restitution question because both require interpreting what an “illegal sentence”

means.

Third, circuit courts have carved “illegal sentence,” “miscarriage of justice,”

and “due process” exceptions to broad appeal waivers.7 But they offer little guidance

and uniformity on their applicability. Compare United States v. White, 584 F.3d

935, 948 (10th Cir. 2009) (holding that appeal waiver made in a plea agreement

results in a miscarriage of justice where the sentence exceeds the statutory

7

Andis, 333 F.3d at 891-92 (“[A] defendant has the right to appeal an illegal

sentence, even though there exists an otherwise valid waiver.”); United States v.

Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001) (recognizing that “[a]ppellate waivers

are subject to certain exceptions” and “a defendant who waives his right to appeal

does not subject himself to being sentenced entirely at the whim of the district

court”); see also United States v. De-La-Cruz Castro, 299 F.3d 5, 10 (1st Cir. 2002).

17

maximum), and Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011)

(same), with Yung, 37 F.4th at 82 (waiving “right to appeal a conviction for acts that

are not a crime” amounts to miscarriage of justice), Teeter, 257 F.3d at 25 (limiting

miscarriage of justice exception to only “egregious cases”), King v. United States, 41

F.4th 1363, 1368 n.3 (11th Cir. 2022) (“we note that our Circuit has never adopted a

general ‘miscarriage of justice’ exception to the rule that valid appeal waivers must

be enforced according to their terms”), and United States v. Guillen, 561 F.3d 527,

529 (D.C. Cir. 2009) ( miscarriage of justice occurs when a “district court utterly

fails to advert to the factors in 18 U.S.C. § 3553(a)”). This case provides an avenue

to assess his claim and provide clarity on the distinct contours of each of those

exceptions.

Fourth, the dispute turns on a pure question of law: whether petitioner's

appeal waiver is enforceable. It has no factual or procedural impediments. And the

lower courts have thoroughly ventilated the questions presented. The questions are

ready for this Court’s review.

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CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

s/ Suha S. Najjar

Suha S. Najjar

Assistant Federal Public Defender

Federal Public Defender’s Office

1901 Assembly Street, Suite 200

Columbia, South Carolina 29201

Telephone: 803.724.6426

Email: Suha_Najjar@fd.org

Counsel of Record for Petitioner

Columbia, South Carolina

March 3, 2025

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