Petition for Writ of Certiorari — Michael Samuel Dekelbaum, Petitioner v. United States

No. ___________

________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

October Term, 2024

________________________________________________________

MICHAEL SAMUEL DEKELBAUM,

DEKELBAUM

Petitioner

v.

UNITED STATES OF AMERICA,

AMERICA

Respondent

________________________________________________________

________________________________________________________

MOTION FOR LEAVE TO FILE IN FORMA PAUPERIS

________________________________________________________

The Petitioner, Michael Samuel Dekelbaum, requests leave,

pursuant to Rule 39.1 of the Supreme Court Rules, to file the attached

Petition for a Writ of Certiorari without prepayment of costs and to

proceed in forma pauperis.

Petitioner has previously sought and been granted leave to proceed

in forma pauperis in the following court: The United States District Court

for the Northern District of Texas.

Undersigned counsel was admitted to practice before the U.S.

Supreme Court June 23rd, 2014. Additionally, undersigned counsel has

1

been appointed under the Criminal Justice Act of 1964, 18 USC § 3006A.

Respectfully submitted,

/s/ John A. Kuchera

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

2

No. ___________

________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

October Term, 2024

________________________________________________________

MICHAEL SAMUEL DEKELBAUM,

DEKELBAUM

Petitioner

v.

UNITED STATES OF AMERICA,

AMERICA

Respondent

________________________________________________________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

________________________________________________________

________________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________________

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

i

Question Presented

1. Should the U.S. Supreme Court recognize a “miscarriage of justice”

exception to a waiver of appeal provision in a plea bargain for due process

sentencing procedural violations (Rule 32 of the Rules of Criminal

Procedure, and Government’s violation of a proffer agreement) that took

place after execution of the waiver and that could not have been

anticipated by the defendant?

ii

Table of Contents

Page

Question Presented

ii

Table of Contents

iii-iv

Table of Authorities

v-vii

Citation to Opinion Below

1

Jurisdiction

1

Constitutional Provision

2

Federal Rule

2

Statement of the Case

3-5

First Reason for Granting the Writ: The concept of “waiver” has 6

limitations.

Second Reason for Granting the Writ: The Supreme Court has

in the past equated “miscarriage of justice” with plain error.

6-7

Third Reason for Granting the Writ: Not all federal circuits

allow for a miscarriage of justice exception to a waiver of

appeal, and those that do have generally articulated

exceptions on an ad-hoc basis.

8-12

Fourth Reason for Granting the Writ: A waiver of appeal

should not bar complaints having to do with a court’s failure

to afford a defendant his due process right to full adversarial

testing at sentencing.

12-14

iii

Fifth Reason for Granting the Writ: A waiver of appeal should 14-16

not bar complaints regarding a sentencing court’s improper

consideration of information protected by a proffer agreement.

Conclusion

16

Certificate of Service

17

Appendix A: Opinion of Fifth Circuit Court of Appeals

iv

Table of Authorities

Page(s)

Cases

Burns v. United States,

501 U.S. 129 (1991) ............................................................................. 13

Gardner v. Florida,

430 U.S. 349 (1977) ....................................................................... 12, 13

Irizarry v. United States,

553 U.S. 708 (2008) ............................................................................. 14

Rudolph v. United States,

92 F.4th 1038 (11th Cir. 2024) ............................................................. 8

United States v. $ 87,118.00 in United States Currency, 95

F.3d 511 (7th Cir. 1996) ...................................................................... 15

United States v. Andis,

333 F.3d 886 (8th Cir. 2003) ............................................................... 11

United States v. Atherton,

106 F.4th 888 (9th Cir. 2024) ............................................................. 11

United States v. Barnes,

953 F.3d 383 (5th Cir. 2020) ............................................................... 10

United States v. Blanco,

102 F.4th 1153 (11th Cir. 2024) ......................................................... 15

United States v. Caruthers,

458 F.3d 459 (6th Cir. 2006) ............................................................... 10

United States v. Christman,

509 F.3d 299 (6th Cir. 2007) ............................................................... 14

United States v. Fortenberry,

914 F.2d 671 (5th Cir. 1990) ............................................................... 10

v

United States v. Frady,

456 U.S. 152 (1982) ............................................................................... 7

United States v. Giltner,

889 F.2d 1004 (11th Cir. 1992) ........................................................... 12

United States v. Guillen,

561 F.3d 527 (D.C. Cir. 2009) ............................................................. 12

United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) ........................................................... 11

United States v. Helding,

948 F.3d 864 (7th Cir. 2020) ............................................................... 12

United States v. Herder,

594 F.3d 352 (4th Cir. 2010) ............................................................... 14

United States v. Jacobson,

15 F.3d 19 (2d Cir. 1994) ...................................................................... 9

United States v. Johnson,

347 F.3d 412 (2d Cir. 2003) .................................................................. 9

United States v. Lovelace,

565 F.3d 1080 (8th Cir. 2009) ............................................................. 13

United States v. Mathews,

534 F. App’x 418 (6th Cir. 2013)......................................................... 10

United States v. Melvin,

730 F.3d 29 (1st Cir. 2013) ................................................................. 15

United States v. Nulf,

978 F.3d 504 (7th Cir. 2020) ................................................................. 8

United States v. Olano,

507 U.S. 725 (1993) ............................................................................... 7

United States v. Ready,

82 F.3d 551 (2d Cir. 1996) .................................................................... 6

vi

United States v. Rivera,

62 F.4th 778 (3d Cir. 2023) ................................................................... 9

United States v. Rodriguez,

897 F.2d 1324 (5th Cir. 1990) ............................................................. 13

United States v. Ruiz,

536 U.S. 622 (2002) ............................................................................... 6

United States v. Sisti,

91 F.3d 305 (2d Cir. 1996) .................................................................. 14

United States v. Smith,

No. 22-4338, __F.4th__, 2025 U.S. App. LEXIS 8764 (4th

Cir. 2025)............................................................................................. 10

United States v. Thompson,

62 F.4th 37 (1st Cir. 2023) .................................................................... 8

United States v. Tucker,

404 U.S. 443 (1972) ............................................................................. 12

United States v. Young,

470 U.S. 1 (1985) ................................................................................... 7

Sentencing Guidelines

U.S.S.G. § 2D1.1(b)(18) ............................................................................. 3

Other Authorities

U.S. Const. amend. V ................................................................................ 2

Black’s Law Dictionary (6th ed. 1990) ..................................................... 7

Fed. R. Crim. P. 32(i)(1)(C) ................................................................. 2, 13

Fed. R. Crim. P. 52(b) ............................................................................... 7

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner Michael Samuel Dekelbaum respectfully petitions for a

writ of certiorari to review the judgment of the United States Court of

Appeals for the Fifth Circuit.

Citation to Opinion Below

The opinion of the United States Court of Appeals for the Fifth

Circuit affirming Dekelbaum’s conviction and sentence is styled: United

States v. Dekelbaum, No. 24-10537, 2025 U.S. App. LEXIS 7434 (5th Cir.

March 31, 2025).

Jurisdiction

The opinion of the United States Court of Appeals for the Fifth

Circuit affirming Dekelbaum’s conviction and sentence was announced

on March 31, 2025 and is attached hereto as Appendix A. Pursuant to

Supreme Court Rule 13.3, this Petition has been filed within 90 days of

the date of the entry of judgment. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

1

Constitutional

Constitutional Provision

U.S. Const. amend. V:

V:

[N]or [shall any person] be deprived of life, liberty, or

property, without due process of law;

Federal Rule

Fed. R. Crim. P. 32(i)(1)(C)

32(i)(1)(C)

At sentencing, the court:

...

Must allow the parties’ attorneys to comment on the probation

officer’s determinations and other matters relating to an

appropriate sentence;

2

Statement of the Case

Dekelbaum entered a guilty plea to the offense of conspiracy to

possess with intent to distribute methamphetamine pursuant to a plea

agreement. The plea agreement included a waiver-of-appeal provision.

Dekelbaum filed written objections to the drug quantity for which

the presentence investigation report (PSR) held him accountable. The

drug quantity in the PSR was based on information from confidential

informants. Dekelbaum also provided competent rebuttal evidence in the

form of affidavits, and by pointing out inconsistencies in the statements

purportedly made by the confidential sources that the formed the basis

of the drug quantity calculations.

Dekelbaum also argued that he was deserving of a 2-level reduction

in his offense level under the safety valve provision set forth in U.S.S.G.

§ 2D1.1(b)(18). The Government’s written response to this objection

included eight pages of typed notes taken from the proffer sessions

between Dekelbaum and law enforcement officers. This violated the

proffer agreement. Dekelbaum objected at sentencing.

3

At the beginning of the sentencing proceedings, the district court

advised Dekelbaum’s attorneys that the court was too busy to allow

arguments on objections:

AUSA: Good afternoon, Your Honor. Shawn Smith for the United

States, the Government’s ready.

Defense Counsel: Mark Lassiter for Mr. Dekelbaum, Your Honor. And

with your permission, I will address the sentencing objections; and Mr.

Linder, my cocounsel, will be doing 3553.

Court: Well, you’re not used to appearing in front of me; but I don’t give

argument on objections anymore. We’re too busy over here. I’m going

to give you my rulings on those objections. As far as I’m concerned,

they’re preserved for appeal and you can take it up with the Fifth

Circuit.

...

We are very, very busy over here. Our criminal docket, in particular,

always runs three times the number of filings and the number of cases

as the average active judge in Dallas. Now, because of that, we have

to process these as quickly as possible, while keeping in mind giving

opportunity for defense and the United States to make their

presentations.

The only dispute over whether Dekelbaum qualified for the safety

valve provision was whether he had “truthfully provided to the

Government all information and evidence the defendant has concerning

the offense or offenses that were part of the same course of conduct or of

a common scheme or plan.” The Government put on no evidence. The

Government’s position, based on nothing more than the unsworn

4

statement of the AUSA, was that Dekelbaum had provided some

information, but not all.

On appeal, Dekelbaum gave five reasons (including the two abovereferenced) for why the waiver-of-appeal provision should not bar his

arguments on the merits. The Fifth Circuit’s opinion summarizes those

reasons and the Court’s response thereto:

Recognizing the existence of the waiver of appeal provision,

Dekelbaum argues five reasons why the waiver should not

apply: (1) the waiver does not cover a challenge to the manner

in which the sentence was determined; (2) the waiver does not

cover constitutional claims, such as his due process claim; (3)

the waiver does not apply where there has been a miscarriage

of justice; (4) the waiver does not apply because the district

court indicated he could appeal the denial of his objections to

the PSR; and (5) the waiver should not apply because the

Government breached a proffer agreement. We conclude none

of these arguments are persuasive, and therefore, the waiver

of appeal applies.

United States v. Dekelbaum, No. 24-10537, 2025 U.S. App. LEXIS 7434,

at *3-4 (5th Cir. 2025).

5

First

irst Reason for Granting the Writ: The concept of “waiver” has

limitations.

Regarding what constitutes waiver, the Supreme Court has noted:

[T]he law ordinarily considers a waiver knowing, intelligent,

and sufficiently aware if the defendant fully understands the

nature of the right and how it would likely apply in general in

the circumstances[.] (Emphasis in original.)

United States v. Ruiz, 536 U.S. 622, 629 (2002); see also United States v.

Ready, 82 F.3d 551, 556 (2d Cir. 1996) (Allowing a defendant to waive

appeal of any and every sentence “imposed in violation of law” would

invite disrespect for the integrity of the courts and discredit the

legitimacy of the sentencing process).

Second Reason for Granting the Writ: The Supreme Court has in the

past equated “miscarriage of justice” with plain error.

Black’s Law Dictionary defines “miscarriage of justice” thusly:

Decision or outcome of legal proceeding that is prejudicial or

inconsistent with substantial rights of party.

6

As used in constitutional standard of reversible error,

“miscarriage of justice” means a reasonable probability of

more favorable outcome for the defendant.

Black's Law Dictionary 999 (6th ed. 1990).

The U.S. Supreme Court has similarly equated “miscarriage of

justice” with plain error:

[T]he plain-error exception to the contemporaneous-objection

rule is to be used sparingly, solely in those circumstances in

which a miscarriage of justice would otherwise result.

(Internal quotation marks omitted).

United States v. Young, 470 U.S. 1, 15 (1985).

Rule 52(b) was intended to afford a means for the prompt

redress of miscarriages of justice. By its terms, recourse may

be had to the Rule only on appeal from a trial infected with

error so "plain" the trial judge and prosecutor were derelict in

countenancing it, even absent the defendant's timely

assistance in detecting it. The Rule thus reflects a careful

balancing of our need to encourage all trial participants to seek

a fair and accurate trial the first time around against our

insistence

that

obvious

injustice

be

promptly

redressed. (Emphasis added.)

United States v. Frady, 456 U.S. 152, 163 (1982).

We previously have explained that the discretion conferred

by Rule 52(b) should be employed in those circumstances in

which a miscarriage of justice would otherwise result.

(Cleaned up.)

United States v. Olano, 507 U.S. 725, 736 (1993).

7

Third Reason for Granting the Writ: Not all federal circuits allow for a

miscarriage of justice exception to a waiver of appeal, and those that do

have generally articulated exceptions on an ad-hoc basis.

The Eleventh Circuit does not have a miscarriage of justice

exception:

Our Circuit has long held that knowing and

voluntary waivers of the right to appeal are enforceable, and

we have never adopted a general miscarriage of justice

exception to the rule that valid appeal waivers must be

enforced according to their terms. (Cleaned up.)

Rudolph v. United States, 92 F.4th 1038, 1048 (11th Cir. 2024). Nor does

the Seventh Circuit. United States v. Nulf, 978 F.3d 504, 505 (7th Cir.

2020).

The First Circuit has set forth the following factors to be considered

in whether to apply the exception:

[T]he clarity of the error, its gravity, its character (e.g.,

whether it concerns a fact issue, a sentencing guideline, or a

statutory maximum), the impact of the error on the

defendant, the impact of correcting the error on the

government, and the extent to which the defendant

acquiesced in the result. . . . For example, we have found a

miscarriage of justice when an error of significant or

constitutional dimension is clear[.] (Cleaned up.)

United States v. Thompson, 62 F.4th 37, 42-43 (1st Cir. 2023).

8

The Second Circuit does not recognize a miscarriage of justice

exception but has found exceptions that can invalidate a waiver of appeal.

See United States v. Johnson, 347 F.3d 412, 416-16, 418-19 (2d Cir. 2003)

(indigent status); United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994)

(naturalization).

In the Third Circuit, the miscarriage of justice exception applies as

follows:

To determine whether enforcing a waiver in a plea agreement

works a miscarriage of justice, we consider the clarity of the

error, its gravity, its character (e.g., whether it concerns a fact

issue, a sentencing guideline, or a statutory maximum), the

impact of the error on the defendant, the impact of correcting

the error on the government, and the extent to which the

defendant acquiesced in the result. . . . [T]he miscarriage of

justice exception to appellate waivers applies only in "unusual

circumstances . . . with the aim of avoiding manifest injustice.

(Cleaned up.)

United States v. Rivera, 62 F.4th 778, 785 (3d Cir. 2023).

In the Fourth Circuit, miscarriage of justice claims include:

sentences imposed in excess of the maximum penalty

provided by statute or based on a constitutionally

impermissible factor such as race, . . .sentences imposed while

a defendant was deprived of counsel during his sentencing

proceedings, . . . [and] sentences imposed beyond the

authority of the district court[.] (Cleaned up.)

9

United States v. Smith, No. 22-4338, __F.4th__, 2025 U.S. App. LEXIS

8764, at *26 (4th Cir. 2025).

The Fifth Circuit has neither explicitly rejected nor adopted a

miscarriage of justice exception to enforcement of an appeal waiver.

United States v. Barnes, 953 F.3d 383, 389 (5th Cir. 2020). However, the

Court has on at least one occasion equated the exception to plain error:

We have held that plain error is an error so obvious that our

failure to notice it would seriously affect the fairness,

integrity, or public reputation of [the] judicial proceedings and

result in a miscarriage of justice. (Internal quotation marks

omitted).

United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990).

The Sixth Circuit has never expressly recognized a miscarriage-ofjustice exception to the enforcement of appellate waivers in a published

decision. United States v. Mathews, 534 F. App'x 418, 424-25 (6th Cir.

2013). The Sixth Circuit has however refused to enforce an appellate

waiver where the statutory maximum sentence was exceeded. United

States v. Caruthers, 458 F.3d 459, 472 (6th Cir. 2006).

In the Eighth Circuit, the miscarriage of justice exception includes

illegal sentences, a sentence in violation of the terms of an agreement,

10

and a claim of ineffective assistance of counsel. United States v. Andis,

333 F.3d 886, 891 (8th Cir. 2003).

In the Ninth Circuit, an appeal waiver does not apply if:

(1) the defendant raises a challenge that the sentence violates

the Constitution; (2) the constitutional claim directly

challenges

the

sentence

itself;

and

(3)

the

constitutional challenge is not based on any underlying

constitutional right that was expressly and specifically

waived by the appeal waiver as part of a valid plea agreement.

United States v. Atherton, 106 F.4th 888, 893-94 (9th Cir. 2024). This

exception also applies to a procedural constitutional challenge. Id. at 894.

In the Tenth Circuit, the miscarriage of justice exceptions applies

to four situations:

[1] where the district court relied on an impermissible factor

such as race, [2] where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the

waiver invalid, [3] where the sentence exceeds the statutory

maximum, or [4] where the waiver is otherwise unlawful.

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

In the D.C. Circuit, a defendant who waives his right to appeal his

sentence waives his right to contest “only a sentence within the statutory

11

range and imposed under fair procedures[.]”United States v. Guillen, 561

F.3d 527, 530 (D.C. Cir. 2009).

Fourth Reason for Granting the Writ: A waiver of appeal should not bar

complaints having to do with a court’s failure to afford a defendant his

due process right to full adversarial testing at sentencing.

The sentencing process must satisfy the requirements of the Due

Process Clause. Gardner v. Florida, 430 U.S. 349, 358 (1977). “The

defendant has a legitimate interest in the character of the procedure

which leads to the imposition of sentence even if he may have no right to

object to a particular result of the sentencing process.” Id. A criminal

defendant has a due process right to be sentenced based on accurate

information. United States v. Tucker, 404 U.S. 443, 447 (1972).

Reliability is a central ingredient in a due process analysis, including

where a district court sentences a defendant based on the drug-quantity

guidelines. United States v. Helding, 948 F.3d 864, 870 (7th Cir. 2020).

Due process requires that a defendant be afforded opportunity to refute

information brought against him at sentencing. United States v. Giltner,

889 F.2d 1004, 1008 (11th Cir. 1992). “Our belief that debate between

12

adversaries is often essential to the truth-seeking function of trials

requires us also to recognize the importance of giving counsel an

opportunity to comment on facts which may influence the sentencing

decision in capital cases.” Gardner v. Florida, 430 U.S. at 360.

“The court is required to resolve specifically disputed issues of fact

if it intends to use those facts as a basis for its sentence. United States v.

Rodriguez, 897 F.2d 1324, 1327 (5th Cir. 1990). Rule 32 of the Federal

Rules of Criminal Procedure creates a process for parties to present and

challenge sentencing information, and for the adjudication of disputes.

United States v. Lovelace, 565 F.3d 1080, 1090 (8th Cir. 2009). Rule 32

does not obligate a court to make a finding or determination absent a

complaint from the defendant that a mistake has been made. Rodriguez,

897 F.2d at 1327-28. Nonetheless, Rule 32 “contemplates full adversary

testing of the issues relevant to a Guideline sentence.” Burns v. United

States, 501 U.S. 129, 135 (1991). The Supreme Court has also noted:

Rule 32(i)(1)(C) requires the district court to allow the parties

to comment on matters relating to an appropriate sentence,

and given the scope of the issues that may be considered at a

sentencing hearing, a judge will normally be well-advised to

withhold her final judgment until after the parties have had a

full opportunity to present their evidence and their arguments.

Sentencing is a fluid and dynamic process and the court itself

may not know until the end whether a variance will be

13

adopted, let alone on what grounds. (Cleaned up.) (Emphasis

added.)

Irizarry v. United States, 553 U.S. 708, 715 (2008).

Rule 32 has two central policies: (1) to maximize the amount of

information available to the sentencing court, and (2) to protect a

defendant’s right to due process. United States v. Christman, 509 F.3d

299, 309 (6th Cir. 2007). The Rule is intended to provide efficient and

“focused, adversarial resolution of the legal and factual issues . . . to

ensure that a defendant is not sentenced on the basis of materially untrue

statements or misinformation.” United States v. Sisti, 91 F.3d 305, 310

(2d Cir. 1996). Defense counsel’s filing of a sentencing memorandum is

not a substitute. United States v. Herder, 594 F.3d 352, 363 n.3 (4th Cir.

2010).

Fifth Reason for Granting the Writ: A waiver of appeal should not bar

complaints regarding a sentencing court’s improper consideration of

information protected by a proffer agreement.

The First Circuit has held that “the government's adherence to the

terms of the proffer agreement is insured by the Due Process Clause, its

14

failure to adhere is perforce of constitutional dimension.” United States

v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013). Likewise, the Seventh Circuit:

Proffer agreements are unique and “ordinary contract principles are

supplemented with a concern that the bargaining process not violate the

defendant's rights to fundamental fairness under the Due Process

Clause.” United States v. $ 87,118.00 in United States Currency, 95 F.3d

511, 516-17 (7th Cir. 1996). Likewise the Eleventh Circuit. United States

v. Blanco, 102 F.4th 1153, 1163 (11th Cir. 2024).

At the time Dekelbaum entered into a plea agreement with the

Government and waived appeal, he had no reason to contemplate that he

was also giving up his right to complain in the event that the Government

violated the proffer agreement. The Government argued in its brief that

any breach of the proffer agreement had no bearing on the waiver of

appeal:

Finally, even assuming Dekelbaum could show that the

government violated the proffer agreement by introducing his

statements at sentencing for a limited purpose-which he

cannot-he fails to show how this has any bearing on the

validity or applicability of his appeal waiver.

15

Dekelbaum argues that it is a miscarriage of justice for the Fifth Circuit

to use Dekelbaum’s waiver of appeal to defeat his complaint regarding

the Government’s violation of the proffer agreement.

Conclusion

Conclusion

For the foregoing reasons, Petitioner Dekelbaum respectfully urges

this Court to grant a writ of certiorari to review the opinion of the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

/s/ John A. Kuchera

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN. 00792137

Attorney for Petitioner

16

Certificate of Service

This is to certify that a true and correct copy of the above and

foregoing Petition for Writ of Certiorari has this day been mailed by the

U.S. Postal Service, First Class Mail, to the Solicitor General of the

United States, Room 5614, Department of Justice, 10th Street and

Constitution Avenue, N.W. Washington, D.C. 20530.

SIGNED this 25th day of April, 2025.

/s/ John A. Kuchera

John A. Kuchera,

Attorney for Michael Samuel Dekelbaum

17

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