Reply Brief — Arturo Garza, Jr., Petitioner v. United States

No. 24-7396

IN THE

SUPREME COURT OF THE UNITED STATES

ARTURO GARZA, JR.,

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

___________________

REPLY BRIEF FOR PETITIONER

___________________

PHILIP G. GALLAGHER

Federal Public Defender

Southern District of Texas

R. VICTORIA GARCÍA-CROSS

Assistant Federal Public Defender

Counsel of Record

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

Victoria_Garcia-Cross@fd.org

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..................................................................................................... i

TABLE OF CITATIONS .................................................................................................... ii

REPLY BRIEF FOR PETITIONER ................................................................................... 1

A.

As the government acknowledges, there is a clear circuit split. ......................... 1

B.

This issue is important and only this Court can resolve it. ................................. 4

C.

The government’s only vehicle objection is baseless. ........................................ 6

D.

The government’s merits arguments provide no basis to deny review. ............. 9

CONCLUSION ................................................................................................................. 12

i

TABLE OF CITATIONS

Page

CASES

Holguin-Hernandez v. United States, 589 U.S. 169 (2020) ................................................ 2

Hughes v. United States, 584 U.S. 675 (2018) .................................................................... 7

Joseph v. United States, 574 U.S. 1038 (2014) ................................................................... 3

Mirchandani v. United States, 836 F.2d 1223

(9th Cir. 1988).................................................................................................................. 5

Molina-Martinez v. United States, 578 U.S. 189 (2016) ............................................ 5, 7, 9

Ortega-Rodriguez v. United States, 507 U.S. 234 (1992) ................................................ 3-4

Pepper v. United States, 562 U.S. 476 (2011) .................................................................... 8

Pereira v. Sessions, 585 U.S. 198 (2018)............................................................................ 2

Peugh v. United States, 569 U.S. 530 (2013) ...................................................................... 2

Rosales-Mireles v. United States, 585 U.S. 129 (2018) ................................................ 8, 10

Santos-Zacaria v. Garland, 598 U.S. 411 (2023) ............................................................... 2

Thomas v. Arn, 474 U.S. 140 (1985) ................................................................................ 3-4

United States v. Bell, 988 F.2d 247

(1st Cir. 1993) .................................................................................................................. 2

United States v. Burke, 863 F.3d 1355

(11th Cir. 2017)............................................................................................................ 2, 5

United States v. Cheveres-Morales, 83 F.4th 34

(1st Cir. 2023) .................................................................................................................. 3

United States v. Cornelius, 968 F.2d 703

(8th Cir. 1992).................................................................................................................. 2

United States v. Curzado-Laureano, 527 F.3d 231

(1st Cir. 2008) .................................................................................................................. 3

ii

TABLE OF CITATIONS – (cont’d)

Page

CASES – (cont’d)

United States v. Klump, 57 F.3d 801

(9th Cir. 1995).............................................................................................................. 2, 5

United States v. Lee, 358 F.3d 315

(5th Cir. 2004).............................................................................................................. 2, 9

United States v. Ponce, 51 F.3d 820

(9th Cir. 1995).................................................................................................................. 2

United States v. Stinson, 97 F.3d 466

(11th Cir. 1996)................................................................................................................ 2

United States v. Ticchiarelli, 171 F.3d 24

(1st Cir. 1999) ..................................................................................................... 2-3, 5, 10

United States v. Tidwell, 827 F.3d 761

(8th Cir. 2016).............................................................................................................. 2, 5

STATUTES AND RULES

18 U.S.C. § 3553 ................................................................................................................. 7

28 U.S.C. § 2106 ................................................................................................................. 4

Fed. R. App. P. 47(a) ........................................................................................................... 3

SENTENCING GUIDELINES

USSG §1B1.3 ...................................................................................................................... 6

USSG §4A1.2(a)(1) .......................................................................................................... 5-6

USSG §4A1.3, comment. (n.1) ........................................................................................... 6

USSG §4B1.3 ...................................................................................................................... 6

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. III, § 1 ....................................................................................................... 4

iii

TABLE OF CITATIONS – (cont’d)

Page

MISCELLANEOUS

BIO, Ciminelli v. United States, 598 U.S. 306 (2023)

(No. 21-1170), 2022 WL 1670844 .................................................................................. 7

BIO, Diaz v. United States, 602 U.S. 526 (2024)

(No. 23-14), 2023 WL 6390633 ...................................................................................... 7

BIO, Hemphill v. New York, 595 U.S. 140 (2022)

(No. 20-637), 2021 WL 795842 ...................................................................................... 7

BIO, Samia v. United States, 599 U.S. 635 (2023)

(No. 22-196), 2022 WL 16699024 .................................................................................. 7

Pet., Babb v. Wilkie, 589 U.S. 399 (2020)

(No. 18-882), 2019 WL 142393 ...................................................................................... 2

Pet., Bittner v. United States, 598 U.S. 85 (2023)

(No. 21-1195), 2022 WL 625111 .................................................................................... 2

Pet., Intel Corp. Inv. Pol’y Comm. v. Sulyma, 589 U.S. 178 (2020)

(No. 18-1116), 2019 WL 968660 .................................................................................... 2

iv

REPLY BRIEF FOR PETITIONER

The government does not, and cannot, contest that there is a circuit split regarding

the interpretation of the mandate rule at resentencing. Nor does the government dispute

the importance of this issue. The government instead argues that a uniform rule is

unnecessary in this context, despite the inconsistency resulting in disparate sentencing

practices across the country. It asserts that the U.S. Sentencing Commission is best

positioned to address the issue, despite the presence of complex legal questions falling

outside the Commission’s purview. And it claims that any error by the lower court was

harmless in this case, despite the district court’s express reliance on the disputed

Sentencing Guidelines range at resentencing. The government also devotes much of its

brief to the merits, arguing that the Fifth Circuit properly applied its own precedent, but

never justifying the circuit’s interpretation of the mandate rule. These arguments are all

unpersuasive. The mandate rule should apply uniformly at resentencing, and the length of

a defendant’s prison term should not depend on whether they receive their sentence in

Houston, Texas or in Boston, Massachusetts. This Court should grant review to resolve

the entrenched disagreement over this recurring issue.

A. As the government acknowledges, there is a clear circuit split.

The government concedes that the courts of appeals have adopted distinct

interpretations of the mandate rule at resentencing. BIO 10-11. It does not deny that the

Second, Sixth, Eighth, Ninth, and Eleventh Circuits generally follow a default rule of de

novo resentencing, while the First, Fifth, Seventh, and D.C. Circuits follow a default rule

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of limited resentencing. See United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992);

United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); United States v. Stinson, 97 F.3d

466, 469 (11th Cir. 1996); compare with United States v. Bell, 988 F.2d 247, 251 (1st Cir.

1993); United States v. Lee, 358 F.3d 315, 323 n.4 (5th Cir. 2004). And it acknowledges

that the Fifth, Eighth, Ninth, and Eleventh Circuits interpret the mandate rule to permit

recalculation of a defendant’s criminal history points based on intervening convictions at

resentencing, while the First Circuit maintains the opposite position. BIO 11-12; see also

United States v. Tidwell, 827 F.3d 761, 763-64 (8th Cir. 2016); United States v. Klump, 57

F.3d 801, 803 (9th Cir. 1995); United States v. Burke, 863 F.3d 1355, 1359-60 (11th Cir.

2017); compare with United States v. Ticchiarelli, 171 F.3d 24, 34-37 (1st Cir. 1999).

There is no dispute that the question presented is the subject of an entrenched split, one

that results in different outcomes for similarly situated defendants.

The existence of this entrenched circuit split warrants certiorari.

The Court

routinely grants certiorari to resolve splits that involve only one jurisdiction. See, e.g., Pet.,

Bittner v. United States, 598 U.S. 85 (2023) (No. 21-1195), 2022 WL 625111, at *21-23

(1-1 split); Pet., Babb v. Wilkie, 589 U.S. 399 (2020) (No. 18-882), 2019 WL 142393, at

*12-17 (same); Pet., Intel Corp. Inv. Pol’y Comm. v. Sulyma, 589 U.S. 178 (2020) (No.

18-1116), 2019 WL 968660, at *12-16 (same). The Court also routinely grants certiorari

to resolve “lopsided” splits. See, e.g., Santos-Zacaria v. Garland, 598 U.S. 411, 415 n.2-3

(2023) (9-1 and 4-2 splits); Holguin-Hernandez v. United States, 589 U.S. 169, 172-73

(2020) (8-1 split); Pereira v. Sessions, 585 U.S. 198, 207 & n.4 (2018) (6-1 split); Peugh

v. United States, 569 U.S. 530, 535 & n.1 (2013) (5-1 split).

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The government claims that the First Circuit is an “outlier” jurisdiction that may

change course in the future. BIO 11. But it offers no meaningful support for that claim.

The First Circuit set forth its decision on this issue over two decades ago. See Ticchiarelli,

171 F.3d at 34-37. Since then, it has maintained its interpretation of the mandate rule and

has repeatedly invoked and applied Ticchiarelli in published cases. See, e.g., United States

v. Cheveres-Morales, 83 F.4th 34, 42-44 (1st Cir. 2023); United States v. CurzadoLaureano, 527 F.3d 231, 235 (1st Cir. 2008). In fact, it has specifically declined to

characterize Ticchiarelli as an “outlier,” characterizing that decision as establishing “the

law of this circuit.” Cheveres-Morales, 83 F.4th at 42-44. There is no sign that the First

Circuit will revisit this decades-old precedent. Nor should it, given that the majority’s

position is wrong for the reasons explained below and in the petition.

Unable to deny the existence of a circuit split, the government instead argues there

is no need for a uniform rule on this issue. BIO 11. It asserts the case law on this issue

“can appropriately be treated as local rules,” and emphasizes that local rules need not be

consistent across jurisdictions. Id. (citing Thomas v. Arn, 474 U.S. 140, 146-148 (1985),

Ortega-Rodriguez v. United States, 507 U.S. 234, 251 n.24 (1992), Joseph v. United States,

574 U.S. 1038, 1038 (2014) (Kagan, J., respecting the denial of certiorari)).

But this case does not involve a local rule. Federal Rule of Appellate Procedure

47(a) specifies that each court of appeals may make and amend rules governing its practice.

However, no court of appeals has promulgated any local resentencing rule under Federal

Rule of Appellate Procedure 47(a). Nor has any court exercised “supervisory powers” to

promulgate “procedural rules governing the management of litigation” with respect to the

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mandate-rule issue in this case. Arn, 474 U.S. at 145 (citation omitted and cleaned up).

The government does not argue otherwise in its brief, and it cites no cases in which a court

of appeals has described its interpretation of the mandate rule as a local rule. On the

contrary, the courts of appeals that have addressed the question presented all characterize

their divergence on this issue as a matter of differing legal analysis, not as the product of

varying local discretion. This case is not about local practice. It is about the interpretation

of a legal doctrine with constitutional and statutory roots. See Pet. 14 n.5 (citing U.S.

CONST. art. III, § 1; 28 U.S.C. § 2106).

Even if this issue involved a rule promulgated through the use of supervisory

powers, it would merit certiorari. As the government acknowledges, local rules must still

be reasonable and consistent with constitutional and statutory law. BIO 11 (citing Arn, 474

U.S. at 146-48). This Court has previously granted certiorari to decide whether such rules

violate federal law, as illustrated by the very cases cited in the government’s opposition

brief. See Arn, 474 U.S. at 146-48 (reviewing the Sixth Circuit’s rule that the failure to file

objections to a magistrate judge’s recommendation waived the right to appeal); OrtegaRodriguez, 507 U.S. at 251 n.24 (reviewing the Eleventh Circuit’s rule that a defendant is

deemed to forfeit his right to appeal by fleeing while his case is pending in the district

court, even if that defendant is recaptured before sentencing and appeal). Far from

weighing against certiorari, these cases support review.

B. This issue is important and only this Court can resolve it.

The question presented involves interpretation of the mandate rule, a doctrine

foundational to the country’s judicial system. See Mirchandani v. United States, 836 F.2d

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1223, 1225 (9th Cir. 1988). It has a significant human impact because it affects the

Sentencing Guidelines calculation on remand, which has an anchoring effect on the

eventual sentence. Molina-Martinez v. United States, 578 U.S. 189, 198-99 (2016). And

the question comes up repeatedly in criminal proceedings.

See Pet. 11-13 (citing

authorities).

The government correctly does not dispute any of these points. It argues instead

that, to the extent this issue is rooted in a reading of Sentencing Guidelines Section

4A1.2(a)(1), the Sentencing Commission is best positioned to address it. BIO 11-12. That

argument lacks merit.

For one, the question presented does not center exclusively on the proper

interpretation of Sentencing Guidelines Section 4A1.2(a)(1). It involves a broader question

concerning the interpretation of the mandate rule at resentencing. In Ticchiarelli, for

example, the First Circuit decided it was error for the district court to recalculate a

defendant’s criminal history on remand based on its interpretation of the mandate rule, not

solely based on its reading of Section 4A1.2(a)(1). Id. at 35-37. The other circuits that

have addressed this question similarly center the inquiry on their interpretation of the

mandate rule. See Tidwell, 827 F.3d at 763-64; Klump, 57 F.3d at 803; Burke, 863 F.3d at

1359-60.

The issue also does not solely implicate Section 4A1.2(a)(1). That rule governs the

calculation of criminal history points under the Guidelines. USSG § 4A1.2(a)(1). But the

question presented involves a broader issue: whether the mandate rule precludes a district

court from recalculating a defendant’s total Guidelines range at resentencing based on

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intervening conviction. See Pet. i. Even if the Sentencing Commission redefines the phrase

“prior sentence” under Section 4A1.2(a)(1), questions will remain about whether

intervening convictions impact other aspects of a defendant’s Guidelines range. Can a

district court, at resentencing, apply recidivism enhancements set forth in Chapter 4 of the

Sentencing Guidelines based on intervening convictions?

See, e.g., USSG §4A1.3,

comment. (n.1) (establishing an offense level enhancement if the defendant “committed an

offense as part of a pattern of criminal conduct engaged in as a livelihood,” and noting that

a pattern of criminal conduct “may involve . . . independent offenses”); USSG §4B1.3

(establishing an enhancement for certain defendants who commit a covered sex crime and

who “engaged in a pattern of activity involving prohibited sexual conduct”). Can it

enhance a defendant’s offense level based on relevant conduct associated with intervening

convictions? See USSG §1B1.3. Any amendment to Section 4A1.2(a)(1) will not answer

these uncertainties.

The question presented is not limited to analyzing the language of a particular

Guidelines provision. It involves a difficult legal question about the breadth of the district

court’s authority on remand. Only this Court can resolve the circuits’ acknowledged

disagreement on this point.

C. The government’s only vehicle objection is baseless.

This case presents an excellent vehicle to review the question presented. Mr. Garza

squarely raised the issue below, urging both the district court and the Fifth Circuit that the

mandate rule does not permit the district court to recalculate a defendant’s Sentencing

Guidelines range on remand based on intervening convictions. The Fifth Circuit rejected

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Mr. Garza’s argument based on its interpretation of the mandate rule. And its decision on

the issue was outcome-determinative. It affected Mr. Garza’s Guidelines range, which the

district court relied upon when imposing the sentence. This case thus gives the Court a

clear path to the merits.

Despite this clarity, the government contrives a vehicle problem by asserting the

district court would have imposed the same sentence regardless of the Guidelines range.

BIO 12. It relies on a statement made by the district court at sentencing, that even if the

mandate rule prevented the court from recalculating Mr. Garza’s criminal history score,

the court nevertheless had the authority to “consider those [new convictions] under [18

U.S.C. § 3553] as a basis for a variance.” C.A. ROA.203.

The Fifth Circuit did not reach the issue of harmlessness, however. See Pet.

Appendix C at 4-6. Moreover, this Court regularly grants certiorari where the government

asserts harmless error, leaving the issue for remand. See, e.g., BIO, Diaz v. United States,

602 U.S. 526 (2024) (No. 23-14), 2023 WL 6390633, at *15-17; BIO, Samia v. United

States, 599 U.S. 635 (2023) (No. 22-196), 2022 WL 16699024, at *17; BIO, Ciminelli v.

United States, 598 U.S. 306 (2023) (No. 21-1170), 2022 WL 1670844, at *28-29; BIO,

Hemphill v. New York, 595 U.S. 140 (2022) (No. 20-637), 2021 WL 795842, at *26-27.

In any event, the error in this case is not harmless. This Court has explained that

prejudice is presumed when there is an error in the Sentencing Guidelines calculation. See

Molina-Martinez, 578 U.S. at 200-01. That presumption follows from the Guidelines’

design. The Guidelines are the starting point for every sentencing calculation. See Hughes

v. United States, 584 U.S. 675, 686 (2018). While they do not bind the district court, they

7

provide a “meaningful benchmark” in the initial determination of the sentence. RosalesMireles v. United States, 585 U.S. 129, 133 (2018) (citation omitted). Here, if the Fifth

Circuit incorrectly interpreted the mandate rule, then the district court also erred in its

Guidelines calculation. This Court can thus presume the district court would not have

imposed the same sentence under a different Guidelines range.

The district court’s statements at sentencing do not suggest otherwise. During the

hearing, the court noted its ability to consider Mr. Garza’s most recent criminal convictions

as a basis for a variance—a correct statement of law under Pepper v. United States, 562

U.S. 476 (2011). But it made this statement at the beginning of the hearing, when

explaining its view on the scope of its authority on remand. It did not make the statement

while explaining the sentence. In fact, the court explained the sentence during a later

portion of the sentencing, after hearing argument from both the prosecutor and defense

counsel. And the court framed its decision as entirely rooted in the Guidelines. It stated

that a total imprisonment term of 87 months—minus the 12 months Mr. Garza had already

spent in federal custody under a writ of habeas corpus ad prosequendum—was

“appropriate” because it was “in the middle of the 77-to-96 month range which I have held

is applicable.” C.A. ROA.203. The court never said it would have imposed the same

sentence regardless of the Guidelines calculation, or that it would have imposed a variance

based on the intervening convictions even if the Guidelines range was lower.

The bottom line is that the government has not pointed to any part of the record that

reflects harmless error. The district court sentenced Mr. Garza to 75 months in prison,

believing it was imposing a total term of imprisonment within the range recommended by

8

the Sentencing Guidelines. If Mr. Garza prevails before this Court, the district court on

remand will have the opportunity, and the obligation, to consider the correct Guidelines

range. Under Molina-Martinez, this Court can presume that change in the applicable

Guidelines range will make a difference.

D. The government’s merits arguments provide no basis to deny review.

Because it cannot dispute the circuit split, or persuasively deny the importance of

the issue and the strength of this vehicle, the government’s opposition brief discusses the

merits at length. These arguments do not present a basis for declining to resolve this

acknowledged circuit conflict. In any event, they are unpersuasive.

The government asserts that the Fifth Circuit was correct on the merits because the

mandate rule does not require a lower court to disregard intervening developments that

could not have been raised in the original appeal. BIO 8-9 (citing Lee, 358 F.3d at 323).

That argument assumes the conclusion. The government never explains why the Fifth

Circuit was correct to adopt this broad interpretation of the mandate rule. Nor does it

explain why Lee required that outcome. Its silence on these points is striking, particularly

since the government offers this argument as its primary point in opposition to certiorari.

The government denies that the lower court’s decision is inconsistent with other

statutory restrictions on the district court’s power to resentence. It argues that the federal

statutes cited in the petition do not directly apply, noting that 18 U.S.C. § 3583 limits a

district court’s ability to modify an existing sentence but does not apply at resentencing;

and 18 U.S.C. § 3742(g)(1) requires a resentencing court to apply the version of the

9

Guidelines in effect at the time of the original sentencing but does not decide the question

presented.

Those arguments miss the point. Mr. Garza does not argue that those statutes

directly prevent a district court from recalculating a defendant’s Guidelines range at

resentencing. He argues that a broad interpretation of the mandate rule is at odds with other

federal laws offering a more restrictive vision of the district court’s authority after

sentencing. A narrower interpretation of the mandate rule—one that does not allow

recalculation of the sentencing Guidelines on remand—is “most consistent” with this

statutory sentencing scheme. Ticchiarelli, 171 F.3d at 35-36.

The government also dismisses the significant consequences of the Fifth Circuit’s

decision. It does not, and cannot, dispute that the rule complicates the resentencing process

and undermines judicial economy. However, it denies any unfairness associated with the

Fifth Circuit’s rule, arguing it is appropriate for a district court to sentence a defendant

“based on the most up-to-date and complete information regarding the defendant’s criminal

history and conduct.” BIO 10. That argument ignores how the Fifth Circuit’s rule results

in criminal defendants being penalized for judicial error. Take Mr. Garza’s case. If the

district court had not erred at the original sentencing, he would have faced a Guidelines

range of 46-57 months’ imprisonment. Instead, after his successful appeal—and despite

no new criminal conduct on his part—he faced a Guidelines range of 77-96 months’

imprisonment. The Fifth Circuit’s rule thus punished Mr. Garza for the district court’s

mistake. That is as unfair as it gets. See Rosales-Mireles, 585 U.S. at 140. This Court

10

should grant certiorari to address this important question and to bring uniformity to

criminal sentencing procedure.

11

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

PHILIP G. GALLAGHER

Federal Public Defender

Southern District of Texas

s/ R. Victoria García-Cross

R. VICTORIA GARCÍA-CROSS

Assistant Federal Public Defender

Counsel of Record

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

Victoria_Garcia-Cross@fd.org

December 10, 2025

12