Petition for Writ of Certiorari — Osmar Alexis Alvarez, Petitioner v. United States

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

OSMAR ALEXIS ALVAREZ,

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

APPENDIX

/s/ Christy Posnett Martin

JASON HAWKINS

Federal Public Defender

Northern District of Texas

TX State Bar No. 00759763

525 Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

(214) 767-2886 Fax

CHRISTY POSNETT MARTIN **

Assistant Federal Public Defender

Northern District of Texas

PA State Bar No. 83421

525 Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

(214) 767-2886

INDEX TO APPENDICES

Appendix A Opinion of Fifth Circuit, United States v. Alvarez, No. 23-11230,

2025 WL 943405 (5th Cir. Mar. 28, 2025)(unpublished).

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas, United States v. Alvarez,

No. 4:23-cr-000205-O-1 (Dec. 1, 2023).

APPENDIX A

Case: 23-11230

Document: 79-1

Page: 1

Date Filed: 03/28/2025

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 23-11230

Summary Calendar

____________

FILED

March 28, 2025

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Osmar Alexis Alvarez,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:23-CR-205-1

______________________________

Before Barksdale, Haynes, and Wilson, Circuit Judges.

Per Curiam:*

Osmar Alexis Alvarez pleaded guilty to possession of a firearm following

a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced Alvarez to, inter alia, an above-Guidelines range of 84-months’

imprisonment. He challenges his conviction under § 922(g)(1), contending the

statute is facially unconstitutional, by claiming it: violates the Second

Amendment; and exceeds Congress’ powers under the Commerce Clause. In

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-11230

Document: 79-1

Page: 2

Date Filed: 03/28/2025

No. 23-11230

the alternative, he contends his sentence is substantively unreasonable in the

light of the 18 U.S.C. § 3553(a) sentencing factors.

In challenging his conviction under 18 U.S.C. § 922(g)(1), Alvarez

contends such a conviction is facially unconstitutional under the Second

Amendment in the light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1 (2022). This challenge, however, is foreclosed by our court’s recent

decision in United States v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024), petition

for cert. docketed (U.S. 24 Feb. 2025) (No. 24-6625), holding § 922(g)(1) is

facially constitutional under Bruen. See, e.g., United States v. French, 121 F.4th

538, 538 (5th Cir. 2024) (holding same); United States v. Barber, 124 F.4th 354,

360 (5th Cir. 2024) (same). (Alvarez contends Diaz is in error. No authority

need be cited for our being bound by circuit precedent.)

He also contends § 922(g)(1) is unconstitutional because it exceeds the

scope of Congress’ authority under the Commerce Clause. As Alvarez correctly

concedes, this contention is foreclosed by United States v. Alcantar, 733 F.3d 143,

145–46 (5th Cir. 2013); but, he presents the issue to preserve it for possible

further review.

His challenge to his sentence also fails. Although post-Booker, the

Sentencing Guidelines are advisory only, the district court must avoid

significant procedural error, such as improperly calculating the Guidelines

sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such

procedural error exists, a properly preserved objection to an ultimate sentence

is reviewed for substantive reasonableness under an abuse-of-discretion

standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th

Cir. 2009). In that respect, for issues preserved in district court, its application

of the Guidelines is reviewed de novo; its factual findings, only for clear error.

E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Alvarez contends the court imposed a substantively-unreasonable,

above-Guidelines sentence by relying upon prior convictions already accounted

2

Case: 23-11230

Document: 79-1

Page: 3

Date Filed: 03/28/2025

No. 23-11230

for, or specifically excluded, by the Guidelines. This contention is unavailing,

however, as it is well-settled that the district court may rely on: factors already

taken into account by the Guidelines, including defendant’s criminal history, see

United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); or other factors,

such as defendant’s criminal conduct that did not result in convictions, see

United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).

Insofar as Alvarez’ substantive-reasonableness challenge hinges on the

extent of the variance, the court likewise did not abuse its discretion. See, e.g.,

United States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010) (upholding a 216months’ sentence based on factors already considered by Guidelines where

applicable Guidelines range was 46 to 57 months); United States v. Smith, 417

F.3d 483, 492–93 (5th Cir. 2005) (upholding upward departure from 41-month

Guidelines range maximum to 120-months’ imprisonment based upon

defendant’s criminal history). When reviewing a non-Guidelines sentence for

substantive reasonableness, we must give “due deference to the district court’s

decision that the § 3553(a) [sentencing] factors, on a whole, justify the extent of

the variance”. United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)

(citation omitted). Regarding those sentencing factors, because the record does

not reflect that the court failed to “account for a factor that should have received

significant weight”, gave “significant weight to an irrelevant or improper

factor”, or committed “a clear error of judgment in balancing” the factors, there

was no abuse of discretion. United States v. Burney, 992 F.3d 398, 399–400 (5th

Cir. 2021) (citation omitted).

AFFIRMED.

3

APPENDIX B

Case 4:23-cr-00205-O Document 37 Filed 12/01/23

Page 1 of 4 PageID 136

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

Fort Worth Division

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

v.

Case Number: 4:23-CR-00205-O(01)

U.S. Marshal’s No.: 68473-510

Levi Thomas, Assistant U.S. Attorney

Andrenette Sullivan, Attorney for the Defendant

OSMAR ALEXIS ALVAREZ

On August 23, 2023 the defendant, OSMAR ALEXIS ALVAREZ, entered a plea of guilty as to Count

One of the Indictment filed on July 13, 2023. Accordingly, the defendant is adjudged guilty of such Count, which

involves the following offense:

Title & Section

18 U.S.C. § 922(g)(1) and §924(a)(8)

Nature of Offense

Possession of a Firearm by a Convicted Felon

Offense Ended

12/12/2022

Count

One

The defendant is sentenced as provided in pages 2 through 4 of this judgment. The sentence is imposed

pursuant to Title 18, United States Code § 3553(a), taking the guidelines issued by the United States Sentencing

Commission pursuant to Title 28, United States Code § 994(a)(1), as advisory only.

The defendant shall pay immediately a special assessment of $100.00 as to Count One of the Indictment

filed on July 13, 2023.

The defendant shall notify the United States Attorney for this district within thirty days of any change of

name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this

judgment are fully paid.

Sentence imposed December 1, 2023.

____________________________________________

REED O’CONNOR

U.S. DISTRICT JUDGE

Signed December 1, 2023.

Case 4:23-cr-00205-O Document 37 Filed 12/01/23

Page 2 of 4 PageID 137

Page 2 of 4

Judgment in a Criminal Case

Defendant: OSMAR ALEXIS ALVAREZ

Case Number: 4:23-CR-00205-O(1)

IMPRISONMENT

The defendant, OSMAR ALEXIS ALVAREZ, is hereby committed to the custody of the Federal Bureau

of Prisons (BOP) to be imprisoned for a term of EIGHTY-SEVEN (87) MONTHS as to Count One of the

Indictment filed on July 13, 2023. This sentence shall run concurrently with any future sentence which may be

imposed in Case Nos. 1754363D and 1760000D in the 432nd District Court, Tarrant County, Texas, as these

offenses are related to the instant offense. This sentence shall run consecutive with any future sentence which

may be imposed in Case Nos. 1759999D; 1760001D; 1767723D; and 1776412D in the 432nd District Court,

Tarrant County, Texas; and in Case No. 1764983 in Tarrant County Criminal Court No. 4, as these offenses are

unrelated to the instant offense.

The Court recommends to the BOP that the defendant be allowed to participate in the Residential Drug

Treatment Program and the GED program, if eligible. The Court makes a non-binding recommendation to the

BOP that Defendant, if appropriately classified, be allowed to serve his term of imprisonment as near as

geographically possible to an FCI facility in Fort Worth, Texas.

The defendant is remanded to the custody of the United States Marshal.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of

THREE (3) YEARS as to Count One of the Indictment filed on July 13, 2023.

As part of your supervised release, you must comply with the following standard conditions of

supervision. These conditions are imposed because they establish the basic expectations for your behavior while

on supervision and identify the minimum tools needed by probation officers to keep informed, report to the court

about, and bring about improvements in your conduct and condition.

( 1)

( 2)

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( 6)

You must report to the probation office in the federal judicial district where you are authorized to

reside within 72 hours of your release from imprisonment, unless the probation officer instructs

you to report to a different probation office or within a different time frame.

After initially reporting to the probation office, you will receive instructions from the court or the

probation officer about how and when you must report to the probation officer, and you must report

to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside

without first getting permission from the court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live

or anything about your living arrangements (such as the people you live with), you must notify the

probation officer at least 10 days before the change. If notifying the probation officer in advance

is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you

must permit the probation officer to take any items prohibited by the conditions of your supervision

that he or she observes in plain view.

Case 4:23-cr-00205-O Document 37 Filed 12/01/23

Page 3 of 4 PageID 138

Judgment in a Criminal Case

Defendant: OSMAR ALEXIS ALVAREZ

Case Number: 4:23-CR-00205-O(1)

( 7)

( 8)

( 9)

(10)

(11)

(12)

(13)

Page 3 of 4

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If you do not have full-time employment you must

try to find full-time employment, unless the probation officer excuses you from doing so. If you

plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If

notifying the probation officer at least 10 days in advance is not possible due to unanticipated

circumstances, you must notify the probation officer within 72 hours of becoming aware of a

change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If

you know someone has been convicted of a felony, you must not knowingly communicate or

interact with that person without first getting the permission of the probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation

officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of

causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential

human source or informant without first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an

organization), the probation officer may require you to notify the person about the risk and you

must comply with that instruction. The probation officer may contact the person and confirm that

you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

In addition the defendant shall:

not commit another federal, state, or local crime;

not illegally possess controlled substances;

cooperate in the collection of DNA as directed by the probation officer;

not possess a firearm, ammunition, destructive device, or any dangerous weapon;

refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15

days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the

court;

pay the assessment imposed in accordance with 18 U.S.C. § 3013;

take notice that if this judgment imposes a fine, you must pay in accordance with the Schedule of

Payments sheet of this judgment;

Case 4:23-cr-00205-O Document 37 Filed 12/01/23

Page 4 of 4 PageID 139

Page 4 of 4

Judgment in a Criminal Case

Defendant: OSMAR ALEXIS ALVAREZ

Case Number: 4:23-CR-00205-O(1)

participate in outpatient mental health treatment services as directed by the probation officer until

successfully discharged, which services may include prescribed medications by a licensed physician,

with the defendant contributing to the costs of services rendered (copayment) at a rate of at least $25 per

month; and,

participate in an outpatient program approved by the probation officer for treatment of narcotic or drug

or alcohol dependency that will include testing for the detection of substance use, abstaining from the

use of alcohol and all other intoxicants during and after completion of treatment, contributing to the

costs of services rendered (copayment) at the rate of at least $25 per month.

FINE/RESTITUTION

The Court does not order a fine or costs of incarceration because the defendant does not have the financial

resources or future earning capacity to pay a fine or costs of incarceration.

Restitution is not ordered because there is no victim other than society at large.

RETURN

I have executed this judgment as follows:

Defendant delivered on _____________________ to ___________________________________

at ________________________________________________, with a certified copy of this judgment.

United States Marshal

BY

Deputy Marshal