Petition for Writ of Certiorari — Jerrell Sims, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Jerrell Sims,

Petitioner,

v.

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

525 S. Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

Joel_Page@fd.org

QUESTION PRESENTED

Whether sentences of imprisonment following the revocation of

supervised release should be reviewed for reasonableness or plain

unreasonableness?

i

PARTIES TO THE PROCEEDING

Petitioner is Jerrell Sims, who was the Defendant-Appellant in the court

below. Respondent, the United States of America, was the Plaintiff-Appellee in the

court below.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

INDEX TO APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

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

OPINIONS BELOW ...................................................................................................... 1

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

STATUTORY AND RULES PROVISIONS .................................................................. 1

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

REASONS FOR GRANTING THIS PETITION ......................................................... 10

There is a long-standing division of federal authority regarding the

proper standard of review for terms of imprisonment following the

revocation of supervised release....................................................................... 10

CONCLUSION............................................................................................................. 14

iii

INDEX TO APPENDICES

Appendix A

Judgment and Opinion of Fifth Circuit

Appendix B

Judgment of Supervised Release Revocation of the United States

District Court for the Northern District of Texas

iv

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Holguin-Hernandez v. United States,

589 U.S. 169 (2020) ................................................................................................ 12

United States v. Booker,

543 U.S. 220 (2005) .......................................................................................... 10, 11

United States v. Cotton,

399 F.3d 913 (8th Cir. 2005) .................................................................................. 11

United States v. Crudup,

461 F.3d 433 (4th Cir. 2006) .................................................................................... 11

United States v. Cuddington,

812 F. App'x 241 (5th Cir. 2020)(unpublished) ..................................................... 12

United States v. Kizeart,

505 F.3d 672 (7th Cir. 2007) .................................................................................. 11

United States v. Lewis,

424 F.3d 239 (2d Cir. 2005) .................................................................................... 11

United States v. Merritt,

809 F. App'x 243 (5th Cir. 2020)(unpublished) ..................................................... 12

United States v. Miller,

634 F.3d 841 (5th Cir. 2011) .................................................................................. 11

United States v. Miqbel,

444 F.3d 1173 (9th Cir. 2006) .................................................................................. 11

United States v. Sanchez,

900 F.3d 678 (5th Cir. 2018) ............................................................................. 11, 12

United States v. Sims,

No. 24-10779, 2025 WL 1135016 (5th Cir. Apr. 17,

2025)(unpublished) ................................................................................... 8, 9, 12, 13

United States v. Stiefel,

207 F.3d 256 (5th Cir. 2000) .................................................................................. 10

v

United States v. Sweeting,

437 F.3d 1105 (11th Cir. 2006) .............................................................................. 11

Federal Statutes

18 U.S.C. § 3742 ............................................................................................................. 1

18 U.S.C. § 3742(e)................................................................................................. 10, 11

18 U.S.C. § 3742(e)(2) .................................................................................................. 10

18 U.S.C. § 3742(e)(4) ............................................................................................ 10, 11

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

USSG § 7B1.4................................................................................................................. 5

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jerrell Sims seeks a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The district court’s judgement revoking supervised release is attached as

Appendix B. The opinion of the Court of Appeals is electronically reported at United

States v. Sims, 2025 WL 1135016 (5th Cir. April 17, 2025) (unpublished). It is

reprinted in Appendix A to this Petition.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit were entered on April 17,

2025. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND RULES PROVISIONS

This Petition involves 18 U.S.C. §3742, which states:

(a) Appeal by a Defendant.—A defendant may file a notice of

appeal in the district court for review of an otherwise final sentence if

the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines; or

(3) is greater than the sentence specified in the applicable

guideline range to the extent that the sentence includes a greater fine

or term of imprisonment, probation, or supervised release than the

maximum established in the guideline range, or includes a more limiting

condition of probation or supervised release under section 3563(b)(6) or

(b)(11) [1] than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.

(b) Appeal by the Government.—The Government may file a

notice of appeal in the district court for review of an otherwise final

sentence if the sentence—

1

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines;

(3) is less than the sentence specified in the applicable guideline

range to the extent that the sentence includes a lesser fine or term of

imprisonment, probation, or supervised release than the minimum

established in the guideline range, or includes a less limiting condition

of probation or supervised release under section 3563(b)(6) or (b)(11) 1

than the minimum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.

The Government may not further prosecute such appeal without

the personal approval of the Attorney General, the Solicitor General, or

a deputy solicitor general designated by the Solicitor General.

(c) Plea Agreements.—In the case of a plea agreement that

includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules

of Criminal Procedure—

(1) a defendant may not file a notice of appeal under paragraph

(3) or (4) of subsection (a) unless the sentence imposed is greater than

the sentence set forth in such agreement; and

(2) the Government may not file a notice of appeal under

paragraph (3) or (4) of subsection (b) unless the sentence imposed is less

than the sentence set forth in such agreement.

(d) Record on Review.—If a notice of appeal is filed in the district

court pursuant to subsection (a) or (b), the clerk shall certify to the court

of appeals—

(1) that portion of the record in the case that is designated as

pertinent by either of the parties;

(2) the presentence report; and

(3) the information submitted during the sentencing proceeding.

(e) Consideration.—Upon review of the record, the court of

appeals shall determine whether the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of

reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline range

based on a factor that—

(i) does not advance the objectives set forth in section 3553(a)(2);

or

(ii) is not authorized under section 3553(b); or

(iii) is not justified by the facts of the case; or

2

(C) the sentence departs to an unreasonable degree from the

applicable guidelines range, having regard for the factors to be

considered in imposing a sentence, as set forth in section 3553(a) of this

title and the reasons for the imposition of the particular sentence, as

stated by the district court pursuant to the provisions of section 3553(c);

or

(4) was imposed for an offense for which there is no applicable

sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of

the district court to judge the credibility of the witnesses, and shall

accept the findings of fact of the district court unless they are clearly

erroneous and, except with respect to determinations under subsection

(3)(A) or (3)(B), shall give due deference to the district court’s application

of the guidelines to the facts. With respect to determinations under

subsection (3)(A) or (3)(B), the court of appeals shall review de novo the

district court’s application of the guidelines to the facts.

(f) Decision and Disposition.—If the court of appeals determines

that—

(1) the sentence was imposed in violation of law or imposed as a

result of an incorrect application of the sentencing guidelines, the court

shall remand the case for further sentencing proceedings with such

instructions as the court considers appropriate;

(2) the sentence is outside the applicable guideline range and the

district court failed to provide the required statement of reasons in the

order of judgment and commitment, or the departure is based on an

impermissible factor, or is to an unreasonable degree, or the sentence

was imposed for an offense for which there is no applicable sentencing

guideline and is plainly unreasonable, it shall state specific reasons for

its conclusions and—

(A) if it determines that the sentence is too high and the appeal

has been filed under subsection (a), it shall set aside the sentence and

remand the case for further sentencing proceedings with such

instructions as the court considers appropriate, subject to subsection (g);

(B) if it determines that the sentence is too low and the appeal

has been filed under subsection (b), it shall set aside the sentence and

remand the case for further sentencing proceedings with such

instructions as the court considers appropriate, subject to subsection (g);

(3) the sentence is not described in paragraph (1) or (2), it shall

affirm the sentence.

(g) Sentencing Upon Remand.—A district court to which a case is

remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a

defendant in accordance with section 3553 and with such instructions

as may have been given by the court of appeals, except that—

3

(1) In determining the range referred to in subsection 3553(a)(4),

the court shall apply the guidelines issued by the Sentencing

Commission pursuant to section 994(a)(1) of title 28, United States

Code, and that were in effect on the date of the previous sentencing of

the defendant prior to the appeal, together with any amendments

thereto by any act of Congress that was in effect on such date; and

(2) The court shall not impose a sentence outside the applicable

guidelines range except upon a ground that—

(A) was specifically and affirmatively included in the written

statement of reasons required by section 3553(c) in connection with the

previous sentencing of the defendant prior to the appeal; and

(B) was held by the court of appeals, in remanding the case, to be

a permissible ground of departure.

(h) Application to a Sentence by a Magistrate Judge.—

An appeal of an otherwise final sentence imposed by a United

States magistrate judge may be taken to a judge of the district court,

and this section shall apply (except for the requirement of approval by

the Attorney General or the Solicitor General in the case of a

Government appeal) as though the appeal were to a court of appeals

from a sentence imposed by a district court.

(i) Guideline Not Expressed as a Range.—

For the purpose of this section, the term “guideline range”

includes a guideline range having the same upper and lower limits.

(j) Definitions.—For purposes of this section—

(1) a factor is a “permissible” ground of departure if it—

(A) advances the objectives set forth in section 3553(a)(2); and

(B) is authorized under section 3553(b); and

(C) is justified by the facts of the case; and

(2) a factor is an “impermissible” ground of departure if it is not a

permissible factor within the meaning of subsection (j)(1).

4

STATEMENT OF THE CASE

I.

Facts and District Court Proceedings

Petitioner Jerrell Sims received an 87-month term of imprisonment and a

three-year term of supervised release for unlawfully possessing a gun. See (Record in

the Court of Appeals, at 184-186). Probation petitioned to revoke the term of release

citing an assault arrest. See (Record in the Court of Appeals, at 240). But it

subsequently withdrew that Petition on evidence that Petitioner acted in self-defense,

securing secured a dismissal of the charges after seven months pre-trial

incarceration. See (Record in the Court of Appeals, at 240, 512-513). But on May 3,

2024, Probation petitioned again, citing a lengthy series of positive urinalyses in the

first months of 2024. See (Record in the Court of Appeals, at 240-243). The Petition

found an advisory range of 5-11 months imprisonment under USSG §7B1.4, but a

statutory maximum of two years imprisonment. See (Record in the Court of Appeals,

at 242).

The district court convened a revocation hearing on May 28, 2024, see (Record

in the Court of Appeals, at 508), and Petitioner pleaded true to the allegations of

drug use in the Petition, see (Record in the Court of Appeals, at 511). However, the

court continued the hearing 30 days to permit the defendant to continue with medical

treatments and demonstrate a commitment to sobriety. See (Record in the Court of

Appeals, at 523). It cautioned Petitioner:

that if you come back here with additional violations of the law or

violations of the terms of supervised release, you can expect 11 months,

and you can expect 24 months of supervised release…

5

(Record in the Court of Appeals, at 523).

On June 13, 2024, Probation added to the Petition an allegation that

Petitioner’s previously submitted urinalysis was confirmed positive. See (Record in

the Court of Appeals, at 253). This did not, however, reflect drug use following the

first hearing. See (Record in the Court of Appeals, at 253).

Unfortunately, Petitioner did not appear at the hearing, scheduled June 25,

2024. See (Record in the Court of Appeals, at 256). On July 29, 2024, the district

court agreed to add additional allegations to the Petition following Petitioner’s arrest,

including a new positive test for drug use submitted on June 19, 2024. See (Record in

the Court of Appeals, at 259-263). The Petition also alleged a failure to attend mental

health counseling, and it made reference to a new assault arrest. See (Record in the

Court of Appeals, at 260-262). A sealed ECF entry immediately following the new

Petition contained documents from the company that performed the drug test. See

(Record in the Court of Appeals, at 260-262).

The parties held the second revocation hearing on August 20, 2024. Petitioner

first said that he wished to plead not true to all allegations. See (Record in the Court

of Appeals, at 537). The government noted that Petitioner had already pleaded guilty,

and it stated that it would withdraw the allegation in Paragraph II of the newest

Petition, which alleged a defendant’s failure to attend mental health counseling. See

(Record in the Court of Appeals, at 537). Defense counsel then pointed out that

Petitioner

had not previously pleaded true to the allegation of a June 19, 2024,

positive drug test, as it was not performed until after the first hearing. See (Record

6

in the Court of Appeals, at 538, lines 4-10). The government withdrew that allegation as well. See (Record in the Court of Appeals, at 538, lines 11-18). After

questioning the defendant personally, the court learned that the defendant would

persist in his plea of true to the allegations before it at the last hearing. See (Record

in the Court of Appeals, at 539).

The defense presented information regarding Petitioner’s failure to attend the

scheduled hearing and advocated for a sentence of five months. See (Record in the

Court of Appeals, at 539-546). Petitioner presented information from a character

witness, see (Record in the Court of Appeals, at 543), and gave allocution, during

which time he denied all drug use, see (Record in the Court of Appeals, at 544-546).

The court ultimately imposed the statutory maximum term of imprisonment,

two years, with no further release. See (Record in the Court of Appeals, at 547).

Answering an objection to the reasonableness of the sentence, both substantive and

procedural, see (Record in the Court of Appeals, at 548), the court explained that:

[h]e continued to use illegal controlled substances, and he failed to

report to the Court for that hearing on June 25th, and did not bother to

call anybody to say why he couldn't be present, and he wasn't in the

hospital at the time.

(Record in the Court of Appeals, at 549)(emphasis added).

II.

Proceedings in the Court of Appeals

Petitioner appealed, attacking the district court’s reliance on its finding that

the defendant “continued to use illegal controlled substances” in choosing a sentence

at the statutory maximum. See Initial Brief, at 12-13. He contended that such

reliance violated due process, both because the government had dismissed the

7

allegation at the outset of the hearing and because it lacked sufficient indicia of

reliability. See id. But he also contended that reliance on this finding rendered the

ultimate sentence plainly unreasonable. See id., at 9-12. In support, he cited circuit

precedent holding that an abandoned or unreliable allegation might impair the

reasonableness of a revocation sentence. See id. (citing United States v. Foley, 946

F.3d 681 (5th Cir. 2020)). Although acknowledging that the Fifth Circuit reviewed all

supervised release sentences only for “plain unreasonableness,” he contended that

the proper standard of review was simply for “unreasonableness.” See id. at 6-7 (citing

United States v. Booker, 543 U.S. 220 (2005), and Holguin-Hernandez v. United

States, 589 U.S. 169 (2020)).

The Fifth Circuit affirmed. See [Appx. A]; United States v. Sims, No. 24-10779,

2015 WL 1135016 (5th Cir. April 17, 2025)(unpublished). It rejected the due process

claim as unpreserved, see Sims, 2015 WL 1135016, at *2, and expressly reviewed the

reasonableness

claim

for

“plain

unreasonableness”

rather

than

mere

“unreasonableness,” see id. at *1. (“Although Sims asserts that his revocation

sentence should be reviewed for reasonableness, he does so only to preserve that issue

for further review. That contention lacks merit.”)(citing United States v. Miller, 634

F.3d 841, 843 (5th Cir. 2011)). Citing the lack of clarity as to whether an abandoned

allegation constituted an improper consideration, it affirmed on this standard. See id.

at *1. It said:

Sims relies on our court's precedent that “a district court errs when it

relies on a bare allegation of a new law violation contained in a

revocation petition unless the allegation is supported by evidence

adduced at the revocation hearing or contains other indicia of reliability,

8

such as the factual underpinnings of the conduct giving rise to the

arrest”. United States v. Foley, 946 F.3d 681, 687 (5th Cir. 2020). It is

not clear that the June 2024 positive urinalysis result included in the

withdrawn revocation allegation is the equivalent of a bare allegation of

a new law violation, however, as the probation officer submitted that

June 2024 result to the district court prior to the final revocation

hearing.

Id. It also said that reliance on the allegation did not render the sentence

unreasonable because it was not a “dominant consideration” in the selection of the

sentence. See id.

9

REASONS FOR GRANTING THIS PETITION

There is a long-standing division of federal authority regarding the

proper standard of review for terms of imprisonment following the

revocation of supervised release.

Section 3742(e) of Title 18 provides a standard of review for the appeal of

federal criminal sentences. Specifically, it provides that sentences should be reviewed

to determine whether they were “imposed as a result of an incorrect application of

the sentencing guidelines.” 18 U.S.C. §3742(e)(2). But under the statute a sentence

“for which there is no applicable sentencing guideline” is reviewed to determine

whether it is “plainly unreasonable.” 18 U.S.C. §3742(e)(4). Because the revocation of

supervised release is governed by policy statements rather than sentencing

guidelines, revocation sentences were long thought to be reviewed only for “plain

unreasonableness.” See e.g. United States v. Stiefel, 207 F.3d 256, 259 (5th Cir.2000).

United States v. Booker, 543 U.S. 220 (2005), however, severed and excised this

portion of the criminal code. Booker held that the facts determining the maximum of

a defendant’s mandatory guideline sentence must be determined by a jury and proven

beyond a reasonable doubt. See Booker, 543 U.S. at 226-227. But it further concluded

that Congress would have preferred advisory guidelines to mandatory guidelines

whose factual components were decided by a jury beyond a reasonable doubt. See id.

at 245. In order to effectuate what it perceived as Congress’s second choice, it “severed

and excised” those portions of the Code that enforced or contemplated mandatory

Guidelines. See id. at 245. Section 3742(e) was among those provisions, and was

replaced by a single standard of review for “reasonableness.” See id. at 259, 261. The

10

Court did not distinguish between different portions of 18 U.S.C. §3742(e). See id. at

259, 261.

The result of the Booker opinion on this point has been a deep and persistent

circuit split on the current standard of review for sentences of imprisonment following

the revocation of supervised release. Some circuits have understood the Booker

opinion to mean what it says – that none of 18 U.S.C. §3742(e) is enforceable,

including §3742(e)(4), and that all of it has been supplanted by review for

reasonableness. See United States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005); United

States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005); United States v. Miqbel, 444 F.3d

1173, 1176, n.5 (9th Cir. 2006); United States v. Sweeting, 437 F.3d 1105, 1106-1107

(11th Cir.2006). But other courts, like the one below, have concluded that the

standard for revocation sentences remains “plain unreasonableness.” See United

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006); United States v. Miller, 634 F.3d

841, 843 (5th Cir. 2011); United States v. Sanchez, 900 F.3d 678, 682 (5th 2018); United

States v. Kizeart, 505 F.3d 672, 674–75 (7th Cir.2007).

In the court below, this means that some acknowledged errors in revocation

cases will be affirmed because they are not clearly established under existing law,

even if error has been impeccably preserved. See Miller, 634 F.3d at 844 (“…the court

clearly considered § 3553(a)(2)(A) and in doing so, that court erred. Despite this

mistake, the district court's error was not plainly unreasonable. When the district

court sentenced Miller, our circuit's law on this question was unclear and therefore,

that court's consideration of § 3553(a)(2)(A) was not an obvious error.”)(footnote

11

omitted); Sanchez, 900 F.3d at 682 (“…the ‘plainly unreasonable’ standard, … has

two steps… At the second step, however, we vacate the sentence only if the identified

error is ‘obvious under existing law,’ such that the sentence is not just unreasonable

but plainly unreasonable….Law from the ‘obviousness’ prong of Rule 52(b)’s plain

error test informs this latter inquiry, …. notwithstanding that the error was in fact

preserved.”)(internal citations omitted).

And as this case shows, that view has persisted in the court below even after

Holguin-Hernandez v. United States, 589 U.S. 169 (2020), which mandated substantive

reasonableness review for a sentence imposed following revocation. Indeed, the court

below has repeatedly held that Holguin-Hernandez is limited to the narrow question

presented -- whether substantive reasonableness review must be preserved by an

objections – and declared it irrelevant to closely related issues. See United States v.

Merritt, 809 F. App'x 243, 244 (5th Cir. 2020)(unpublished)(“The Supreme Court’s

decision in United States v. Holguin-Hernandez is inapplicable to this case of alleged

procedural error…”); United States v. Cuddington, 812 F. App'x 241, 242 (5th Cir.

2020)(unpublished)(“Our case law requiring a specific objection to preserve

procedural error remains undisturbed, as we have previously held in at least one

unpublished decision.”)(citing United States v. Gonzalez-Cortez, 801 F. App'x 311, 312

n.1 (5th Cir. 2020)).

Petitioner’s case provides an appropriate vehicle to address this conflict. The

court below expressly applied the “plainly unreasonable” standard of review. See

[Appx. A, at 1]; United States v. Sims, No. 24-10779, 2025 WL 1135016, at *1 (5th

12

Cir. Apr. 17, 2025)(unpublished). Notably, it did not hold that the district court relied

only on proper considerations. Rather, it held only that the impropriety of the

considerations was “not clear” under its precedent, and that any such reliance was

not “dominant.” See id. These reflect the relaxed standards applied by the court below

on challenges to a revocation sentence.

The standard of review thus may well have decided the outcome of the case.

This Court should grant certiorari to resolve the issue that has divided the courts of

appeals and then either decide the merits of the case or remand to the Fifth Circuit.

13

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 16th day of July, 2025.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Kevin Joel Page

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender's Office

525 S. Griffin Street, Suite 629

Dallas, Texas 75202

Telephone: (214) 767-2746

E-mail: joel_page@fd.org

Attorney for Petitioner

14