Petition for Writ of Certiorari — Daquan Carey, Petitioner v. United States

No.

________________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DAQUAN CAREY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

For the Eleventh Circuit

______________

PETITION FOR A WRIT OF CERTIORARI

______________

Dane K. Chase, Esquire

Florida Bar Number: 0076448

Chase Law Florida, P.A.

111 2nd Ave NE

Suite 334

Saint Petersburg, Florida 33701

Direct:

(727) 350-0361

Facsimile: (866) 284-1306

Email:

dane@chaselawfloridapa.com

* CJA Counsel of Record

________________________________________________________________________

QUESTION PRESENTED

Whether a district court’s sentencing authority is constrained by the parties’

sentencing requests under Article III, Section 2, of the United States Constitution?

I

PARTIES TO THE PROCEEDING

Parties to the proceeding include Daquan Carey (Appellant/Petitioner), Dane K.

Chase, Esquire (Appellant/Petitioner’s Counsel), Gregory W. Kehoe (Assistant United States

Attorney), and D. John Sauer (Solicitor General of the United States of America).

II

TABLE OF CONTENTS

Question Presented.......................................................................... I

Parties to the Proceeding ................................................................ II

Table of Contents ............................................................................. III

Table of Authorities ......................................................................... IV

Petition for Writ of Certiorari ......................................................... 1

Opinion Below .................................................................................. 1

Jurisdiction ...................................................................................... 1

Constitutional and Statutory Provisions Involved ......................... 1

Statement of Facts ........................................................................... 2

Reasons for Granting the Petition .................................................. 3

I.

THIS COURT SHOULD GRANT REVIEW TO

ESTABLISH

THAT

A

DISTRICT

COURT’S

SENTENCING AUTHORITY IS CONSTRAINED BY

THE PARTIES’ SENTENCING REQUESTS ..................... 3

Conclusion ........................................................................................ 6

Index to Appendix ............................................................................ i

Decision of the 11th Circuit Court of Appeal .................................. Appendix A

Order Denying Petition for Panel Rehearing ................................. Appendix B

III

TABLE OF AUTHORITIES

Cases

Al Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir. 2001).................................................. 4

Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) ........... 3

Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006)................ 4

Greenlaw v. United States, 554 U.S. 237, 128 S.Ct. 2559,

171 L.Ed.2d 399 (2008) .................................................................................................. 3

Moody v. NetChoice, LLC, 603 U.S. 707, 144 S. Ct. 2383, 2414,

219 L. Ed. 2d 1075 (2024) .............................................................................................. 4

United States v. Carey, No. 24-14172, 2025 WL 1721557

(11th Cir. June 20, 2025) ................................................................................... 1,2,3,5,6

United States v. Chavez, 723 F.3d 1226 (10th Cir. 2013)............................................. 5

United States v. Lucero, 747 F.3d 1242 (10th Cir. 2014) ............................................. 5

United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090,

41 L. Ed. 2d 1039 (1974) ................................................................................................ 5

United States v. Samuels, 808 F.2d 1298 (CA8 1987) .................................................. 4

United States v. Sineneng-Smith, 590 U.S. 371, 140 S. Ct. 1575,

206 L. Ed. 2d 866 (2020) ............................................................................................. 3,4

Constitutional Amendments

U.S. Const. amend. V. .................................................................................................... 1

Statues

18 U.S.C. § 922 ............................................................................................................... 2

18 U.S.C. § 924 ............................................................................................................... 2

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

28 U.S.C. § 1291 ............................................................................................................. 1

IV

PETITION FOR WRIT OF CERTIORARI

______________________

OPINION BELOW

The decision of the Eleventh Circuit Court of Appeals can be found at United

States v. Carey, No. 24-14172, 2025 WL 1721557 (11th Cir. June 20, 2025), and is

attached as Appendix A.

JURISDICTION

The Judgment of the Eleventh Circuit Court of Appeals, which had jurisdiction

under Title 28 U.S.C. § 1291, was entered on June 20, 2025. However, a timely

Petition for Rehearing was filed on June 24, 2025, which was not denied until July 9,

2025. This Court’s jurisdiction is invoked under Title 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

“Section 2. The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;--to all Cases affecting Ambassadors,

other public Ministers and Consuls;--to all Cases of admiralty and maritime

Jurisdiction;--to Controversies to which the United States shall be a Party;--to

Controversies between two or more States;--between a State and Citizens of another

State;--between Citizens of different States,--between Citizens of the same State

claiming Lands under Grants of different States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.” U.S. Const. art. III.

1

STATEMENT OF FACTS

On March 20, 2024, a federal grand jury in the Middle District of Florida,

Tampa Division, returned a two-count Indictment naming Mr. Carey as the

defendant. Count One charged that on or about July 23, 2021, Mr. Carey committed

the offense of Felon in Possession of Ammunition in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). Count Two charged that on or about December 6, 2023, Mr. Carey

committed the offense of Felon in Possession of a Firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(8). On September 10, 2024, Mr. Carey pled guilty to both

Counts. On September 20, 2024, his plea was accepted. On December 17, 2024, a

sentencing hearing was held during which Mr. Carey’s guideline imprisonment rage

was determined to be 51-63 months imprisonment. The government requested the

court vary upward and impose a sentence of 87 months imprisonment, while the

defense requested the court depart downward and impose a sentence of less than 51

months imprisonment.

The district court imposed a sentence of 120 months

imprisonment, stating simply that the government’s requested sanction was too low.

On appeal to the 11th Circuit, Mr. Carey argued that his sentence was

substantively unreasonable because the question of whether a sentence beyond 87

months imprisonment was appropriate simply was not presented by the parties, and

thus it was improper for the court to consider, much less impose, such a sanction.

The 11th Circuit affirmed, concluding that the district court was not bound by the

parties’ sentencing recommendations.

This Petition follows.

2

REASONS FOR GRANTING THE PETITION

I.

THIS COURT SHOULD GRANT REVIEW TO ESTABLISH THAT A

DISTRICT COURT’S SENTENCING AUTHORITY IS CONSTRAINED

BY THE PARTIES’ SENTENCING REQUESTS.

At issue in this Petition is whether Article III, Section 2, of the United States

Constitution prohibits a sentencing court from deciding a question not before it and

imposing a sanction which was not requested by any party to the proceeding. Mr.

Carey submits that his Court should grant review to establish that Article III, Section

2 prohibits a sentencing court from doing so.

In United States v. Sineneng-Smith, 590 U.S. 371, 140 S. Ct. 1575, 206 L. Ed.

2d 866 (2020), the Court explained:

In our adversarial system of adjudication, we follow the

principle of party presentation. As this Court stated in

Greenlaw v. United States, 554 U.S. 237, 128 S.Ct. 2559,

171 L.Ed.2d 399 (2008), “in both civil and criminal cases,

in the first instance and on appeal ..., we rely on the parties

to frame the issues for decision and assign to courts the role

of neutral arbiter of matters the parties present.” Id., at

243, 128 S.Ct. 2559. In criminal cases, departures from the

party presentation principle have usually occurred “to

protect a pro se litigant's rights.” Id., at 244, 128 S.Ct. 2559;

see, e.g., Castro v. United States, 540 U.S. 375, 381–383,

124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (affirming courts'

authority to recast pro se litigants' motions to “avoid an

unnecessary dismissal” or “inappropriately stringent

application of formal labeling requirements, or to create a

better correspondence between the substance of a pro se

motion's claim and its underlying legal basis” (citation

omitted)). But as a general rule, our system “is designed

around the premise that [parties represented by competent

counsel] know what is best for them, and are responsible

for advancing the facts and argument entitling them to

relief.” Id., at 386, 124 S.Ct. 786 (Scalia, J., concurring in

part and concurring in judgment).

3

In short: “[C]ourts are essentially passive instruments of

government.” United States v. Samuels, 808 F.2d 1298,

1301 (CA8 1987) (Arnold, J., concurring in denial of reh'g

en banc). They “do not, or should not, sally forth each day

looking for wrongs to right. [They] wait for cases to come to

[them], and when [cases arise, courts] normally decide only

questions presented by the parties.” Ibid.

The party presentation principle is supple, not ironclad.

There are no doubt circumstances in which a modest

initiating role for a court is appropriate. See, e.g., Day v.

McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164

L.Ed.2d 376 (2006) (federal court had “authority, on its own

initiative,” to correct a party's “evident miscalculation of

the elapsed time under a statute [of limitations]” absent

“intelligent waiver”).

Sineneng-Smith, 590 U.S. at 375–76, 140 S. Ct. at 1579, 206 L. Ed. 2d 866 (footnotes

omitted).

Additionally, “Article III empowers federal courts to exercise ‘judicial

Power’ only over ‘Cases’ and ‘Controversies.’” Moody v. NetChoice, LLC, 603 U.S. 707,

753, 144 S. Ct. 2383, 2414, 219 L. Ed. 2d 1075 (2024).

Here, the issue presented by the parties was whether a departure sentence

below the 51 month guideline sentence should be entered or whether the court should

vary upward and impose a sentence of 87 months imprisonment. As the question of

whether a sentence beyond 87 months imprisonment should be imposed was simply

not presented by the parties, it was improper for the court to consider such a sanction.

See, Sineneng-Smith, 590 U.S. at 375–76, 140 S. Ct. at 1579, 206 L. Ed. 2d 866; see

also, Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (“The doctrine of

justiciability prevents courts from encroaching on the powers of the elected branches

of government and guarantees that courts consider only matters presented in an

actual adversarial context.”)(citations omitted). This is particularly so here, as “the

4

Executive Branch has exclusive authority and absolute discretion to decide whether

to prosecute a case,” United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct. 3090, 3100,

41 L. Ed. 2d 1039 (1974)(citations omitted), and chose not to prosecute the case for a

sanction beyond 87 months imprisonment. The district court imposing a sentence

beyond that requested by the parties in these circumstances not only exceeds the

powers granted it under Article III, but also encroaches on the powers reserved

exclusively to the Executive Branch of government.

See, Id.

To prevent that

encroachment and ensure that the limits on judicial authority contained within

Article III are strictly adhered to, this Court should grant the instant Petition and

establish that Article III, Section 2 of the United States Constitution prohibits a

sentencing court from deciding a question not before it and imposing a sanction which

was not requested by any party to the proceeding, reverse the judgment of the 11th

Circuit and Mr. Carey’s sentence as substantively unreasonable, and remand Mr.

Carey’s case for a new sentencing hearing where a new sentence is imposed upon him

consistent with the limitations imposed on the district court under Article III. See,

United States v. Lucero, 747 F.3d 1242, 1250–51 (10th Cir. 2014) (“A sentence is

substantively unreasonable if, in light of the § 3553(a) factors, it ‘exceeds the bounds

of permissible choice, given the facts and the applicable law.”)(quoting, United States

v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013) (quotations omitted)).

5

INDEX TO APPENDIX

Decision of the 11th Circuit Court of Appeal ................................... Appendix A

Order Denying Petition for Panel Rehearing ................................. Appendix B

i

APPENDIX A

A

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-14172

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAQUAN CAREY,

a.k.a. Trapboy Quan,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:24-cr-00115-TPB-NHA-1

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Opinion of the Court

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____________________

Before WILLIAM PRYOR, Chief Judge, and LAGOA and WILSON, Circuit Judges.

PER CURIAM:

Daquan Carey appeals his prison sentence of 120 months for

possessing ammunition and a firearm as a felon. 18 U.S.C.

§ 922(g)(1). He argues that his sentence is substantively unreasonable. We affirm.

Carey pleaded guilty to possession of ammunition and a firearm by a felon on separate dates. Id. A probation officer prepared a

presentence investigation report describing his offenses. In 2021,

officers stopped Carey, and a search of his car revealed ammunition, two guns, and drugs. In 2023, after a witness identified Carey

as the shooter in a drive-by shooting, law enforcement stopped him

again. When the officers told him he was under arrest, he attempted to flee and hit a detective. Another detective tased Carey.

The initial detective fell to the ground with Carey and was hospitalized. As officers placed Carey in handcuffs, he reached into his

waistband. The officers restrained him and found a loaded gun and

drugs on him. He had been released on bond for state felon-in-possession charges at the time of the offenses.

The report recounted Carey’s criminal history, including juvenile adjudications for burglary, grand theft, drug possession, resisting an officer without violence, battery, and trespass, with repeated probation violations. As an adult, he was convicted of a

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computer threat offense involving guns, possession of drugs and

drug paraphernalia, unlawful possession of a firearm, violation of a

protective order, and resisting arrest without violence. In 2022,

while Carey was released on bond for state charges related to the

instant 2021 offense, he was charged with fleeing, felon in possession of a firearm, possession of drugs and drug paraphernalia, and

resisting an officer without violence. He was also charged with

shooting a missile into a car, attempted first degree murder, and

felon in possession of a firearm and ammunition for the 2023 shooting, but those charges were dropped. The report also documented

that his father was in prison and his half-brother died when Carey

was a child. Carey had been diagnosed with conduct disorder and

schizophrenia and had been injured in a car accident.

The report grouped Carey’s convictions together and calculated a base offense level of 20 because he possessed a semi-automatic firearm capable of accepting a large-capacity magazine,

United States Sentencing Guidelines Manual § 2K2.1(a)(4)(B) (Nov.

2024), applied a 2-level increase because he possessed at least three

guns, id. § 2K2.1(b)(1)(A), applied a 2-level increase because the offense involved a stolen firearm, id. § 2K2.1(b)(4)(A), applied a

4-level increase because he possessed a firearm in connection with

other felony offenses, id. § 2K2.1(b)(6)(B), and applied a 3-level decrease for acceptance of responsibility, id. § 3E1.1(a)-(b), for a total

offense level of 25. The report calculated a criminal-history category of VI. It provided a guideline imprisonment range of 110 to

137 months and statutory maximum terms of imprisonment of 10

years for one count and 15 years for his other count of conviction.

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At the sentencing hearing, the district court recalculated a

guideline range of 51 to 63 months of imprisonment based on a

change in his base offense level and enhancements. The government recommended 87 months of imprisonment because of

Carey’s history of unlawfully possessing firearms and violently fleeing law enforcement and because he committed the instant offenses while released on bond. Carey argued for a sentence below

the guideline range based on his age, traumatic childhood, and

mental health concerns. When Carey allocuted, he stated that the

officers did more harm to the community than he did and did not

tell the truth about the incident.

The district court stated that it considered the statutory sentencing factors. 18 U.S.C. § 3553(a). It found that Carey was uncooperative with law enforcement to the point that he had to be tased

and an officer went to the hospital. It found that Carey “showed

zero remorse” and blamed the officers. It also found that he was

out on bond for a state gun offense at the time of the instant offense. It considered Carey’s age, personal tragedies, and mental

health issues, but found that he was a danger to the community,

and the government’s request was “too low.” The district court

sentenced Carey to concurrent terms of 120 months of imprisonment for each count, followed by 3 years of supervised release.

We review the substantive reasonableness of a sentence for

abuse of discretion. United States v. Steiger, 107 F.4th 1315, 1319–20

(11th Cir. 2024). The district court imposes a substantively unreasonable sentence when it fails to consider relevant factors that were

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due significant weight, gives significant weight to an improper or

irrelevant factor, or commits a clear error of judgment in considering the proper factors. United States v. Taylor, 997 F.3d 1348, 1355

(11th Cir. 2021). We will disturb a sentence “only if we are left with

the definite and firm conviction that the district court committed a

clear error of judgment in weighing the § 3553(a) factors by imposing a sentence that falls outside the range of reasonableness as dictated by the facts of the case.” Id. (citation and internal quotation

marks omitted). The district court may “attach great weight to one

factor over others,” and this discretion is “particularly pronounced

when it comes to weighing criminal history.” United States v. Riley,

995 F.3d 1272, 1279 (11th Cir. 2021) (citation and internal quotation

marks omitted). “We do not presume that a sentence outside the

guideline range is unreasonable and must give due deference to the

district court’s decision that the § 3553(a) factors, as a whole, justify

the extent of the variance.” United States v. Goldman, 953 F.3d 1213,

1222 (11th Cir. 2020). “Although there is no proportionality principle in sentencing, a major variance does require a more significant

justification than a minor one—the requirement is that the justification be sufficiently compelling to support the degree of the variance.” United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en

banc) (citation and internal quotation marks omitted).

The district court did not abuse its discretion because it provided sufficient justification for its substantial upward variance. It

found that Carey was a danger to the community. It considered

that the nature and circumstances of the offense were serious because they involved resisting law enforcement with violence such

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that an officer went to the hospital. See 18 U.S.C. § 3553(a)(1),

(a)(2)(A). It found that Carey “showed zero remorse” for his conduct and blamed the officers. And it considered Carey’s criminal

history and likelihood of recidivism when finding that he committed the instant offenses while released on bond for similar state

felon-in-possession offenses. His sentence needed to afford adequate deterrence and protect the public from further gun crimes,

as these offenses were part of a series of gun offenses, which continued while he was on bond for state charges related to the 2021

offense. See id. § 3553(a)(2)(B)-(C). The district court was allowed

to weigh the seriousness of the offenses, his lack of remorse, and

his criminal history more heavily than any mitigating circumstances regarding his age, traumatic childhood, and mental health

issues. See Riley, 995 F.3d at 1279. It did not commit a clear error of

judgment in imposing a substantial upward variance. See Taylor,

997 F.3d at 1355.

Carey contends that the district court should not have imposed a sentence above the government’s request. But the district

court is not bound by the parties’ recommendations. It must consider the statutory sentencing factors and impose a sentence based

on those factors. See 18 U.S.C. § 3553(a) (“The court shall impose a

sentence sufficient, but not greater than necessary, to comply with

the purposes set forth in . . . this subsection . . . .”). The district

court considered those factors and justified its upward variance.

We AFFIRM Carey’s convictions and sentence.

APPENDIX B

B

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