Petition for Writ of Certiorari — Shawn Travis Paschal, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Shawn Travis Paschal,

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 Shawn Travis Paschal, 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

TABLE OF CONTENTS ............................................................................................ iii

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 .........................................................9

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. .................................................................................................. 9

CONCLUSION...........................................................................................................13

iii

INDEX TO APPENDICES

Appendix A

Opinion of Fifth Circuit

Appendix B

Judgment and Sentence 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) ................................................................................................ 11

Johnson v. United States,

529 U.S. 53 (2000) .................................................................................................. 12

United States v. Booker,

543 U.S. 220 (2005) ........................................................................................ 8, 9, 10

United States v. Cotton,

399 F.3d 913 (8th Cir. 2005) .................................................................................. 10

United States v. Crudup,

461 F.3d 433 (4th Cir. 2006) .................................................................................... 10

United States v. Cuddington,

812 F. App'x 241 (5th Cir. 2020)(unpublished) ..................................................... 11

United States v. Kizeart,

505 F.3d 672 (7th Cir. 2007) .................................................................................. 10

United States v. Lewis,

424 F.3d 239 (2d Cir. 2005) .................................................................................... 10

United States v. Merritt,

809 F. App'x 243 (5th Cir. 2020)(unpublished) ..................................................... 11

United States v. Miller,

634 F.3d 841 (5th Cir. 2011) .................................................................................. 10

United States v. Miqbel,

444 F.3d 1173 (9th Cir. 2006) .................................................................................. 10

United States v. Sanchez,

900 F.3d 678 (5th Cir. 2018) ............................................................................. 10, 11

United States v. Stiefel,

207 F.3d 256 (5th Cir. 2000) .................................................................................... 9

United States v. Sweeting,

437 F.3d 1105 (11th Cir. 2006) .............................................................................. 10

v

Federal Statutes

18 U.S.C. § 2252A .......................................................................................................... 5

18 U.S.C. § 3583(e)....................................................................................................... 12

18 U.S.C. § 3742 ....................................................................................................... 1, 12

18 U.S.C. § 3742(e)................................................................................................... 9, 10

18 U.S.C. § 3742(e)(2) .................................................................................................... 9

18 U.S.C. § 3742(e)(4) .............................................................................................. 9, 10

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

Other Authorities

BOP Inmate Locator, https://www.bop.gov/inmateloc/ .............................................. 12

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Shawn Travis Paschal 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 judgment and sentence is attached as Appendix B. The

opinion of the Court of Appeals is electronically reported at United States v. Paschal,

No. 24-11112, 2025 WL 1927682 (5th Cir. July 14, 2025)(unpublished). It is reprinted

in Appendix A to this Petition.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit were entered on July 14,

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 Shawn Travis Paschal received a 78-month term of imprisonment

for violations of 18 U.S.C. §2252A, to be followed by 20 years of supervised release.

See (Record in the Court of Appeals, at 82). While on supervised release, Petitioner

watched a video of adult pornography on an old cellphone he was not permitted to

possess. See (Record in the Court of Appeals, at 115). This represented a violation of

the conditions of supervised release, and conscience compelled him to confess the

conduct to his treatment provider. See (Record in the Court of Appeals, at 115). After

the Probation Officer searched the cellphone and found it contained no other sexually

explicit material, Petitioner smashed the phone in the Officer’s presence with a blunt

object (apparently with the Officer’s approval) to demonstrate his commitment to

change. See (Record in the Court of Appeals, at 115). Probation reported the violation

to the court, which added computer monitoring conditions. See (Record in the Court

of Appeals, at 114-116).

The next month, however, Probation reported additional violations and sought

a violator’s warrant, which the court granted. See (Record in the Court of Appeals, at

119-123). Specifically, Probation reviewed Petitioner’s computer activity and found:

1) that he had listened to erotic audiobooks, 2) that he had viewed cartoons in which

characters adopted suggestive poses, and 3) that he had received a sexually

suggestive picture from an adult woman, though the record does not show whether

he solicited it. See (Record in the Court of Appeals, at 120). These, Probation

5

concluded, violated the ban on “sexually oriented” or “sexually stimulating” material.

See (Record in the Court of Appeals, at 120).

Further, Petitioner’s Probation Officer received two requests from persons in

various phases of supervision requesting permission for social contact with

Petitioner. See (Record in the Court of Appeals, at 121). One of them, Petitioner’s old

cellmate, had already exchanged texts with him, which violated a condition against

talking to felons. See (Record in the Court of Appeals, at 121). Petitioner was not

honest with Probation about this contact when confronted, but he at least admitted

he contact before the conversation ended. See (Record in the Court of Appeals, at 121).

The other was Petitioner’s next-door neighbor (in home confinement); she sent

Petitioner the sexually suggestive photograph referenced earlier. See (Record in the

Court of Appeals, at 121).

All of this produced a recommended range of imprisonment of 4-10 months

imprisonment, the result of Grade C Violations and a Criminal History Category II.

See (Record in the Court of Appeals, at 122). The government repeated the allegations

in a Motion to Revoke and the district court convened a hearing. See (Record in the

Court of Appeals, at 124-126). Petitioner pleaded true to the allegations and urged

the court to sentence within the Policy Statement range of 4-10 months

imprisonment. See (Record in the Court of Appeals, at 199-200). Arguing in

mitigation, trial counsel noted that Petitioner had been continuously employed since

release, and that he remained current with his child support payments. See (Record

6

in the Court of Appeals, at 200). The government declined to be heard. See (Record in

the Court of Appeals, at 199).

The court, however, imposed a substantial upward variance from the Policy

Statement range, selecting 18-months imprisonment and another 20 years

supervised release. See (Record in the Court of Appeals, at 203). It explained that

Petitioner had been granted leniency when the court responded to his first violation,

changing his conditions rather than imprisoning him. See (Record in the Court of

Appeals, at 200, 203). It also observed that he hadn’t been on supervised release very

long when he violated its terms. See (Record in the Court of Appeals, at 203).

II.

Proceedings in the Court of Appeals

Petitioner appealed, contending that the length of the sentence was

unreasonable. In support, he noted that little or no of the activity occasioning

revocation could have produced independent criminal liability, that none of it

sounded in tort, that much of it (viewing adult pornography and receiving an erotic

text) was exceedingly common in contemporary culture, and that his spontaneous

confession, his substitution of audio for visual pornography, and his substitution of

suggestive cartoons for human beings all suggested some desire for change. All of this

together, and considered objectively, he argued, did not reasonably merit a sentence

in excess of the advisory range. 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

7

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. Paschal, No. 2411112, 2025 WL 1927682 (5th Cir. July 14, 2025)(unpublished). It expressly rejected

as foreclosed by circuit precedent Petitioner’s argument that it should review his

substantive

reasonableness

claim

for

“reasonableness”

rather

than

“plain

reasonableness.” Paschal, 2025 WL 192768, at *1 (“In addition, to preserve the issue

for possible further review, Paschal contends his revocation sentence should be

reviewed for reasonableness under United States v. Booker, 543 U.S. 220 (2005). This

contention lacks merit, as our court reviews a preserved (as here) objection to a

revocation sentence under the two-step ‘plainly unreasonable’ standard.”)(citing

United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011); Holguin-Hernandez v.

United States, 589 U.S. 169, 173–75 (2020)). On the merits, it refused to

“independently reweigh the § 3553(a) sentencing factors or substitute our judgment

for that of the district court.” Id. It did not discuss any of the facts of the case

particularly, except to observe that it had previously affirmed greater variances from

the advisory range. See id. at *2.

8

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

9

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

10

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

objection – 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]; Paschal, 2025 WL 192768, at *1. Further, the facts of the case produce

11

a strong substantive reasonableness claim when the case is stripped of the restrictive

“plainly unreasonable” standard. Objective indicia of seriousness are lacking in the

revocation conduct. Save a fleeting lie to the Probation Officer, reversed before the

end of the conversation, nothing that Petitioner did on supervised release could

conceivably subject him either to criminal or civil liability. His immediate confession

to viewing adult pornography, and his subsequent decisions to substitute audio books

and cartoons for visual depictions of human sexuality suggest a desire for change.

And the sentence imposed was well above the advisory range determined by the

Guidelines. The standard of review thus may well be dispositive, making the case a

proper vehicle to address that issue.

Finally, while Petitioner is scheduled for release in February of 2026, see BOP

Inmate Locator, https://www.bop.gov/inmateloc/ , he remains subject to a supervised

release term of 20 years. This term is itself subject to substantive review, see 18

U.S.C. §§3583(e), 3742, and, perhaps more importantly, may be adjusted by the

district court in compensation for erroneously long terms of imprisonment. See

Johnson v. United States, 529 U.S. 53, 60 (2000). The case will not become moot, and

a meaningful remedy will remain available to Petitioner throughout the proceedings.

12

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 10th day of October, 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

13