Petition for Writ of Certiorari — Francisco Ortiz, Petitioner v. United States

NO. ___________

In the Supreme Court of the United States

________________

FRANCISCO ORTIZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

J. Matthew Wright

Counsel of Record

Office of the Federal Public

Defender

Northern District of Texas

600 South Tyler Street

Suite 2300

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

Counsel for Petitioner

May 12, 2026

QUESTION PRESENTED

When a defendant challenges a sentence imposed

after revocation of his supervised release, most

circuits apply the same “reasonableness” standard of

review that would apply to an appeal of an initial

sentence. See United States v. Booker, 543 U.S. 220,

260–63 (2005). But the Fourth, Fifth, and Seventh

Circuits set a higher burden: a revocation defendant

must show that the sentence is unreasonable and that

the error is plain under existing precedent.

Does the standard of review for revocation appeals

require a separate demonstration of plainness?

(i)

ii

PARTIES TO THE PROCEEDING

Petitioner is Francisco Ortiz, an individual, who

was Defendant-Appellant below. Respondent is the

United States of America, who was Plaintiff-Appellee

below.

iii

DIRECTLY RELATED PROCEEDINGS

United States District Court (N.D. Tex.):

United States v. Francisco Ortiz, No. 3:10-cr-12

(Nov. 15, 2010) (original judgment); Jan. 24, 2025

(judgment revoking supervised release)

United States Court of Appeals (5th Cir.):

United States v. Francisco Oritiz, No. 25-10237

(Feb. 11, 2026)

iv

TABLE OF CONTENTS

Question Presented ..................................................... i

Parties to the Proceeding ........................................... ii

Directly Related Proceedings .................................... iii

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

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

Statutory Provisions Involved.................................... 1

Statement ................................................................... 6

Reasons for Granting the Petition ........................... 10

I.

The Circuits are deeply divided. ....................... 11

II. The Fifth Circuit’s approach is wrong under

the statute and wrong under this Court’s

precedent............................................................ 16

III. The issue is important, recurring, and

warrants plenary review in this case. .............. 20

Conclusion................................................................. 21

APPENDIX A:

Fifth Circuit Opinion ............................................. 1a

APPENDIX B:

Transcript of Revocation Hearing ....................... 10a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Esteras v. United States,

606 U.S. 185 (2025) ...................................... passim

Holguin-Hernandez v. United States,

589 U.S. 169 (2020) ............................ 10, 18, 19, 20

Johnson v. United States,

529 U.S. 694 (2000) .............................................. 17

Pierce v. Underwood,

487 U.S. 552 (1988) .............................................. 18

United States v. Bolds,

511 F.3d 568 (6th Cir. 2007) ................................ 12

United States v. Booker,

543 U.S. 220 (2005) ...................................... passim

United States v. Bradford,

170 F.4th 618 (7th Cir. 2026) .............................. 14

United States v. Bungar,

478 F.3d 540 (3d Cir. 2007).................................. 12

United States v. Childs,

39 F.4th 941 (7th Cir. 2022) ................................ 14

United States v. Cotton,

399 F.3d 913 (8th Cir. 2005) ................................ 12

United States v. Crudup,

461 F.3d 433 (4th Cir. 2006) .................... 12, 13, 14

United States v. Fleming,

397 F.3d 95 (2d Cir. 2005) ................................... 12

United States v. Foley,

946 F.3d 681 (5th Cir. 2020) ................................ 15

United States v. Headrick,

963 F.2d 777 (5th Cir. 1992) ................................ 16

vi

United States v. Helton,

829 F. App’x 602 (4th Cir. 2020) .......................... 14

United States v. Kizeart,

505 F.3d 672 (7th Cir. 2007) ................................ 14

United States v. Miller,

634 F.3d 841 (5th Cir. 2011) .......................... 14, 15

United States v. Miqbel,

444 F.3d 1173 (9th Cir. 2006) .............................. 12

United States v. Molignaro,

649 F.3d 1 (1st Cir. 2011) (Souter, J.) ................. 12

United States v. Sanchez,

900 F.3d 678 (5th Cir. 2008) .......................... 10, 15

United States v. Slappy,

872 F.3d 202 (4th Cir. 2017) ................................ 14

United States v. Sweeting,

437 F.3d 1105 (11th Cir. 2006) ............................ 12

United States v. Tedford,

405 F.3d 1159 (10th Cir. 2005) ............................ 12

United States v. Tsosie,

376 F.3d 1210 (10th Cir.2004) ............................. 11

United States v. White Face,

383 F.3d 733 (8th Cir. 2004) ................................ 16

Statutes

18 U.S.C. § 3583 .......................................................... 7

18 U.S.C. § 3606 .......................................................... 7

18 U.S.C. § 3742(a)(4) .......................................... 13, 17

18 U.S.C. § 3742(e) ........................................ 11, 12, 16

18 U.S.C. § 3742(e)(4) .................................... 13, 16, 17

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

28 U.S.C. § 1291 .......................................................... 7

vii

Pub. L. 98-473, Title II, § 212(a)(2), 98

Stat. 2000 (1984) .................................................. 17

Pub. L. 98-473, Title II, § 213(a), 98

Stat. 2011 (1984) .................................................. 17

Pub. L. 99-570, Title I, § 1006(a)–(b),

100 Stat. 3207-6, 3207-7 (1986) ........................... 18

Pub. L. 100-182, § 5, 101 Stat. 1267

(1987) .................................................................... 18

Rules

Federal Rule of Criminal Procedure 51 ...................... 6

Federal Rule of Criminal Procedure

52(b) .............................................................. 6, 7, 18

S. Ct. R. 10(a) ............................................................. 20

S. Ct. R. 10(c) ............................................................. 20

NO. ___________

In the Supreme Court of the United States

________________

FRANCISCO ORTIZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

________________

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Francisco Ortiz respectfully petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this

case.

OPINION BELOW

The Fifth Circuit’s opinion was not selected for

publication. It can be found at 2026 WL 383610. The

decision is reprinted on pages 1a–9a of the Appendix.

JURISDICTION

The Court of Appeals entered its judgment on February 11, 2026. This Court would have jurisdiction under 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

Title 18, Section 3742 provides, in pertinent part:

2

(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) 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) was imposed in violation of law;

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

3

(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) 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.

****

(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

4

(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

(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

5

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

6

(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.

Federal Rule of Criminal Procedure 51 provides, in

pertinent part:

(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.

(b) Preserving a Claim of Error. A party may

preserve a claim of error by informing the

court—when the court ruling or order is made

or sought—of the action the party wishes the

court to take, or the party’s objection to the

court’s action and the grounds for that objection. Statement

Federal Rule of Criminal Procedure 52(b) provides:

(b) Plain Error. A plain error that affects substantial rights may be considered even though

it was not brought to the court’s attention.

STATEMENT

Petitioner Francisco Ortiz was on federal supervised release when he became embroiled in an argument over lawn equipment that turned violent. “A

gunfight ensued in which Ortiz fired several shots at

three individuals before being shot himself.” App., infra, 2a. In state court, he pleaded guilty to three

7

counts of aggravated assault and received three concurrent sentences of five years in prison. App., infra,

2a. After nearly four years in custody, state officials

released Mr. Ortiz. He was immediately rearrested

and haled into federal court to answer for the violations of supervised release.1 App., infra, 2a–3a.

Mr. Ortiz did not contest the allegations that he violated the terms of his supervised release. He urged

the district court to revoke supervised release but impose a sentence of “time served.” While in state custody, he intervened to protect a correctional officer

from an attempted sexual assault. App., infra, 14a.

His attorney argued that his behavior manifested “an

exemplary amount of rehabilitation.” Id. The district

court agreed that this act was “great.” Id. He also

noted that he could have received a concurrent revocation sentence if his probation officer had pursued

revocation at the time of his guilty plea rather than

waiting until he finished that other sentence.

The district court rejected the request for a timeserved sentence and “imposed the 60-month statutory

maximum,” App., infra, 5a, which will run consecutive

to the state court sentence for the very same conduct.

The transcript of the revocation hearing raises deep

doubt about whether the sentencing decision was reasoned and reasonable.

First, the district court began the hearing by mistaking the facts of Mr. Ortiz’s case with someone else’s.

1

The district court had jurisdiction to conduct revocation proceedings pursuant to 18 U.S.C. § 3606 and 18 U.S.C. § 3583. The

Fifth Circuit had jurisdiction over the appeal pursuant to 28

U.S.C. § 1291.

8

The court continued to express confusion about the

pleadings on file:

THE COURT: Okay. Mr. Ortiz, you took off for

three years.

[Clerk]: No, it’s the other one.

THE COURT: I’m sorry, no, you didn’t take off.

I should have taken a break there.

But you did some pretty bad things. Have you

read through the petition, the addendum to

the petition and the petition for violation?

THE DEFENDANT: I did, Your Honor.

THE COURT: That’s dated 6/12/23, and it’s

dated—it’s not dated. I don’t know why it’s not

dated, but it’s not dated. There are two petitions.

App., infra, 12a; see id. 1a (acknowledging a “brief moment of confusion” at the start of the hearing); id. 8a

(“At the beginning of the revocation hearing, the court

mistook Ortiz for another defendant.”).

Then, the court continued to show a lack of familiarity with the facts of the case, even after announcing

the sentence:

THE COURT: I don’t need to hear from the

government, unless you want to, but I don’t

need to hear from you.

[AUSA]: That’s all right, Your Honor. If you

don’t want to hear from us, that works.

9

THE COURT: I’m going to give you 60 months

in custody. I think that’s not more than it

should be to carry out the purposes of our sentencing statute. You have a long list of offenses. And you were -- yes, and you didn’t domuch while you were out. And -- hold on. You

shot somebody. You shot somebody, right?

[DEFENSE COUNSEL]: He shot at someone,

but he was actually shot himself.

THE COURT: Okay. All those things, I think,

are such that I don’t think you can be rehabilitated quickly, so I’m going to give you 60

months. No supervised release.

App., infra, 16a; see also id. 8a (“[W]hen announcing

Ortiz’s sentence, the court appeared surprised to discover that Ortiz had ‘shot somebody.’”(sic)).

Mr. Ortiz appealed, arguing that the sentence was

unreasonable under the standard of review articulated in United States v. Booker, 543 U.S. 220, 260–63

(2005). He quickly ran into a problem: the Fifth Circuit applies a different standard of review for revocation sentences. App., infra, 9a (quoting United States

v. Sanchez, 900 F.3d 678, 682 (5th Cir. 2008)).

When reviewing a “properly preserved” claim that

a revocation sentence was unreasonable, the Fifth Circuit engages in a “two-step” inquiry:

First we evaluate the reasonableness of the

sentence using the standards of appellate review applicable to criminal sentences generally. … At the second step, however, we vacate

10

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.

United States v. Sanchez, 900 F.3d 678, 682 (5th Cir.

2018) (internal citations and footnotes omitted).

Mr. Ortiz argued below that the two-step inquiry

was one step too many. As this Court explained in both

Holguin-Hernandez v. United States, 589 U.S. 169,

171–73 (2020), and Esteras v. United States, 606 U.S.

185, 202–03 (2025), the “plainness” inquiry comes into

play only when a defendant fails to preserve his claim

during the revocation proceedings. He told the Fifth

Circuit its precedent had fallen “unequivocally out of

step” with this Court’s decisions.

The Fifth Circuit adhered to its two-step standard

anyway. App., infra, 4a n.2. The court emphasized the

“plainness” requirement when affirming the revocation sentence. App., infra, 9a.

REASONS FOR GRANTING THE PETITION

In most of the country, appellate courts review initial sentences and revocation sentences under the

same standard of review announced in United States

v. Booker, 543 U.S. 220, 260–63 (2005). That makes

imminent sense: Booker “excised” the statute that purportedly required differential treatment between initial sentences and revocation sentences, and favorably

cited a revocation appeal as an illustration of how to

11

perform reasonableness review. Id. at 260–63 (“[e]xcising” 18 U.S.C. § 3742(e) and citing United States v.

White Face, 383 F.3d 733, 737–40 (8th Cir. 2004), and

United States v. Tsosie, 376 F.3d 1210, 1218-19 (10th

Cir.2004), as illustrations of reasonableness review).

Most circuits now apply Booker’s standard to initial

sentences and revocations.

But the Fourth, Fifth, and Seventh Circuits apply

a more demanding standard. In those courts, a revocation defendant must show both that his sentence is

unreasonable and that the error is “plain.” In that respect, these courts treat a defendant who preserved

his claim for appellate review like one who remained

silent: both must show that the error was clear or obvious under existing precedent.

The seeds of the conflict were sown years before

Booker, when courts misinterpreted the Sentencing

Reform Act’s rule for initial-sentence appeals where

there was no Sentencing Guideline for the crime of

conviction. Refusing to reconsider that mistake, these

courts continue to apply the misinterpretation even after this Court excised the governing statute, and after

this Court repeatedly explained that revocation defendants who forfeit their claims must show plainness,

but revocation defendants who preserve their claims

need not. This Court should grant the petition and resolve the conflict.

I.

The Circuits are deeply divided.

The Circuits disagree about the standard of plenary appellate review for revocation sentences. The

conflict is deep and acknowledged.

1. The First, Second, Third, Sixth, Eighth, Ninth,

Tenth, and Eleventh Circuits have all recognized that

12

initial and revocation sentences must be reviewed under the same standard. See, e.g., United States v. Molignaro, 649 F.3d 1, 5 & n.1 (1st Cir. 2011) (Souter, J.)

(applying “full-dress de novo, not just plain error, review,” and resolving a close statutory question in favor

of the defendant); United States v. Bolds, 511 F.3d 568

(6th Cir. 2007) (“[T]here is no practical difference between the pre-Booker ‘plainly unreasonable’ standard

of review of supervised release revocation sentences

and our post-Booker review of sentences for ‘unreasonableness.’”); United States v. Bungar, 478 F.3d 540,

541 (3d Cir. 2007) (“We hold, post-Booker, that our review should be for reasonableness.”); United States v.

Miqbel, 444 F.3d 1173, 1176 n.5 (9th Cir. 2006)

(“Booker’s ‘reasonableness’ standard has displaced the

former ‘plainly unreasonable’ standard in the context

of revocation sentencing.”); United States v. Sweeting,

437 F.3d 1105, 1106 (11th Cir. 2006) (“In Booker... the

Supreme Court excised § 3742(e) and replaced it with

a reasonableness standard.”); United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005) (recognizing

that the pre-Booker standard for revocation sentences

“remains unchanged” because it is the same as postBooker reasonableness review); United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005) (“[T]he [Supreme]

Court is fairly understood as requiring that its announced standard of reasonableness now be applied

not only to review of sentences for which there are

guidelines but also to review of sentences for which

there are no applicable guidelines.”); United States v.

Cotton, 399 F.3d 913, 916 (8th Cir. 2005) (“The new

standard is review for unreasonableness with regard

to § 3553(a).”).

2. The Fourth Circuit acknowledged the majority

view, but expressly disagreed. See United States v.

13

Crudup, 461 F.3d 433, 435 & n.2 (4th Cir. 2006). The

court acknowledged that Booker eliminated 18 U.S.C.

§ 3742(e)(4), which purportedly required “plainly unreasonable” review for revocation sentences, but noted

that Booker left other “plainly unreasonable” provisions in place. Crudup, 461 F.3d at 437 (discussing 18

U.S.C. § 3742(a)(4). The Fourth Circuit also considered what the U.S. Sentencing Guidelines Manual

said about revocations, even though the Sentencing

Commission never had authorization to decide standards of appellate review. Id. at 438. Finally, Crudup

assumed that Booker’s reasonableness standard must

be the same review contemplated by the abrogated

§ 3742(e)(3), which simply used “unreasonable,” rather than “plainly unreasonable.” Id. at 438.

Crudup announced a new, two-step review for revocation sentences. At the first step, the court would

perform the same “reasonableness” review dictated by

Booker. 461 F.3d at 439. If the sentence was unreasonable, the appellate court would proceed to the second

step. That second step was imported directly from the

plain-error rule for forfeited claims:

However, if we determine that the revocation

sentence is procedurally or substantively unreasonable, we must then decide whether the

sentence is plainly unreasonable, relying on

the definition of “plain” that we use in our

“plain” error analysis. Thus, for purposes of determining whether an unreasonable sentence

is plainly unreasonable, “‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”

14

461 F.3d at 439 (quoting United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005), and United States v.

Olano, 507 U.S. 725, 731–32 (1993)).

Crudup adopted this novel standard even though

it had no effect on the outcome of the case: because

“Crudup’s revocation sentence [was] neither procedurally nor substantively unreasonable,” it is hard to

see why the court insisted on imposing a distinct

“plainness” requirement for revocation appeals. The

Fourth Circuit continues to apply this standard in

revocation appeals. See, e.g., United States v. Slappy,

872 F.3d 202, 208 (4th Cir. 2017) (“If a revocation

sentence—even an unreasonable one—is not ‘plainly

unreasonable,’ we will affirm it.”); accord United

States v. Helton, 829 F. App’x 602, 603 (4th Cir.

2020).

3. The Seventh Circuit also requires a separate

showing of plainness. See United States v. Bradford,

170 F.4th 618, 624 (7th Cir. 2026); United States v.

Childs, 39 F.4th 941, 944–45 (7th Cir. 2022). The court

has expressed doubt about whether the plainness requirement would ever change the outcome. See United

States v. Kizeart, 505 F.3d 672, 674–45 (7th Cir. 2007)

(“Realism, however, requires acknowledgment that

the practical difference between ‘unreasonable’ and

‘plainly unreasonable’ is slight, perhaps even nil.”);

4. The Fifth Circuit has fully embraced the Fourth

Circuit’s minority view, expressly affirming sentences

that were unreasonable but not “plainly” so.

For example, in United States v. Miller, 634 F.3d

841 (5th Cir. 2011), the court recognized that a district

court commits error when chooses a revocation sen-

15

tence to backward-looking factors such as just punishment, respect for the law, and seriousness of the offense. Miller, 634 F.3d at 844. (This Court later vindicated that portion of the decision in Esteras, 606 U.S.

at 204). In Miller, the defendant had specifically objected that his sentence was unreasonable “due to the

factors relied on by the district court.” 634 F.3d at 842.

But Miller lost his appeal at the Fifth Circuit, because

(before that decision) the district court’s error was not

“plain”:

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.

634 F.3d at 844.

In United States v. Foley, 946 F.3d 681 (5th Cir.

2020), the district court erred when it gave heavy

weight to unproven allegations “that were not supported by evidence at the revocation hearing and do

not have other indicia of reliability.” Id. at 687. But

Foley lost his appeal, because the “error was not clear

under existing law.” 946 F.3d at 688.

Given the decisional framework, the Fifth Circuit

often ignores claims of revocation-sentencing error

that are preserved and plausible but novel. See United

States v. Sanchez, 900 F.3d 678, 686–87 (5th Cir. 2018)

(“But because an error cannot be ‘obvious’ without authority to support it, …this is not the type of argument

that can prevail under the ‘plainly unreasonable’

test.”).

Here, Mr. Ortiz challenged the reasonableness of

an atypical revocation sentence. But under the Fifth

16

Circuit’s “plainly unreasonable” test, his claim was

doomed from the beginning. He could not point to any

precedent showing that a statutory maximum sentence selected and announced before the court had any

firm idea about the underlying facts of the case was

unreasonable.

II. The Fifth Circuit’s approach is wrong under

the statute and wrong under this Court’s

precedent.

1. Before Booker excised 18 U.S.C. § 3742(e), the

statute required the court of appeals to “determine

whether the sentence … (4) was imposed for an offense for which there is no applicable sentencing

guideline and is plainly unreasonable.” § 3742(e)(4).

Back then, appellate courts (apparently uniformly)

decided that this statute would govern appeals of revocation sentences because the Sentencing Commission

promulgated policy statements to govern revocation of

supervised release, rather than guidelines. See, e.g.,

White Face, 383 F.3d at 737 (citing § 3742(e)(4))

(“When there is no applicable sentencing guideline, as

in the case of a revocation sentence, we review to determine whether the sentence was plainly unreasonable.”); United States v. Headrick, 963 F.2d 777, 779

(5th Cir. 1992) (“There are no applicable guidelines for

sentencing after revocation of supervised release;

there are only policy statements. … It follows that we

will uphold Headrick's sentence unless it is in violation of law or is plainly unreasonable.”).

If the lower courts would honor Booker, then there

would be no need to dig up these old bones. Courts’

mistakes in interpreting § 3742(e)(4) should have been

17

interred with the rest of the provision after this Court

excised it.

But the Fourth, Fifth, and Seventh Circuits have

resurrected the “plainly unreasonable” standard for

revocation appeals and given it new life based on provisions like § 3742(a)(4). As it turns out, the preBooker consensus was wrong. The vast majority of revocation sentences fall outside § 3742(e)(4) because

they are not sentences “imposed for an offense for

which there is no applicable sentencing guideline.”

“In the context of a revocation hearing, the ‘offense’

is the underlying crime of conviction, not the violation

of the supervised-release conditions.” Esteras v.

United States, 606 U.S. 185, 193–94 (2025). Revocation sentences are “part of the penalty for the initial

offense.” Johnson v. United States, 529 U.S. 694, 700,

(2000).

2. The Sentencing Reform Act’s amendment history confirms that the “plainly unreasonable” standard was meant to apply to a select few initial sentences. In its original form, the SRA only contemplated

“contempt” as a sanction for violating conditions of supervised release. Pub. L. 98-473, Title II, § 212(a)(2),

98 Stat. 2000 (1984). For offenses without a corresponding sentencing guideline, the original SRA only

allowed the defendant to appeal if the sentence exceeded what was specified in a binding plea agreement. Id., § 213(a), 98 Stat. 2011. Obviously, the original version of the appeal authorization was never intended to apply to revocation sentences.

Before the SRA went into effect, Congress amended

the law to allow revocation, rather than contempt, as

18

a sanction for supervised release violations, and to authorize issuance of guidelines or policy statements

governing supervised release revocation. Pub. L. 99570, Title I, § 1006(a)–(b), 100 Stat. 3207-6, 3207-7

(1986). The “plainly unreasonable” standard for nonguideline initial sentences first appeared more than a

year later, after the SRA and initial Guidelines Manual went into effect. See Pub. L. 100-182, § 5, 101 Stat.

1267 (1987).

This amendment history confirms the plain meaning of the (abrogated) text: § 3742(a)(4) and (e)(4) were

never intended to govern appeals of revocation sentences. Both before and after Booker, courts needed to

identify the standard of review by inference. Booker,

543 U.S. at 260 (discussing Pierce v. Underwood, 487

U.S. 552, 558–560 (1988)). Fortunately, this Court has

already done the work for SRA sentences: courts

should review for reasonableness, without an additional “plainness” requirement.

3. If there were any doubt on this issue, that doubt

should have disappeared after Holguin-Hernandez

and Esteras.

Holguin-Hernandez explicitly held that plainness

is required for forfeited revocation appeals, but not for

preserved revocation appeals. The main issue in Holguin-Hernandez was preservation, and Rule 52(b)’s

plainness requirement made that issue significant.

The defendant there asked for a revocation sentence

shorter than twelve months but did not separately object to the reasonableness of the twelve-month sentence. The Fifth Circuit deemed the error forfeited,

and would only “consider whether the error petitioner

asserted was ‘plain.’” 589 U.S. at 172. This Court rejected the Fifth Circuit’s erroneous application of the

19

plain-error standard: the defendant’s request for a

lighter sentence preserved plenary review, which

meant he did not have to show error that was plain.

He was entitled to review under “the familiar abuseof-discretion standard” that governs appeals of “the

trial court’s sentencing decision.” Id. at 174 (quoting

Gall v. United States, 552 U.S. 38, 46 (2007)). If Holguin-Hernandez was entitled to the “familiar” BookerGall standard in his revocation appeal, then it is hard

to see why Mr. Ortiz should be treated differently. But

he was.

In Esteras, the Court recognized that a district

court cannot consider just punishment or respect for

the law “when deciding whether to revoke supervised

release.” 606 U.S. at 197. Responding to government

complaints about administrability, the Court “conclude[d]” its opinion “with a few observations about

appellate review.” Id. at 202. The Court emphasized

the difference between preserved revocation appeals

and forfeited revocation appeals: “Much will turn on

whether the defendant objects.” Id.

If the defendant forfeits the issue—that is, if he

“does not make the district court aware that it may be

impermissibly relying on § 3553(a)(2)(A)”—then he

would have to show “clear” or “obvious” error, which in

that context means “that the district court actually relied on § 3553(a)(2)(A) … expressly or by unmistakable

implication.” Id. at 202–03. But where the defendant

preserves the issue below, he need not show clear or

obvious error:

If the court nonetheless considers the need to

exact retribution for the defendant’s original

criminal offense, and if the error was not

20

harmless, then the court of appeals should vacate the court’s order and remand for the court

to apply the correct standard.

Esteras, 606 U.S. at 203.

Esteras and Holguin-Hernandez have unequivocally answered the question presented: Where a defendant has preserved a challenge to the reasonableness of his revocation sentence, the appellate court

should review under “the familiar abuse-of-discretion

standard” that applies in every post-Booker appeal of

a “trial court’s sentencing decision.” Holguin-Hernandez, 589 U.S. at 174 (quoting Gall, 552 U.S. at 46). The

Court should require plainness only where the defendant remained silent below.

III. The issue is important, recurring,

warrants plenary review in this case.

and

The Fourth, Fifth, and Seventh Circuits have all

entered decisions that “conflict with the decision[s]” of

the First, Second, Third, Sixth, Eighth, Ninth, Tenth,

and Eleventh Circuits on the same important and recurring question. S. Ct. R. 10(a). The outlying courts

have decided that same federal question “in a way that

conflicts with the relevant decisions of this Court.” S.

Ct. R. 10(c).

Any suggestion that the division would not affect

case outcomes is belied by the Fifth Circuit’s own published decisions and its unpublished decision here.

The Court granted certiorari in Holguin-Hernandez to

correct the Fifth Circuit’s erroneous application of a

demanding plain-error standard in revocation appeals, and the same logic supports a grant here.

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This is a good vehicle to address the conflict because Mr. Ortiz pressed the argument in the court below, as acknowledged in footnote 2 of the Fifth Circuit’s opinion. App., infra, 4a. And Mr. Ortiz’s substantive reasonableness arguments were not the sort likely

to have been addressed in prior decisions—surely it is

extremely uncommon that a court would impose a

statutory maximum consecutive prison sentence without even understanding the facts of the case. So this

case shows the pernicious effect of the Fifth Circuit’s

rule—a defendant is categorically unable to challenge

his revocation sentence where the district court committed an unfamiliar error.

Finally, the length of the sentence and its consecutive nature means Mr. Ortiz could directly benefit

from a ruling in his favor. Absent relief from this

Court, he will remain in the custody of the Bureau of

Prisons until 2029. Most revocation sentences are

much shorter, meaning that a case will often become

moot before this Court could resolve the conflict. That

won’t happen here.

CONCLUSION

This Court should grant the petition and set the

case for a decision on the merits.

22

Respectfully submitted,

J. Matthew Wright

Counsel of Record

Office of the Federal Public

Defender

Northern District of Texas

500 South Taylor Street

Unit 110

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org