Petition for Writ of Certiorari — Jesus Concepcion, Petitioner v. United States

No. ____________________

IN THE

Supreme Court of the United States

_________________________________

JESUS CONCEPCION

Petitioner,

vs.

UNITED STATES,

Respondent.

_________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

_________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________

MICHELLE ANDERSON BARTH

CJA appointed counsel for Petitioner

Law Office of Michelle Anderson Barth

P.O Box 4240

Burlington, VT 05406

(619) 884-3883

i.

QUESTIONS PRESENTED

The Second Circuit Court of Appeals erred, in violation of U.S. Const. V and

Congress’ intent to provide a streamlined scheme of sentencing review established by

the Sentencing Reform Act of 1984, when it denied Concepcion’s constitutional

challenges to his condition of supervision as unripe on direct appeal. Its decision is

also a departure from the majority view among Courts of Appeals’ decisions that have

examined similar issues. This Court should grant certiorari to provide clarity about

this reoccurring issue.

The Second Circuit also treats a sentencing argument supporting an otherwise

preserved claim as an unpreserved, forfeited claim subject to waiver. The Second

Circuit’s broad definition of issue waiver is incorrect and inconsistent with this

Court’s jurisprudence. This Court should grant certiorari to bring the Second Circuit

in line with this Court’s waiver jurisprudence.

ii

ii.

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner is Jesus Concepcion, the defendant-appellant in the proceeding

below. Respondent is the United States of America, the plaintiff-appellee below.

Pursuant to Rule 29.6, petitioner states that he is a natural person and not a

corporation. There are no publicly held corporations involved in this proceeding. No

corporate disclosure statement is therefore required.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................................. ii

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ............. iii

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

PETITION FOR CERTIORARI ..........................................................................1

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

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

STATUTORY PROVISIONS ...............................................................................1

I.

STATEMENT OF THE CASE ..................................................................2

II.

ARGUMENT .............................................................................................5

III

A.

This Court should grant certiorari because the Second Circuit’s

conclusion that Mr. Concepcion’s constitutional challenges to the

condition restriction are unripe for review runs afoul of

Congressional intent and is an outlier in the various

Courts of Appeals’ decisions that have examined similar

issues………………………………………………………………………..5

B.

This Court should grant this petition because Concepcion conflicts with

the Supreme Court’s jurisprudence—the rule of issue waiver applies

only to claims, not to arguments raised in support of otherwise preserved

claims. ……………………………………………………………………..10

CONCLUSION

16

INDEX TO APPENDICES

Order, United States v. Jesus Concepcion ......................... APPENDIX A

Order, Denial of Motion for Rehearing, En Banc

United States v. Jesus Concepcion..................................... APPENDIX B

iv

TABLE OF AUTHORITIES

Page

U.S. SUPREME COURT CASES

Citizens United v. Fed. Election Comm'n,

558 U.S. 310 (2010) .......................................................................................... 14

Hemphill v. New York,

142 S. Ct. 681 (2022). .................................................................................. 13,14

Holguin-Hernandez v. United States

140 S. Ct. 762 (2020) ......................................................................................... 14

Lebron v. Nat’l Railroad Passenger Corp.,

513 U.S. 374 (1995) ........................................................................................... 12

Puckett v. United States,

556 U.S. 129, (2009) ......................................................................................... 12

Quilloin v. Walcott,

434 U.S. 246 (1978) ............................................................................................ 6

United States v. Olano,

507 U.S. 725, (1993) ......................................................................................... 13

Yee v. City of Escondido,

503 U.S. 519, 534 (1992) .............................................................. 12,13,14,15,16

OTHER FEDERAL CASES

Hi-Tech Pharm., Inc. v. HBS Int'l Corp.,

910 F.3d 1186 (11th Cir. 2018) ................................................................... 15,16

United States v. Barrett,

102 F.4th 60 (2d Cir. 2024), cert. granted in part, 145 S. Ct. 1307 (2025), and

rev’d in part, 146 S. Ct. 482 (2026) .................................................................. 11

United States v. Betts,

886 F.3d 198 (2d Cir. 2018) ................................................................................ 7

United States v. Bickart,

825 F.3d 832 (7th Cir. 2016) .............................................................................. 4

United States v. Billups,

v

536 F.3d 574 (7th Cir. 2008) ................................................................... 12,14,15

United States v. Boyd,

5 F.4th 550 (4th Cir. 2021) .......................................................................... 15,16

United States v. Bryant,

914 F.3d 95 (2d Cir. 2019) .................................................................................. 4

United States v. Bleau,

930 F.3d 35 (2d Cir. 2019) (per curiam). ........................................................... 8

United States v. Concepcion,

No. 24-CR-2532, 2026 WL 200065 (2d Cir. January 27, 2026) .............. passim

United States v. Evans,

833 F.3d 1154 (9th Cir. 2018) ............................................................................ 4

United States v. Lussier,

104 F.3d 32 (2d Cir.1997) ................................................................................ 7,9

United States v. Madera,

528 F.3d 852 (11th Cir. 2008) .......................................................................... 14

United States v. Myers,

426 F.3d 117 (2d Cir. 2005) ........................................................................... 9,10

United States v. Pallares–Galan,

359 F.3d 1088 (9th Cir.2004) ............................................................... 4,7,8,9,10

United States v. Reyes,

772 F.3d 1152 (9th Cir. 2014) .......................................................................... 14

United States v. Sexton,

719 F. App’x 483 (6th Cir. 2017) ........................................................................ 4

United States v. Valdez,

No. 23-6482, 2024 WL 6839555 (2d Cir. Sept. 12, 2024) .............................. 8,9

OTHER AUTHORITIES

U.S. Const. amend V ........................................................................................ 2,6

18 U.S.C. § 2422 ................................................................................................. 2

vi

18 U.S.C. §2423 ................................................................................................... 2

18 U.S.C. § 3583(e)(2) .......................................................................................... 7

Fed. R. Crim. P. 51(b); ........................................................................ 2,12,13,14

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

vii

PETITION FOR CERTIORARI

Petitioner Jesus Concepcion respectfully prays for a writ of certiorari to

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

OPINIONS BELOW

On July 22, 2025, a three-judge panel for the Second Circuit issued a summary

order (“the Order”) affirming the district court’s judgment. United States v.

Concepcion, No. 24-CR-2532, 2026 WL 200065 (2d Cir. January 27, 2026). The

decision is attached as Exhibit A.

On March 13, 2026, Mr. Concepcion filed a motion for rehearing and suggestion

for rehearing en banc. The Second Circuit denied his motion on April 6, 2026. That

order is attached as Appendix B.

JURISDICTION

On January 27, 2026, a three-judge panel for the Second Circuit issued an

order affirming the district court’s imposition of a thirty-year custodial sentence.

Subsequently, on April 6, 2026, the Second Circuit denied Mr. Concepcion’s motion

for rehearing and suggestion for rehearing en banc. 1 This Court has jurisdiction to

review the Second Circuit’s order pursuant to 28 U.S.C. § 1254.

FEDERAL RULES, STATUTORY, AND CONSTITUTIONAL PROVISIONS

1 The time to file a petition for a writ of certiorari runs from the date a timely petition for rehearing is

denied. Sup. Ct. R. 13(3). A petition for a writ of certiorari is timely when filed within 90 days. Sup.

Ct. R. 13(1). The motion for rehearing in this case was denied on April 6, 2026, making petition for

writ of certiorari due on July 5, 2026. A petition is timely filed if mailed on the date for filing. Sup. Ct.

R. 29.2. However, when the due date falls on Sunday, the period extends until the end of the next day

that is not a Saturday, Sunday, federal legal holiday, or day on which the Court building is closed. As

such, Mr. Concepcion’s brief is July 6, 2026.

1

U.S. Const. Amend. V:

No person shall . . . be deprived of life, liberty, or property, without

due process of law.

Federal Rule of Criminal Procedure 51(b):

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. If a party does

not have an opportunity to object to a ruling or order, the absence

of an objection does not later prejudice that party. A ruling or

order that admits or excludes evidence is governed by Federal

Rule of Evidence 103.

I.

STATEMENT OF THE CASE

Before the Second Circuit Court of Appeals, Jesus Concepcion appealed from

the September 11, 2024, judgment of the United States District Court for the

Southern District of New York (Preska, J.) convicting him, following his plea of guilty,

of five counts of enticing a minor for the purpose of engaging in illegal sexual activity,

four counts of transporting a minor for that purpose, and one count of traveling for

the same, in violation of 18 U.S.C. §§ 2422 and 2423. The district court sentenced

Concepcion principally to a term of thirty years’ imprisonment to be followed by ten

years of supervised release.

On appeal, Concepcion contested the district court’s imposition of a special

condition of supervised release that prohibits him from contacting minors without his

probation officer’s permission. Because he has a minor daughter and minor step2

grandchildren, Concepcion contended that a more thorough justification by the

district court was required. He also argued that the delegation of decision-making

authority to the Probation Department was improper.

Concepcion also claimed that his thirty-year sentence was procedurally and

substantively unreasonable, in part, because the District Court failed to meaningfully

consider “the need to avoid unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6),

as a factor in imposing his sentence, and in any event failed to state its reasons as to

that factor.

The Second Circuit concluded that Mr. Concepcion’s constitutional challenges

to his special condition of supervision were unripe for review.

Despite the

government’s concession there was no evidence in the record that Mr. Concepcion

abused his own children or his family members, the Second Circuit upheld the special

condition. Although there was no record evidence supporting the condition as applied

to Concepcion’s family members, the Second Circuit reasoned that the claim was

essentially moot or unripe because Mr. Concepcion is currently serving a long prison

sentence. Concepcion, 2026 WL 200065, at *2 (2d Cir. Jan. 27, 2026). As such, any

current minor age family members would be adults if he served the entirety of his

sentence. Id. Such a conclusion, however, runs counter to Congress’ intent to create

a streamlined scheme of sentencing review. By foreclosing direct appeal as a

procedural avenue to challenge the condition’s constitutionality, the decision, in

effect, deprived Mr. Concepcion of the only meaningful forum to bring such a claim.

3

Likewise, the decision is an outlier in the various Courts of Appeals’ decisions

that have examined the same or other special conditions during direct appeal. See

United States v. Evans, 833 F.3d 1154, 1164 (9th Cir. 2018); United States v. Sexton,

719 F. App’x 483, 484-85 (6th Cir. 2017); United States v. Bickart, 825 F.3d 832, 84142 (7th Cir. 2016). The decision also adds to the confusion in the Second Circuit,

which sometimes reviews a condition’s legality on direct appeal. See e.g. United States

v. Myers, 426 F.3d 117, 123 and n.5 (2d Cir. 2005) (then Judge Sotomayor writing for

this Court vacated a special condition of supervised release restricting defendant’s

contact with his minor age child on direct appeal and criticized the government’s

“wait and see” argument as running counter to Congressional intent for the overall

scheme of appellate and collateral review); United States v. Bryant, 914 F.3d 95 (2d

Cir. 2019) (vacating a different special condition on direct appeal that prohibited

contact between twin brothers because of their status as felons). And sometimes

refuses to review special conditions on direct appeal. United States v. Traficante, 966

F.3d 99 (2d Cir. 2020) (Whether couched as a vagueness challenge or a delegation

challenge, the appellant’s challenge to the risk condition of supervision fails because

it “depends upon ‘contingent future events that may not occur as anticipated, or

indeed may not occur at all.”). This Court should grant certiorari to bring clarity to

this issue and create a uniform approach for circuit courts to use when reviewing

conditions of release.

Second, this Court should grant this petition because this decision improperly

interprets the issue waiver doctrine.

4

Here, the Second Circuit concluded that

Concepcion waived his sentencing argument that the district court failed to

meaningfully consider “the need to avoid unwarranted sentence disparities,” 18

U.S.C. § 3553(a)(6), as a factor in imposing his sentence. In this case, the Second

Circuit incorrectly characterized the argument Concepcion raised on appeal in

support of a preserved reasonableness claim as “waived.”

Per this Court’s

jurisprudence, the correct question the Second Circuit should have asked was: did

Concepcion preserve his claim?

If so, this Court’s jurisprudence is clear that

appellants are free on appeal to make any arguments they see fit supporting a

preserved claim. This Court should grant this petition because the Second Circuit

interpretation of waiver conflicts with this Court’s jurisprudence—the rule of issue

waiver applies only to claims, not to arguments raised in support of otherwise

preserved claims.

This Court should grant certiorari to provide clarification about

claim preclusion versus an appellant who raises a new or different argument in

support of an otherwise preserved claim.

II.

ARGUMENT

A. This Court should grant certiorari because the Second Circuit’s

conclusion that Mr. Concepcion’s constitutional challenges to the

condition restriction are unripe for review runs afoul of

Congressional intent and is an outlier in the various Courts of

Appeals’ decisions that have examined similar issues.

On appeal, Mr. Concepcion challenged the following condition of supervision:

The defendant must not have deliberate contact with any child

under 18 years of age, unless approved by the probation officer.

The defendant must not loiter within 100 feet of places regularly

frequented by children under the age of 18, such as schoolyards,

5

playgrounds, and arcades. You must not view and/or access any

web profile of users under the age of 18. This includes, but it is

not limited to, social networking websites, community portals,

chat rooms or other online environment audio/visual/messaging),

etc. which allows for real time interaction with other users,

without prior approval from your probation officer.

At oral argument before the Second Circuit, the government conceded there was no

evidence that Mr. Concepcion was a danger to his own family members. Despite the

government’s concession, the Panel upheld the condition, reasoning that it was

essentially moot or unripe because Mr. Concepcion is currently serving a long prison

sentence. Concepcion, 2026 WL 200065, at *2. As such, the Second Circuit reasoned,

any currently minor aged family members would be adults if Mr. Concepcion served

the entirety of his sentence. Id. In other words, the condition will likely age out of

its currently unconstitutional state.

Upholding a condition that is currently

unconstitutional, but maybe won’t be later, is an outlier viewpoint that is not

consistent with this Court’s controlling authority.

First, it is important to note that the interest at stake here is a vital one. The

relationship between a parent and child is a fundamental liberty interest protected

by the due process clause. Quilloin v. Walcott, 434 U.S. 246, 255 (1978). In other

words, this is no small right. While not absolute, restrictions on such an important

right require sufficient justification.

A district court “is required to make an

individualized assessment when determining whether to impose a special condition

of supervised release, and to state on the record the reason for imposing it ... [unless]

the district court’s reasoning is self-evident in the record.” United States v. Betts, 886

F.3d 198, 202 (2d Cir. 2018) (internal quotation marks omitted). “[T]he failure to do

6

so is error.” Id. Here, as conceded by the government, there was zero record support

to justify a condition restricting Mr. Concepcion from contact with his minor age

family members.

Second, other authority within the Second Circuit has taken the opposite

position creating confusion for litigants.

In Myers, the Second Circuit outright

rejected the “wait and see” approach adopted in Concepcion’s appeal. Myers reasoned:

As a threshold matter, we reject the government’s suggestion that we

should delay or avoid consideration of this matter because of the

possibility that Myers’s family circumstances might change upon

Myers’s release from prison. The government argues that, given Myers’s

current incarceration and uncertain future family circumstances,

nothing would preclude Myers from moving to modify the condition

under 18 U.S.C. § 3583(e)(2). As the government appeared to concede at

oral argument, however, Myers would be unable to challenge the

constitutionality of the condition under that provision. See United States

v. Lussier, 104 F.3d 32, 34–35 (2d Cir.1997) ( “The plain language of

subsection 3583(e)(2) indicates that the illegality of a condition of

supervised release is not a proper ground for modification under this

provision” and “does not authorize the court to assess the lawfulness of

a condition of release.”)

Myers, 426 F.3d at 122–23. Myers cited and relied on Lussier and Lussier’s section

3582(e)(2) interpretation was conceded by the government as barring a defendant’s

constitutional challenge to a condition at a later modification hearing. In other

words, the government in Lussier adopted the position that constitutional challenges

cannot be raised at a later modification hearing. Per Myers, direct appeal is where

constitutional challenges to conditions should be both raised and considered.

Adding to the confusion, the Second Circuit has also vacated similar special

conditions in other cases. See United States v. Bleau, 930 F.3d 35 (2d Cir. 2019) (per

curiam). In Bleau, this Court held that “[w]hile there may be reasonable arguments

7

to support the imposition of th[ese] special condition[s], we [could not] conclude that,

on the present record, th[ese] condition[s] [are] warranted.” Id. at 43. (emphasis in the

original). Despite the same deficiency here, the Second Circuit did not vacate the

condition.

It is not obvious from the record why such a condition was reasonably

necessary with respect to Mr. Concepcion’s minor age family members. Mr.

Concepcion challenged only this aspect of the condition, claiming it was unjustified

by the record and amounted to an improper delegation of authority.

Further, on

appeal, Concepcion requested only a family carve-out to this condition. In Valdez,

the Second Circuit held that a similar special condition was constitutional mainly

because it included a family carve-out. United States v. Valdez, No. 23-6482, 2024

WL 6839555, at *2 (2d Cir. Sept. 12, 2024). In Valdez, the district court modified the

scope of the special condition in an effort to avoid unnecessary interference with

Valdez’s rights. “Not only did the district court allow Valdez to have contact with his

children, but it also removed the bulk of the PSR’s other recommendations for the

condition.” The district court “thus narrowly tailored the limits on Valdez’s contact

with minors.”

In these circumstances, the district court imposed the condition

properly. Notably, Mr. Valdez received a long sentence, 156-months in custody, with

five years of supervised release. United States v. Valdez, No. 23-6482, 2024 WL

6839555, at *1 (2d Cir. Sept. 12, 2024).

Concepcion recognizes that ripeness is a constitutional prerequisite to the

exercise of jurisdiction by federal courts. A purely legal question, however, is fit for

8

judicial review. The contingent nature of a condition is not determinative. Instead,

courts should look to the specific legal issues raised by challenges to a condition to

assess ripeness. If those challenges solely rely on questions of law, they are ripe.

Here, the Second Circuit panel considered the contingency (that all Concepcion’s

family members might be adults by the time he is released from prison) instead of

the legal questions (did the present record justify the restriction on this fundamental

right in the first place and was there an improper delegation of authority).

Finally, decisions like Concepcion’s create confusion for defendants and

practitioners who wish to challenge unlawful conditions of supervision. Where should

Concepcion, and other defendants like him, bring their constitutional challenges to

conditions if not on direct appeal? Lussier’s section 3582(e)(2) interpretation was

conceded by the government in Myers as barring a defendant’s constitutional

challenge to a condition at a modification hearing. Myers, 426 F.3d at 123 (citing

Lussier, 104 F.3d at 34-35).

Such decisions also dissuade practitioners and

defendants from properly raising constitutional challenges to supervised release

conditions on direct appeal under the mistaken impression that a modification

hearing is the proper forum.

This Court should grant certiorari to correct these significant departures from

established Constitutional principles and bring the Second Circuit in conformity with

congressional intent and with the sister circuits. In each of the aforementioned cases,

the claim raised was “just an abstraction,” Traficante, 966 F.3d at 106, i.e., a

challenge brought on direct appeal prior to a modification or violation hearing of any

9

sort. If Traficante or Concepcion properly denied review of the defendants’ claims on

ripeness grounds, then Myers, and a legion of other cases like them raising similar

constitutional claims to supervised release terms on direct appeal were all wrongly

decided. Yet in each of those cases, the appellate courts decided the claim. Left

undisturbed, Concepcion runs afoul of long-standing precedent and creates forum

confusion for practitioners and defendants pursuing such claims.

B. This Court should grant this petition because the Order conflicts

with the Supreme Court’s jurisprudence—the rule of issue waiver

applies only to claims, not to arguments raised in support of

otherwise preserved claims.

On appeal, Concepcion argued that his thirty-year sentence was procedurally

unreasonable because the district court failed to meaningfully consider “the need to

avoid unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), as a factor in

imposing his sentence, and in any event failed to state its reasons as to that factor.

The Second Circuit decided that Concepcion waived this argument. In so doing, the

Panel relied on Concepcion’s sentencing memorandum, which stated that “a below

[G]uidelines sentence ... in this case will not create any sentenc[e] disparities.” The

Panel concluded that Concepcion “thus waived the argument that the District Court

did not appropriately consider sentence disparities when it imposed a below

Guidelines sentence.”

Generally, for true waiver, a defendant must “not only [have] failed to object to

what [he] now describe[s] as error,” but also have “actively solicited” the error “in

order to procure a perceived sentencing benefit.” United States v. Barrett, 102 F.4th

60, 86 (2d Cir. 2024), cert. granted in part, 145 S. Ct. 1307 (2025), and rev’d in part,

10

146 S. Ct. 482 (2026).

Here, there is no argument that Concepcion was actively soliciting error in

order to procure a perceived sentencing benefit. There would be no sentencing benefit

to drawing the district court’s attention away from the disparity issue. Undisputed

nationwide sentencing data established a sentencing disparity. As detailed in the

defendant’s Presentence Report (“PSR”), there were 71 similar defendants sentenced

in the five fiscal years leading up to Mr. Concepcion’s sentence. Each of these

defendants was placed in Criminal History Category I, with a Final Offense Level of

43 (life), and their primary guideline was §2G1.3. None of them received a departure

for substantial assistance. The average length of imprisonment imposed was 301

months, which is approximately five years less than Mr. Concepcion’s thirty-year

sentence. The median length of imprisonment imposed was 264 months, about eight

years less than Mr. Concepcion’s 360-month sentence. Based on this data, which the

government did not dispute below, Mr. Concepcion’s 360-month sentence appears to

be significantly higher than the national average for similar offenders.

The Second Circuit recognized that Concepcion invoked 3553(a)(6) in support

of a below guidelines sentence. But Concepcion invoked it in support of his sentencing

recommendation of ten years, not for just any sentence below the applicable

guidelines. As such, including this factor in his sentencing memorandum does not

amount to soliciting error for a perceived sentencing benefit.

But most importantly, it is long-held precedent that the rule of issue forfeiture

or waiver applies only to claims, not to arguments raised in support of otherwise

11

preserved claims. This Court is clear, “[o]nce a federal claim is properly presented, a

party can make any argument in support of that claim; parties are not limited to the

precise arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534 (1992)

(emphasis added); see also Lebron v. Nat’l Railroad Passenger Corp., 513 U.S. 374,

378-79 (1995) (“Lebron’s contention that Amtrak is part of the Government is in our

view not a new claim within the meaning of that rule, but a new argument to support

of what has been his consistent claim: that Amtrak did not accord him the rights it

was obligated to provide”); Fed. R. Crim. P. 51(b); United States v. Billups, 536 F.3d

574, 578-79 (7th Cir. 2008) (rejecting the government’s contention Billups forfeited

an aspect of his legal challenge by not raising a particular argument below and

offering a new twist on that argument for appeal) (citing, inter alia, Yee).

This doctrine of claim preservation (as opposed to argument preservation) is

embodied in Rule 51 of the Federal Rules of Criminal Procedure. See Puckett v. United

States, 556 U.S. 129, 135 (2009) (“in federal criminal cases, Rule 51(b) tells parties

how to preserve claims of error . . . .”) (emphasis added to parenthetical quote). The

rule states: “[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.”

Fed. R. Crim. P. 51(b) (emphasis added). “Once a federal claim is properly presented,

a party can make any argument in support of that claim; parties are not limited to

the precise arguments they made below. ” Yee, 503 U.S. at 534. The use of the word

“claim” puts Rule 51(b) and the holding of Yee in accord.

12

Second, this Court has drawn a sharp distinction between waiver and

forfeiture. Waiver is the “intentional relinquishment or abandonment of a known

right,” while forfeiture is the mere “failure to make the timely assertion of a right.”

United States v. Olano, 507 U.S. 725, 733 (1993).

Concepcion never expressly

disclaimed, let alone intentionally relinquished reliance on § 3553(a)(6). To the

contrary, Concepcion cited that factor, argued that his requested ten-year sentence

would not generate disparities, and urged the court to weigh the full set of § 3553(a)

considerations—including disparity. Concepcion argued that the particular sentence

he proposed would be consistent with avoiding disparities. The Order departs from

this Court’s waiver jurisprudence.

This Court more recently addressed claims versus argument preservation in

Hemphill v. New York, 142 S. Ct. 681, 689 (2022). In Hemphill, the State of New

York argued that the defendant failed to present his claim adequately to the state

courts barring this Court’s review on the merits. Id. at 689. This Court rejected that

argument stating, “No particular form of words or phrases is essential for satisfying

the presentation requirement, so long as the claim is ‘brought to the attention of the

state court with fair precision and in due time.” (internal citations and quotations

omitted). Id. Although the defendant made various arguments below, his claim was

consistent: “[a]t every level of his proceedings in state court, Hemphill argued that

the admission of Morris’ plea allocution violated his Sixth Amendment right to

confrontation as interpreted by this Court in Crawford.” Id. This Court emphasized,

“Once a federal claim is properly presented, a party can make any argument in

13

support of that claim.” Id. at 689 (quoting and citing Yee). As such, “[t]he Court may

therefore consider any argument Hemphill raises in support of his claim that he did

not “forfei[t] his right to exclude evidence otherwise barred by the Confrontation

Clause” by “open[ing] the door to responsive evidence.” Id. See Citizens United v. Fed.

Election Comm'n, 558 U.S. 310, 331 (2010) (allowing plaintiffs to raise a new

argument on appeal to support a “consistent claim” that a statute violated First

Amendment rights); see also Holguin-Hernandez v. United States, 140 S. Ct. 762,

765–66, (2020) (defendant who argued generally for a shorter sentence preserved for

appeal his argument that the sentence ultimately imposed was unreasonably long).

Concepcion departs from the decisions of other circuit courts as well. See e.g.,

United States v. Reyes, 772 F.3d 1152, 1157 (9th Cir. 2014) (rejecting government’s

argument that plain error applies to new argument on appeal that was not raised

before the district court); United States v. Pallares–Galan, 359 F.3d 1088, 1095 (9th

Cir.2004) (“[I]t is claims that are deemed waived or forfeited, not arguments.”);

United States v. Madera, 528 F.3d 852, 854 n.1 (11th Cir. 2008) (rejecting the

government’s suggestion that several of Madera's arguments should not be review de

novo because they were not raised before the district court citing Yee); United States

v. Billups, 536 F.3d 574, 578-79 (7th Cir. 2008) (rejecting the government’s contention

Billups forfeited an aspect of his legal challenge by not raising a particular argument

below and offering a new twist on that argument for appeal) (citing, inter alia, Yee));

United States v. Boyd, 5 F.4th 550, 556 (4th Cir. 2021) (de novo review of new

argument on appeal, citing Yee); Hi-Tech Pharm., Inc. v. HBS Int'l Corp., 910 F.3d

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1186, 1194 (11th Cir. 2018) (“Parties can most assuredly waive [or forfeit] positions

and issues on appeal, but not individual arguments…”) (alteration in original)

(citation omitted)).

In Billups, the Seventh Circuit was asked to decide whether plain error review

was appropriate when a defendant raised a new argument in support of a preserved

claim on appeal. In Billups, the defendant argued to the district court that his

Wisconsin false imprisonment conviction did not constitute a crime of violence for

career offender purposes based on his reading of the Wisconsin state jury instructions

(he argued that the instruction lacked the element of force). Id. Thus, he claimed, he

was not a career offender. Id. On appeal, however, his argument changed. Id. While

he still claimed not to be a career offender, he argued that the Wisconsin statutory

definition of “without consent” was evidence that the false imprisonment conviction

was not a career offender predicate. Id. The Seventh Circuit rejected the

government’s request for plain error review and reviewed de novo both the district

court's career offender determination and the underlying crime-of-violence

determination. Billups citing Yee, reasoned:

The government argues that because the statutory definition of

“without consent” was not before the district court, Billups

forfeited that aspect of his challenge, limiting our review to plain

error. We disagree. Billups’s challenge below was sufficient to

preserve his current argument, even if he offers a new twist on

that argument based upon additional authority on appeal.

Id. at 578 (citing, inter alia, Yee).

In Hi-Tech Pharms., Inc. v. HBS Int'l Corp, HBS contended that the Eleventh

Circuit should not reach the merits of the appeal because Hi-Tech “waived” or

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“forfeited” three dispositive arguments by failing to respond to them in the district

court, even though they had been raised. 910 F.3d at 1193–94. The Eleventh Circuit

held that HBS’ position misapprehends the law – “[p]arties can most assuredly waive

[or forfeit] positions and issues on appeal, but not individual arguments....” Id. at

1194.

Similarly, in Boyd, the Fourth Circuit held:

[W]e are obliged on appeal to consider any theory plainly encompassed by the

submissions in the underlying litigation.” Volvo Constr. Equip. N. Am., Inc. v.

CLM Equip. Co., 386 F.3d 581, 604 (4th Cir. 2004). And “variations” on

arguments made below may be pursued, so long as the appealing party “asked

both courts to evaluate the same fundamental question.” In re Under Seal, 749

F.3d 276, 288 (4th Cir. 2014) (discussing Yee v. City of Escondido

503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992)).

Boyd, 5 F. 4th at 556.

In short, this Court’s precedent along and the language of Rule 51(b) are in

keeping with Concepcion’s position regarding the standard of review on appeal. This

Court should grant this petition to provide clarity to this issue.

III.

CONCLUSION

For the foregoing reasons, the petitioner prays that a writ of certiorari issue to

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

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Respectfully submitted,

_______________________

MICHELLE ANDERSON BARTH

CJA appointed counsel for Petitioner

Law Office of Michelle Anderson Barth

P.O. Box 4240

Burlington, VT 05406

(619) 884-3883

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