Petition for Writ of Certiorari — Reginald DeWayne Brown, Petitioner v. United States
Supreme Court briefAug 19, 2026
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No. _______________
IN THE
SUPREME COURT OF THE UNITED STATES
REGINALD DEWAYNE BROWN,
Petitioner
V.
UNITED STATES OF AMERICA,
Respondent
On Petition for Writ of Certiorari
To The United States Court of Appeals for the Sixth Circuit
Kyle Singhal
Counsel of Record
HOPWOOD & SINGHAL PLLC
1701 PENNSYLVANIA AVE., N.W.
SUITE 200
WASHINGTON, DC 20006
KYLE@HOPWOODSINGHAL.COM
TELEPHONE: (202) 769-4080
QUESTION PRESENTED
A federal grand jury charged petitioner Reginald DeWayne Brown with two
cocaine offenses involving five kilograms or more, each carrying a sentence of ten
years to life. 21 U.S.C. § 841(b)(1)(A). In exchange for Brown’s guilty plea and a
stipulated sentence of 60 months, the government reduced the charges to remove the
ten-year mandatory minimum: it filed a superseding information alleging the same
two offenses but with a quantity of “500 grams or more,” each count carrying a
sentence of five to forty years. 21 U.S.C. § 841(b)(1)(B). The parties presented their
agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). The district court
rejected it, and later rejected a second agreement stipulating to 72 months, because
the stipulated sentences varied too far downward from the Sentencing Guidelines
range of 130 to 162 months. But that range rested on the 11.58 kilograms of cocaine
originally charged and subsequently attributed to Brown as relevant conduct. Brown
withdrew his plea, stood trial on the original indictment, and was sentenced to 198
months.
The question presented is:
Whether a district court may reject a plea agreement through which the
government has reduced the charges against a defendant on the ground
that the stipulated sentence departs, without adequate justification,
from the Sentencing Guidelines range for conduct that the government
declined to charge.
i
PARTIES TO THE PROCEEDINGS
Petitioner Reginald DeWayne Brown was the defendant in the United States
District Court for the Western District of Kentucky and the appellant in the United
States Court of Appeals for the Sixth Circuit. Respondent United States of America
was the plaintiff in the district court and the appellee in the court of appeals.
RELATED PROCEEDINGS
1. United States v. Brown, No. 3:22-cr-123-DJH-2 (W.D. Ky.) (judgment entered
November 18, 2024).
2. United States v. Brown, No. 24-6072 (6th Cir.) (opinion issued April 17, 2026;
rehearing en banc denied June 12, 2026).
There are no other proceedings in state or federal trial or appellate courts
directly related to this case within the meaning of this Court’s Rule 14.1(b)(iii).
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
PARTIES TO THE PROCEEDINGS ............................................................................ ii
RELATED PROCEEDINGS.......................................................................................... ii
TABLE OF AUTHORITIES .......................................................................................... v
INDEX TO APPENDICES ......................................................................................... viii
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL, STATUTORY, AND OTHER PROVISIONS INVOLVED ....... 1
INTRODUCTION .......................................................................................................... 2
STATEMENT ................................................................................................................. 4
A. Legal background................................................................................................. 4
B. The indictment, the superseding information, and the plea agreement ........... 5
C. The presentence report ........................................................................................ 6
D. The rejection of both plea agreements ................................................................ 6
E. Trial, sentence, and appeal ................................................................................. 7
REASONS FOR GRANTING THE PETITION ............................................................ 9
I. The courts of appeals are divided over a district court’s authority to reject a plea
agreement that embodies the Executive’s charging decision. ................................ 9
A. Three circuits require deference to the charging decision embodied in a plea
agreement. ......................................................................................................... 10
B. The Sixth Circuit and at least five others permit rejection whenever the
court deems the stipulated sentence too lenient for the defendant’s full conduct.
........................................................................................................................... 13
iii
C. The conflict extends to the legal status of U.S.S.G. § 6B1.2 itself. ............ 15
II. The decision below is wrong. ............................................................................. 15
III. The question is important and recurring. ....................................................... 18
IV. This case is an ideal vehicle. ............................................................................ 19
CONCLUSION............................................................................................................. 21
iv
TABLE OF AUTHORITIES
Cases
Bordenkircher v. Hayes, 434 U.S. 357 (1978) ............................................................. 16
Freeman v. United States, 564 U.S. 522 (2011) .................................................... 17, 18
Hughes v. United States, 584 U.S. 675 (2018) .................................................. 5, 17, 18
In re Benvin, 791 F.3d 1096 (9th Cir. 2015) ............................................................... 10
In re Ellis, 356 F.3d 1198 (9th Cir. 2004) (en banc) ................................................... 10
In re Morgan, 506 F.3d 705 (9th Cir. 2007) ................................................................ 10
In re United States, 32 F.4th 584 (6th Cir. 2022) ....................................................... 16
In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. 2006) ................................................ 10
Kinder v. United States, 504 U.S. 946 (1992) ............................................................. 19
Lafler v. Cooper, 566 U.S. 156 (2012)............................................................................ 3
Missouri v. Frye, 566 U.S. 134 (2012) ..................................................................... 3, 18
Puckett v. United States, 556 U.S. 129 (2009) ............................................................ 19
Santobello v. New York, 404 U.S. 257 (1971) ............................................................. 19
United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) ................................ 11, 18
United States v. Bean, 564 F.2d 700 (5th Cir. 1977) .................................................. 14
United States v. Booker, 543 U.S. 220 (2005) ....................................................... 15, 17
United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) ............................ 12
United States v. Cota-Luna, 891 F.3d 639 (6th Cir. 2018) ......................................... 20
United States v. Cox, 342 F.2d 167 (5th Cir. 1965) (en banc) .................................... 15
United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir. 2016) .......... 3, 11, 12, 16
v
United States v. Gamboa, 166 F.3d 1327 (11th Cir. 1999)......................................... 14
United States v. George, 804 F. App’x 358 (6th Cir. 2020) ................................. 2, 8, 17
United States v. Goodall, 236 F.3d 700 (D.C. Cir. 2001) ................................ 12, 15, 17
United States v. Greener, 979 F.2d 517 (7th Cir. 1992).............................................. 14
United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) ............................................... 12
United States v. Jeter, 315 F.3d 445 (5th Cir. 2002) .................................................. 14
United States v. Lanier, No. 25-3059, 2025 U.S. App. LEXIS 30636 (6th Cir. Nov. 20,
2025) ............................................................................................................. 13
United States v. Lawton, 193 F.3d 1087 (9th Cir. 1999) ............................................ 12
United States v. Miller, 722 F.2d 562 (9th Cir. 1983) ................................................ 10
United States v. Papke, 149 F.4th 1169 (10th Cir. 2025) ........................... 2, 11, 14, 18
United States v. Plaza-Garcia, 914 F.2d 345 (1st Cir. 1990) ..................................... 12
United States v. Quintero, 937 F.2d 95 (2d Cir. 1991) ............................................... 12
United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995) ........................................ 11
United States v. Sabit, 797 F. App’x 218 (6th Cir. 2019) ........................................... 17
United States v. Smith, 417 F.3d 483 (5th Cir. 2005) ................................................ 14
United States v. Torres-Echavarria, 129 F.3d 692 (2d Cir. 1997) ....................... 12, 13
United States v. Vanderwerff, 788 F.3d 1266 (10th Cir. 2015) .............................. 3, 11
United States v. Vannelli, 171 F.4th 912 (6th Cir. 2026) ........................................... 13
United States v. Walker, 922 F.3d 239 (4th Cir.), vacated on other grounds, 140 S. Ct.
474 (2019) ............................................................................................... 14, 20
United States v. Young, No. 23-12513, 2024 U.S. App. LEXIS 28184 (11th Cir. Nov.
6, 2024) ......................................................................................................... 14
vi
Constitutional Provision
U.S. Const. art. II, § 3 .................................................................................................... 1
Statutes
21 U.S.C. § 841 ........................................................................................................... 1, 5
21 U.S.C. § 846 ............................................................................................................... 5
28 U.S.C. § 1254(1) ........................................................................................................ 1
Rules
Fed. R. Crim. P. 11..................................................................... 4, 5, 7, 9, 10, 11, 16, 18
Sup. Ct. R. 13.3 .............................................................................................................. 1
Sentencing Guidelines
U.S.S.G. § 6B1.2 ............................................................1, 2, 4, 5, 8, 9, 12, 13, 15, 16, 17
Other Authorities
Brief in Opposition, Garrott v. United States, No. 20-423 (U.S. Dec. 3, 2020) .... 19, 20
Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909
(1992) .............................................................................................................. 3
vii
INDEX TO APPENDICES
Appendix A: Opinion of the United States Court of Appeals for the Sixth Circuit, No.
24-6072 (Apr. 17, 2026)—Pet. App. 1a
Appendix B: Order of the United States Court of Appeals for the Sixth Circuit
denying rehearing en banc (June 12, 2026)—Pet. App. 15a
Appendix C: Memorandum of Hearing and Order of the United States District Court
for the Western District of Kentucky rejecting the plea agreement, R.83
(Nov. 28, 2023)—Pet. App. 16a
Appendix D: Judgment of the United States District Court for the Western District
of Kentucky, R.185 (Nov. 18, 2024)—Pet. App. 18a
Appendix E: Constitutional, statutory, and Guidelines provisions involved—Pet.
App. 26a
Appendix F: Excerpts of Transcript of Sentencing Hearing (Nov. 27, 2023), R.203
(PageID#1731, 1734, 1740-42)—Pet. App. 29a
Appendix G: Excerpt of Transcript of Status Hearing (Feb. 1, 2024), R.205
(PageID#1750, 1756)—Pet. App. 34a
viii
PETITION FOR A WRIT OF CERTIORARI
Reginald DeWayne Brown respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Sixth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-14a) is unpublished and
available at 2026 U.S. App. LEXIS 11017 (6th Cir. Apr. 17, 2026). The order of the
court of appeals denying rehearing en banc (Pet. App. 15a) is unpublished and
available at 2026 U.S. App. LEXIS 17252 (6th Cir. June 12, 2026). The district court’s
memorandum of hearing and order rejecting the first plea agreement (Pet. App. 16a17a) is unreported.
JURISDICTION
The court of appeals entered its judgment on April 17, 2026, and denied a
timely petition for rehearing en banc on June 12, 2026. Pet. App. 15a. This petition
is timely under Rule 13.3 of this Court. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY, AND OTHER PROVISIONS INVOLVED
Article II, Section 3 of the Constitution provides in relevant part that the
President “shall take Care that the Laws be faithfully executed.” Federal Rule of
Criminal Procedure 11(c), 21 U.S.C. § 841(b)(1), and Section 6B1.2 of the United
States Sentencing Guidelines are reproduced at Pet. App. 26a-28a.
1
INTRODUCTION
At least twice in this case, the United States decided that justice required less
than the maximum charge it could prove. It filed a superseding information reducing
the alleged drug-quantity range from “five kilograms or more” to “500 grams or more,”
and it agreed that a sentence of five years, and later six, was the appropriate
disposition. Twice, the district court overrode that judgment for a single stated
reason: the agreed sentence departed too far from the Sentencing Guidelines range
of 130 to 162 months, a range built on the full (11.58 kilogram) quantity of cocaine
that the government had deliberately chosen not to charge. Brown withdrew his plea,
went to trial on the original indictment, and received a sentence of 198 months.
A panel of the Sixth Circuit affirmed. In its view, the district court fulfilled an
“independent obligation to ensure that” the plea agreement “stipulat[e] to an
appropriate sentence within the applicable Guideline range, or else justify any
departure from the Guidelines.” Pet. App. 8a (quoting United States v. George, 804 F.
App’x 358, 362 (6th Cir. 2020)); see U.S.S.G. § 6B1.2(c). The panel acknowledged that
the result was “in some ways harsh,” yet it discerned no abuse of discretion. Pet. App.
9a-10a.
The decision below deepens a division among the courts of appeals over who
decides what charge a defendant must answer for. In the Ninth, Tenth, and District
of Columbia Circuits, a plea agreement that embodies a charging decision commands
judicial deference. The “zone of judicial discretion” to reject such an agreement is
“quite limited,” United States v. Papke, 149 F.4th 1169, 1188 (10th Cir. 2025) (quoting
2
United States v. Vanderwerff, 788 F.3d 1266, 1277 (10th Cir. 2015)), because “a
district court lacks authority to reject a proposed agreement based on mere
disagreement with a prosecutor’s underlying charging decisions,” United States v.
Fokker Servs. B.V., 818 F.3d 733, 745 (D.C. Cir. 2016). In the Sixth Circuit and others,
a district court may reject the same agreement whenever the stipulated sentence
strays from the Guidelines range calculated on the defendant’s full conduct—
including conduct the government has declined to charge as part of its bargain to
secure the defendant’s plea—and the court of appeals will affirm.
The division matters because the premise of every charge bargain is that the
reduced charge, and the sentence it supports, will displace the greater one. Criminal
justice today is “for the most part a system of pleas, not a system of trials.” Missouri
v. Frye, 566 U.S. 134, 143-44 (2012) (quoting Lafler v. Cooper, 566 U.S. 156, 170
(2012)). Within that system, plea bargaining “is not some adjunct to the criminal
justice system; it is the criminal justice system.” Id. at 144 (quoting Robert E. Scott
& William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).
Under the rule applied below, the concession at the heart of such an agreement counts
for nothing precisely when it matters: whenever the defendant’s relevant conduct
exceeds the reduced charge, the full conduct sets the benchmark, the parties’
stipulated sentence fails it, and the bargain dies. A charging decision that the
Executive is entitled to make becomes a departure the parties must strain to justify.
The question was preserved, briefed, and decided below, and the panel resolved
it under either of the arguably applicable standards of review, so no procedural
3
obstacle stands between this case and the question presented. The petition should be
granted.
STATEMENT
A. Legal background
Rule 11 recognizes two relevant forms of plea agreement. The government may
agree that it “will not bring, or will move to dismiss, other charges,” Fed. R. Crim. P.
11(c)(1)(A), or the parties may “agree that a specific sentence or sentencing range is
the appropriate disposition of the case,” Fed. R. Crim. P. 11(c)(1)(C). The court “must
not participate in these discussions.” Fed. R. Crim. P. 11(c)(1). When the parties
present an agreement of either type, the court “may accept the agreement, reject it,
or defer a decision until the court has reviewed the presentence report.” Fed. R. Crim.
P. 11(c)(3)(A). If the court rejects the agreement, it must inform the parties, give the
defendant an opportunity to withdraw the plea, and warn that the case may be
resolved less favorably than the agreement contemplated. Fed. R. Crim. P. 11(c)(5).
The Sentencing Guidelines address the two forms separately. For an
agreement that includes the dismissal of charges or an agreement not to pursue
potential charges, Section 6B1.2(a) provides that the court may accept the agreement
if it “determines, for reasons stated on the record, that the remaining charges
adequately reflect the seriousness of the actual offense behavior and that accepting
the agreement will not undermine the statutory purposes of sentencing or the
sentencing guidelines.” U.S.S.G. § 6B1.2(a). For an agreement containing a stipulated
sentence, Section 6B1.2(c) provides that the court may accept the agreement if
4
satisfied that “the agreed sentence is within the applicable guideline range” or is
“outside the applicable guideline range for justifiable reasons” that “are set forth with
specificity in the statement of reasons form.” U.S.S.G. § 6B1.2(c); see Hughes, 584
U.S. at 682. Both provisions are policy statements.
B. The indictment, the superseding information, and the plea agreement
On October 4, 2022, a federal grand jury in the Western District of Kentucky
indicted Brown on one count of conspiracy to possess with intent to distribute five
kilograms or more of a mixture and substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii)(II), and one
count of possession with intent to distribute the same quantity, in violation of
§ 841(b)(1)(A)(ii)(II). Pet. App. 4a. Conviction on either count carried a term of
imprisonment that “may not be less than 10 years or more than life.” 21 U.S.C.
§ 841(b)(1)(A).
The following July, after the parties reached a plea agreement, Brown moved
to schedule a change-of-plea hearing. Pet. App. 4a. The government then filed a
superseding information charging the same two offenses but with a reduced quantity
range of 500 grams or more, under 21 U.S.C. § 841(b)(1)(B)(ii)(II). Pet. App. 4a-5a.
The reduced charges no longer carried a ten-year mandatory minimum and instead
carried a term of imprisonment that “may not be less than 5 years and not more than
40 years.” 21 U.S.C. § 841(b)(1)(B). Under the parties’ agreement, made pursuant to
Rule 11(c)(1)(C), Brown would plead guilty to the superseding information in
exchange for a stipulated sentence of 60 months. Pet. App. 5a. The district court
5
accepted Brown’s guilty plea to the superseding information but deferred its decision
on the plea agreement until a presentence report could be prepared. Pet. App. 5a.
C. The presentence report
The presentence report calculated Brown’s Guidelines range using a drug
quantity of 11.58 kilograms of cocaine—one kilogram recovered from a truck, eight
kilograms recovered from a house, and 2.58 kilograms converted from seized cash—
attributed to Brown as relevant conduct. Pet. App. 9a. That quantity produced a total
offense level of 27, which, together with a criminal history category of VI that neither
party had anticipated, yielded a Guidelines range of 130 to 162 months. Pet. App. 5a,
31a. Neither party objected to the report. Pet. App. 5a. Ahead of sentencing, the
district court gave notice on the docket that it might reject the parties’ agreement.
Pet. App. 7a n.4.
D. The rejection of both plea agreements
At the sentencing hearing on November 27, 2023, the district court framed the
question this way: “the parties’ (C) plea calls for a sentence of 60 months. The
guidelines recommend a low end sentence of 130 months.” Pet. App. 30a. The court
told counsel that it had reviewed the change-of-plea record, the presentence report,
and the parties’ sentencing memoranda, and that it “just [did]n’t have the
information [it thought] necessary to justify a sentence at this level.” Id. After hearing
argument, the court concluded that “the agreed upon sentence of 60 months is [. . .]
insufficient in this case and would not provide just punishment given the nature and
circumstances of the offenses of conviction and given the history and characteristics
6
of Mr. Brown,” and it recounted Brown’s criminal history. Pet. App. 31a-32a. The
court then ruled: “In light of these observations and conclusions, I reject the parties’
(C) plea agreement and further conclude that a sentence of 60 months would not
properly reflect the seriousness of these offenses. The disparity between the agreed
upon sentence and the guideline recommended sentence is not justified here.” Pet.
App. 32a. The court acknowledged that “the circumstance and the history and
characteristics of Mr. Brown” “may very well justify a substantial downward
variance,” but it could not “agree that that alone justifies a variance from 130 to 60.”
Pet. App. 32a-33a. The court’s written order stated the ground in one sentence: “The
Court concluded that the disparity is too great between the agreed-upon sentence and
the range recommended by the sentencing guidelines.” Pet. App. 16a.
The parties returned to court roughly nine weeks later with a second Rule
11(c)(1)(C) agreement containing the same terms and a stipulated sentence of 72
months. Pet. App. 9a. The district court rejected it: “I am, in fact, going to reject the
agreed upon sentence of 72 months contained in your revised plea agreement.” Pet.
App. 35a.
E. Trial, sentence, and appeal
Brown withdrew his guilty plea, the superseding information was dismissed,
and the case proceeded to trial on the original indictment. Pet. App. 6a. A jury
convicted Brown on both counts. Pet. App. 6a. The district court sentenced him to 198
months of imprisonment followed by a six-year term of supervised release. Pet. App.
6a, 18a.
7
The Sixth Circuit affirmed in an unpublished opinion. The panel declined to
resolve the parties’ dispute over the standard of review, concluding that “the district
court did not err under either standard of review.” Pet. App. 6a. On the merits, the
panel held that “[t]he district court’s reliance on the wide disparity between the
agreed-to 60-month sentence and the Guidelines range, as well as the failure of the
60-month sentence to reflect the seriousness of Brown’s offenses and criminal history
constituted a sound explanation for the court’s rejection of the plea agreement.” Pet.
App. 7a-8a. In so ruling, the district court fulfilled its “independent obligation to
ensure that” the plea agreement “stipulat[e] to an appropriate sentence within the
applicable Guideline range, or else justify any departure from the Guidelines.” Pet.
App. 8a (quoting George, 804 F. App’x at 362); see U.S.S.G. § 6B1.2(c). The panel
rejected Brown’s argument that the court had measured the agreement against the
wrong drug quantity, reasoning that the presentence report “correctly determined
drug quantity based on Brown’s ‘relevant conduct,’ pursuant to the Guidelines.” Pet.
App. 9a.
The panel closed its discussion of the plea agreement with this observation:
“We observe that this result is in some ways harsh.” Pet. App. 9a. The parties
“initially took the position that the 18 U.S.C. § 3553(a) factors supported a 60-month
sentence,” and “with full information about Brown’s criminal history, the parties
agreed that a 72-month sentence was appropriate.” Id. “Yet the district court rejected
the parties’ positions both times, and after all was said and done, the district court
sentenced Brown to 198 months: over ten years above the Government’s initial
8
recommendations. Nevertheless, on this record, we cannot say that the district court
abused its discretion.” Pet. App. 9a-10a.
Brown petitioned for rehearing en banc. The petition was circulated to the full
court; no judge requested a vote, and the petition was denied on June 12, 2026. Pet.
App. 15a.
REASONS FOR GRANTING THE PETITION
I.
The courts of appeals are divided over a district court’s authority to
reject a plea agreement that embodies the Executive’s charging
decision.
The circuits have split into two camps. In the first camp, a district court
reviewing a plea agreement that reduces or dismisses charges must defer to the
charging decision the agreement embodies, and it may reject the agreement only on
an individualized determination that Rule 11 and Section 6B1.2(a) authorize; courts
of appeals in this camp reverse, and grant mandamus against, district-court
rejections that second-guess the prosecutor’s charge selection. In the second camp, a
district court may reject the same agreement whenever the stipulated sentence
departs from the Guidelines range calculated on the defendant’s full conduct, and the
court of appeals will affirm. In the first camp, the rejection here could not have rested
on the range for the quantity the government declined to charge. In the second, that
range was the whole reason for the rejection.
9
A.
Three circuits require deference to the charging decision
embodied in a plea agreement.
First, the Ninth Circuit. “Rule 11 also contemplates the rejection of a
negotiated plea when the district court believes that the bargain is too lenient, or
otherwise not in the public interest,” but “charge bargains raise the possibility of
improper judicial influence over charging,” and the court’s discretion is bounded
accordingly. United States v. Miller, 722 F.2d 562, 563-64 (9th Cir. 1983). The Ninth
Circuit polices those bounds by mandamus. It has held that a district judge errs by
categorically rejecting stipulated sentences as “unwise as a matter of policy” because
they “leave[] no judging to the judge,” In re Morgan, 506 F.3d 705, 708 (9th Cir. 2007),
and it has granted the writ where a district judge refused to let the government
dismiss the remaining counts absent the victim’s consent or a showing that the
government would have difficulty proving them, In re Benvin, 791 F.3d 1096, 110204 (9th Cir. 2015); see In re Vasquez-Ramirez, 443 F.3d 692, 695-96 (9th Cir. 2006).
And sitting en banc in In re Ellis, the court drew the line that governs here. The
district court had rejected an agreement to plead guilty to second-degree murder,
charged by superseding information, in place of the pending first-degree murder
charge, and then reinstated the first-degree charge. 356 F.3d 1198, 1201 (9th Cir.
2004) (en banc). The Ninth Circuit held that judging the resulting sentence too
lenient “was a judgment properly within the judicial function,” but that “when the
district court made the further decision that the second degree murder charge itself
was too lenient, it intruded into the charging decision,” and its ruling “forced the
government to prepare to try Ellis on a charge it did not want to bring.” Id. at 1209.
10
Second, the Tenth Circuit. In United States v. Papke, the district court rejected
a plea agreement under which the defendant would plead guilty to two counts of an
indictment in exchange for dismissal of a third, reasoning that the agreement left the
court too little sentencing room. 149 F.4th 1169, 1174 (10th Cir. 2025). The Tenth
Circuit held the rejection an abuse of discretion, and the government agreed. Id. The
“zone of judicial discretion” to reject a charge bargain is “quite limited,” the court
explained, id. at 1188 (quoting Vanderwerff, 788 F.3d at 1277), and district courts
“must display deference when analyzing a charge bargain, because charge bargains
represent an exercise of prosecutorial discretion and ‘separation of powers mandates
the judiciary remain independent of executive affairs.’” Id. (quoting United States v.
Robertson, 45 F.3d 1423, 1437 (10th Cir. 1995)). That means “hesitancy before secondguessing prosecutorial choices.” Id.; see Vanderwerff, 788 F.3d at 1271 (rejection
resting on an improper and irrelevant consideration strongly indicates an abuse of
discretion).
Third, the District of Columbia Circuit. In United States v. Ammidown, the
trial judge rejected a plea to second-degree murder “on the ground that the public
interest required that the defendant be tried on a greater charge,” and the court of
appeals held that “the trial judge exceeded his discretion.” 497 F.2d 615, 617 (D.C.
Cir. 1973). Trial judges “are not free to withhold approval of guilty pleas [. . .] merely
because their conception of the public interest differs from that of the prosecuting
attorney.” Id. at 622. The modern statement is in Fokker Services: “even in the context
of reviewing a proposed plea agreement under Rule 11, a district court lacks authority
11
to reject a proposed agreement based on mere disagreement with a prosecutor’s
underlying charging decisions,” 818 F.3d at 745, because “decisions to dismiss
pending criminal charges—no less than decisions to initiate charges and to identify
which charges to bring—lie squarely within the ken of prosecutorial discretion,” id.
at 742. And in United States v. Goodall, the D.C. Circuit held that Section 6B1.2’s
policy statements are “non-binding ‘norms’ to which courts may refer in deciding
whether to accept or to reject plea agreements,” rejecting the view that they cabin the
acceptance decision. 236 F.3d 700, 701 (D.C. Cir. 2001).
Finally, a supporting line of authority in the First, Second, Eighth, and Ninth
Circuits enforces the same principle from the other direction. Those courts hold that
Section 6B1.2(a) is the exclusive safety valve for a court dissatisfied with a charge
bargain: “If a district court believes the charges included in a plea agreement are
insufficient, § 6B1.2(a) requires the court to reject the plea agreement”; the court may
not accept the bargain’s benefits and then sentence on the conduct the bargain
removed. United States v. Lawton, 193 F.3d 1087, 1091 (9th Cir. 1999); see United
States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir. 1990); United States v.
Plaza-Garcia, 914 F.2d 345, 348 (1st Cir. 1990) (Breyer, C.J.); United States v. Harris,
70 F.3d 1001, 1003-04 (8th Cir. 1995); United States v. Quintero, 937 F.2d 95, 96-97
(2d Cir. 1991) (Newman, J.). These decisions govern sentencing after acceptance
rather than the rejection decision itself—in the Second Circuit, the rejection rule
remains United States v. Torres-Echavarria, 129 F.3d 692, 696 (2d Cir. 1997),
discussed below—but their premise is the one that controls here: the acceptance
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decision under Section 6B1.2(a) and the computation of relevant conduct serve
different ends. Computation measures the defendant’s conduct; acceptance respects
the Executive’s charge.
B.
The Sixth Circuit and at least five others permit rejection
whenever the court deems the stipulated sentence too lenient for
the defendant’s full conduct.
The decision below states the competing rule. The district court rejected
agreements stipulating to 60 and 72 months because “[t]he disparity between the
agreed upon sentence and the guideline recommended sentence is not justified here,”
Pet. App. 32a, and the panel affirmed because the court thereby fulfilled its
“independent obligation” to demand justification for “any departure from the
Guidelines.” Pet. App. 8a; see U.S.S.G. § 6B1.2(c). The “applicable Guideline range,”
on this view, is the range for the defendant’s full relevant conduct, whether charged
or uncharged; the panel deemed Brown’s contrary argument “unavailing” because the
presentence report “correctly determined drug quantity based on Brown’s ‘relevant
conduct.’” Pet. App. 8a-9a. Recent Sixth Circuit decisions apply the same rule. See
United States v. Vannelli, 171 F.4th 912, 914-15 (6th Cir. 2026) (affirming rejection
of an agreement stipulating a 180-month sentence as inadequate); United States v.
Lanier, No. 25-3059, 2025 U.S. App. LEXIS 30636, at *5 (6th Cir. Nov. 20, 2025).
Five other circuits agree. The Second Circuit upheld the rejection of an
agreement permitting a plea to a lesser included offense, holding that “concern that
the resulting sentence would be too lenient” justifies rejection. Torres-Echavarria,
129 F.3d at 696. The Fourth Circuit affirmed a rejection resting on a district judge’s
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multifactor assessment of “whether the plea agreement is in the public interest,” even
while reciting that courts “must accord due respect to the prosecutorial prerogatives
involved in charging decisions.” United States v. Walker, 922 F.3d 239, 249-50 (4th
Cir.), vacated on other grounds, 140 S. Ct. 474 (2019). The Fifth Circuit holds that a
court may reject a charge bargain that “will result in the defendant’s receiving too
light a sentence under the circumstances of the case,” United States v. Bean, 564 F.2d
700, 704 (5th Cir. 1977), and it has rejected the argument that such a ruling “usurp[s]
the Government’s exclusive authority to determine when a prosecution should be
terminated,” United States v. Jeter, 315 F.3d 445, 447 (5th Cir. 2002); see United
States v. Smith, 417 F.3d 483, 487 (5th Cir. 2005). The Seventh Circuit affirmed the
rejection of two successive charge bargains because the remaining count “would not
adequately represent the defendant’s criminal conduct and would undermine the
sentencing guidelines.” United States v. Greener, 979 F.2d 517, 519-20 (7th Cir. 1992).
And the Eleventh Circuit holds that a court acts within its discretion in rejecting an
agreement “because the agreement does not adequately reflect the seriousness of the
defendant’s offense conduct” or “will result in a sentence that is too lenient.” United
States v. Young, No. 23-12513, 2024 U.S. App. LEXIS 28184, at *3 (11th Cir. Nov. 6,
2024) (citing United States v. Gamboa, 166 F.3d 1327, 1330-31 (11th Cir. 1999)).
The same agreement thus meets opposite fates depending on geography. In
Tulsa, the government’s decision to dismiss the count carrying a life maximum in
exchange for guilty pleas to the remaining counts commands deference, and its
rejection is reversed. Papke, 149 F.4th at 1174. In Louisville, the government’s
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decision to trade a ten-year mandatory minimum for a stipulated five-year term is
measured against the Sentencing Guidelines range built on the quantity that the
government declined to charge, and its rejection is affirmed. Pet. App. 7a-8a. Only
this Court can resolve the split.
C.
The conflict extends to the legal status of U.S.S.G. § 6B1.2 itself.
The D.C. Circuit held, before United States v. Booker, 543 U.S. 220 (2005), that
Section 6B1.2’s policy statements are “non-binding ‘norms,’” and that a district court
retains discretion to accept an agreement falling outside the Guidelines range.
Goodall, 236 F.3d at 701. The decision below enforces the same policy statement as
an “independent obligation” requiring the court to demand justification for “any
departure from the Guidelines.” Pet. App. 8a. Those positions cannot coexist, and the
tension has only sharpened since Booker rendered the Guidelines themselves
advisory. Whether a Guidelines policy statement can obligate a district court to police
the gap between a stipulated sentence and the advisory range is a question embedded
in the decision below, and the courts of appeals answer it differently.
II.
The decision below is wrong.
First, the selection of charges belongs to the Executive. “It follows, as an
incident of the constitutional separation of powers, that the courts are not to interfere
with the free exercise of the discretionary powers of the attorneys of the United States
in their control over criminal prosecutions.” United States v. Cox, 342 F.2d 167, 171
(5th Cir. 1965) (en banc). “[S]o long as the prosecutor has probable cause to believe
that the accused committed an offense defined by statute, the decision whether or not
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to prosecute, and what charge to file or bring before a grand jury, generally rests
entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). The
superseding information in this case was an exercise of that authority. When the
district court demanded justification for the distance between the stipulated sentence
and the range generated by the uncharged quantity, it did what Fokker Services
forbids: it rejected an agreement “based on mere disagreement with a prosecutor’s
underlying charging decisions.” 818 F.3d at 745.
Second, Rule 11 and the Guidelines channel the court’s legitimate role. A
district court reviewing an agreement that reduces charges may reject it upon an
individualized determination, “for reasons stated on the record, that the remaining
charges” do not “adequately reflect the seriousness of the actual offense behavior.”
U.S.S.G. § 6B1.2(a). The commentary to that provision adds: “This requirement does
not authorize judges to intrude upon the charging discretion of the prosecutor.”
U.S.S.G. § 6B1.2 cmt. The Sixth Circuit itself has recognized that “[a] court
considering a charge bargain must, therefore, exercise its discretion with due regard
to prosecutorial prerogatives,” In re United States, 32 F.4th 584, 594 (6th Cir. 2022),
and that a rejection must rest on an “individualized assessment,” id. at 594-95. The
district court made no finding that the reduced charges inadequately reflected
Brown’s offense. It measured the stipulated sentence against the Sentencing
Guidelines range for the full conduct and demanded that the parties justify the
difference. Pet. App. 30a, 32a. That difference between 60 months and 130 months
existed because the government reduced the charge. The justification for the
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“departure” was the charge bargain itself. A rule that demands a further justification,
on pain of rejection, nullifies the bargain in every case in which the bargain does any
work.
Third, the “independent obligation” the panel enforced—an obligation to
demand justification measured against the Guidelines range for conduct the
government declined to charge—does not exist. Section 6B1.2(c) is a policy statement,
Goodall, 236 F.3d at 701, and after Booker even the Guidelines it implements are
advisory. The phrase the panel quoted traces through two unpublished Sixth Circuit
decisions, George, 804 F. App’x at 362, and United States v. Sabit, 797 F. App’x 218,
221-22 (6th Cir. 2019), to the policy statement itself; no statute or rule imposes it. To
be sure, this Court said in Hughes that a district court presented with an agreement
containing a stipulated sentence “may not accept the agreement unless the court is
satisfied that” the sentence is “within the applicable guideline range” or departs from
it “for justifiable reasons.” 584 U.S. at 682 (quoting U.S.S.G. § 6B1.2(c)); see Freeman,
564 U.S. at 529 (plurality opinion). But Hughes concerned the Guidelines’ role in later
sentence reductions, and it had no occasion to say what range is “applicable” when
the agreement also reduces the charge. Nothing in Hughes holds that the benchmark
for such an agreement is the range for conduct the government abandoned; that is
the question presented here. Where the agreement embodies a charging decision,
Section 6B1.2(a) supplies the standard, and it asks about the adequacy of the
remaining charges, an inquiry the district court never conducted.
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The district court also recited Brown’s criminal history. Pet. App. 31a-32a. But
the range the court invoked already reflected criminal history category VI, and the
court’s stated ratio was “a variance from 130 to 60.” Pet. App. 33a. From the court’s
first framing of the question to its final ruling, the benchmark was the range
calculated on the full, uncharged conduct. The judgment below rests on a rule that
unmakes charge bargains, and this Court should reject it.
III.
The question is important and recurring.
First, the question goes to the structure of nearly every federal criminal case.
“Ninety-seven percent of federal convictions and ninety-four percent of state
convictions are the result of guilty pleas.” Frye, 566 U.S. at 143. Charge selection is
the principal instrument by which the Executive calibrates statutory exposure,
including mandatory minimums, and the charge bargain is the form that calibration
takes in a negotiated case. This Court has twice granted certiorari to resolve how
agreements under Rule 11(c)(1)(C) interact with the Guidelines. Freeman, 564 U.S.
522; Hughes, 584 U.S. 675. The antecedent question—when a district court may
refuse such an agreement altogether—remains open, and the courts of appeals have
answered it in conflicting ways for over five decades, from Ammidown in 1973 to
Papke in 2025.
Second, the issue recurs constantly, and the stakes run in one direction. When
a rejection sticks, the defendant faces the original charges with the original exposure.
Here, the rejections converted a jointly proposed sentence of 60, then 72, months into
198. Justice White identified the adjacent conflict over “district court reliance on
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conduct made the basis of counts dismissed pursuant to a plea bargain” more than
three decades ago, observing that the courts of appeals “have come into conflict” on
“important and recurring problems in procedures under the Sentencing Guidelines.”
Kinder v. United States, 504 U.S. 946, 946-47 (1992) (White, J., dissenting from denial
of certiorari). The conflict has not resolved itself.
Third, the rule below degrades the plea process this Court has called “an
essential component of the administration of justice” that, “[p]roperly administered,
[. . .] is to be encouraged.” Santobello v. New York, 404 U.S. 257, 260 (1971). A
prosecutor cannot deliver a charge bargain in the Sixth Circuit unless the stipulated
sentence tracks the range for the uncharged conduct, which is to say, unless the
bargain essentially gives up nothing. And a defendant asked to plead guilty in
exchange for a reduced charge cannot know whether the reduction will survive the
presentence report. Certainty is the currency of plea bargaining; the decision below
undermines it.
IV.
This case is an ideal vehicle.
First, the question is preserved and was decided. Brown challenged the
rejection of the plea agreement on direct appeal, and the panel resolved the challenge
on the merits “under either standard of review.” Pet. App. 6a. No plain-error question
obstructs review, because the panel’s holding does not depend on the standard. Cf.
Puckett v. United States, 556 U.S. 129 (2009). The contrast with a recent petition
presenting a version of this question is instructive: in Garrott v. United States, No.
20-423, the government’s brief in opposition led with the objection that the petitioner
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had raised her separation-of-powers argument “for the first time” in this Court. Br.
in Opp. at 9-10, Garrott v. United States, No. 20-423 (Dec. 3, 2020). The Fourth Circuit
likewise declined to reach the question in Walker, deeming the separation-of-powers
argument “neither properly preserved nor presented.” 922 F.3d at 251 n.9. Brown
pressed his argument to the panel, and the panel rejected it in a reasoned holding.
Second, the question is outcome determinative and cleanly presented. The
panel’s affirmance rests on the Guidelines comparison; the district court’s recitation
of criminal history entered the analysis through the range itself, which already
reflected category VI. The relevant-conduct calculation is conceded, so no factual
dispute clouds the legal question. And because the district court rejected two
agreements for the same stated reason, Pet. App. 35a, the record forecloses any
suggestion that the first rejection was an artifact of incomplete information; the
district court’s written order stated the disparity ground and no other. Pet. App. 16a17a.
Third, the consequences are concrete and the equities stark. The parties twice
agreed on the just disposition of this case; the sentence imposed after trial was nearly
three times the higher of their two figures. The panel itself acknowledged that “this
result is in some ways harsh.” Pet. App. 9a. If certiorari is granted and Brown
prevails, the remedy is straightforward: vacatur and remand for the court of appeals
to review the rejection under the correct standard. Cf. United States v. Cota-Luna,
891 F.3d 639, 642 (6th Cir. 2018) (vacating and remanding with instructions to
reconsider a rejected plea agreement).
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This Court should grant review.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
___________________________
Kyle Singhal
Counsel of Record
HOPWOOD & SINGHAL PLLC
1701 Pennsylvania Ave., N.W.
Suite 200
Washington, DC 20006
KYLE@HOPWOODSINGHAL.COM
(202) 769-4080
August 19, 2026
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.