# Opposition Brief — Molina-Martinez v. United States, 136 S. Ct. 26 (2015) (No. 14-8913)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2015

## Text

No. 14-8913

IN THE SUPREME COURT OF THE UNITED STATES

SAUL MOLINA-MARTINEZ, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record

LESLIE R. CALDWELL
Assistant Attorney General

JENNY C. ELLICKSON
Attorney

Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED
Whether the district court committed reversible plain error
when it sentenced petitioner within an erroneous Sentencing
Guidelines range, but petitioner’s sentence also fell within the
correct range and petitioner identified nothing in the record to
establish a reasonable probability that the error affected his

sentence.

(I)

17, 2014.

IN THE SUPREME COURT OF THE UNITED STATES

No. 14-8913
SAUL MOLINA-MARTINEZ, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 20-21) is not

published in the Federal Reporter but is reprinted in 588 Fed.

JURISDICTION

The judgment of the court of appeals was entered on December

Pet. App. 20.

filed on March 16, 2015. The jurisdiction of this Court is invoked

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

The petition for a writ of certiorari was

2
STATEMENT

Following a guilty plea in the United States District Court
for the Southern District of Texas, petitioner was convicted of
being unlawfully present in the United States after having been
deported following a conviction for an aggravated felony, in
violation of 8 U.S.C. 1326(a) and (b). He was sentenced to
77 months of imprisonment. The court of appeals affirmed. Pet.
App. 20-21.

l. On August 31, 2012, United States Customs and Border
Protection agents located petitioner near Sarita, Texas, as he was
attempting to circumvent a border checkpoint. Presentence
Investigation Report (PSR) 4 4. Petitioner, who is a citizen of
Mexico with no legal status in the United States, admitted that he
had illegally entered the United States by crossing the Rio Grande
River near Hidalgo, Texas, several days earlier. PSR 974-5. A
records check revealed that petitioner had been convicted of
aggravated burglary in Tennessee in 2002 and 2011 and previously
had been deported from the United States to Mexico in 2007 and
2012. PSR 5.

2. Based on the foregoing, a grand jury in the Southern
District of Texas returned an indictment charging petitioner with
one count of being found unlawfully present in the United States
after having been deported following a conviction for an aggravated

felony, in violation of 8 U.S.C. 1326(a) and (b). PSR @{ 1-2.

3
Petitioner pleaded guilty to that offense without a plea agreement.
Pet. App. 20; PSR @ 3.

a. The Probation Office prepared a PSR that calculated
petitioner’s base offense level pd eight under Sentencing
Guidelines § 2L1.2(a) (2012). PSR @ 13. The Probation Office
recommended a 16-level increase in petitioner’s offense level under
Section 2L1.2(b) (1) (A) (ii) because petitioner previously had been
deported after convictions for aggravated burglary, a felony crime
of violence. PSR @14. With a three-level reduction in offense
level for acceptance of responsibility, the Probation Office
calculated petitioner’s total offense level as 21. PSR 4% 19, 22.

The Probation Office determined that petitioner had 18
criminal history points, which placed him in criminal history
category VI. PSR @{ 35. Four criminal history points were assessed
under Sentencing Guidelines § 4Al.1l(a) and (e) for two Tennessee
aggravated burglary convictions, for which petitioner was sentenced
to three years in prison on May 24, 2002. PSR @{ 25-26. One
criminal history point was assessed under Section 4Al.l(c) for a
federal conviction for entering the United States illegally, for
which petitioner was sentenced to time served (approximately two
days) on January 19, 2007. PSR @ 27. The Probation Office
assessed 11 criminal history points under Section 4Al.1 (a) and (e)
for five aggravated burglary convictions stemming from burglaries

that petitioner committed in May 2009 and May 2010, for which

4
petitioner was sentenced to eight years in prison on April 7, 2011.
PSR @Z 28-32. An additional two points were assessed under Section
4Al.1(d) because, at the time of the instant offense, petitioner
was still on parole for the sentences in his 2009 and 2010 burglary
cases. PSR q 34.

A total offense level of 21 and a criminal history category of
VI resulted in an advisory Sentencing Guidelines range of 77 to 96
months of imprisonment. PSR ™¥ 74. The Probation Office also noted
that petitioner was subject to a statutory maximum term of 20 years
of imprisonment under 8 U.S.C. 1326(a) and (b). PSR q 73.

b. Petitioner objected to the PSR’s proposed 16-level
enhancement based on his prior aggravated burglary convictions,
arguing that the Tennessee convictions did not qualify as crimes of
violence under the relevant Sentencing Guidelines definition. C.A.
Record on Appeal (ROA) 25, 107-111.— Petitioner did not object,
however, to the PSR’s calculation of his criminal history category.
Ibid.

At the sentencing hearing, the district court overruled
petitioner’s objection to the 16-level enhancement and adopted the
PSR’s calculation of an advisory range of 77 to 96 months. C.A.
ROA 111, 115. The government urged the court to impose “a high end
sentence of 96 months” in order “to protect the public from”
petitioner, emphasizing that petitioner’s multiple burglary

convictions had involved “breaking into people’s homes,” including

5
while armed. Id. at 111-112. Petitioner responded that 1e had not
used violence during the burglaries and asked the court to impose
the 77-month term recommended by the Probation Office. Id. at 113-
114. The court sentenced petitioner to 77 months of imprisonment,
to be followed by three years of supervised release. Id. at 115.

3. The court of appeals affirmed in an unpublished opinion.
Pet. App. 20-21. Petitioner argued for the first time on appeal
that the district court had erred in calculating his criminal
history category. Id. at 20. The court of appeals determined
that, because petitioner did not raise that argument before the
district court, it was reviewable only for plain error. Ibid. To
show plain error, the court explained, petitioner was required to
show an “error that is clear or obvious and that affects his
substantial rights,” and if he made such a showing, the court had
“the discretion to correct the error if it seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.”
Ibid.

The court of appeals first concluded that the district court
had made “a plain or obvious error” in calculating petitioner’s
criminal history when it assessed 11 criminal history points for
the five Tennessee aggravated burglary convictions for which
petitioner was sentenced on April 7, 2011. Pet. App. 20-21. The
court explained that, under the Sentencing Guidelines, prior

sentences are counted as a single sentence if they were imposed on

6

the same day, unless the offenses were separated by an intervening
arrest. Id. at 20 (citing Sentencing Guidelines § 4Al1.2(a)(2)).
Because no arrest intervened between any of the five burglaries,
the court concluded that petitioner should have received only five
points for the five burglaries, resulting in a total of 12 criminal
history points and a criminal history category of V. Id. at 20-21.
The correct calculation would have reduced petitioner’s advisory
Guidelines range from 77 to 96 months to 70 to 87 months. Id.
at 21. The government conceded the error. Ibid.

The court of appeals concluded, however, that petitioner had
not established that the error affected his substantial rights
because he had not shown “a reasonable probability that, but for
the district court’s misapplication of the Guidelines, he would
have received a lesser sentence.” Pet. App. 21 (quoting United

States v. Garcia-Carrillo, 749 F.3d 376, 379 (5th Cir.), cert.

denied, 135 S. Ct. 676 (2014)). The court observed that
petitioner’s sentence of 77 months of imprisonment was at the
bottom of the advisory Guidelines range that the district court
applied and in the middle of the correct Guidelines range. Ibid.
Because petitioner’s sentence fell within both Guidelines ranges,
the court explained that petitioner was obligated “to point to
‘additional evidence’ in the record, other than the difference in
ranges, to show an effect on his substantial rights.” Ibid.

(quoting United States v. Pratt, 728 F.3d 463, 481-482 (Sth Cir.

4
2013), cert. denied, 134 S. Ct. 1328 (2014)). Because petitioner
had not done so, the court concluded that he had not established
plain error warranting reversal. Ibid. The court also rejected in
a footnote petitioner’s alternative argument -- which he had
recognized was foreclosed by circuit precedent -- that any error in
calculating the Guidelines range presumptively affects a
defendant’s substantial rights. Id. at 21 n.1l.
ARGUMENT

Petitioner contends (Pet. 10-18) that the court of appeals
misapplied the plain-error rule by declining to find that the
district court’s application of the incorrect Guidelines range
presumptively affected his substantial rights.’ The court of
appeals’ unpublished decision is correct. And although the court’s
approach to plain-error review is in some tension with decisions of
two other courts of appeals, this Court’s review is unwarranted at
this time, both because the courts of appeals are entitled to take
different approaches to reviewing forfeited Guidelines
miscalculation claims and because no square conflict exists in
cases (such as this one) where the defendant’s sentence falls

within both the correct and incorrect advisory Guidelines ranges.

> A similar question is presented in De La Torre-De La Torre
v. United States, p “ition for cert. pending, No. 14-9138 (filed
Mar. 30, 2015), and Garcia v. United States, petition for cert.
pending, No. 14-9154 (filed Mar. 30, 2015).

8
This Court has previously denied review in several cases raising
the question presented, and the same result is appropriate here.”

1. The district court applied an advisory Guidelines range
of 77 to 96 months of imprisonment and decided to impose a sentence
within that range. C.A. ROA 115; PSR @ 74. As the court of
appeals explained, the correct range was 70 to 87 months of
imprisonment, and petitioner’s sentence was within that range.
Pet. App. 20. The court of appeals correctly concluded that
petitioner did not establish any effect on his substantial rights
because he failed to demonstrate a reasonable probability that he
would obtain a different sentence if he were resentenced using the
correct Guidelines range.

a. To obtain relief on a forfeited claim, petitioner must
meet the plain-error standard. Fed. R. Crim. P. 52(b). To show
reversible plain error, petitioner must demonstrate: (1) that the
district court committed an error; (2) that the error was “plain,”
“clear,” or “obvious”; (3) that the error “affect[ed) [his]
substantial rights”; and (4) that the error “seriously affect([ed]
the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732-736 (1993)

* See Sanchez-Brenez v. United States, 132 S. Ct. 1096 (2012)
(No. 11-6942); Hudson v. United States, 132 S. Ct. 575 (2011) (No.
11-5325); Pacheco-Garcia v. United States, 132 S. Ct. 451 (2011)
(No. 10-9445); Guerrero-Campos v. United States, 132 S. Ct. 451
(2011) (No. 10-9746); Wesevich v. United States, 132 S. Ct. 45l
(2011) (No. 10-10340).

9
(citation omitted). This Court has explained that, “in most
cases,” the requirement of an effect on substantial rights “means
that the error must have been prejudicial: It must have affected
the outcome of the district court proceedings.” Id. at 734. Under
the plain-error standard of Rule 52(b), unlike the harmless-error
standard of Rule 52(a), “({ijJt is the defendant rather than the
Government who bears the burden of persuasion with respect to
prejudice.” Ibid. The defendant’s burden on plain-error review is
to show a reasonable probability that, absent the error, the result
of the proceeding would have been different. See, e.g., United

States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) (adopting

the same standard for plain-error cases as for other “cases where
the burden of demonstrating prejudice (or materiality) is on the
defendant seeking relief,” which “requir[fes] the showing of ‘a
reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different.’” (citation
omitted; second set of brackets in original)).

Applying the third prong of plain-error review in this case,
the court of appeals correctly held that petitioner had not met his
burden of showing that an advisory Guidelines range of 70 to 87
months of imprisonment, rather than a Guidelines range of 77 to 96
months, affected his substantial rights. Pet. App. 21. While the
advisory Guidelines range forms the “starting point and the initial

benchmark, district [judges] may impose sentences within statutory

10
limits based on appropriate consideration of all of the factors

listed in [18 U.S.C.] 3553(a).” Pepper v. United States, 562 U.S.

476, 490 (2011) (citation omitted). It would be one thing to
presume that a reasonable probability exists that a judge might
have imposed a different sentence if the judge imposed a within-
range sentence, but the correct range does not overlap with the
incorrect range that the judge actually applied. In that
circumstance, the sentence actually imposed would reflect a
departure (or variance) from the correct range when the court had
not necessarily disagreed with the Guidelines’ advice.’ Cf. 18
U.S.C. 3553(c) (2) (requiring the court to give a “specific reason”
for a non-Guidelines sentence). But it is quite different when the
judge has already selected a sentence within the correct range-
Under those circumstances, even if the court commits a Guidelines
error, the court’s sentence accords with the Sentencing
Commission’s advice because of the overlap between the correct and
incorrect ranges. Indeed, the Commission originally designed the
Sentencing Table with overlapping ranges in order to “discourage
unnecessary litigation.” Sentencing Guidelines Ch. 1, Pt. A,
intro. cmt. 1, § 4(h}, at 11 (2014). “Both prosecution and defense

will realize that the difference between one level and another will

. Even then, on plain-error review, reversal is not

automatic. See, e.g., United States v. Dickson, 632 F.3d 186, 191
(5th Cir.), cert. denied, 131 S. Ct. 2947 (2011); United States v.
Davis, 602 F.3d 643, 649-650 (5th Cir. 2010).

ll

not necessarily make a difference in the sentence that the court
imposes.” Ibid. That point has added force in an advisory
Guidelines regime.

As the court of appeals noted, petitioner’s sentence of
77 months fell within both the Guidelines range employed by the
district court and the Guidelines range that should have been used
absent the incorrect scoring of his criminal history. Pet. App.
21. Petitioner has pointed to nothing in the record suggesting
that the lower overlapping range would have changed the ultimate
sentence. The court of appeals properly looked to all the facts of
this case, not just the error in computing the Guidelines range,
and correctly concluded that petitioner had failed to carry his
burden of demonstrating “a reasonable probability” that, but for
the error in the computation of his advisory Guidelines range, “he
“would have received a lesser sentence.” Ibid. (citation

omitted) .‘

* The court of appeals has concluded in other cases that a
sentence at the low end of the advisory Guidelines range may be
persuasive, but not dispositive, evidence of a reasonable
probability that the district court would have imposed a different
sentence had it used a different Guidelines range. See, e.g.,
United States v. Rodriguez-Gutierrez, 428 F.3d 201, 205 (Sth Cir.
2005) (“(Sjentences falling at the absolute minimum of the
Guidelines provide the strongest support for the argument that the
judge would have imposed a lesser sentence. Although we do not
hold that this fact alone will establish that the * * * error
affected the defendant’s substantial rights, we do consider it to
be highly probative.”), cert. denied, 546 U.S. 1193 (2006); id. at
205-206 (“To clarify, we do not * * * suggest that every sentence
imposed at the absolute minimum of the range provided by the

12
b. Contrary to petitioner’s suggestion (Pet. 10, 17), this
Court’s precedents do not support a presumption that every error in
calculating the advisory Guidelines range affects substantial

rights. Petitioner relies primarily on Olano, supra, where the

Court stated that it “need not decide whether the phrase ‘affecting
substantial rights’ is always synonymous with ‘prejudicial,’” or
whether there are some “errors that should be presumed prejudicial
if the defendant cannot make a specific showing of prejudice.” 507
U.S. at 735.° The Court in Olano, however, declined to presume an
effect on substantial rights from the error there -- the presence
of alternate jurors in the jury room during deliberations, in
violation of Fed. R. Crim. P. 24(c). 507 U.S. at 737. And the
Court has not recognized any errors that qualify for such a

presumption since Olano.

Guidelines will necessarily compel reversal by this Court.”). Even
if the court of appeals should have given the bottom-of-Guidelines
range sentence here significance as a matter of circuit law -- a
fact-bound question that does not warrant further review -- its
failure to do so in this unpublished disposition has no effect on
circuit precedent.

° The Court has also reserved the question, in Olano and
subsequent cases, of whether “certain errors, termed ‘structural
errors,’ might ‘affec({t] substantial rights’ regardless of their
actual impact on an appellant’s trial.” United States v. Marcus,
560 U.S. 258, 263 (2010) (citation omitted); see Puckett v. United
States, 556 U.S. 129, 140-141 (2009); Johnson v. United States, 520
U.S. 461, 468-469 (1997); Olano, 507 U.S. at 735. Petitioner does
not contend that a Guidelines miscalculation qualifies as
structural error.

13
To the contrary, the Court has repeatedly rejected claims that
particular “kind[{s] of error[{s] would automatically ‘affect
substantial rights’ without a showing of individual prejudice.”

United States v. Marcus, 560 U.S. 258, 264-265 (2010). The Court

in Marcus, for example, rejected a court of appeals rule under
which appellants were entitled to relief if there was “‘any
possibility’” that they had been convicted based on conduct that
had not yet been made criminal at the time of their actions. Id.

at 263-266 (quoting United States v. Marcus, 538 F.3d 97, 102 (2d

Cir. 2008), rev’d, 560 U.S. 258 (2010)); see also United States v.

Davila, 133 S. Ct. 2139, 2149 (2013) (rejecting rule of automatic
vacatur for violation of Federal Rule of Criminal Procedure barring
judicial participation in plea discussions). And in Puckett v

United States, 556 U.S. 129 (2009), the Court held that a case-

specific showing of prejudice is required for forfeited claims that
the government breached a plea agreement, even though that error
would trigger automatic reversal on appeal had it been timely
raised. Id. at 139-143. The Court explained that it is no more
difficult to assess the effect of “plea breaches at sentencing
than” to assess the effect of “other procedural errors at
sentencing, which are routinely subject to harmlessness review.”
Id. at 141. The Guidelines-calculation error at isste here is

likewise a “procedural error{] at sentencing,” ibid., that is

14

subject to harmless-error analysis. See Williams v. United States,

503 U.S. 193, 203 (1992).

The Cou.*’s decision in Peugh v. United States, 133 S. Ct.

2072 (2013) (cited at Pet. 14, 16), also does not support a
presumption of prejudice for all Guidelines errors. The Court in
Peugh held that the Ex Post Facto Clause is violated when a
defendant is sentenced under later-promulgated Sentencing
Guidelines. that provide for a higher advisory sentencing range than
the Guidelines in effect at the time of the offense. Id. at 2079.
But the Court recognized that the constitutional sentencing error
that it identified was subject to harmless-error analysis and that
such errors “may be harmless” when the record makes clear that the
sentencing court “would have imposed the same sentence under the
older, more lenient Guidelines.” Id. at 2088 n.8. That analysis
equally supports a case-specific prejudice inquiry when the
defendant bears the burden of showing an effect on substantial
rights, rather than the government the burden of disproving one.

2. Petitioner claims (Pet. 11-15) that the court of appeals’
approach to plain-error review conflicts with decisions of the
Third and Tenth Circuits, but petitioner overstates the importance
and degree of any conflict.

a. As an initial matter, to the extent that the courts of

appeals cond -ct plain-error analysis differently in cases involving

alleged Guidelines errors, this Court has not insisted on rigid

15
/
procedural uniformity in appellate review of sentences following

its decision rendering the Guidelines advisory in United States v.

Booker, 543 U.S. 220 (2005). See Rita v. United States, 551 U.S.

338, 354 (2007) (permitting, but not requiring, courts of appeals
to apply “a presumption of reasonableness” to a within-Guidelines-

range sentence); cf. Rodriguez v. United States, 545 U.S. 1127

(2005) (No. 04-1148) (denying a writ of certiorari despite the
government’s suggestion that the Court grant review to resolve a
circuit conflict over the proper application of the plain-error
standard to forfeited claims of sentencing error under Booker).
This Court has not held that any error in calculating a defendant’s
Guidelines range presumptively affects the defendant’s substantial
rights for purposes of plain-error review, and the courts of
appeals are entitled to take different approaches in dealing with
that question.

b. In any event, the approach taken by the decision below
does not directly conflict with any decision of another court of
appeals. Although two courts of appeals have made statements, in
distinguishable contexts, that are in tension with the Fifth
Circuit’s approach, no square circuit conflict exists at this time,
and no further review is warranted.

i. One of the two cases on which petitioner primarily relies

(Pet. 12-14), United States v. Knight, 266 F.3d 203 (3d Cir. 2001),

was decided while the Guidelines were still mandatory, before this

16

Court’s decision in Booker, supra. That decision did hold that a

Guidelines error presumptively affects substantial rights even when
the ranges overlap, “unless the record shows that the sentence was
unaffected by the error.” Knight, 266 F.3d at 207-208; see also

United States v. Syme, 276 F.3d 131, 158 (3d Cir.) (cited at

Pet. 13) (repeating the statement from Knight that “an error in
application of the Guidelines that results in use of a higher
sentencing range should be presumed to affect the defendant’s
substantial rights”), cert. denied, 537 U.S. 1050 (2002). But the
question whether a district court would have imposed the same
sentence even under a different Guidelines range is quite different
now that the Guidelines are advisory. Under advisory Guidelines,
the district court has discretion to impose any sentence between
the statutory minimum and maximum, not just a sentence within the
incorrectly calculated advisory Guidelines range. In deciding on
the appropriate sentence, the court takes all of the relevant
factors into account, without any presumption in favor of a

Guidelines sentence. Gall v. United States, 552 U.S. 38, 50

(2007). That discretion reduces the likelihood that an error in
the range has affected the outcome when the sentence imposed lies
within the correct range.

Here, for example, the correct Guidelines range was 70 to 87
months; the district court considered sentences within that range

because they overlapped with the incorrect range (77 to 96 months).

17
Nothing about that decision indicates a reasonable likelihood that
the court would have selected a different sentence if the court had
been aware that the correct advisory Guidelines range included the
sentence imposed but also extended seven months lower.

The Third Circuit has not squarely reached the question
presented in any post-Booker case governed by the plain-error
standard. In a published decision not cited by petitioner, the
Third Circuit did state that it adhered to its pre-Booker precedent
on prejudice from Guidelines errors, even in advisory Guidelines

cases. United States v. Langford, 516 F.3d 205, 216-218 (2008).

But Langford was a harmless-error case in which the government, not
the defendant, bore the burden of proof. Because there was
“nothing in the record to indicate that the District Court would
have imposed the same sentence under a lower Guidelines range,” and
the sentence was “at the low end[point] of the erroneous Guidelines
range” actually used, the court held that the government had not
carried its burden of showing harmlessness. Id. at 219 & n.5; see
id. at 208. The court acknowledged, however, that in examining
whether the Guidelines error affected the sentence actually
imposed, “(t]he overlap [between the correct and incorrect
Guidelines ranges] may be helpful,” although “it is the sentencing

judge’s reasoning, not the overlap alone, that will be

determinative.” Id. at 216.

18

Petitioner cites (Pet. 14) an unpublished decision in which
the Third Circuit similarly stated that the presumption described
in Knight “applies even in the post-Booker context.” United States
v. Porter, 413 Fed. Appx. 526, 530 (2011).° But Porter did not
.involve a sentence that fell within the defendant’s correct
advisory Guidelines range. Rather, the defendant’s 35-month
sentence in that case was above his correct advisory Guidelines
range of 27 to 33 months but within the 33 to 41 month range used
by the district court. See id. at 529-531. And in deciding to
remand, the court of appeals addressed only the government’s
argument that the defendant could not show an effect on substantial
rights because the vacated two-level enhancement was offset by
another two-level enhancement that the district court could also
have applied. Id. at 530. The court of appeals acknowledged that
possibility, and it remanded for the district court to make the
necessary findings in the first instance. Id. at 531.

Accordingly, although these two decisions suggest that the
Third Circuit might disagree with the Fifth Circuit’s application

of the substantial-rights prong in this case, the Third Circuit has

* Both Porter and Langford cite United States v. Wood, 486
F.3d 781, 790-791 (3d Cir.), cert. denied, 552 U.S. 855 (2007), a
plain-error case that postdated Booker. The Guidelines error there
was based on the Ex Post Facto Clause, and it resulted in a three-
level enhancement; as a result, the correct and incorrect
Guidelines ranges did not overlap. The government conceded that
the error affected substantial rights, and the court of appeals did
not discuss the issue. Id. at 790.

19
not squarely addressed that question in a plain-error case like
this one, in which the defendant’s sentence falls within both the
correct and incorrect advisory Guidelines ranges.
ii. For similar reasons, the Tenth Circuit’s recent decision

in United States v. Sabillon-Umana, 772 F.3d 1328 (2014) (cited at

Pet. 14-15), does not create a circuit conflict that warrants

review. As relevant here, the court in Sabillon-Umana concluded

that the district court had “obviously erred in construing its
authority” to depart from the otherwise applicable advisory
Guidelines range based on the defendant’s substantial assistance to
the government, because it believed itself bound by the
government’s assessment of the degree of sentencing departure
warranted by that assistance. Id. at 1334-1335; see Sentencing
Guidelines § 5Kl.1. Applying plain-error review, the Tenth Circuit
construed its pre- and post-Booker decisions to have “recognized
that an obvious misapplication of the sentencing guidelines will
usually satisfy the third and fourth elements of the plain error
test.” 772 F.3d at 1333. The court stated that other circuits had
“reached similar conclusions or even adopted an explicit
presumption that a clear guidelines error will satisfy the latter

two steps of plain error review.” Ibid.’ The court then opined

’ In support of this statement, the Tenth Circuit cited the
Third Circuit’s decision in Knight, as well as United States v.
Vargem, 747 F.3d 724, 728-729 (9th Cir. 2014); United States v.
Wernick, 691 F.3d 108, 117-118 (2d Cir. 2012); United States v.
Slade, 631 F.3d 185, 191-192 (4th Cir.), cert. denied, 131 S. Ct.

20
that “(t]his presumption is sound,” reasoning that a Guidelines
calculation error “‘runs the risk of affecting the ultimate

sentence regardless of whether the court ultimately imposes a

sentence within or outside [the] range’ the guidelines suggest.”

Ibid. (brackets in original) (quoting United States v. Rosales-

Miranda, 755 F.3d 1253, 1259 (10th Cir. 2014)). The court
therefore concluded that “[a] presumption that the third and fourth
prongs are met by obvious guidelines errors is * * * sensible and
consistent with the terms of those tests, our case law, and the law
of other circuits.” Id. at 1334.

In so concluding, the Tenth Circuit recognized that
“presumptions can be overcome and the presumption that obvious
guidelines errors meet the latter elements of the plain error test

can be too.” Sabillon-Umana, 772 F.3d at 1334. But the court

found no record evidence in that case, such as a ™“‘fortuitous
comment’ from the sentencing judge,” indicating that the judge’s
misunderstanding of his departure authority posed no risk of a
higher sentence. Id. at 1334-1335 (quoting Knight, 266 F.3d at
207). On the contrary, the court stressed that the judge had

initially expressed interest in imposing a sentence as low as 72

2943 (2011); United States v. Story, 503 F.3d 436, 440-441 (6th
Cir. 2007); and United States v. Baretz, 411 F.3d 867, 877 & n.7
(7th Cir. 2005). Petitioner does not contend that the latter
decisions conflict with the decision of the court of appeals in
this case, and with good reason: none of them adopted a
presumption of prejudice for all Guidelines errors.

21
months and had settled on a sentence two years longer “only after
the government said that was the lowest guidelines-based sentence
the court could accept consistent with its (mistaken) view of
§ 5K1.1.” Id. at 1335.

The presumption adopted in Sabillon-Umana suggests that the

Tenth Circuit would disagree with the court of appeals’ requirement
in this case that petitioner make an individual showing of
prejudice at the third step of the plain-error analysis. But like

the Third Circuit decisions discussed above, Sabillon-Umana itself

did not involve overlapping Guidelines ranges.*® The Tenth Circuit
has thus had no occasion to address how its presumption would apply
in a case like petitioner’s, where the sentence imposed falls
within both the correct advisory Guidelines range and the incorrect
range used by the district court. And because the court of appeals
made clear that its presumption is rebuttable, it would be

premature to conclude that the two circuits’ approaches will

® In a decision quoted in Sabillon-Umana, 772 F.3d at 1333,
the Tenth Circuit cited with approval a pre-Booker decision holding
that a sentencing error satisfied the third prong of the plain-
error test even though the defendant’s sentence fell within the
correct Guidelines range. See Rosales-Miranda, 755 F.3d at 1261
(discussing United States v. Osuna, 189 F.3d 1289 (10th Cir.
1999)). But Rosales-Miranda itself did not involve overlapping
ranges; the error there “more than doubled” the advisory Guidelines
range. Id. at 1260. And the court discussed its earlier decisions
in the course of rejecting an argument that defendants “should be
deemed as a matter of law not to have been prejudiced” when their
sentence falls within the correct advisory range. Id. at 1261.

22
necessarily lead to different results in overlapping-range cases
such as this one. Accordingly, even if this Court’s precedents
required a uniform approach to plain-error review of Guidelines
misapplication claims, see pp. 14-15, supra, the Court’s
intervention would be premature at this time.
CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.
Solicitor General

LESLIE R. CALDWELL
Assistant Attorney General

JENNY C. ELLICKSON
Attorney

JUNE 2015

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0589%3A2. Public record. Not legal advice.