# Petition for Writ of Certiorari — Sandoval v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 821

## Text

Supreme Court, U.S.
FILBD

952016 APR 1 1 19%
NO. icicemtineité CLERK
IN THE
SUPREME COUF. OF THE UNITED STATES

OCTOBER TERM, 1995

DON SANDOVAL,
Petitioner,
v.
UNITED STATES OF AMERICA,

Respondent.

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

PETITION FOR WRIT OF CERTIORARI

EUGENE G. IREDALE

105 West "F" Street, 4th Floor
San Diego, CA. 92101
Telephone: (619) 233-1525

Attorney for Petitioner
DON SANDOVAL

QUESTION PRESENTED FOR REVIEW

Whether the First Circuit properly subjected
petitioner to both a prison sentence and a new
term of supervised release when this sentence
would not have been imposed in nine other

federal circuits?

TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW .............
pe ge ee rer ear err rare i
ee Be er re ea re eer a eae iv
INTRODUCTORY STATEMENT .... 2... .ccccccece 1
OPINION IN THE COURT BELOW ............ ere
STATEMENT OF JURISDICTION ...........--205- 4
L ACONFLICT EXISTS WITHIN THE
BE RESOLVED BY THIS COURT =... 4
STATUTE INVOLVE 6 OO OER SS POD T I e HR 6
STATEMENT GF THE CARE iiss FPS. Oe. SS 7
REASONS FOR ALLOWANCE OF THE WRIT ........ 8
1. THE FIRST CIRCUIT COURT OF
SUBJECTED PETITIONER TO
BOTH A PRISON SENTENCE AND
ANEW TERM OF SUPERVISED
RELEASE WHEN THIS SENTENCE
INNINE OTHER FEDERAL GIRCUITS .... 6

a ee ee

COMTI ccc ic ccc vec e cs ereerseeseserss

APPENDIX

TABLE OF AUTHORITIES

Pege

UNITED STATES SUPREME COURT DECISIONS
Marks v. United States

CS ere rrr ry 11
McElroy v. United States

QOS US, OER CIGD soc cw ccctev ees eee 10
CIRCUIT COURT OF APPEALS DECISIONS
United States v. Behnezhad

907 F.2d 896 (Sth Cir. 1990) ........ 5, 10, 12, 13
United States v. Boling

947 F.2d 1461 (10th Cir. 1991) ........... 45, 16
United States v. Cooper

962 F.2d 339 (4th Cir. 1992) ........ 5, 10, 13, 14
United States v. Holmes

954 F.2d 270 (5th Cir. 1992) ....... 5, 10, 13, 14,
oo 66 wh APIS Ah Sak Ue ei thi a Ch a ao 3 a 0c v8 9 15, 17
United States v. Koehler

973 F.2d 132 (2d Cir. 1992) ............ 5, 9, 14
United States v. Malesic

18 F.3d 205 (Sd Cir. 1994) ............ 6, 10, 17
United States v. McGee

981 F.2d 271 (7th Cir. 1992) ........... 5, 10, 15

iv

—aaaaaaEEaEeEeEeEeEeEeEeEeEeEeeeee

United States v. O'Neil
11 F.3d 292 (1st Cir. 1993) ......---++% 2,4, 5,9

United States v. Parriett
974 F.2d 523 (4th Cir. 1992) .......------+-- 13

United States v. Rockwell
984 F.2d 1112 (10th Cir. 1993) ...... 6, 10, 15, 16

United States v. Don Sandoval
69 F.3d 531 (ist Cir. 1995) (per curiam)

reh. denied (Jan. 12, 1996) .....------- 2, 3,8
United States v. Tatum

998 F.2d 893 (11th Cir. 1993) ........--.- 6, 10, 16
United States v. Truss

4 F.3d 437, 438 {6th Cir. 1993) ......... 5, 10, 17
United State v. Williams

2 F.3d 363 (11th Cir. 1993) ......--.---eee> 16
STATUTES
Title 18 United States Code Section 3553 ..........-- 6

Title 18 United States Code Section 3583 . 3, 5, 6, 8, 9, 11
SE ey eae eh Eke er ee Oe 13, 14, 15, 16, 17, 18

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

Respondent.

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

INTRODUCTORY STATEMENT

The petitioner requests that a writ of certiorari be

issued to review the decision of the United States Court of

Appeals for the First Circuit based on the grounds that:

1) the decision of the lower court expressly relied ori
the First Circuit decision of United States v. O'Neil, 11 F.3d
292 (ist Cir. 1993), whose rationale directly conflicts with the
opinions of nine other circuit courts of appeal; and

2) this Court should resolve the conflict within “he
circuits between the O'Neil holding and the decisional law of
the other circuits.

Petitioner therefore respectfully requests that a writ of
certiorari be issued to review the judgment of the First Circuit
Court of Appeals, in United States v. Don Sandoval, No. 95-
1326, reh. denied, which affirmed the district court's
imposition of an additional term of supervised release
following petitioner's imprisonment for a supervised release
violation. The opinion is attached as Appendix “A" and the
denial of the petition for rehearing is attached as Appendix

..

This case presents a serious question of federal law for

which the circuit courts ui appeal are in direct conflict. The
Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth and
Eleventh Circuits have disallowed the imposition of an
additional term of supervised release following imprisonment
on a supervised release revocation pursuant to 18 U.S.C. §
3583.' The First and Eighth Circuits allow courts to impose
the additional term, and the District of Columbia Court of
Appeals has not addressed this issue to date. Therefore, the
federal circuit courts are in need of resolution and unanimity
on this important question of federal law.
OPINION IN THE COURT BELOW

The opinion of the Court of Appeals affirming the ruling
of the district court is officially reported as United States v.
Don Sandoval, 69 F.3d 531 (1st Cir. 1995) (per curiam), reh.
denied (Jan. 12, 1996).

A copy of the opinion is attached as Appendix "A" and

1

In 1994, Congress passed a law which permits the imposition of a prison tern
followed by 2n additional term of supervised release. However, petitioner was sentence
for crimes which he committed in 1991 and 1992, so the old law applies to the insta
case.

3

the denial of the petition for rehearing is attached as Appendix
"B".
STATEMENT OF JURISDICTION

On November 7, 1995, the First Circuit Court of
Appeals entered judgment affirming the district courts
sentence in this case. The First Circuit's order denying
rehearing was entered on January 12, 1996. This Court's
jurisdiction to review the judgment of the Court of Appeals Is
conferred by 28 U.S.C. 1254(1).

in this case the circuit courts of appeal are in direct
conflict on an issue of federal law. This conflict has not been,
but should be, settled by this Court.

L A CONFLICT EXISTS WITHIN THE FEDERAL CASE
LAW WHICH MUST BE RESOLVED BY THIS COURT

The decision of the Court of Appeals in this case relied
almost exclusively on United States v. O'Neil, 411 F.3d 292 (1st
Cir. 1993). In relying on this pre-existing authority, the panel
failed to take into account the nine other circuit courts of

appeal which have disposed of this issue in the opposite way:

4

Specifically, in 1993 the First Circuit in O'Neil held that

pursuant to 18 U.S.C. § 3583(e)(3), a district court may
sentence a criminal defendant to a term of imprisonment as
a penalty for violating his supervised release, and then impose
an additional term of supervised release at the expiration of
the prison term. O'Neil, 11 F.3d at 293.

In that decision, the O'Neil Court recognized and
acknowledged that this interpretation was not consistent with
the rationales of a minimum of six other circuits. The cases
cited in opposition by the O'Neil Court include United States
v. Truss, 4 F.3d 437, 438 (6th Cir. 1993), United States v.
McGee, 981 F.2d 271, 274-276 (7th Cir. 1992), United States
v. Koehler, 973 F.2d 132, 134-136 (2d Cir. 1992), United
States v. Cooper, 962 F.2d 339, 340-342 (4th Cir. 1992),
United States v. Holmes, 954 F.2d 270, 271-273 (5th Cir.
1992), and United States v. Behnezhad, 907 F.2d 896, 898-
899 (Sth Cir. 1990). O'Neil, 11 F.3d at 294. Since the First
Circuit announced the O'Neil decision, the Third, Tenth and

cnet Sa, Ne

Eleventh circuits have handed down decisions in accord with

the majority of the circuits in the cases of United States v.
Malesic, 18 F.3d 205, 207 (3d Cir. 1994), United States v.
Rockwell, 984 F.2d 111. (10th Cir. 1993), and United States
v. Tatum, 998 F.2d 893, 894-895 (11th Cir. 1993), respectively.
There now exists a conflict within the federal case law
which must be resolved by this Court. Failure to do so will
result in disparate procedures and results within the federal
Circuit Courts.
STATUTE INVOLVED
Title 18 U.S.C. § 3583(e)(3), provides as follows:
(e) Modification of conditions or
revocation. --
The court may, after considering the factors set
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (@)(4), (a)(S), and (a)(6) -
(3) revoke a term of supervised release,
and require the defendant to serve in prison all
or part of the term of supervised release
authorized by statute for the offense that
resulted in such term of supervised release
without credit for time previously served on post

release supervision, if the court, pursuant to the
Federal Ruies of Criminal Procedure applicable

6

to revocation of probation or supervised release,
finds by a preponderance of the evidence that
the defendant violated a condition of supervised
release, excect that a defendant whose term is
revoked under *s paragraph may not be
required to serve ;~ore than 5 years in prison if
the offense that resulted in the term of
supervised release is a class A felony, more

than 3 years in prison if such offense is a class

B felony, more than 2 years in prison if such

offense is a class C or D felony, or more than

one year in any other case...

STATEMENT OF THE CASE

On July 1, 1994, petitioner DON SANDOV". pled guilty
to a conspiracy to distribute anabolic steroids (21 U.S.C. §
846), which occurred between October 1991 and April 1992.
On September 2, 1994, the Honorable Mary M. Lisi, !!nited
States District Court Judge, sentenced Mr. SANDOVAL to 176
days in custody, a five year term of supervised release, and
a fine of $42,126.80.

Mr. SANDOVAL violated the terms of his supervised
release by first leaving the federal district of Rhode Island
without obtaining permission from his probation officer, and

later failing to report to his probation officer. On October 26,

1994, the district court issued an arrest warrart for Mr.

SANDOVAL.

The district court held a revocation hearing on March
10, 1995. The Court sentenced Mr. SANDOVAL to a nine
month term of imprisonment, as well as an additional
Supervised release term of four years and three months.

As a result of this decision, the petitioner filed an
appeal with the First Circuit Court of Appeals. On November
7, 1995, that court filed a per curiam affirming the petitioner's
sentence in its entirety. See Appendix "A." Petitioner filed a
petition for rehearing, which the First Circuit Court of Appeals
denied on January 12, 1996. See Appendix “B."

REASONS FOR ALLOWANCE OF THE WRIT

The Circuit Courts of Appeal are split as to the
interpretation of Title 18, U.S.C. § 3583(e)(3), and Congress’

intent in enacting that statute. This issue is one of great
importance, as it directly implicates criminal defendant's liberty
interests.

In the instant case the district court sentenced Mr.
SANDOVAL to nine months in jail and an additional four years
and three months of supervised release. The First Circuit
Court of Appeals decision affirming the sentence, is based
exclusively on its decision in United States v. O'Neil, 11 F.3d
292 (ist Cir. 1993) and its progeny. O'Neil interprets §
3583(e)(3), as permitting the prison sentence followed by an
additional term of supervised release at the expiration of the
prison term. O'Neil, 11 F.3d at 293.

However, nine other circuit courts of appeal have read
§ 3583(e)(3) as standing for the opposite proposition, that a
court may not revoke a defendant's supervised release,
sentence him to custody, and also add on another term of
supervised release. The Second Circuit, United States v.
Koehler, 973 F.2d 132, 134-136 (2d Cir. 1992), Third Circuit,

United States v. Malesic, 18 F.3d 205, 207 (3d Cir. 1994),
Fourth Circuit, United States v. Cooper, 962 F.2d 339, 340-342
(4th Cir. 1992), Fifth Circuit, United States v. Holmes, 954 F.2d
270, 271-273 (5th Cir. 1992), Sixth Circuit, United States v.
Truss, 4 F.3d 437, 438 (6th Cir. 1993), Seventh Circuit, United
States v. McGee, 981 F.2d 271, 274-276 (7th Cir. 1992), Ninth
Circuit, United States v. Behnezhad, 907 F.2d 896, 898-899
(Sth Cir. 1990), Tenth Circuit, United States v. Rockwell, 984
F.2d 1112 (10th Cir. 1993), and Eleventh Circuit, United States
v. Tatum, 998 F.2d 893, 894-895 (11th Cir. 1993) are all in
accord on this point. Only the First and Eighth Circuits differ.

Rule 10 of the Rules of the Supreme Court of the

United States states that certiorari will generally be granted as
to a question of law where the decisions of the federal circuit
courts of appeal are clearly in conflict. See also, McElroy v.

* Rule 10 states in pertinent part that:

1. Areview on writ of certiorari is not a matter of right, but of judicial
discretion. A petition for a writ of certiorari will be granted only when there
are special and important reasons therefor. The following, while neither
controlling nor fully measuring the Court's discretion, indicate the character

10

United States, 455 U.S. 642, 643 (1982); Marks v. United
States, 430 U.S. 188, 189 (1977). In the instant case nine
Circuit courts of appeal have held that § 3583(e)(3) does not
permit a district court to impose an additional term of
supervised release, following a prison sentence for violating
supervised release. Two other circuit courts have held to the
contrary, and allowed such a sentence. Therefore, there is a
direct conflict between the circuits which this Court must
resolve in order to preserve uniformity of decision between the
federal circuit courts, and to prevent unfair results, such as

the sentence in the case at bar.

I. IJLIS ARBITRARY AND UNFAIR TO SUBJECT A

If the petitioner had violated his supervised release in

of reasons that will be considered:

(a) When a United States court of appeals has rendered a decision
in conflict with the decision of another United States court of appeals on the
same matter;

11

California, he would have had his supervised release revoked,
he would have been sentenced to an additional term of
imprisonment, and he would not now be on supervised
release. The petitioner would not have received the sentence
he did in Texas, West Virginia, New York, or any other state
which is part of the nine federal circuits which do not allow
such a sentence. It is both arbitrary and capricious that due
to geography, Mr. SANDOVAL has received a sentence unlike
that of any other criminal defendant in those nine circuits.
The federal courts are part of a uniform system of justice, and
justice should be administered in each federal circuit with an
eye towards uniformity of decision in order to prevent unfair
results, such as the sentence in the case at bar.

The Ninth Circuit Court of Appeals was the first court
to hold that a court may modify the conditions and extend the

length of a defendant's supervised release or revoke

supervised release and reincarcerate the person, but not
both. Behnezhad, 907 F.2d at 898-899. The Ninth Circuit

Stated that a statute written in the disjunctive sets forth
discrete alternatives. The Court also held that Congress’
intent in writing § 3583 was to set out two distinct alternatives
from which a sentencing court may choose, rather than a dual
punishment. /d.

The Fifth Circuit Court of Appeals’ reasoning in United
States v. Holmes, 954 F.2d at 270, mirrors that of the Ninth
Circuit. The Fifth Circuit held that the plain meaning of § 3583
"does not authorize recommencement of supervised release
after revocation." /d. at 272. In Holmes, the Fifth Circuit also
noted that § 3583(e) does not provide for an additional term
of supervised release. Supervised release is authorized
pursuant to § 3583(a), which “is clearly limited to the time of
sentencing.” /d.

The next circuit court to address this issue was the
Fourth Circuit, in the case of United States v. Cooper, 962
F.2d at 339; see also, United States v. Parriett, 974 F.2d 523,
527 (4th Cir. 1992). The Fourth Circuit specifically adopted

13

the Fifth and Ninth Circuits’ reasoning that a statute written in
the disjunctive must be read as providing the Court with
separate and distinct sentencing alternatives. The Fourth
Circuit also agreed with the Fifth Circuit that "because it is
logically impossible to extend a term of supervised release
after it has been revoked, a court may not combine the
alternatives within section 3583(e)." Cooper, 962 F.2d at 341.

‘The Second Circuit cited Hoimes, 954 F.2d at 272, for
the proposition that "[rlevocation of the original term of
supervised release and imposition of a prison term under
subdivision (3) of § 3583(e) is linguistically inconsistent with
extension or modification of that term under subdivision (2)."
United State v. Koehler, 973 F.2d at 132. The Second Circuit
went on to state that “ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity.” /d. at
135.

In its decision holding that § 3583 creates separate and
discrete sentencing alternatives the Seventh Circuit outlined all

14

of the prior caselaw interpreting this statute. United States v.
McGee, 981 F.2d at 271. The Court went on to specifically
adopt the Fifth Circuit's reasoning in Holmes that if a court
revokes supervised release under § 3583, no residual term of
supervised release survives the additional imprisonment.
McGee, 981 F.2d at 275-276.

The Tenth Circuit Court of Appeals had initially
interpreted § 3583 to permit the imposition of an additional
term of supervised release following revocation. United States
v. Boling, 947 F.2d 1461 (10th Cir. 1991). In the case of
United States v. Rockwell, 984 F.2d at 1112 (10th Cir. 1993),
the Tenth Circuit Court of Appeals specifically overruled the
Boling decision. The Rockwell Court sets forth three specific
reasons for the shift in its interpretation of § 3583. The first
and most important reason is that seven other circuits had
specifically held or implied that § 3583 did not permit a judge
to impose both an additional term of imprisonment and then
additional supervised release. Rockwell, 984 F.2d at 1114.

15

The Tenth Circuit's second reason to reverse its earlier
decision was that no further legislation had been enacted in
response to the other circuit court's decisions. /d. The Tenth
Circuit's last reason to reverse Boling is that that decision
relies on policy statements to the Sentencing Guidelines which
are not mandatory, but only persuasive. /d. at 1116-1117.
Following the Rockwell decision, the Eleventh Circuit
Court of Appeals decided the case of United States v. Tatum,
998 F.2d at 893. In that case the Eleventh Circuit adopted the
other circuits’ common interpretation of § 3583. The Court
based its holding on the fact that six other circuit's had
specifically held that § 3583 did not permit imprisonment
followed by an additional term of supervised release. /d. at
895; see also, United State v. Williams, 2 F.3d 363 (11th Cir.
1993). The Eleventh Circuit also found that the plain and
unambiguous language of the statute creates alternative
sentences for the Court, which allow it to revoke or modify a
defendant's supervised release, but not both. Tatum, supra.

16

The Sixth Circuit held that after revoking defendant's
supervised release, the district court does not have the
authority to sentence the defendant to a term of
imprisonment, and to order a new term of supervised release.
Truss, 4 F.3d at 437. The Truss Court based its decision in
part on the fact that seven other circuit courts have
interpreted § 3583 in this manner, making it a clear majority
view. /d. at 439. The Sixth Circuit adopted the Fifth Circuit's
reasoning from Holmes that § 3583 contemplates complete
revocation of supervised release or a modification of the
supervised release terms, but not both. Truss, 4 F.3d at 439-
440.

The last circuit court to join the majority on this issue
is the Third Circuit. In the case of United States v. Malesic, 18
F.3d at 205, the Court held that once supervised release has
been revoked pursuant to § 3583, there can be nothing left for
the court to extend, modify, reduce or enlarge under that
code section. /d. at 207-208.

17

Nine Circuit Courts of Appeal have agreed that the
language of § 3583 does not permit the revocation of
supervised release, followed by an additional term of
supervised release. Only two circuits have found to the
contrary. Nine circuits have found that such a sentence is not
permitted under § 3583, and it would be unfair to defendants
in the other two circuits to permit the arbitrary imposition of an
additional term of supervised release following imprisonment
due solely to the location in which their case occurred. Had
Mr. SANDOVAL been sentenced in Los Angeles, California,
New York, New York, Chicago, Illinois, Honolulu, Hawaii,
Dallas, Texas, or Columbus, Ohio he would not now be on
supervised release. This Court should act to achieve
uniformity of decision among the federal circuits.

///
///
///

18

CONCLUSION
For the reasons set forth above, petitioner requests
that this Court grant his petition for a writ of certiorari to
review the decision of the First Circuit Court of Appeals, and
set the case for briefing and oral argument.
Dated: April 9, 1996 Respectfully submitted,

<—_
C_

Rae

EUGENE G. IREDALE
Attorney for Petitioner
DON SANDOVAL

19

[NOT FOR PUBLICATION]

United States Court of Appeals
For the First Circuit

No. 95-1326
UNITED STATES,
Appellee,
V.

DON SANDOVAL,
Defendant, Appeliant.

APPEAL FROM THE UNITEN STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
(Hon. Mary M. Lisi, U.S. District Judge)

APPENDIX A

(continued...)

Before

Selya, Cyr and Boudin,

Don Sandoval on brief pro se.

Sheldon Whitehouse, United States Attorney, Margaret
E. Curran and Gerard B. Sullivan, Assistant United States
Attorneys, on brief for appellee.

November 7, 1995

Per Curiam. Defendant Don Sandoval appeals from
the sentence the district court imposed on him following the
revocation of a term of supervised release. The court
sentenced defendant to both a term of imprisonment and a
term of supervised release. Defendant first argues that
the supervised release revocation provision, 18 U.S.C. §

3583(e) (3), does not permit the imposition of a term of

supervised release and a term of imprisonment. We rejected
this precise argument in United States v. O'Neil, 11 F.3d 292
(1st Cir. 1993), and re-affirmed our position in United States
v. LaPlante, 28 F.3d 1 (1st Cir. 1994) (per curiam), cert.
denied, 115 S.Ct. 910 (1995). Defendant has not presented
any persuasive reasons why we should change this recent
statement of the law.

Defendant's second argument on appeal is that the
district court violated the prohibition of the ex post facto
clause by applying § 3583 (h) to him. This section was added

in 1994. It specifically provides that when revoking a term of
supervised release under subsection (e) (3), a district court
may include a requirement of supervised release after
imprisonment.

To fall within the ex post facto prohibition the new law
‘must disadvantage the offender affected by it” Miller v.
Florida, 482 U.S. 423, 430 (1987) (internal quotations and
Citation omitted). Assuming the district court used subsection
(h), defendant was not disadvantaged. In O'Neil, we already
had construed subsection (e) (3) to permit what subsection
(h) now grants expressly. Cf. United States v. Hartman, 57
F.3d 670, 671 (8th Cir. 1995) (per curiam) (the legislative
history of subsection (h) shows that subsection (e) (3) permits

both incarceration and supervised release).

Based on the foregoing, the judgment of the district
court is affirmed.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1326
UNITED STATES,
Appellee,
v.
DON SANDOVAL,
Defendant, Appellant.

Before

Torruella, Chief Judge,
Selya, Cyr and Boudin, Stahl and Lynch,
APPENDIX B

(continued...)

ORDER OF COURT

Entered January 12, 1996

The motion for rehearing and suggestion for rehearing in banc

is denied.

By the Court:

's/ Jancie M. O'Neil
Janice M. O'Neil
Acting Clerk.

[cc: Messrs. Gaynor, Sullivan and Sandoval]

---

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