Reply Brief — Kumar v. United States

A\ Supreme Coust, US.

\ FILED

MAY 6 - 2011

No. 10-961

“OFFICE UF THE CLERK |

IN THE

Supreme Court of the United States

SANJAY KUMAR,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

PAUL SHECHTMAN

Counsel of Record

NATHANIEL Z. MARMUR

STILLMAN, FRIEDMAN &

SHECHTMAN, P.C.

425 Park Avenue

New York, NY 10022

212-223-0200

pshechtman@stillmanfriedman.co!

Counsel for Petitioner

236049 cr

COUNSEL PRESS

800) 274-3321 + (800) 359-6859

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TABLE OF CITED AUTHORITIES

CASES

Fletcher v. Peck,

6 Cranch 87 (1810).

Greenfield v. Scafati,

277 F. Supp. 644 (D. Mass. 1967), aff'd men

390 U.S. 713 (1968) ...

Grove City College v. Bell,

465 U.S. 555 (1984) ...

Gryger v. Burke,

334 U.S. 728 (1948) .

Miller v. Florida,

482 U.S. 423 (1987)

United States v. Cooper,

35 F.3d 1248 (8th Cir. 1994

United States v. Turner,

548 F.3d 1094 (D.C. Cir. 2008

United States v. Wetherald,

2011 WL 1107208 (11th Cir. 201

MISCELLANEOUS

The Federalists No. 44 (Clinton Rossiter ed

|

REPLY BRIEF FOR PETITIONER

This brief is respectfully submitted in reply to the

government’s opposition to Mr. Kumar’s petition for

certiorari.

1. Much of the government’s opposition is devoted

to arguing that the Sentencing Guidelines do not present

ex post facto concerns now that they are advisory. (Govt.

Opp. at 9-12, 16-18). Suffice it to say that that issue is

one on which the Courts of Appeals are sharply divided.

See United States v. Wetherald, 2011 WL 1107208 (11th

Cir. 2011)(discussing “split on the impact of Booker in

regards to the Ex Post Facto Clause”). The government

is correct that Mr. Kumar’s petition, as now framed,

does not pose the issue. That is because the government

conceded below that the Ex Post Facto Clause applies

to advisory Guidelines. See 617 F.3d at 626 n.12. The

government does not ask to be relieved of that concession,

and so the issue here is straightforward: in light of the

government’s concession, did the retroactive application

of the 2005 Manual to calculate Mr. Kumar’s offense level

for securities fraud crimes compieted in 2000 violate the

Ex Post Facto Clause, where the use of 2005 Manual

dramatically increased his Guidelines range.

2. Understandably, we believe that the government

should be held to its concession. Alternatively, of course,

this Court could ask the parties to brief two questions:

(i) do advisory Guidelines raise ex post facto concerns;

and (ii) if so, was the Clause violated here. See Grove City

College v. Bell, 465 U.S. 555, 562 n.10 (1984)(a “concession

... is not binding on us and does not foreclose our review

of the judgment below”). Both issues are certworthy: on

)

the first issue, the Courts of Appeals are clearly divided,

and on the second, the decision below is clearly wrong.

The government, we take it, is prepared to address both

issues, since it refers to its concession as premised on

its “outdated view” of the law. (Govt. Opp. at 18). In any

event, it would be perverse if Mr. Kumar’s petition were

denied on the ground that the government conceded the

first question below.

3. Contrary to the government’s opposition, the one-

book rule does not eviscerate basic ex post facto principles.

Consider a simple hypothetical. Assume (i) Congress

enacts a law in 1987 that says that the punishment for a

crime is that in effect on the date of the last offense in

the series of offenses for which the defendant is being

sentenced; (ii) the defendant commits a securities fraud

in 2000 -- at which time the punishment for securities

fraud is five years -- and an obstruction offense in 2004

-- at which time the punishment for obstruction is five

years, and the punishment for securities fraud has been

increased to 20 years; and (iii) the defendant is sentenced

for both crimes in 2006. Surely, no one would suggest

that the defendant could be sentenced to 20 years for his

securities fraud merely because Congress had enacted a

law that, to borrow the government’s words, “put[] the

defendant on notice, that if he commits a series of offenses

and is prosecuted in a single proceeding, the [punishment]

in effect when he commits the last offense will be used in

sentencing him for [each] of the offenses.” (Govt. Opp. at

12-13). Simply stated, the Ex Post Facto Clause cannot be

overcome by a notice provision that says that the Clause

does not apply. See Miller v. Florida, 482 U.S. 423, 431

(1987)(“[t]he constitutional prohibition against ex post

3

facto laws cannot be avoided merely by adding to a law

notice that it might be changed”).'

4. For much the same reason, the government is

simply wrong when it argues that the application of the

one-book rule to Mr. Kumar’s offenses is “similar to

application of the most recent version of the Guidelines to

a continuing offense that is begun under one version of the

Guidelines but not completed until a later version has taken

effect.” (Govt. Opp. at 13). As we noted in our petition, the

difference between the two situations is telling. Again an

example is helpful. Assume that a defendant commits an

embezzlement in 2000 and a second embezzlement (which

is part of the same continuing course of conduct) in 2004

and that the Guideline for embezzlement is stiffened in

2008 -- e.g., there is a substantial increase in offense level

based upon loss. To apply the 2003 Guideline at sentencing

does not offend ex post facto principles. In effect, the

defendant is being sentenced for his 2004 offense, which

was completed after the change in law, and his punishment

for that crime is being increased for his prior criminal

activity (z.e., for his 2000 offense, which is relevant

conduct). See, e.g., United States v. Cooper, 35 F.3d 1248,

1252 (8th Cir. 1994)(“[tlo hold otherwise could lead to the

1. As the hypothetical shows, the fact that such a general

notice provision was in effect before the defendant committed any

of his crimes does not trump the fundamental rule that “[a]n ex

post facto law is one which renders an act punishable in a manner

in which it was not punishable when it was committed.” Fletcher

v. Peck, 6 Cranch 87, 138 (1810)(emphasis added). Compare Govt.

Opp. at 13 n.2 (relying on fact that “[tJhe one-book rule was in

effect before petitioner committed any of the offenses for which

he was punished”).

anomalous result that a... defendant could be subject to

a lower sentence if convicted of multiple offenses spanning

a revision of the Sentencing Guidelines, than if convicted

of the singular last offense after the revision”). In such a

case, the one-book rule operates like a recidivist provision

and is therefore constitutional. See Gryger v. Burke, 334

U.S. 728 (1948). In Mr. Kumar’s case, the one-book rule

operates to increase his punishment retroactively for a

completed offense (his securities fraud crime), which is

unconstitutional. See Greenfield v. Scafati, 277 F. Supp.

644 (D. Mass. 1967)(three-judge court), affd mem., 390

U.S. 713 (1968).

5. Finally, the government argues that “(t]he

sentencing record strongly suggests that petitioner

would have received the same sentence even if the district

court had not used the one-book rule to calculate his

advisory range.” (Govt. Opp. at 15). That is untrue. Mr.

Kumar was sentenced based on the assumption that his

offense level was 50, which carries an advisory guideline

of life imprisonment. The district court then departed

downward based on Mr. Kumar’s extraordinary charitable

acts and the fact that the loss “substantially overstated

the seriousness of the offense,” and imposed a 12-year

sentence. If we are correct that the 1998 Manual should

have applied to Mr. Kumar’s offenses, then his combined

level is 30, and the advisory Guidelines range would be

97 to 121 months. To suggest that that starting point

-- 97 to 121 months as compared to life -- would not have

affected Mr. Kumar’s sentence is to blink at reality.’

2. Ina footnote, the government argues that the proper range

under the 1998 Guidelines was not 97 to 121 months but 188 to

235 months. This new math assumes 2 points for mass marketing,

Where a sentencing judge starts generally affects wher

he finishes, and the judge here started, quite literally

off the chart. See United States v. Turner, 548 F.3d 1094,

1099 (D.C. Cir. 2008)(“Sentencing Guidelines provide a[n

99)

,)

;

‘anchor’ for judges

In our petition, we sought to show (i) that the decision o

the Court of Appeals runs counter to the most fundamental!

precept of ex post facto law in that it authorizes imposition

of enhanced punishment for a completed crime; (ii) that the

Court of Appeals relied upon a form of constructive notice

that this Court rejected in Miller; (iii) that the Court of

Appeals seriously misread Gryger to support its position;

and (iv) that its decision is at odds with Greenfield. The

government’s opposition seeks to muddy the waters, but it

does not succeed in casting doubt on any of these truths.

If we are right, Mr. Kumar was punished retroactively,

which our Constitution forbids. See The Federalists No. 44

at 282 (Clinton Rossiter ed. 1961)(“ex post facto . .. laws

are contrary to the first principles of the social compact”

of which there was none and for which the government did n

seek an enhancement below; 2 points for abuse of trust, which

is inapplicable and for which the government did not seek ar

enhancement below; and 2 points for sophisticated means, which

also does not apply (the conduct was not especially complex or

intricate) and was not sought below. The reality is that if the 1998

Guidelines apply, the correct starting point (97 to 121 months) is

lower than where the sentencing judge finished after departiny

downward on two grounds