Petition for Writ of Certiorari — Leza v. United States

Supreme Cour JS,

FiLéu

041608 MAY 26 2005

No. OFFICE OF THE CLERK

a]

IN THE

SUPREME COURT OF THE UNITED STATES

JULIETTA LEZA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF

CERTIORARI

RICHARD HAYNES, EsqQ.* WALTER A. Boyp, III, Esq.

BRUCE R. MOLDOVAN, Esq. LAW OFFICES OF

RICHARD HAYNES & WALTER A. Boyp, III

ASSOCIATES, P.C. 4300 SCOTLAND

4300 SCOTLAND HOUSTON, TEXAS 77007

HOUSTON, TEXAS 77007 (713) 869-1200

(713) 868-1111

*Counsel of Record Counsel for Petitioner

May 26, 2005

eSEeuQ_e_eeeeeE_Ee__e_

QUESTIONS PRESENTED ©

1. When no legitimate basis for an objection

exists at the time of trial to events

subsequently determined to be constitutional

error, does traditional “plain error” analysis

nevertheless apply notwithstanding that the

failure to object is not attributable to the

defendant?

2. Must a defendant sentenced without

constitutional objection under mandatory

Sentencing Guidelines, subsequently held

unconstitutional in Booker, demonstrate a

reasonable probability from the record alone

that her sentence would have been

significantly different under: advisory

guidelines in order to be entitled to relief?

3. If not, what is the proper burden for a

defendant to establish plain error in such

circumstances, and in the interests of fairness

and judicial economy, is such burden satisfied

by demonstrating a reasonable possibility that

the outcome would have been significantly

different?

PARTIES TO THE PROCEEDINGS

The parties to the proceeding below are contained

in the caption of the case.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED 0...oceecscccccccccccccccccecessccccsnn

PARTIES TO THE PROCEEDING ooeeecccccccccccccsccccess ii

TABLE OF AUTHORITIES .......cccccccscsscsssssssséseosesscsee iv

5 a 1

OPINIONS BELOW o.ccccccccssssssssssseeee Aa ts Be 3

a aaNet ane 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ooo... oko ccececeeeeeees3

STATEMENT OF THE CASE oo oonneoccccccccccecesesescecee. 4

A. The District Court Proceedings ................. 4

B. The Court of Appeals’ Decision ................. 5

REASONS FOR GRANTING THE PETITION .......... 6

1. The Philosophical Notion of Justice seta

2. The Booker Conundrum ...............

3. The Circuits’ Attempts at Finding

I 11

4. Petitioner’s Case is an Ideal Vehicle

WMI. ccicuccncedccdcccceecesceause: 17

5. Indicia as Predictors _...................... 20

CONCLUSION Nuit Mdina atsiasrnbindia tac ccs 23

GEL. daceuaas nates sunbdeanenasemlabbadbadsdencsssceas A

United States v. Leza, 115 Fed. Appx. 761,

Slip Copy, 2004 WL 2980353

EY §—_—_ . -shbchsiuindunsdaieiahdidiasemesensehaabsieiaien A-1

United States v. Leza, denial of

Petition for Rehearing wn A-5

Constitutional and Statutory

I Es. ccsrustsctuissilnstnceisetibnnsonion A-7

TABLE OF AUTHORITIES

CASES

Ashcroft v. Raich, 352 F.3d 1222 (9th Cir. 2003),

cert. granted, 1248S. Ct. 2909 (2004) ov... 17

Blakely v. Washington, 542 U.S. __,

124 S. Ct. 2531 (2004) 5, 6

Delaware v. Van Arsdall, 475 U.S. 637 (1986) _...... 7

Johnson v. United States, 520 U.S. 461, 468

Kotteakos v. United States, 328 U.S. 750

TINUE ccaninusicensibitsxonianinnansaguensidicmabtaniainasbintets

iv

United States v. Ameline, 400 F.3d 646 (9th Cir.

2005), reh’g en banc granted by

401 F.3d 1007 (9th Cir. March 11, 2005)............. + a

United States v. Antonakopoulos,

399 F.3d 68 (lst Cir. 2005) a... ccc cee cee see eeee 13

United States v. Booker, 543 U.S. __,

Rae GR, Ta GED sststeniacnintentnensemniamnns passim

United States v. Coles, 404 F.3d 746

es: Gk SED © abdtesatodddinad etsieddesenéaeeee

United States v. Crosby, 397 F.3d 103

(ER GREENE. - déhitemmdbibinsteschimuenae

United States v. Davis, ___ F.3d ____, 2005 WL

976941 (3d Cir. April 28, 2005) ........sescsessseessee-012

United States v. Dominguez Benitez,

542 U.S. 74 (2004) arsssesseeeeeee 10, 12, 13, 20-21

United States v. Frady, 456 U.S. 152

OM inci simone g

United States v. Gonzales-Huerta,

403 F.3d 727 (10th Cir. April 8, 2005)............. 2, 13

United States v. Heldeman, 402 F.3d 220, 224

CHOSE ED. (dincticasadeaee 1, 21-22

United States v. Hughes, 401 F.3d 540

EE Te

United States v. Mares, 402 F.3d 511

GEE GER IUOED . cstscccssixcidisiniieknesiohl un eee

United States v. Milan, 398 F.3d 445

GUN GTI TOUS. ccdcandcsdcchsduccbiceccscacmies 12

United States v. eesti 502 U.S. 725

(1993) oe ccccccsesccceccccncccccccccccsssssssscccscoethy 15, 16

United States v. Paladino, 401 F.3d 471

United States v. Pineiro, 377 F.3d 464,

(Sth Cir. 2004), cert. granted, judgment

vacated by 125 S. Ct. 1003 (2005) sctietsdeéiale

United States v. Pirani, _ F. 3d__,

2005 WL 1039976 (8th Cir. April 29, 2005),

CREME wusssennen 2,13

United States v. Rodriguez, 398 F.3d 1291

(11th Cir. 2005), reh’g en banc denied,

—__ F.3d __, 2005 WL 895174 (11th

Cir. April 19, 2005), cert. filed oo... ceccccccsceseeoess. 13

United States v. Young, 470 U.S. 1(1985) .................. 8

Weems v. United States, 217 U.S. 349

(SUED ° catessestveaeuasicuielgiaeaamnnse ania eee 8

STATUTES

18 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846... 4

en

MAI GND cetstentaneencccsinctedeneadsncadeansabennal

FED. R. CRIM. PROC. 52 ecsccovcccccccccccccccccce SRS

UNITED STATES SENTENCING GUIDELINES ......... passim

CONSTITUTIONAL PROVISION

US. COmmP. amend. VE ccc ccccccccccccccsccees 3,4, 5,9

— ie i = - si

1 ee?

vi 7 ee ‘

= 7. hr al

INTRODUCTION

In United States v. Booker, 125 S. Ct. 738 (2005),

this Court held that when a sentencing judge, bound

by mandatory United States Sentencing Guidelines,

increases the sentencing range under the Guidelines

based on facts not found by the jury or admitted by

the defendant, the sentence violates a defendant’s

Sixth Amendment right to a jury trial. The Court

noted that its decision applied to all cases on direct

review, noting that “prudential doctrines” such as the

“plain error” test would apply. Jd. at 769. The

Circuits have since become a trifecta of vastly

differing opinions as to how the plain-error test should

be applied to cases on direct appeal. The First, Fifth,

Eighth, Tenth, and Eleventh Circuits have applied the

highest burden for defendants to meet, requiring an

actual, specific showing of harm due to being

sentenced under mandatory guidelines.’ Under this

burden, unless a defendant was fortunate enough to

have a verbose and pontificating sentencing judge who

happened to note that he would have imposed a

significantly lighter sentence if he were not bound by

the Guidelines, reversible plain error cannot be

established. The Third, Fourth, Sixth, and Ninth

Cizcuits, on the other hand, remand for re-sentencing

nearly all such cases with a presumption of prejudice

when a defendant’s sentence was imposed under

' The First Circuit in one instance has lessened the required showing

from a probability to a reasonable possibility. See United States v.

Heldeman, 402 F.3d 220 (1st Cir. 2005) and Petitioner’s discussion

of that approach at pp. 16-22, supra.

1

mandatory Guidelines. The Second, Seventh, and

District of Columbia Circuits have resorted to a

middle-ground—a partial remand to ask the

sentencing judge if he or she would have imposed a

significantly different sentence under advisory

Guidelines. These three circuits, in effect, ask the

district court whether the third prong of the plain-

error test is satisfied.

This circuit split, which has adopted the meme of a

“three ring circus” by a multitude of commentators

and at least one Circuit Judge,’ affects an enormous

number of cases and concerns an issue of paramount

importance due to the substantial rights implicated.

In Booker this Court affirmed that the stated goal of

the Guidelines is to create “a system that diminishes

sentencing disparity.” Booker at 759. Unfortunately,

the present conflict between. the Circuits greatly

frustrates this purpose, causing one Circuit Judge to

opine that “This wide ranging circuit split results in

the disparate treatment of criminal defendants

throughout the nation. Such uneven administration

of justice cries out for a uniform declaration of policy

by the Supreme Court.” Furthermore, Petitioner

submits that the facts and issues presented in her

case squarely and simply present an excellent vehicle

for this Court to review the conflict between the

* United States v. Pirani, _ F.3d __, 2005 WL 1039976

(8th Cir. April 29, 2005), on panel reh’g. (Bye, J.,

dissenting).

> United States v. Gonzales-Huerta, 403 F.3d 727 (10th Cir.

April 8, 2005) (Lucero, J., dissenting).

2

various circuits. Accordingly, this Court’s review is

greatly warranted.

OPINIONS BELOW

The court of appeals denied both Petitioner’s

appeal (No. 03-41527) in an unpublished opinion on

December 22, 2004, available at 2004 WL 2980353,

and her subsequent petition for panel rehearing (in

light of Booker) without opinion on February 28, 2005.

JURISDICTION

The Fifth Circuit Court of Appeals entered

judgment denying Petitioner’s motion for a panel

rehearing on February 28, 2005. This Petition is

timely filed within 90 days of that decision. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL & STATUTORY

PROVISIONS INVOLVED

This case involves:

U.S. CONST. amend. VI;

FED. R. CRIM. PROC. 52; and

18 U.S.C. § 3553(a).

STATEMENT OF THE CASE

A. The district court proceedings

On August 5, 2003, in Cause Number 03-CR-52-3,

Petitioner Julietta Leza was convicted by a jury in the

Southern District of Texas for conspiring to knowingly

and intentionally possess with intent to distribute five

(5) kilograms or more of cocaine in violation of 18

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Petitioner

was acquitted on two other count of possession with

intent to distribute 164 kilograms and 65 kilograms,

respectively.

At sentencing on October 23, 2003, the quantity of

illegal controlled substances for which Petitioner was

responsible for purposes of calculating her sentence

under the then-mandatory United States Sentencing

Guidelines was in dispute.‘ At the hearing, the trial

judge found by a preponderance of the evidence that

the amount of cocaine attributable to Leza exceeded

150 kilograms, over thirty times the quantity

determined by the jury beyond a reasonable doubt.

Leza made no Sixth Amendment objection. Based on

its finding, the court imposed sentence upon

Petitioner based on that quantity as mandated by the

Sentencing Guidelines.

It is clear throughout the sentencing proceeding

that the district court, the Government, and Petitioner

* Petitioner admitted that she was responsible for 48

kilograms, but no more.

4

believed themselves bound by the Sentencing

Guidelines. The Government itself recommended the

Safety Valve and the “bottom” sentence for Petitioner.

It is equally clear from the transcript of the

sentencing hearing that, because of the mandatory

nature of the Sentencing Guidelines, the trial court

failed to consider any of the other factors enumerated

in 18 U.S.C. §3553(a) other than the mandated

sentence range. The trial court sentenced Petitioner

to 188 months imprisonment, the minimum under the

Guideline range of 188 to 235 months.

Had Petitioner been sentenced for the minimum of

five kilograms of cocaine charged in the indictment

and found by the jury, without the safety valve, her

maximum sentence under the Guidelines would have

been 121 months with the safety valve and 151

months without. Had Petitioner been sentenced based

on the 48 kilograms admitted by her after the trial but

before sentencing, her maximum sentence would have

been 151 months with the safety valve and 168

months without. Instead, based on facts found by the

judge at sentencing who was then compelled to apply

the sentencing table, Leza received a sentence of 188

months. This sentence significantly exceeds the

maximum sentence that could have been imposed

solely on the basis of the facts reflected in the jury

verdict and admitted by Petitioner. Her sentence

plainly violates the Sixth Amendment. United States

v. Booker, 543 US. (2005); Blakely v.

Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).

B. The court of appeals’ decision

On December 22, 2004, in a brief, unpublished

opinion, the Fifth Circuit denied Petitioner’s appeal

based on, inter alia, its subsequently overruled

decision in United States v. Pineiro, 377 F.3d 464, 465

(5th Cir. 2004) (holding United States Sentencing

Guidelines constitutional notwithstanding this Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531

(2004))., cert. granted, judgment vacated by Pineiro v.

U.S., 125 S. Ct. 1003 (Jan. 12, 2005). Pet. App. A-1.

In an unopposed motion, Petitioner requested

leave to file a supplemental petition for panel

rehearing in light of this Court’s decision in Booker.

Petitioner’s request was granted J anuary 20, 2005,

and the issue of plain error was thoroughly briefed by

both sides.

On February 28, 2005, the Fifth Circuit denied

Petitioner’s request for panel rehearing without

opinion. Pet. App. A-4.

REASONS FOR GRANTING

THE PETITION

1. The Philosophical Notion of Justice

Our system is founded on a basic notion of justice.

That notion, amorphous in specifics, is easily

recognizable in application. The historical guide to

that application is an underlying framework of

fairness.

The Founding Fathers’ self-evident truths imply

the existence of a corollary set of self-evident

falsehoods. From these falsehoods spring fundamental

wrongs; wrongs of such a nature that, if allowed to

remain uncorrected, would eviscerate the self-evident

truths. The correction of these fundamental wrongs,

no matter how belated, is inherent in the structure of

our appellate process and overall concept of justice.

The plain error doctrine is at the very foundation of

that structure.

When error is committed at trial and the

defendant objects, the test on review is whether the

error is harmless. Only when it is clear that the error

did not affect the proceeding does the result stand in

spite of the error. The test is predicated on fairness.

The defendant has brought the matter to the attention

of the trial court. He or she has done all things

possible under the circumstances; yet in spite of the

best of efforts, the error nevertheless remained.

When error is committed at trial and the

defendant does not object, however, the defendant

forfeits the error by his failure to place the trial court

on notice of the error and allow that court an

opportunity to correct its mistake. Fairness dictates

that when a defendant idly stands by and knowingly

or negligently allows an error to be committed, the

defendant should not thereafter be allowed to undo

the result. “The Constitution entitles a criminal

defendant to a fair trial, not a perfect one.” Delaware

v. Van Arsdall, 475 U.S. 637, 681 (1986). The

defendant must bear some responsibility to place the

court on notice of perceived errors in that trial.

7

Yet there are some circumstances when unobjected

error is of such great significance that our notion of

justice demands correction. An innocent man

convicted as a result of his lawyer’s procedural neglect

is one such instance. In these situations, fundamental

justice dictates that the result be overturned.

This Court spoke of such “fundamental justice” in

United States v. Olano, 502 U.S. 725, 732 (1993). Not

every unnoticed error demands correction under the

plain error doctrine. It is only fundamental error of

extreme significance; errors that affect rights asserted

“which are of such high character as to find expression

and sanction in the Constitution or Bill of Rights.”

Weems v. United States, 217 U.S. 349, 362, 30 S. Ct.

544, 547 (1910). The error must be “particularly

egregious” that, without correction, would result in a

“miscarriage of justice.” United States v. Young, 470

U.S.1, 15, 105 S. Ct. 1038, 1046 (1985) quoting United

States v. Frady, 456 U.S. 152, 163, n.14, 102 S. Ct.

1584, 1592, n.14 (1982). This type of error when not

the subject of an objection at trial is governed by the

plain error doctrine.

In order to establish plain error, a defendant must

show that there was error, the error was plain, the

error affected substantial rights and the error

seriously affected the fairness of the ling.

United States v. Olano, 502 U.S. 725 (1993). Unlike

harmless error, the test for plain error places the onus

on the defendant for it is he who forfeited the error in

the first place.

Not only must the error committed have

. .

ma

significance, the impact of the error must be

significant as well. An error, otherwise of great

import, that does not affect a substantial right of the

accused is an error of little or no substance. Where

there is nothing egregious to correct and no

miscarriage to be righted, the error becomes a matter

of form for which no substance may be assigned.

Nothing can be said to offend the notion of justice. The

error is not prejudicial to the defendant.

When a significant error affects the outcome of the

proceeding the notion of justice is challenged. The

innocent person convicted solely as a result of a

procedural omission offends our sense of fundamental

justice -- such a conviction should not stand. It is not

this scenario that gives one pause, but rather those

cases where the effect of a significant error on the

proceeding is not abundantly clear.

When does an error, not objected to at trial, affect

substantial rights and what must a defendant show to

demonstrate such an effect? In the context of Booker,

it is this question that has split the Circuit Courts.

2. The Booker Conundrum

The substantial right in Booker cases is the right

to trial by jury; the right of an accused to have a jury

determine whether the accused has committed a crime

as that crime is defined by statute. This Court held

that a Defendant sentenced under mandatory

guidelines based on facts not admitted or determined

by a jury violates the Sixth Amendment. Booker at

9

756-57. This is a fundamental error of extreme

significance. When the “law at the time was settled

and clearly contrary to the law at the time of the

appeal,” the error is plain. Johnson v. United States,

520 U.S. 461, 468 (1997). The Circuits are in

agreement that Booker error is plain error. Where

they diverge is in the determination of the effect of

that error.

This Court has examined the traditional burden

placed on a defendant under a plain error analysis.

Noting that the underlying purpose of Federal Rule of

Criminal Procedure 52 is to encourage timely

objections at trial, this Court has stated that the

burden to demonstrate that the outcome would have

been affected “should not be too easy.” United States v.

Dominguez Benitez, 542 U.S. 74 (2004). But Booker

cases are inherently different; a timely objection at

trial was foreclosed because the law was then well

established and such objection would have been

frivolous. The underlying purpose of Rule 52 never

came into play. The innocent man convicted has been

convicted as a result of a procedural error that was

not recognized as such by anyone at the time the error

was committed. There was no opportunity to object

because there was no foresight that an objection was

permissible or warranted under then existing law.

This is the conundrum; it is the basis for the

dissension between the Circuits and the reason for

granting certiorari in this case.

The Circuits have split in an effort to achieve the

right result within the confines of existing plain error

10

ee Ne

rationale. The conundrum exists because plain error

places the burden on the back of the defendant to

demonstrate that the proceeding was affected by the

error committed. The rationale behind the shift in the

burden is that the defendant had an opportunity at

trial to challenge the error but failed to do so. The

defendant forfeited the error and now seeks belatedly

to remedy his mistake. He should be punished but not

too severely; if he can demonstrate that the error was

significant and the error prejudiced him, our notion of

justice provides him a second chance.

Cases like Booker do not fit within this second

chance rationale for plain error correction; application

of the doctrine is not a second opportunity because the

first opportunity never existed in any real or practical

sense. While the remaining Booker cases “in the

pipeline” will slowly play out, the underlying

conundrum will remain. It is simply a matter of time

before the next Booker-type error will arise.

3. The Circuits’ Attempts at Finding a Solution

The Circuits’ attempts to resolve the Booker

conundrum have resulted in three well-reasoned but

divergent approaches yielding three conflicting

resolutions.

The first approach, adopted by the Third, Fourth,

Sixth, and Ninth Circuits looks solely at the result of

the error and disconnects the error to be remedied

from the decision of whether there is to be a remand.

If “the district court could have imposed the sentence

11

it did without exceeding the relevant Sixth

Amendment limitation,” there is no affect on the

outcome. If, however, the sentence exceeded the

limitation, the outcome was affected and “the

defendant has made the required showing.” United

States v. Davis, __ F.3d ___, 2005 WL 976941 (3d Cir.

April 28, 2005); United States v. Hughes, 401 F.3d

540, 551 (4th Cir. 2005); United States v. Milan, 398

F.3d 445 (6th Cir. 2005); United States v. Ameline, 400

F.3d 646 (9th Cir. 2005), reh’g en banc granted by 401

F.3d 1007 (9th Cir. March 11, 2005).

This approach effectively presumes that because

the error occurred, the outcome was affected in some

fashion. That presumption ultimately arises because

the reviewing court can do no more than speculate as

to the effect of the error. The Fourth Circuit draws

much of its support from language in Kotteakos v.

United States, 328 U.S. 750 (1946). But Kotteakos is

ultimately a harmless error case; the burden was not

on the defendant. The reliance on Kotteakos is derived

from the discussion in Dominguez Benitez concerning

the similarities in the Kotteakos standard to the

elements of “reasonable probability.” But Dominguez

Benitez does not posit that speculation of what might

have been equates to a reasonable probability that the

outcome would have been affected.

While this approach ensures that all defendants

facing a constitutional error receive an opportunity to

correct that error, it does so by simply positing that a

different result would have probably occurred and

forecloses any inquiry into whether such a result has

any practical chance.

12

The second approach, adopted by the First, Fifth,

Eighth, Tenth, and Eleventh Circuits turns on

whether the defendant has demonstrated “a

reasonable probability that he would have received a

more favorable sentence with the Booker error

eliminated by making the Guidelines advisory.”

United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.

2005)’; United States v. Mares, 402 F.3d 511 (5th Cir.

2005); United States v. Pirani, __ F.3d ___, 2005 WL

1039976 (8th Cir. April 29, 2005), on panel reh’g.;

United States v. Gonzalez-Huerta, 403 F.3d 727 (10th

Cir. 2005); United States v. Rodriguez, 398 F.3d 1291

(11th Cir. 2005), reh’g en banc denied, __ F.3d__s,

2005 WL 895174 (11th Cir. 2005), cert. filed.

This approach relies heavily on the language of

Dominguez Benitez. It properly shifts the burden to

the defendant under the constraints of Rule 52 and

traditional harmless error analysis. The defendant

must somehow demonstrate a reasonable probability

exists that the outcome was affected by the error

committed. There must be some word or deed in the

record that places the reviewing court on notice that

were the matter remanded the sentencing court would

have done something differently. The initial problem

with this approach is the quantum of evidence that

meets such a burden. It is wholly reliant on the luck of

the defendant’s draw of sentencing judges and

whether that judge, at that moment, sought to speak

his mind. If the sentencing judge is verbose at the

requisite hour, the necessary quantum may be met.

* See fn. 1, infra.

13

On the other hand if he or she is behind schedule,

regardless of their views on the matter at hand, they

may elect not to express those views as a matter of

expediency.

The quantum of evidence problem is ultimately

rooted in the conundrum itself. Because there was no

reason to anticipate that a procedural event would

subsequently become accepted constitutional error,

there was no reason at the time to ensure that such

facts would be present in the record to enable a

reviewing court to conclude that a reasonable

probability of a different result existed. A precious few

fortuitous defendants will meet the evidentiary

burden of reasonable probability simply by sheer good

fortune. Most will not. Such an approach offends our

traditional notions of justice because the

determination to correct the error is made by random

lot.

The third approach, pragmatically adopted by the

Second, Seventh, and District of Columbia Circuits

inquires of the sentencing court whether in each case

it would have sentenced differently had it known that

the guidelines were merely advisory. United States v.

Crosby, 397 F.3d 103, 120 (2d Cir. 2005); United

States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005);

United States v. Coles, 404 F.3d 746 (D.C. Cir. 2005).

This final approach seeks to stay within the

confines of Rule 52 by requiring some evidence that

the error affected the outcome. But that evidence may

(if not must) come from outside the record, because

the record cannot reflect what might have happened

14

Pam kere! a

hea POD cate ss gC ARES AA ED,

at sentencing had the error not been present. There is

a certain practical common sense inherent in this

approach, and while it solves the short-term Booker

problem quite conveniently, it does not’ necessarily

solve the Booker conundrum unless such an approach

is adopted in every situation the conundrum is

confronted.

Such an inquiry is logistically problematic,

however, and those logistics in the modern federal

world may ultimately defeat the underlying purpose of

the solution. By the time the error is recognized the

case is often long from the trial court. Trial judges

retire, pass away, or simply forget important aspects

of the case that is now the subject of the inquiry.

They must review the file and their notes and hope

that they can recall their distant impressions in order

to adequately and correctly respond to the inquiry. If

they fail, a defendant who may otherwise be entitled

relief is now left without remedy. Our notion of justice

is again offended. Finally, the deleterious effect on

judicial efficiency of such an approach begs a better

solution.

None of the varied Circuits’ resolutions to the

Booker conundrum wholly solves the underlying

problem: the failure to object at trial was not a

mistake that the defendant failed to prevent. Such

mistakes do not neatly conform to the judicial

philosophy underlying conventional plain error. In

Olano, this Court described three separate plain error

applications, each of which varied as to the third

element. The first involved structural errors, errors of

such significance that the entire process was called

15

into question--errors for which there is no necessity to

determine if the outcome was affected. Second are

those errors that by their nature it is presumed that

the outcome must have been affected. And third, those

errors, otherwise forfeited at trial, but which notions

of justice allow a remedy when the defendant can

demonstrate the probability of prejudice. United

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

Under Olano, the type of error determines the

level of burden, if any, that must be met by a

defendant to establish the third prong of plain error.

While there is little gap in the contrasting onus

between the first two types of error, there exists a

wide chasm between the latter two. Faced with a

Booker-type conundrum, the presumption model

nearly always dictates remand; conversely the

probability of prejudice model will usually dictate

little or no relief at all.

Our notion of justice and fair play is particularly

offended when a frivolous defendant, imposing an

objection contrary to well-established law, receives the

benefit of having a subsequently determined error

' decided in his favor while the diligent, respectful

defendant must bear the burden of proving the

impossible in order to secure similar relief.® Yet this

° Judicial efficiency is not served by a policy that requires a

prudent defendant to spend several hours during each trial

offering up a litany of presumably frivolous objections, all

clearly and concededly foreclosed by caselaw. Such

objections, for example, might include: all felon-in-

possession laws violate the Second Amendment, the death

16

Les SC

is exactly what occurs when the traditional plain error

doctrine is applied in Booker-type cases. The

respectful defendant cannot meet the probability of

prejudice model except by happenstance or luck of the

draw.

_ Petitioner submits that perhaps it is: not merely

the type of error that should dictate the method of

plain error review but rather the underlying basis for

how that error arose that should be the subject of

scrutiny as well.

4. Petitioner’s Case is an Ideal Vehicle for Resolution

The facts of Petitioners case make it an

appropriate vehicle for resolving the Booker

penalty violates the Eighth Amendment, all possessory

Controlled Substance laws exceed the limits of

Congressional power under the Commerce Clause

(notwithstanding this Court’s forthcoming decision in

Ashcroft v. Raich, 352 F.3d 1222 (9th Cir. 2003), cert.

granted, 124 S. Ct. 2909 (2004)), the gold fringes around the

American flag in United States District Courts divest those

courts of all but admiralty jurisdiction, that the income tax

is unconstitutional for a myriad of reasons, that the

AEDPA’s one-year statute of limitation violates the

Suspension Clause, followed by several hours, sub judice, of

similar objections. If the onus is on the defendant to object

to every conceivable error at bar, no matter how thoroughly

foreclosed by long-standing precedent, jurisprudentially

unsound, or latently frivolous, a multi-hour desultory

filibuster of such objections is more prudent than trying to

satisfy an insurmountable burden on plain error review.

17

conundrum. Petitioner was convicted of conspiracy to

possess five kilograms or more of cocaine. She was

acquitted on two separate counts involving possession

of cocaine with intent to distribute 164 kilograms and

65 kilograms, respectively. Her sentence was based, in

part, on facts admitted by Petitioner as to 48

kilograms and facts found by the trial court for the

remaining amounts. Her sentence was neither

enhanced nor reduced by other factors. She received

the lowest possible sentence within the guideline

range determined by the sentencing judge. At

sentencing, the court acknowledged that it was bound

by the guidelines but did not express any other

sentiment concerning the sentence or the Guidelines

themselves. Her case is straightforward without

complicating issues. In short, it is “run of the mill.”

Petitioner would suggest that such a case is ideal for

resolving the conundrum due to its very simplicity.

Petitioner cannot demonstrate unequivocally that

the sentencing court would have sentenced her

differently had the guidelines been advisory. What

Petitioner can demonstrate are certain indicia that

the sentencing court, faced with the same situation

today under an advisory system, might have selected

a different course, a course less prejudicial to

Petitioner.

Curiously, the sentencing court entertained

information about the Petitioner’s family and the

future welfare of her four children. In the mandatory

guideline scheme such information was not relevant to

a determination of Petitioner’s sentence. Unless it is

assumed that the sentencing court was simply passing

18

PT Pe eter eee

OY eee ee eM 1, a Ee aS ROPE, Oe CRS Pe Toe

the time of day, there must have been some relevance

to the information. Petitioner submits that such

considerations are indicia that the sentencing court,

had it been allowed to consider such factors, may have

included those factors in its sentence determination.

The evidence at trial was that Petitioner and the

conspiracy leader were romantically involved at all

times that Petitioner was involved in the conspiracy.

At sentencing, the court inquired into the origins and

duration of that romantic relationship. Like the family

inquiry, this information was not relevant to a

determination of Petitioner’s sentence under the

mandatory guidelines though it was relevant to the

length of time Petitioner was involved in the

conspiracy. Again, the inquiry is indicia that the

sentencing court, had it been allowed to consider such

factors, may have included those factors in its

sentence determination.

Finally, the court sentenced Petitioner at the very

bottom of the mandatory guidelines for the quantity

the court determined appropriate under the

guidelines, in this instance 188 months. The

mandatory guidelines consist of a series of arbitrary

ranges of months of imprisonment, ranges that follow

no normal human practice or division such as years or

quarters of years. Petitioner's sentence of fifteen

years and eight months is a rather odd number

anywhere but within the mandatory guideline scheme.

Petitioner submits that the sentencing court’s

statement, in the middle of the sentencing hearing,

that the court would not impose a sentence above the

188 month minimum is further indicia that had the

19

sentencing court, faced with the same situation today

under an advisory system, might have selected a

different course—a course less prejudicial to

Petitioner.

5. Indicia as Predictors

What galls the soul about the reasonable -

probability of prejudice model in Booker-type cases is

the model’s inherent unreliability in these situations.

Not only must there exist some indication that

matters might (or would) have been different, but

those indications must rise to the level of a

“reasonable” probability, something less than a

preponderance of the evidence, but something more

than an strong possibility. United States v. Dominguez

Benitez, 124 S. Ct. at 2339-40. In summarizing the

various standards of probability, Justice Scalia in his

concurring opinion in Dominguez Benitez fairly

summarizes the difficulty of making~ such an

assessment:

Such ineffable gradations of

probability seem to me quite beyond

the ability of the judicial mind (or any

mind) to grasp, and thus harmful

rather than helpful to the consistency

and rationality of judicial decision-

making. That is especially so when

they are applied to the hypothesizing

of events that never in fact occurred.

Such an enterprise is not fact-finding,

but closer to divination. United States

20

v. Dominguez-Benitez, 124 S. Ct. at

2342, (Scalia, J., concurring).

Justice Scalia’s solution in Dominguez Benitez was to

adopt a more likely than not standard for plain error

“where a defendant has failed to object at trial, and

thus has the burden of proving that a mistake he

failed to prevent had an effect on his substantial

rights...” United States v. Dominguez Benitez, 124 S.

Ct. at 2342, (Scalia, J., concurring) (emphasis added).

That solution unfortunately does not resolve the

Booker conundrum because the solution assumes that

the defendant knowingly or negligently failed to

prevent the error in question and should now suffer

an additional burden for such failure.

Petitioner submits that in Booker-type plain error

cases, the underlying principles of plain error are

satisfied if some indicia can be adduced that

reasonably indicate that matters could (as opposed to

would) have been different had the error not occurred.

Rare will be the case where no indicia are present to

guide the reviewing court as to such reasonable

possibility.

This reasonable possibility approach has been

adopted, to an extent, by the First Circuit in its

opinion in United States v. Heldeman, 402 F.3d 220,

224 (1st Cir. 2005):

Even where plain error is required,

we have recognized that a district

judge may well not have expressed his

or her reservations because the

guidelines made them hopeless * * *

21

we are inclined not to be overly

demanding as to proof of probability

where, either in the existing record or

by plausible’ proffer, there is

reasonable indication that the district

judge might well have reached a

different result under advisory

guidelines. United States v. Heldeman,

402 F.3d at 224 (emphasis added).

By easing the plain error standard placed on

Booker-type defendants, both those in the pipeline

now as well as those that will come in the future, the

conundrum disappears. In those instances where no

indicia can be found that matters might reasonably

have been different but for the error, our notion of

justice is not offended. The indicia required takes the

review to a level above a harmless error analysis but

somewhat below the reasonable probability model.

The reviewing court is not asked whether, but for the

error, is there any assurance that the error did not

affect the outcome. Nor must the reviewing court

struggle with whether the record demonstrates that

but for the error there is a reasonable probability that

the result would have been different. Rather the

review would be limited to whether some indicia in

the record exists that would lead a reviewing court to

reasonably believe that the outcome could have been

affected. It is an analysis based on reasonable

possibility.

22

CONCLUSION

Our notion of justice and fair play is ultimately

grounded in reasonableness. Dominguez Benitez

recognizes this reasonableness as the touchstone: is

the probability of a different result “sufficient to

undermine confidence in the outcome?” Where it is

difficult, if not impossible to make such a

determination and the fault does not lie with the

defendant (or anyone else for that matter), is it not

reasonable to ask if there is some indication in the

record, some indicia, that the outcome could have been

affected? Both fairness and judicial efficiency imply

the appropriateness of an affirmative response to that

query.

For the reasons set forth above, the Petition for a

Writ of Certiorari should be granted.

23

Respectfully submitted,

RICHARD HAYNES, ESQ.

Counsel of Record

BRUCE R. MOLDOVAN, ESQ.

Richard Haynes

& Associates, P.C.

4300 Scotland Street

Houston, Texas 77007

(713) 868-1111

WALTER A. BoyD, III, Esq.

The Law Offices of

Walter A. Boyd, III

4300 Scotland Street

Houston, Texas 77007

(713) 869-1200

Counsel for Petitioner

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