Petition for Writ of Certiorari — Umpierre-Hernandez v. United States (Nos. 07-518, 07-530, 07-536)

Supreme

up om hg a U.S.

me! 07-528 00T18 2007

OFFICE OF THE OLERK

Supreme Court of the Anited States

WILFREDO UMPIERRE-HERNANDEZ,

Petitioner,

V.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

FRANCISCO M. DOLZ-SANCHEZ

P.O. BOX 361451

San Juan, Puerto Rico 00936

(787) 759-8780

Attorneys for Petitioner

ERNE PLEA IAL BES EIA SEAS OO TLS IE NES A LEB A TIER LM LES ALL DLLE DE ALOE A AEE:

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D C. 20002

QUESTION PRESENTED

Whether plain error review of unpreserved

Booker claims properly ignores Sixth Amendment

considerations and looks only at the failure to treat

the sentencing guidelines as advisory, and whether

a district courts sentence can be upheld as

reasonable where the court did not apply the

standard of review set forth in Booker.

PARTIES TO THE PROCEEDING

The names of all parties to the proceeding in the

United States Court of Appeals for the First Circuit

are:

Lorenzo Munoz-Franco,

Dr. Francisco Sanchez-Aran,

Ariel Gutierrez-Rodriguez,

Wilfredo Umpierre-Hernandez, and

The United States.

ii

Table of Contents

Page

QUESTIONS PRESENTED cissccecessesessesevessecccvevecsorees i

TABLES OF AGF Ei Gree be iierrssteveservevcssessercescevensceesees Vv

OP EIN IIS Fore Ge Oe ea eee taltilerecinatinerencensvereevesees 1

ol TRESS Fr ec taitotrnecenscesverssseeeree 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................ oS 1

Sixth Amendment to the U.S. Constitution .....:..1

Fifth Amendment to the U.S. Constitution......... 1

Veit 2p) ek ae a.

PER ORE eR Se Oe 1

PE BOR So C2 ee ks en 1

ERO Ae PO BE) ie rere 1

STATEMENT OF THE CASE AND FACTG............. 2

I. PROCEDU IAs s Bemee eae sires csveescerverconsesecsesseeces 2

Il. STATEMENT OF THE FACTG...............:......00000 3

Fe ee 3

B. Indictments, Jury Verdicts And Sentencing .5

iil

III. REASONS FOR GRANTING THE WRIT ......... 7

A. The First Circuit Misreads Booker And

Misapplies The “Substantial Rights” Prong of

Olano’s “Plain Error” Analysis ....................4. 7

i. The First Circuit And Other Courts Have

Misapplied The “Prejudicial” Aspect Of

Olano’s “Substantial Rights” Prong By

Focusing On What Would Have Happened

To The Defendant Under Advisory

Guidelines As Opposed To What Did

Happen To The Defendant Below ........... 10

ii. The First Circuit And Other Courts Erred

In Identifying The Mandatory Nature Of

The Guidelines As The Only Relevant

Error For Determining Whether Defendant

Had Been Prejudice .............c.cccceccccvccecess 12

IV. DEFENDANTS SENTENCE IS NOT

REASONABLE, WHERE THE _ DISTRICT

COURT DID NOT CONSIDER THE § 3553(A)

EF Far I es eisvcissearsenesstocesttemamehinaumesaades 15

CEPI ices sitlmnipecancdtnchinsecisuamebainconuoateai 15

TABLE OF APPENDICES

A. First Circuit Court of Appeals Opinion

Affirming the Conviction and Sentences on

behalf of all Defendants/Appellants............. la

IV

B. First Circuit Court of Appeals Panel Opinion

Denying the Appellants Petition for

Rehearing and Petition for Rehearing En

SESE SR Pree one tC Ey RPO NDOT RS 86a

. Judgment in a Criminal Case Entered

Against Defendant/Appellant Wilfredo

Umpierre-Hernandez by the VJ.S. District

RI Se Ee BOI vvsiiccernosidnecicccdevkiexecaczozecss 89a

Vv

Table of Authorities

Page

Apprendi v. New Jersey,

EE Fis EID exitvecsesdnccsinevovccaveecaces peor z. 33

Blakely v. Washington,

er I oc, 1 cs eancunackcecvscssuaseil 2.13

Booker v. United States,

543 U.S. 220 (2005) .2, 3, 7, 8, 9, 11, 12, 13, 14,15

Cunningham v. California,

549 U.S. 127 S. Ct. 856 (2007)...... oS. 13, i3

Rita v. United States,

United States v. Ameline,

4600 F.3G GE6 GG Cle. ZOOS) 20... ccccciccscccscccovceseeses 9

United States v. Antonakopoulos,

500 F.20 GB (lat Cir. BOOB) ........cccsccccccseesses 3, 8, 10

United States v. Crosby,

SOT ¥.3a 103 (26 Cir. 2005) .............00ccececceees 9,11

United States v. Davis,

WE He BO TO Gh, FI viciccceccccsiccencacindexssncive, 9

United States v. Dominguez-Benitez,

ee sO ooo od cu cacesiccassetc ee comena 7

vi

United States v. Hughes,

401 F.3d 540 (4th Cir. 2005) ...... ce . 9,10, 12

United States v. Mares,

402 F.3d 511 (5th Cir. 2005) .........0..... Greeti 8, 10

United States v. Munoz-Franco,

487 F.3d 25 (1st Cir. 2007) ERS SE ORES LED Vee 3

United States v. Olano,

PE Bo ahs FC COED vicreccccevescovtecsersecssess 7, 8, 14, 15

United States v. Oliver,

397 F.3d 369 (6th Cir. 2005) .................... 9,11, 15

United States v. Paladino,

401 F.36 471 (7th Cir. BOOS) .....0cecccccsvecsesees:: 8,11

United States v. Rodriguez,

398 F.3d 1291 (11th Cir. 2008) ................ 8, 10, 12

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the First Circuit is reported at 487 F.3d

25 (1st Cir. 2007), and is attached as Appendix “A”.

A copy of the Order denying rehearing is attached

as Appendix “B”.

JURISDICTION

The date on which the United States Court of

Appeals for the First Circuit decided this case was

May 22, 2007. A timely petition for panel

rehearing or rehearing en banc was denied by the

First Circuit on July 20, 2007. Judgment was

issued as a mandate on July 27, 2007. The petition

is timely filed pursuant to S. Ct. Rule 13.1. The

jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment VI, U.S. Constitution: “fijn all

criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial

jury...

Amendment V, U.S. Constitution: “[n]o person

shall be . . . deprived of life, liberty, or property,

without due process of law .. ..” :

18 U.S.C. § 1344

18 U.S.C. § 371

18 U.S.C. § 657

18 U.S.C. § 3553

2

STATEMEN ‘:)F THE CASE AND FACTS

I. PROCEDURAL HISTORY

The original indictment in this case was

brought on November 22, 1995, alleging acts as

early as 1980 or before. The indictment was

changed several times thereafter. Trial began with

jury selection in November 2000, and concluded in

May 2002, with jury verdicts of guilty against four

defendants — Lorenzo Munoz-Franco; Dr. Francisco

Sanchez-Aran; Ariel Gutierrez-Rodriguez; and

petitioner Wilfredo Umpierre-Hernandez —- on

charges of bank ‘raud (18 U.S.C. § 1344),

conspiracy (18 U.S.C. § 371) and misapplication of

bank funds (18 U.S.C. § 657). Sentencing

proceedings did not begin until almost a year anda

half later and took several months, concluding on

February 12, 2004. Although sentencing proceeded

before both Blakely v. Washington, 542 U.S. 296

(2004), and Booker v. United States, 543 U.S. 220

(2005), the defendants raised numerous objections

to the application of the federal sentencing

guidelines, including arguments’ based _ on

Apprendi _v. New Jersey, 530 U.S. 466 (2000).

These objections were overruled by the District

Court, which treated the guidelines as mandatory

and computed sentences based largely on the

mathematics of the court’s determination of a loss

amount. The court sentenced Munoz-Franco and

Sanchez-Aran to guideline sentences of 46 months

imprisonment, Gutierrez to 37 months

imprisonment, and Umpierre to 24 months

imprisonment (and sentenced the first three

defendants as well to a concurrent pre-guidelines

3

sentence on misapplication of 60 months, and

Umpierre of 24 months).

The defendants, including Petitioner, timely

filed appeals with the First Circuit, including

arguments about Booker errors at sentencing. Oral

Argument occurred on December 6, 2006. The

First Circuit affirmed the convictions in a 97-page

opinion on May 22, 2007, and in passing declined

to review the sentencing process based upon First

Circuit precedent established in United States v.

Antonakopoulos, 399 F.3d 68 (lst Cir. 2005),

whereby unpreserved Booker claims fall under

plain error analysis which presumes the error did

not materially affect the proceedings. The First

Circuit commented: “thus we acknowledge only

that appellants have preserved this issue for later

review.” United States v. Munoz-Franco, 487 F. 3d.

25, 70 (1st Cir. 2007). The defendants sought

panel rehearing and rehearing en banc, but the

First Circuit denied these petitions on July 20,

2007. On August 1, 2007, the First Circuit granted

a stay of the Court's mandate pending Supreme

Court review.

Il. STATEMENT OF THE FACTS

A. Overview

Caguas Central Federal Savings & Loan

(“Caguas”) operated as one of the largest thrifts in

Puerto Rico until it was closed by federal

regulators in May 1990. Lorenzo Munoz-Franco

was President and Dr. Francisco Sanchez-Aran

was Executive Vice-President of Caguas

4

throughout the 1980s. Ariel Gutierrez and his

brother Enrique Gutierrez owned _ certain

companies, including Transglobe Corporation and

Modules Manufacturing Inc., which built and

installed modular homes. Wilfredo Umpierre was

an employee of these companies. Beginning in the

1970s and up into 1984, Gutierrez’ companies

received substantial construction loans from

Caguas for projects that the companies were

developing. After 1984 and up through 1986,

Gutierrez companies acted as contractors for other

developers who borrowed monies from Caguas. By

1987, the Gutierrez brothers and Caguas no longer

had any lending relationships and, in fact, the

parties sued one another. By this time, other

developers had assumed Gutierrez-related projects

and had continued receiving funding from Caguas

on these projects. The Gutierrez manufacturing

companies also were sold by this time, and the new

owners likewise continued receiving funding from

Caguas.

By 1990, the loans on many of the projects with

which the Gutierrez brothers had been previously

associated were millions of dollars in arrears. The

manufacturing companies’ debt to Caguas had

grown from $6 million in 1986 to $40 million in

1990. At the time it was closed, Caguas had

numerous other non-performing loans as well,

including more than $20 million in debt relating to

another developer, Francisco Mirandes.

ok

which contributed substantially to its failure.

5

B. Indictments, Jury Verdict And

Sentencing :

The original indictment in November, 1995,

identified only a few loans and associated the

Gutierrez-related loans and the Mirandes-related

loans together in the conspiracy and bank fraud

charges. By 1998, the indictment had been

changed three times. The third superseding

indictment, on which the case was tried, separates

into different counts the Gutierrez-related loans

and the Mirandes-related loans, mentioning at

least twelve (12) loans with varying alleged debts

in the Gutierrez charges and fourteen (14) loans

with varying debts in the Mirandes charges. The

third superseding indictment generally alleged

that Gutierrez companies obtained loans from

Caguas in excess of $20 million; that a borrower

who assumed some Gutierrez projects owed Caguas

$16 million in 1989; and that as a result of the

Gutierrez-related conspiracy to defraud, Caguas

sustained a loss of approximately $26 million,

which contributed substantially to its failure. The

third superseding indictment also alleged that, in

1990, Mirandes’ companies owed Caguas in excess

of $20 million and that, as a result of the

Mirandes-related conspiracy to defraud, Caguas

sustained a loss of approximately $23 million,

Trial began with testimony in January 2001.

The case was submitted to the jury for

deliberations in May 2002. No jury interrogatories

or special verdict form were utilized. The verdicts

of guilty were general verdicts. ‘The jury made no

finding as to loss.

6

Sentencing proceedings began in the Fall 2003.

Although the Government originally proceeded on

an actual loss theory, it abandoned that position

after it was learned that the trial exhibit on which

the Government relied for loss numbers, Ex. 40, a

purported summary of Caguas loans prepared by

Santander Bank, was false. The records custodian

whose affidavit was used to admit the exhibit

recanted that affidavit, and the Government

conceded that the loss figures therein were

unreliable and unauthenticated. The Government

then urged an intended loss analysis, which the

trial court adopted.

The trial court rendered its sentences on

February 12, 2004. The sentences on the

conspiracy and bank fraud charges proceeded

using mandatory sentencing guidelines. All

defendants started at the same base offense level

for fraud, a base level of six, which set a sentencing

range of zero to six months imprisonment. As to

Umpierre and Gutierrez, the court found a loss of

between $2 million and $5 million, and added 10

levels. After making other adjustments, the court

sentenced Umpierre at a level 16 and Gutierrez at

a level 19. As to the banker defendants, the court

found a greater loss, added 11 levels and, after

other adjustments, sentenced the bankers at a level

21. The court denied downward and upward

departures.

Ill. REASONS FOR GRANTING THE

WRIT

A. The First Circuit Misreads Booker And

Misapplies The “Substantial Rights” Prong Of

Olano’s “Plain Error” Analysis

The First Circuit erred in its application of

the plain error doctrine for unpreserved Booker

errors in finding that the District Court

proceedings did not affect defendant's “substantial

rights,” where defendant was sentenced to an

enhanced term, in excess of what was authorized

by the jury, based solely upon judge-found facts,

using mandatory guidelines, and _ absent

consideration of Section 3553 mitigating factors.

In United States v. Olano, .507 U.S. 725

(1993), this Court clarified what plain error means

and found that there were several limitations on

appellate authority under Rule 52(b) of the Federal

Rules of Criminal Procedure. Specifically, there

must be an (1) error (2) that is plain or obvious, (3)

that has affected substantial rights, and (4) would

impair confidence in the justice of the proceedings.

Id. at 732-736. As to the third prong, this Court

added, “in most cases it means that the error must

have been prejudicial: It must have affected the

outcome of the district court proceedings.” Id. at

734. In United States v. Dominguez-Benitez, 542

U.S. 74, 76 (2004), this Court explained that the

effect on the outcome means a defendant must

show a reasonable probability that, but for the

error, things would have been different.

8

The First Circuit, and other courts, have

incorrectly found that an_ unconstitutionally

enhanced sentence based solely upon judge-found

facts not submitted to the jury, does not satisfy

Olano’s “substantial rights” prong. See, e.g.,

United States v. Antonakopoulos, 399 F.3d 68, 79

(Ist Cir. 2005); United States v. Mares, 402 F.3d

511, 521-22 (5th Cir. 2005); United States v.

Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005)

(adopting a limited remand approach); United

States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.

2005). These courts, including the First Circuit in

the underlying matter, have erred in their

application of Olano’s“plain error” analysis.

The First Circuit, and other courts,

erroneously hold that, “in applying the third prong

[of Olano], we ask whether there is a reasonable

probability of a different result if the guidelines

had been applied in an advisory instead of binding

fashion by the sentencing judge in thfe] case.”

Rodriguez, 398 F.3d at 1301. See also

Antonakopoulos, 399 F.3d at 79. This approach to

determining whether “substantial rights” have

been affected in pre-Booker sentencing proceedings

is incorrect. The First Circuit, and other courts

who engage in similar analysis, misapply the

“prejudicial” aspect of the “substantial rights”

prong, and treat Sixth Amendment claims under

Booker as if defendants were only wronged by the

mandatory nature of the guidelines, and not by the

underlying Sixth Amendment violation.

9

When reviewing a sentence under the

Sentencing Guidelines, one question that should

guide the court “is whether the district court could

have imposed the sentence it did without exceeding

the relevant Sixth Amendment limitation.” United

States v. Hughes, 401 F.3d 540, 551 (4th Cir.

2005). The proper finding is that a sentencing

determination that increases a _ defendant's

sentence “beyond that which was supported by the

jury verdict and [the defendant’s] criminal history”

is a violation of the Sixth Amendment and affects

defendant’s substantial rights. United States v.

Oliver, 397 F.3d 369, 380 (6th Cir. 2005). See also

United States v. Davis, 407 F.3d 162, 164 (3d Cir.

2005) (“Mandatory enhancement of a sentence in

violation of the Sixth Amendment is prejudicial

and affects the substantial rights of the

defendant.”); Hughes, 401 F.3d at 548-549. See

generally Cunningham vs. California, 549 U.S. _,

127 S. Ct. 856 (2007).

Other Circuits have’ taken positions

inconsistent with how the First Circuit handles

plain error review of Booker errors. "The Second

Circuit remands all cases of claimed Booker error

to the trial court to decide whether to resentence.

See, e.g., United States v. Crosby, 397 F.3d 103 (2d

Cir. 2005). The Ninth Circuit finds plain error per

se when judicial fact-finding elevates a sentence

above what would be contained in the jury verdict.

See, e.g., United States v. Ameline, 400 F.3d 1073

(9th Cir. 2005) (adopting approach in Crosby). The

Sixth Circuit and the Fourth Circuit appear to

conduct reviews akin to what the Ninth Circuit

does. See, e.g., Oliver, 397 F.3d at 380-81; Hughes,

401 F.3d at 548-49.

10

i. The First Circuit And Other Courts

Have Misapplied. The “Prejudicial” Aspect Of

Olano’s “Substantial Rights” Prong By

Focusing On What Would Have Happened To

The Defendant Under Advisory Guidelines As

Opposed To What Did Happen To The

Defendant Below

Petitioner was prejudiced by the District

Court’s sentencing, where there were

enhancements based solely upon judge-found facts

not submitted to the jury, and where these

enhancements exceeded the sentence authorized by

the jury.

When determining whether a defendant has

been prejudiced by an error below, “the proper

focus is on what actually happened as a result of

error ....” Hughes, 401 F.3d at 551. Still, the

First, Fifth, and Eleventh Circuits attempt to

divine what the district court would have done had

the court known the Sentencing Guidelines were

merely advisory.' See Antonakopoulos, 399 F.3d at

79-80; Mares, 402 F.3d at 521-22; Rodriguez, 398

F.3d at 1301. The Second and Seventh Circuits go

as far as engaging in a limited remand so that the

District Court may determine whether it would

have given the same sentence under an advisory

1 Such an approach is improper, not only for the stated

reason that the focus should be on how defendant was

prejudiced below, but also because defendant's sentence

would continue to violate defendant's Sixth Amendment

rights so long as the standard of review requires substantive

“reasonableness,” as opposed to a procedural review.

11

guidelines scheme. See Paladino, 401 F.3d at 483-

84; Crosby, 397 F.3d at 118.

Petitioner's conviction was based on a

general jury verdict. The verdict did not clearly

resolve facts to permit the trial court to enhance a

guidelines sentence beyond a base levei of the

offenses. In particular, the jury made no findings

as to loss. The trial court enhanced Petitioner’s

and the other defendants’ sentences, inter alia,

based on the court’s assessment of loss and without

considering Section 3553 mitigation factors. A

sentence enhancement based solely upon judge-

found facts violates a defendant's Sixth

Amendment right to trial by jury when it exceeds

that which was authorized by the jury or admitted

by the defendant. Booker, 543 U.S. at 244 (holding

that “[a]ny fact (other than prior conviction) which’

is necessary to support a sentence exceeding the

maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by

the defendant or proved to a jury beyond a

reasonable doubt.”). See also Cunningham, 549

U.S. at _, 1275S. Ct. at 868.

When the District Court violated defendant's

Sixth Amendment right to trial by. jury by

substituting judge-found facts to enhance the

sentence, it affected defendant's “substantial

rights.” See Oliver, 397 F.3d at 379-80 (holding

that a sentencing determination that increases a

defendant’s sentence “beyond that which was

supported by the jury verdict and [defendant]’s

criminal history” is a violation of the Sixth

Amendment and affects the defendant’s substantial

12

rights). Here, there is a reasonable probability that

the sentence enhancements, viewed as mandatory

by the trial court and applied without consideration

of Section 3553 mitigating factors, affected the

outcome of the proceedings, and thus prejudiced

Petitioner.

ii. The First Circuit And Other Courts

Erred In Identifying The Mandatory Nature

Of The Guidelines As The Only Relevant

Error For Determining Whether Defendant

Had Been Prejudiced

A plain error review that looks at a Sixth

Amendment violation focusing under Booker only

on whether the District Court Judge would have

issued the same _ sentence under advisory

guidelines, and ignoring violations of those rights

reserved by the Sixth Amendment, is erroneous.

The Eleventh Circuit maintains that, in a

post-Booker appeal where defendant claims that

his Sixth Amendment rights have been violated,

the court “should redefine the error as a failure to

treat the guidelines as advisory.” Hughes, 401

F.3d at 552 (citing Rodriguez, 398 F.3d at 1303).

However, as the Fourth Circuit has noted, this

approach is incorrect because “there are two

“potential errors in a sentence imposed pursuant to

the pre-Booker mandatory guidelines regime.”

Hughes, 401 F.3d at 552. One involves errors

under a mandatory scheme that do not give rise to

a Sixth Amendment violation; the other involves

violation of rights reserved under the Sixth

Amendment. Id.

13

The first sort of post-Booker claim does not

implicate the Sixth Amendment. This first

category consists of appeals based solely on the fact

that the defendant was sentenced under a

mandatory guidelines scheme that was later

invalidated. Defendants under the first category

cannot claim, under the Sixth Amendment, that

they have been sentenced to a term in excess of

what the jury authorized.

The second sort of post-Booker claim does

rest on the rights reserved under the Sixth

Amendment. These claims will involve defendants

who, due to the judge’s independent determination

of facts, have been sentenced to a term in excess of

what was authorized by the jury, and thus have

been deprived of their right to trial by jury.

By treating every post-Booker appeal the

same, those courts in disagreement with the

Second, Ninth, Fourth, Sixth, and Third Circuits

shut their eyes to the Sixth Amendment violation

while simultaneously telling the defendant that he

must demonstrate how he has been prejudiced.

“Any inquiry into whether a Sixth Amendment

error affected a defendant’s substantial rights must

take as a given the Sixth Amendment limitation

that the district court improperly exceeded.”

Hughes, 401 F.3d at 550.

The Sixth Amendment right as identified in

Apprendi, Blakely, and Booker, and clarified in

Cunningham, is that a sentence enhancement,

14

based solely upon judge-found facts, that exceeds

the maximum sentence authorized by the jury is

improper. While the mandatory nature of the

sentencing guidelines may have led to the Sixth

Amendment violation, the mandatory nature of the

guidelines themselves was not a violation of

defendant's Sixth Amendment rights. Rather,

sentence enhancements, beyond what the jury

authorized, based solely on judge-found facts

represent the unconstitutional ailment; and

rendering the Sentencing Guidelines advisory was

merely the remedy. Thus, the plain error analysis

of the First Circuit, as well as the Fifth, Seventh,

and Eleventh Circuits, stops too soon and wrongly

fixes on this Court's remedy and not on the

constitutional defect.

Petitioner was sentenced to an enhanced

term due to the independent judicial findings of the

- district court judge. These findings of fact were not

made by the jury, and the sentence exceeded the

maximum term authorized by the jury. The First

Circuits plain error review’ standard for

unpreserved Booker errors prevented meaningful

appellate review of a constitutional violation that

affected Petitioner’s “substantial rights” and

prejudiced the result of the proceediugs. The First

Circuit’s plain error review standard does not

comport with Olano. Unless corrected by this

Court, the First Circuit is likely to continue taking

a wrong approach in plain error reviews in other

sentencing appeals.

15

IV. DEFENDANT’S SENTENCE IS NOT

REASONABLE, WHERE THE DISTRICT COURT DID

NOT CONSIDER THE §3553(A) STANDARDS

Because Defendant's sentence was “plain

error,” the First Circuit should have remanded the

case for resentencing. However, the sentence, as

constituted, is also not “reasonable” under Booker’s

established standard of review. See Booker, 543

U.S. at 261-262.

. Defendant's sentence was not “reasonable”

where the District Court did not apply the standard

of review set forth in Booker. “Booker’s standard of

review allows — indeed, requires — district judges to

consider all of the factors listed in § 3553(a) and to

apply them to the individual defendants before

them.” Rita v. United States, 551 U.S. _, 127 S.

Ct. 2456, 2473 (2007) (Stevens concurring opinion).

See also Booker, 543 U.S. at 264; Oliver, 397 F.3d

at 381 (stating that “[§] 3553(a) includes a list of

factors which fedéral courts must consider when

determining the proper sentence post-Booker”’)

(emphasis added). In the instant case, the district

court did not consider § 3553(a) in its sentencing.

Therefore, the First Circuit can not find that

Defendant’s sentence was “reasonable” under

Booker’s standard of review. i

CONCLUSION

These are issues of great constitutional

importance. They arise from the uncertainty

among the circuits as to the appropriate application

of Olano’s “substantial rights” prong, as well as

from the uncertainty over post-Booker review of

16

unpreserved Booker errors. We respectfully

request that this Court end these uncertainties by

granting review. The Petition for a Writ of

Certiorari should be granted. In addition,

Petitioner adopts the certiorari Petitions filed by

Petitioners Co-Defendants, Ariel Gutierrez,

Lorenzo Munoz-Franco and Francisco Sanchez-

Aran and urges certiorari be granted on the basis

of the arguments therein as well.

Respectfully submitted,

October 18, 2007 FRANCISCO M. DOLZ-SANCHEZ

P.O. Box 361451

San Juan, Puerto Rico 00936

(787) 759-8780