Petition for Writ of Certiorari — Hamilton v. United States (No. 05-1642)

Suprame

Pi et US.

051642. 19 2006

No.

» ——~OPFICE OF THE CLE

Supreme Court of the United States

October Term, 2005

CARRIE HAMILTON, ALICE MILES, AND

RICHARD MILES,

Petitioners, ;

versus

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

Petition for Writ of Certiorari

MICHAEL A. MANESS

Counsel of Record

for Petitioners

1900 North Loop West

Suite 500

Houston, Texas 77018

(713) 680-9922

(713) 680-0804 (FAX) ~

June 2006

Questions Presented

1. Unless a defendant waives a jury in writing,

Federal Criminal Rule 23(a) requires that “trial must be

by jury.” After the Fifth Circuit vacated Petitioners’

original sentences for serious financial fraud offenses, the

trial court again imposed enhanced, mandatory

Guidelines sentences, rejecting Petitioners’ objections

that none of the mandatory sentencing enhancements had

been admitted by Petitioners or found beyond a

reasonable doubt by a jury, in violation of Rule 23(a), the

Sixth Amendment, and Blakely v. Washington, 542 US.

296 (2004). The Court of Appeals affirmed, holding that

the sentences were unconstitutional and violated the

Sixth Amendment and United States v. Booker, 543 U.S.

220 (2005), and that Petitioners had correctly objected in

the trial court on those grounds before resentencing, but

that Petitioners had waived those objections by not

making them at the first sentencing and on the first

appeal; and that there was no plain error under Federal

Criminal Rule 52(b).

Did the Fifth Circutt’s holding violate Rule 23(a)

and the Fifth and Sixth Amendments?

2. Does the ex post facto clause of the

Constitution, or the ex post facto component of the Fifth

Amendment’s due process clause, condemn “reasonable”

discretionary sentences under Booker that are more

onerous than the unenhanced, — constitutionally

permissible sentences that would have been imposed

under the mandatory Guidelines?

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Constitutional and Statutory Provisions......................0.00++ |

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Reasons for Granting the Petition: -

Conclusion

1. The Fifth Circuit mistakenly

allowed the federal trial court to impose

enhanced, concededly unconstitutional

mandatory Guidelines sentences, over

Petitioners’ well-founded Sixth Amend-

ment and Rule 23(a) objections. ......................

2. The Constitution’s ex post facto

clause and the ex post facto component of

the Fifth Amendment’s due process clause

forbid imposition of “reasonable”

discretionary sentences under United States

v. Booker, 543 U.S. 220 (2005) that are

more onerous than the sentences that would

have been imposed under the mandatory

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18

. Appendix, United States v. Hamilton,

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Order Denying Role. oe ee Sed A-13

Table of Authorities

Blakely v. Washington, 542 U.S. 296 (2004)...........0.00000. 3

Bouie v. City of Columbia, 378 U.S. 347 (1964)............ 20

Dobbert v. Florida, 432 U.S. 282 (1977) ................. 18, 19

Lindsey v. Washington, 301 U.S. 397 (1937) ................. 18

Lynce v. Mathis, 519 U.S. 433 1997) ............csccecccccseeees 17

Messinger v. Anderson, 225 U.S. 436 (1912) c.ccccccseceseeeeseees 10

Miller v. Florida, 482 U.S.423 (1987)...........::ccccccceeeeees 18

Mistretta v. United States, 488 U.S. 361 (1989)............. 18

Proctor v. Cockrell, 283 F.3d 726 (5 Cir. 2002) ............ 19

Rogers v. Tennessee, 532 U.S. 451 (2001)....... dibbiaanizied 19

United States v. Becerra, 155 F.3d 740 (5 Cir. 1998) ...... 7

United States v. Booker, 543 U.S.

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United States v. Marmolejo, 139 F.3d 528

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-iii-

United States v. Miles, 360 F.3d 472 (5 Cir. 2004),

appeal following remand, United States v. Hamilton,

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United States v. Olano, 507 U.S. 725 (1993).............. 9, 13

United States v. Pineiro, 377 F.3d 464 (5 Cr, 2004),

vacated, 543 U.S. 1101 (2005), following remand, 410

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Opinions Below

The Fifth Circuit’s opinions are reported. United

States v. Miles, 360 F.3d 472 (5 Cir. 2004), appeal

following remand, United States v. Hamilton, 440 F.3d

693 (S Cir. 2006) (Pet. App. A-1).

Jurisdiction

The Fifth Circuit’s opinion and judgment are

dated February 16, 2006. The Court of Appeals denied

Petitioner Richard Miles’ timely petition for panel

rehearing on March 21, 2006 (Pet. App. A-14). This

petition for certiorari was filed within 90 days thereafter

and is timely.

The District Court had criminal jurisdiction under

18 U.S.C. § 3231. The Fifth Circuit had appellate

jurisdiction under 28 U.S.C. § 1291. The Supreme Court

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

Constitutional and Statutory Provisions

This case involves the Sixth Amendment’s

guarantee of trial by jury, the ex post facto clause of the

Constitution, the ex post facto component of the Fifth

Amendment’s due process clause, and Rule 23(a) of the

Federal Rules of Criminal Procedure:

Rule 23. Jury or Nonjury Trial

(a) Jury Trial. If the defendant

is entitled to a jury trial, the trial must be by

jury unless:

2

(1) the defendant waives a jury in

writing;

(2) the government consents; and

(3) — the court approves.

Statement of the Case

In November 2000 a Houston federal court jury

convicted Petitioners Richard Miles, his wife Alice

Miles, and his sister Carrie Hamilton of serious financial

fraud offenses involving Medicare. In December 2001

the trial court imposed lengthy, enhanced prison

sentences on each Petitioner under the mandatory UV. S.

Sentencing Guidelines.

The sentencing enhancements used in calculating

Petitioners’ first mandatory Guidelines sentences were

not admitted by Petitioners or found beyond a reasonable

doubt by the jury. Petitioners did not raise that

constitutional defect in their initial sentencing in the trial

court. Petitioners never waived a jury in writing in the

manner required by Federal Criminal Rule 23(a).

On their first appeal, Petitioners did not attack the

constitutionality of their enhanced, mandatory Guidelines

sentences on Sixth Amendment grounds. The Fifth

Circuit reversed the convictions of Carrie Hamilton and

Alice Miles for money laundering promotion and making

illegal Medicare kickbacks and affirmed their convictions

for health care fraud, mail fraud, and conspiracy. United

States v. Miles, 360 F.3d 472 (5 Cir. 2004). The Court of

Appeals affirmed Richard Miles’ convictions for mail

fraud and health care fraud. The Court of Appeals

vacated all sentences of all Petitioners and remanded the

‘case for resentencing because of the trial court’s

mistaken determination that Medicare was a “financial

institution,” a sentencing enhancement under the

mandatory Guidelines that affected calculation of all

sentences.

Following remand, the U. S._ Probation

Department prepared a “Supplement to the Presentence

Report.” The Supplement enumerated a number of

mandatory sentencing enhancement factors that the jury

did not find beyond a reasonable doubt and _ that

Petitioners had not admitted, including the amount of the

financial loss from their crimes, the extent of Petitioners’

alleged involvement in the fraud, and their alleged

perjury at trial. All of those enhancements had been used

to calculate the sentences that the Fifth Circuit vacated.

Several weeks before Petitioners’ resentencing,

the Supreme Court decided Blakely v. Washington, 542

U.S. 296 (2004). “There is no. distinction of

constitutional significance between’ the Federal

Sentencing Guidelines and the Washington procedures at

issue in [Blakely].” United States v. Booker, 543 U. S.

220, 233 (2005). Blakely and Booker govern cases

pending on direct review and not yet final. Booker, 543

U.S. at 268. This is such a case.

Before resentencing, as authorized by Federal

Criminal Rule 32(f), all Petitioners filed additional

written objections to the Supplement to the Presentence

Report, based on the Sixth Amendment and Blakely.

Petitioners specifically objected to the Supplement’s use

of mandatory Guidelines sentencing enhancements,

increasing the penalty level far beyond the base offense

4

level, and asserted * it such mandatory sentencing

enhancements had not been admitted by Petitioners or

found beyond a reasonable doubt by the jury, as required

by Blakely.

Petitioners argued that any judicially imposed

increase in the severity of their sentences, beyond the

base offense level prescribed by the Guidelines, based

upon fact-findings made only by a judge and not by the

jury, and not admitted by Petitioners, would violate

Petitioners’ Sixth Amendment right to trial by jury.

Petitioners maintained that they were entitled to be

sentenced under the mandatory Guidelines in effect when

the offenses were committed, and at the time of trial, and

that the only constitutionally permissible sentences that

could be imposed under the mandatory Guidelines then

in effect and at trial, given the constitutional defect in the

enhancements, were unenhanced, base-offense level

sentences.

The day before resentencing, the Fifth Circuit

decided United States v. Pineiro, 377 F.3d 464 (5 Cir.

2004), vacated, 543 U.S. 1101 (2005), following remand,

410 F.3d 282 (5 Cir. 2005). The Fifth Circuit in Pineiro

mistakenly held that Blakely and the Sixth Amendment

were not relevant to the Federal Guidelines’ mandatory

sentencing enhancements.

At resentencing, the trial judge acknowledged he

had read Pineiro but ruled that decision was essentially

irrelevant because of his conclusion that all Petitioners

had waived their Sixth Amendment right to a jury

determination of sentencing enhancement factors, by not

asserting that right at the original sentencing or on appeal

to the Fifth Circuit. The trial judge believed the law of

5

the case doctrine and the Fifth Circuit’s decision in

United States v. Marmolejo, 139 F.3d 528, 530-31 (5 Cir.

1998) compelled that result (R. 57: 27-30; following

emphasis added):

THE TRIAL COURT: And then the

Blakely matter. This has been submitted by

Mr. Jefferson in behalf of both Ms.

Hamilton and Ms. Alice Miles, also

submitted by Mr. Maness on behalf of Mr.

Richard Miles.

This, the Blakely matter in this

[case] now becomes a matter for other

courts to decide in view of the Fifth

Circuit’s decision -in United States v.

Pineiro, which was filed yesterday in the

Fifth Circuit, in which the Fifth Circuit

holds that it adheres to the position that the

guidelines do not establish maximum

sentences for precedent purposes.

Accordingly I would in any event

deny the motion or the objections based

upon the decision in Blakely. But i would

further, even apart from the Fifth Circuit

decision, observe that those issues, if they

were to have been made, objections were to

have been made and preserved, were

required to be made at the original

sentencing, not now, that on re-sentencing

the Court may not for the first time

consider issues that are raised for the first

time on the remand and are unrelated to the

reason for the remand. And that is United

6

States v. Marmolejo at 139 F3rd 528 [530-

31 (5 Cir. 1998)].

So, in any event, in this case, those

matters were waived originally and are

beyond the purview of what this Court is

authorized to do (emphasis added).

The trial judge was wrong. Neither United States

v. Marmolejo, 139 F.3d 528, 530-31 (5 Cir. 1998) nor

any case on which the Government relied before the Fifth

Circuit, nor other judicial decision in the history of the

United States, employed the law of the case doctrine or

the mandate rule, both discretionary, nonjurisdictional

principles of appellate review, to sustain the imposition

of an unconstitutional sentence, over a defense objection

satisfying Federal Criminal Rules 32(f) and 51(b). The

law of the case doctrine simply does not authorize,

justify, or permit the imposition, over a defendant’s

objection, of a sentence that violates the defendant’s

constitutional mght to trial by jury under the Sixth

Amendment.

Relying upon the recommendations contained in

the Supplement to the Presentence Report, the trial judge

again imposed lengthy terms of imprisonment, based

upon mandatory Guidelines enhancements that had not

been admitted by Petitioners or found by the jury beyond

a reasonable doubt.

On Petitioners’ second appeal, the Fifth Circuit

affirmed the sentences. United States v. Hamilton, 440

F.3d 693 (5 Cir. 2006) (Pet. App. A-1). The Fifth

Circuit’s opinion addressed two related but significantly

different issues.

First, in Section II of its opinion, the Court of

Appeals sustained the trial court’s determination, not

based on constitutional grounds, that Petitioners’

renewed objection to the loss calculation used for

mandatory sentencing enhancement purposes under the

Guidelines was foreclosed by the mandate rule, a variant

of the law of the case doctrine. United States v.

Hamilton, 440 F.3d at 697-699 (Pet. App. at A-6). Under

the mandate rule, an issue of fact or law outside the

remand order of an appellate court “may not be

reexamined either by the district court on remand or by

the appellate-court on a subsequent appeal.” United

States v. Becerra, 155 F.3d 740, 752 (S Cir. 1998).

Section Il of the Fifth Circuit's opinion its

unexceptionable. Petitioners do not challenge Section |

in this petition for certiorart.

Second, the Fifth Circuit held in Section III of its

opinion that the mandate rule likewise foreclosed on

remand Petitioners’ Sixth Amendment Blakely-Booker

claim — that is, that the mandate rule either authorized

or compelled the imposition of unconstitutional

sentences, over Petitioners’ Sixth Amendment objection.

Like the trial court, the Fifth Circuit thought that

Petitioners had irrevocably waived that constitutional

error by not raising it on the firs. appeal, 440 F.3d at 699,

and that Blakely was not an intervening change in the law

sufficient to avoid application of the mandate rule and the

law of the case doctrine.

The Fifth Circuit acknowledged that, apart from

what it thought was a “waiver” arising from the first

appeal, the enhanced, mandatory Guidelines sentences

imposed on Petitioners were unconstitutional and

8

violated Petitioners’ Sixth Amendment right to trial by

jury under Booker. 440 F.3d at 699 (Pet. App. at A-5).

The Fifth Circuit likewise acknowledged that Petitioners

had objected in the trial court to the unconstitutionality of

the second sentences before they were imposed. 440

F.3d at 696 (Pet. App. at A-12).

Like the trial court, the Court of Appeals did not

address or even mention Petitioners’ contention that

Federal Criminal Rule 23(a), providing that trial “must be

by jury” unless the accused waives a jury in writing,

foreclosed finding a “waiver.” The Court of Appeals

also did not address or decide Petitioners’ claim that the

ex post facto clause of the Constitution and the ex post

facto component of the Fifth Amendment’s due process

clause forbid imposition of sentences more severe than

the constitutionally permissible, unenhanced sentences

that would have been imposed under the mandatory U. S.

Sentencing Guidelines. Since the mandatory Guidelin,

are themselves constitutional, except when applied using

sentencing enhancements that have not been admitted by

a defendant or found beyond a reasonable doubt by a

jury, Petitioners claimed that the Guidelines conferred on

them a statutory right to be sentenced as unenhanced,

base-level offenders, since none of the sentencing

enhancement factors had been admitted by Petitioners or

found beyond a reasonable doubt by a jury.

The Court of Appeals finally concluded that,

despite Petitioners’ undeniably correct Rule 51(a) written

and oral objections before resentencing, the sentences

were reviewable only for plain error, the standard of

review prescribed by Federal Criminal Rule 52(b) when a

defendant has failed to object or otherwise preserve an

issue for appellate review in the trial court.

9

Using the plain error standard, the Court of

Appeals affirmed all the sentences and denied a timely

petition for panel rehearing. The Fifth Circuit did not

attempt to explain how there could have been any error at

all, “plain” or otherwise, in the second sentences if

Petitioners had “waived” the Sixth Amendment error by

not raising it on the first appeal. '

Petitioners emphatically disclaim any reliance

whatever on Federal Criminal Rule 52(b) or the plain

error standard of review. Petitioners did not “waive”

anything. They complied with the Federal Criminal

Rules by making clear, procedurally correct objections in

the trial court to the unconstitutionality of their second

sentences, orally and in writing, before the sentences

were-imposed. They were dead on target. In any system

of federal criminal justice that has not gone completely

over Niagara Falls in a rubber barrel, that should have

been more than enough.

; “The first limitation on appellate authority under Rule

52(b) is that there indeed be an ‘error.’ Deviation from a legal

rule is ‘error’ unless the rule has been waived. For example, .

. . [t}he right to trial is waivable, and because the defendant

who enters a valid guilty plea waives that right, [the

defendant’s] conviction without a trial is not ‘error’.” United

States v. Olano, 507 U.S. 725, 733 (1993). In view of the

supposed “waiver” of Sixth Amendment rights in this case,

the Fifth Circuit’s “plain error” analysis is obviously “plain

error.

10

Reasons for Granting the Petition

1. The Fifth Circuit mistakenly allowed the

federal trial court to impose enhanced, concededly

unconstitutional mandatory Guidelines sentences over

Petitioners’ well-founded Sixth Amendment and Rule

23(a) objections.

This case is like something out of Nightmare on

Elm Street. Or perhaps a particularly grotesque story by

Kafka. The only thing missing is some sort of giant,

loathsome insect.

The following is a fair and accurate summary of

the Fifth Circuit’s holding, in a single sentence that is not

confusing, argumentative, slanted, or unfair. The Court

of Appeals held that the law of the case doctrine and the

mandate rule — _ discretionary, non-jurisdictional

principles of federal appellate review” — authorized a

federal trial court to find a “waiver” and to impose, over

Petitioners’ well-founded Sixth Amendment objection,

unconstitutionally enhanced, mandatory federal

Guidelines sentences that violated Petitioners’ Sixth

Amendment right to trial by jury, Rule 23(a) of the

Federal Rules of Criminal Procedure, and_ the

constitutional prohibitions against ex post facto laws.

United States v. United States Smelting Refining &

Mining Co., 339 U.S. 186, 199 (1950) (law of the case

doctrine “is only a discretionary rule of practice”); Messinger

v. Anderson, 225 U.S. 436, 444 (1912) (the phrase “merely

expresses the practice of courts generally to refuse to reopen

what has been decided, not a limit to their power’).

The foregoing proposition may seem superficially

plausible and persuasive, but only if the reader is either

exceedingly drunk or has recently been lobotomized.

The Supreme Court should grant certiorari because the

Fifth Circuit has made an utter, unmitigated disaster of

this case.

The following circumstances are not really

disputable:

1. Petitioners never waived their Sixth

Amendment right to trial by jury in the manner

demanded by Federal Criminal Rule 23(a) — a written

waiver by the defendant, approved by the Government,

with the trial court’s consent. Finding “waiver” in the

manner adopted by the Fifth Circuit also violated Fifth

Amendment due process, as well as Federal Criminal

Rule 23(a), because no sensible person could have

-foreseen such a “waiver” in view of the clear, precise,

and unconditional language of Rule 23. Absent a written

waiver by the defendant, approved by the trial court and

the Government, “trial must be by jury.”

2. The jury did not find beyond a reasonable

doubt, and Petitioners did not admit, any of the

sentencing enhancements used by the trial judge to

calculate the mandatory Guidelines sentences he imposed

on Petitioners. Using those sentencing enhancements to

impose mandatory Guidelines sentences was

unconstitutional under the Sixth Amendment, but

Petitioners’ counsel did not make that argument the first

time around, either in the trial court or on the first appeal

to the Fifth Circuit.

12

3. In calculating the enhanced mandatory

Guidelines sentences that were imposed, the trial judge

mistakenly determined that Medicare was a “financial

institution,” a sentencing enhancement error that affected

the calculation of all sentences of all Petitioners.

4. On the first appeal, the Fifth Circuit vacated all

sentences after the Government conceded that Medicare

is not a “financial institution” under the Guidelines.

5. Following remand, the U. S. Probation

Department in Houston prepared a Supplemental

Presentence Report, again recalculating all sentences

based on sentencing enhancements not admitted by

Petitioners or found by a jury beyond a reasonable doubt.

6. The Federal Criminal Rules gave Petitioners

the right to file timely supplemental objections to the

Supplemental Presentence Report. They did so, correctly

contending that imposing mandatory Guidelines

sentences using sentencing enhancements not admitted

by Petitioners or found beyond a reasonable doubt by the

jury would violate Blakely and the Sixth Amendment.

7. At the resentencing hearing, before imposing

mandatory, enhanced, unconstitutional Guidelines

sentences on all Petitioners, the trial judge announced

that all Petitioners had waived their right to object to the

unconstitutional sentences he was getting ready to

impose because the law of the case doctrine and the

mandate rule required those objections to have been

made at the first sentencing hearing, and on the appeal to

the Fifth Circuit.

13

8. On the second appeal the Fifth Circuit affirmed

the sentences, mistakenly invoking Federal Criminal

Rule 52’s “plain error” standard of review. This was

obviously wrong. If there were a waiver of Petitioners’

Sixth Amendment rights, arising from the first appeal,

then there was no error at all, “plain” or otherwise.

United States v. Olano, 507 U.S. 725, 733 (1993).

For the following reasons, the Supreme Court

should grant certiorari and set aside concededly

unconstitutional sentences that obviously violated

Federal Criminal Rule 23(a) and Petitioners’ Sixth

Amendment right to trial by jury.

First, for the first time and with any luck the last

time in the history of the United States, a federal appeals

court has affirmed unconstitutional sentences, imposing

extended terms of imprisonment, even though the

defendants correctly objected that the sentences were

unconstitutional before they were imposed. There is

simply no imaginable precedent or excuse for this sort of

thing.

Second, the Federal Rules of Criminal Procedure

conferred on Petitioners a right to object after the

supposed “waiver” on the first appeal and before the

second sentences were imposed. Federal Criminal Rule

32(f) expressly authorized all Petitioners to object in

writing to the supplemental presentence report within 14

days after its receipt. All Petitioners did so, correctly

objecting on Blakely-Sixth Amendment grounds. The

Fifth Circuit acknowledged that they did.

Third, Federal Criminal Rule 32(h)(1)(D) even

permits the trial court, “for good cause; [to] allow a party

14

to make a new objection [to the sentence] at any time

before sentence is imposed” (emphasis added).

What an incredibly strange record that would have

made (if it had happened, which it didn’t):

THE TRIAL COURT: I’m getting

ready to impose mandatory Guidelines

sentences using sentencing enhancements ©

that were not admitted by the defendants or

found by the jury. So, stand up,

defendants, get a grip on yourselves, and

is | Pas

MR. MANESS: Uh, Your Honor,

pardon me. The . . .uh, mandatory,

enhanced Guidelines sentences you’re

getting ready to impose will . . .uh, like,

violate the defendants’ . . . uh, like, you

know, like, Sixth Amendment right to. . .

like, umm, trial by jur—...

THE TRIAL COURT (brusquely,

raising hand): Uppp! Sorry, Mr. Maness,

that’s not “good cause” to allow an

objection under Federal Criminal Rule

32(h)(i)(D). Your clients have already

irrevocably waived their right to object on

that basis by not raising it on the first

appeal of the original sentences. I’: fraid

rll now have to impose ‘%ese

unconstitutional, enhanced, mandatory

Guidelines sentences that violate the Sixth

Amendment. And I think the Fifth Circuit

will back me up on this. Anyway, wish I

‘ 15

could help you, but my hands are tied. Se

la vie!

MR. MANESS (sighing dejectedly):

Oh. Well, O.K.

Fourth, the constitutional defect in the second

sentences could not have been addressed in the first

appeal, which dealt only with entirely different sentences

— the sentences initially imposed, then vacated on the

first appeal. “Vacated” means “set aside,” right?

Petitioners could not have “waived” on the first appeal a

constitutional error in later sentences that had not yet

been imposed, right? Or are we missing something?

Fifth, in the absence of compliance with Rule

23(a)’s clear, straightforward, unambiguous language,

“trial must be by jury.” A defendant cannot “waive” a

jury in any other manner, such as by failing to object or

to appeal. Rule 23 does not obligate a federal criminal

defendant or her counsel to do anything to obtain a jury

determination. Unless she waives one, in the manner

prescribed by Rule 23(a), she gets one.

Moreover, Rule 23(a) doesn’t require an objection

by a defendant to denial of a jury trial, because by its

plain terms Rule 23(a) does not permit a jury to be

waived by a defendant’s failure to object or by other

procedural default or in any other manner not authorized

by Rule 23(a). Absent a Rule 23 waiver, whether the

defendant asks for a jury trial or not, she gets one.

In the language of the Microsoft Corporation, the

Rule 23(a) default setting is “jury trial.” You want to

change the default setting? Do a Rule 23 written waiver.

16

The screen will say “Jury Waiver Accepted.” You want

to change the default setting 5y invoking the law of the

case doctrine or some other theory of “waiver”? The

computer beeps three times and the screen gives you a

flashing message that says “Rule 23 error. Call System

Administrator at (202) 479-3211.”

Sixth, Blakely and Booker imposed an intervening

change in the law that foreclosed discretionary

application of the mandate rule. In the Fifth Circuit the

Government maintained, and the District Court and Court

of Appeals apparently agreed, that there had been no

intervening change because the Fifth Circuit mistakenly

refused to recognize Blakely's application to mandatory

federal Guidelines sentencing. But Booker did, and

Booker by its own terms is retroactively applicable to the

sentences in this case, just as if it had been decided the

day before resentencing. Since Booker governed the

second sentencing, the law had changed since the first

sentencing, and no variant of the law of the case doctrine

could be invoked.”

Seventh, since the mandate rule is a discretionary,

non-jurisdictional principle, a judge does not have to

invoke it unless there’s a good reason for doing so. A

discretionary, non-jurisdictional principle of federal

appellate revicw cannot justify imposition of

unconstitutional sentences. At least not without

administering powerful, mind-altering drugs.

3

“There is no distinction of constitutional significance

between the Federal Sentencing Guidelines and _ the

Washington procedures at issue in [Blakely].” United States

v. Booker, 543 U.S. 220, 233 (2005).

17

Eighth, the law of the case doctrine incorporates a

recognized exception: it will not be invoked when to do

so would result in an_ injustice. Sustaining an

unconstitutional sentence that violates a defendant’s

Sixth Amendment right to trial by jury, over the

defendant’s objection, may not seem “unjust,” but only if

one has completely lost one’s mind.

Petitioners and their counsel deserve better than

this. The people of the United States of America deserve

better than this. Our constitutional system of principled

judicial decision-making deserves better than this. The

Supreme Court should grant certiorari because the Fifth

Circuit fumbled the pass, dropped the ball, and went way

out of bounds on this one. Its half-baked decision of

important constitutional questions in this case is

appalling, shameful, disgraceful, and absurd. If we as

advocates, law clerks, and judges can’t do any better fhan

this, we’d better all give it up and go to work at Burger

King. ,

2. The Constitution’s ex post facto clause, and

the ex post facto component of the Fifth Amendment’s

due process clause, forbid imposition of “reasonable”

discretionary sentences under United States v. Booker,

543 U.S. 220 (2005) that are more onerous than

those that would have been imposed under the

mandatory Guidelines.

By its terms the ex post facto clause of the

Constitution applies only to legislative enactments.

Lynch v. Mathis, 519 U.S. 433, 441 (1997). However,

. the Supreme Court has held that retroactive increases in

punishment resulting from application of sentencing

guidelines violate the ex post facto clause. Miller v.

18

Florida, 482 U.S. 423, 433-35 (1987). The date of

commission of the offense 1s determinative. Dobbert v.

Florida, 432 U.S. 282, 297-98 (1977). The ending date

of the offenses alleged in this case was June 1998, well

before Blakely-Booker.

Accordingly, Petitioners’ sentences cannot exceed

the maximum, unenhanced, mandatory Guidelines

sentences that could constitutionally have be»* imposed

before Blakely and Booker.

In Booker the Supreme Court remedial majority

judicially rewrote the Guidelines by striking two

otherwise constitutional statutory provisions, 18 U.S.C. §

3553(b)(1) (making mandatory a sentence within the

applicable Guidelines range,-absent grounds justifying a

departure), and 18 U.S.C. § 3742(e) (that set forth

standards for de novo appellate review of mandatory

Guidelines sentences). Thus, as they stand today, the

reengineered Guidelines, having the force and effect of

statutes, Mistretta v. United States, 488 U.S. 361, 367

(1989), would allow longer, more severe sentences to

confinement to be imposed on Petitioners than those

which would have been allowable under the mandatory

Guidelines. Sentences to confinement longer than

unenhanced, base offense level sentences under the

mandatory Guidelines would violate the ex post facto

clause.

The cases that govern this claim are Miller v.

Florida, 482 U.S. 423, 432 (1987), Weaver v. Graham,

450 U.S. 24 (1981), and Lindsey v. Washington, 301 U.S.

397, 401-02 (1937). Application of Booker’s

discretionary sentencing regime would “substantially

disadvantage” Petitioners. Under the mandatory

19

Guidelines, Petitioners would have received only

unenhanced, based-level offense sentences, because none

of the enhancements factors were admitted or found by a

jury. Without the enhancements, the Guidelines’ base

level provided the statutory maximum term of

imprisonment. Moreover, “one is not barred from

challenging a change in the [law] on ex post facto

grounds simply because the sentence he received under

the new law was not more onerous than that which he

might have received under the old.” Dobbert v. Florida,

432 U.S. 282, 300 (1977).

Even if the retooled Guidelines were deemed to be

judicial rule-making rather than /egis/ative action (and

such an interpretation would raise profoundly serious

separation-of-powers concerns under Article III), the ex

post facto component of the Fifth Amendment’s duc

process clause still would condemn resentencing

Petitioners to a longer term of imprisonment than they

could have received under the mandatory Guidelines.

Rogers v. Tennessee, 532 U.S. 451, 460 (2001); Proctor

v. Cockrell, 283 F.3d 726, 730-31 (5S Cir. 2002). Two

considerations are relevant.

First, the simple, straightforward, immensely

appealing position of the four dissenting Justices in

Rogers v. Tennessee, 532 U.S. at 467-69 comes into play

here: if a legislature is barred by the ex post facto clause

from enacting a law that punishes a crime more severely

than when it was committed, a court “is barred by the

Due Process Clause from achieving precisely the same

result by judicial construction,” quoting Bouie v. City of

Columbia, 378 U.S. 347, 353 (1964). That would be a

logical and coherent principle to govern cases such as

this one.

20

Second, the retroactive change or abolition of a

judicial interpretation of a legislative act that

disadvantages a criminal defendant violates the fair

notice requirement of Fifth Amendment due process if

the abrogation was “unexpected” or “indefensible.” No

living human being outside the Supreme Court of the

United States, including any federal judge, could have

predicted the “remedial majority opinion” in Booker.

Accordingly, the retroactive application of

Booker’s novel, unexpected discretionary sentencing

procedures to Petitioners, to impose a sentence greater

than the unenhanced base level offense sentence they

could have received under the mandatory Guidelines

would violate their Fifth Amendment right to fair notice

under the due process clause. Petitioners’ sentences

should be vacated and the case remanded for imposition

of concurrent sentences no more severe than the base

offense level sentences — the only constitutionally

permissible sentences authorized by Booker and the

mandatory Guidelines.

21

Conclusion

For the foregoing reasons, the Supreme Court

should grant the petition for certiorari.

Respectfully submitted,

MICHAEL A. MANESS

Counsel of Record

for Petitioners

1900 North Loop West

Suite 500

Houston, Texas 77018

(713) 680-9922

(713) 680-0804 (Fax)

A-|

Appendix

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

Carrie HAMILTON, Richard Miles, and

Alice Miles,

Defendants-Appellants.

No. 04-20616

Feb. 16, 2006

Rehearing Denied March 21, 2006

Appeals from the United States District Court for the

Southern District of Texas, Houston Division

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Defendants-Appellants Carrie Hamilton, Richard

Miles, and Alice Miles (the "Appellants") appeal their

sentences, arguing the district court erred in calculating their

sente ‘ces by erroneously relying upon the mandate rule on

remaad and by violating United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005). Finding no reversible

error, we AFFIRM.

A-2

I.

Four defendants, Carrie Hamilton, Richard Miles,

Alice Miles, and Harold Miles, were charged in a 32-

count indictment with crimes related to their involvement

in a Medicare fraud scheme, surrounding the creation and

management of Affiliated Professional Home Health

(APROQO). Texas's Department of Health certified APRO

as a Medicare provider, and APRO began in-home treatment

of Medicare-covered patients and to obtain reimbursement

for the home visits to-those patients.

The Grand Jury charged the three Defendants

who now appeal, Carrie Hamilton ("Hamilton"), Richard

Miles, and Alice Miles with: (1) conspiracy to defraud the

United States in Medicare program reimbursements, 18

U.S.C. § 371; (2) structuring currency transactions, 31

U.S.C. § 5324; (3) money laundering conspiracy, 18 U.S.C. §

1956(h); (4) three counts of mail fraud, 18 U.S.C. § 1341; (5)

health care fraud, 18 U.S.C. § 1347; (6) six counts of

money laundering promotion, 18 U.S.C. § 1956 (a) (1)

(A)(i); (7) seven counts of money laundering

concealment, 18 U.S.C. § 1956 (a) (1) (B) (i); and (8) ten

counts of illegal remunerations involving a federal health care

program, 42 U.S.C. § 1320a-7b (b) (2) (A).'-

Appellants were convicted on various counts and

were sentenced as follows. Richard Miles was sentenced

Harold Miles, who is not a party to this appeal, was

charged only with three counts of mail fraud, one count of

health care fraud, and six counts of money laundering

promotion. Harold Miles was acquitted. All four defendants

were subject to criminal forfeiture. See 18 U.S.C. § 982.

\

A-3

to 97 months’ imprisonment, three years’ supervised release,

and a $200 special assessment. Alice Miles was sentenced to

168 months’ imprisonment, three years’ supervised release,

and a $2100 special assessment. Hamilton was sentenced to

204 months’ imprisonment, three years’ supervised release,

and a $2100 special assessment. Appellants were ordered

jointly and severally to make restitution to the United

States of $4,292,246.72.

Appellants challenged the convictions and

sentences in their first appeal. Reversing in part the

convictions, a panel of this Court remanded the case for

resentencing. United States v. Miles, 360 F.3d 472 (Sth Cir.

2004) (reversing the convictions for Hamilton and Alice

Miles on money laundering promotion and for ten counts for

illegal healthcare kickbacks). Hamilton's and Alice

Miles's convictions for conspiracy to commit money laundering

and for money laundering concealment were affirmed. /d.

at 479. Appellants argued in Miles that the district

court erred in the method of calculating the amount of

loss and that the court erred in enhancing their sentences

under USSG § 2B1.1(b) (12) (A) (2001) because Medicare is

not a financial institution within the meaning of that

guideline. Agreeing in part, the panel vacated the

sentences and remanded for resentencing, as follows:

[W]e vacate the sentences of all three

appellants and remand for resentencing on

the ground that Medicare is not a ‘financial

institution’ within the meaning of U.S.S.G. §

2B1.1(b)(12)(A), in addition to resentencing

based on the reversal of the convictions noted

above. On all other grounds, we affirm the

rulings of the district court, the jury verdict,

A-4

and_the other bases for the sentences

imposed by the district court.

Id. at 483 (emphasis added).

On remand, the Probation Office submitted a

supplemental and amended Presentence Report (the

"Supplemental PSR"), noting the effect of this Court's

opinion in Miles on both the sentencing ranges and the

amount of loss calculation. The Supplemental PSR

recommended a total loss figure of $4,266,246.74, a reduction

from the originat-of $26,000 (the amount attributable to

the kickback counts).

On June 24, 2004, the Supreme Court issued

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004). Appellants filed a supplemental sentencing

memorandum, arguing Blakely precluded the enhancement

of their sentences based upon facts not found by jury.’

~-

Hamilton objected to the following enhancements: +18

for total loss; +2 for commission of sophisticated laundering;

+4 for being a leader/organizer of criminal activity; and +2 for

obstruction of justice.

Alice Miles objected to enhancements of: +18 for

total loss; +2 for commission of sophisticated laundering; +2

for 2S1.1 (b) (2) (B); +3 for § 3B1.1 (b); +3 for obstruction of

justice.

Richard Miles objected to the following level

increases: +2 for considerable planning over an extended time

period; +3 for his role as a manager/supervisor of criminal

activities that involved five or more participants; and +2 for

committing perjury during trial.

A-5

On July 12, 2004, the Fifth Circuit issued United States

v. Pinéiro, 377 F.3d 464 (5" Cir. 2004) (Pineiro 1)

(rejecting Blakely’s application to the federal sentencing -

guidelines), vacated by, 543 U.S. 1101 (2005).

Subsequently, the district court resentenced

Appellants. At oral argument, Appellants again objected to

the enhancements on the basis of Blakely. The district court

rejected this argument based upon both Pineiro / and

Appellants' waiver of the objection. The district court

stated that Appellants failed to preserve the issue by failing

to raise it before this Court on initial appeal.

Defense counsel stated that the Sixth Amendment objection

had been made at initial sentencing. The district court then ruled

that, in addition to Pineiro J, the challenge was waived

by failure to preserve the issue on appeal and the scope of the

issues viable for consideration on remand. See United

States v. Marmolejo, 139 F.3d 528 (Sth Cir. 1998).

Hamilton was resentenced to 171 months'

imprisonment, three years' supervised release, and a $1050

special assessment. Richard Miles was resentenced to 63

months' imprisonment, three years' supervised release,

and a $200 special assessment. Alice Miles was resentenced

to 135 months' imprisonment, three years' supervised

release, and a $1050 special assessment. With respect to

the amount of loss, the district court reduced the restitution

All three objected to the loss calculation of the

grounds that it was (1) determined by subtracting the $26,000

related to the reversed kickback conviction from the district

court's original calculation; (2) not alleged in the indictment;

- and (3) not admitted to by defendants or determined by a jury.

A-6

order, in accordance with the probation recommendations,

ordering restitution in the amount of $4,266,246.74.

Appellants timely appealed again, challenging their

sentences, including the calculation of loss

amount.

II

A.

Appellants challenge the district court's calculation

of loss amount, arguing that the court reversibly erred

by relying upon Marmolejo's mandate rule in declining

to revisit the method of the calculation of loss. "Whether

the law of the case doctrine foreclosed the district court's

exercise of discretion on remand and the interpretation

of the scope of this court's remand order present questions

of law that this court reviews de novo." United States v. Lee

(Lee Il), 358 F.3d 315, 320 (5th Cir. 2004) (citing Sobley

v. So. Nat. Gas Co., 302 F.3d 325, 332 (Sth Cir. 2002)).

B.

Appellants argue, as they did at tral, on initial appeal,

and on resentencing, that the court erroneously calculated

the amount of restitution by improperly including profits

lawfully obtained. This objection is not based upon the

Sixth Amendment jury trial right but rather upon the

method of calculation. The Government argues that

under the law of the case, an issue of law or fact

outside the mandate of the remand order "may not be

reexamined either by the district court on remand or by the

appellate court on a subsequent appeal" and that no

exception to the mandate rule applies to this record.

A-7

See United States v. Becerra, 155 F.3d 740, 752 (Sth Cir.

1998).

The scope of the mandate on remand for

resentencing is limited, precluding a district

court's de novo consideration of issues at

resentencing. Marmolejo, 139 F.3d at 528.

In Marmolejo, we affirmed the district

court's exclusion of evidence newly

presented on remand for resentencing because

the "determination was not before the district

court on remand." /d. at 530-31.

Accordingly, defendants must "raise all

relevant and appealable issues at the

original sentencing,” and a district court

resentencing on remand must determine the

scope of the mandate by identifying "those

issues arising out of the correction of the

sentence ordered by this court," not by

"allowing a defendant to revisit issues with

the benefit of this court's opinion." Jd. at

531.

[T]he resentencing court can consider

whatever this court directs - no more, no less.

All other issues not arising out of this

court's ruling and not raised before the

appeals court, which could have been

brought in the original appeal, are not

proper for reconsideration by the district

court below.

A-8

Three exceptions to this discretionary, rather than

jurisdictional, mandate rule exist. See Becerra, 155 F.3d at

752-53. These exceptions are: "(1) The evidence at a

subsequent trial is substantially different; (2) there has

been an intervening change of law by a controlling

authority; and (3) the earlier decision is clearly erroneous

and would work a manifest injustice." United States v.

Matthews, 312 F.3d 652, 657 (Sth Cir. 2002)

(Matthews II) (citing Becerra, 155 F.3d at 752-53).

Here, the district court properly concluded that the

mandate rule foreclosed any reconsideration of the

amount of loss calculation except to adjust as required by

Miles's reversal of the money +aundering promotion and

illegal remuneration convictions. This adjustment was

recommended by the Supplemental PSR and adopted by the

district court. Appellants' argument that the district court

and the panel in Miles all failed to properly calculate the

loss amount because the calculation included lawfully

obtained proceeds was not properly before the district court on

remand. The issue was presented to the Miles panel, fully

briefed and argued, and rejected. The method of

calculating the loss amount was not included within the

scope of the remand order, given the general language

affirming the remainder of the district court's bases for

sentencing as well as this Court's rejection of the "various other

issues raised by the appellants." See Miles, 360 F.3d at

483. Despite Appellants’ characterization to the contrary, the

mandate in Miles expressly affirmed the amount of loss

calculation. The Miles panel stated, "[o]n all other

grounds, we affirm the rulings of the district court, the

jury verdict, and the other bases for the sentences imposed

by the district court." /d. Moreover, Mi/es noted the amount

of loss figure in the context of its discussion of Appellants’

A-9

fraudulent, not lawful, conduct. "The APRO defendants

engaged in a wide range of activities that fraudulently

overcharged Medicare and netted them a_ substantial

amount of illicit revenue. The appellants were held

jointly and severally liable for restitution of over $4 million

in overcharges to Medicare." /d. at 478. The amount of

loss with respect to these overcharges was affirmed

by the Miles panel, and neither the district court on

remand nor this panel may reconsider that 1aw-of this case.

Appellants argue that the intervening chaige in law of

Blakely and Booker precludes application of the mandate

rule. The Government argues that at the time Appellants were

resentenced by the district court there had been no

intervening change in law. The Government argues

Blakely's application of Apprendi v. New Jersey, 530

U.S. 466 (2000), to state sentencing schemes is

insufficient to serve as the “controlling authority"

required to trigger the intervening authority exception to

the mandate rule.

In Matthews II, the defendant had argued on initial

appeal of his sentence, based on a carjacking and conspiracy

conviction, the position that was subsequently adopted in

Apprendi. 312 F.3d at 656. On remand to the district

court, defendant argued at Apprendi was an intervening

change of law, overruling uus Court's prior holding on his

initial appeal. /d. The district court disagreed and

resentenced him according to the government's

recommendations. On second appeal, Matthews argued

the mandate rule permitted the district court to reconsider the

enhancement on one conviction (which, upon reconsideration,

the district court had not applied) and prohibited consideration

of the enhancement as to another. /d. The panel concluded

that Apprendi was an intervening change in controlling

A-10

law that "overruled our [initial panel] decision affirming

[the] enhancement." /d. at 657.

The holding of Apprendi, 530 U.S. at 490, forms the

basis for both Blakely, 124 S. Ct. at 2537, and Booker,

125 S. Ct. at 753, 756. As the Government argues,

Appellants here did not anticipate this error, as did the

defendant in Matthews I, nor argue at initial sentencing

and on initial appeal that the facts supporting enhancement must

be charged in the indictment and proven to a jury as required

by the Fifth and Sixth Amendments. See Matthews II,

312 F.3d at 657 (quoting Matthews J, 178 F.3d at

302). This Circuit's law following Blakely and Booker

also indicates that Blakely’s issuance prior to ~

Appellants’ resentencing was not an_ intervening

change in law such that an exception to Marmolejo —

should apply. See United States v. Malveaux, 411 F.3d

558, 560-61 (5" Cir.), cert. denied, 123 . Ct. 194 (2005);

United States v. Mares, 402 F.3d 511, 518-19 (Sth Cir.), cert.

denied, 126 S. Ct. 43 (2005); see also United States v.

Higginbotham, 137 Fed. Appx. 665 (Sth Cir.) (per

curiam) (refusing to consider Booker error where

defendant failed to raise the claim in his initial appeal

and raised the challenge for the first time in his petition

for certiorart), cert. denied, 126 S. Ct. 498 (2005).

Appellants have not shown that an exception

applies to the mandate rule to permit the district court's or

this panel's reconsideration of the loss amount. Blakely's

issuance between initial appeal of this cause and

resentencing on remand is not an intervening change in

law sufficient to trigger that exception to the mandate

rule. Accordingly, we affirm the Appellants’ sentences,

including the calculation of restitution, essentially for the

reasons provided by the district court.

A-l1

Appellants also argue that the district court erred in

sentencing by improperly relying upon facts not found by a jury

or admitted, in violation of Booker. Citing Chapman v.

California, 386 U.S. 18, 24 (1967), Appellants argue

that harmless error applies to our review of this issue

because they preserved their challenge by raising a Sixth

Amendment challenge at initial sentencing and that their

failure to raise the issue on initial appeal does not

eviscerate this preservation. The Government argues that

plain error applies because Appellants failed to preserve

their challenge grounded in the Sixth Amendment by waiving

the issue on first appeal.

Addressing both the mandate rule and preservation,

we have previously held that the mandate rule did not

foreclose reconsideration of sentencing to allow the

application of an upward departure when "the issue was not

waived in the prior appeal and...arose out of the correction

of the sentence of this court [on initial appeal]." Lee //,

358 F.3d at 320 n.3, 323-24. Such is not the case here

where any objection originally raised grounded on the Sixth

Amendment was waived when Appellants abandoned

the argument on initial appeal to this Court. See id. (citing,

amongst others, United States v. Hass, 199 F.3d 749, 753

(Sth Cir. 1999)). Appellants’ argument that to raise

Apprendi at the time of sentencing or on appeal would

have been futile is not availing. See United States v. Akpan,

407 F.3d 360, 376 (Sth Cir. 2005). We review Appellants’

sentences for plain error.

Appellants bear the burden of showing plain error.

See FED. R. CRIM. P. 52(b); Mares, 402 F.3d at 521.

The parties agree that the district court plainly erred by

increasing Appellants' sentences on the basis of facts

other than prior convictions not alleged in the indictment,

admitted by Appellants, or proven to a jury beyond a

reasonable doubt. It is now clear that the district court's reliance

on Pineiro I to deny Appellants’ challenge to the

enhancements and loss amount was error that is plain. Mares,

402 F.3d at 520; see also Booker, 125 S. Ct. at 738;

Johnson v. United States, 520 U.S. 461, 468 (1997).

Thus, in order to show reversible error, Appellants must

show that the plain error affected their “substantial

rights." See Mares, 402 F.3d at 520 (citing United States

v. Cotton, 535 U.S. 625, 631 (2002)). To do so,

Appellants must show that the error "affected the

outcome of the district court proceedings." United States

v. Olano, 507 U.S. 725, 734 (1993).

The transcript of the sentencing hearing indicates

that the district court made no suggestion of an

inclination to sentence outside the Guidelines or hint of

constraint to sentence within them. There is no statement

by the district court judge to indicate what he might have

done were the Guidelines not mandatory. Thus, "[w]e do not

know what the trial judge would have done had the

Guidelines been advisory." Mares, 402 F.3d at 522.

And, on such a record, Appellants cannot show that

the district court, sentencing under an advisory scheme,

“would have reached a significantly different result." /d.

A-13

Appellants cannot demonstrate plain error on this

record.

IV.

For the foregoing reasons, we AFFIRM

Appellants' sentences essentially for the reasons

provided by the district court and because Appellants

cannot demonstrate that the court plainly erred under Booker.

AFFIRMED.

Order Denying Petition for Rehearing

Petitioner-Appellant Richard Miles’ Petition for

Panel Rehearing is DENIED.

SO ORDERED this 21“ day of March, 2006.