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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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,

GOOF SE OFS CM. DOC visite eaten nivics A-1
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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-iv-

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1084%3A1. Public record. Not legal advice.