Reply Brief — Hensley v. United States (No. 09-480)

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No. 09-480

Ju the Supreme Court of the Anited States

MATTHEW HENSLEY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

REPLY BRIEF FOR PETITIONER

DAN M. KAHAN ANDREW J. PINCUS

ScoTT L. SHUCHART Counsel of Record

Yale Law School CHARLES A. ROTHFELD

Supreme Court Clinic Mayer Brown LLP

127 Wall Street 1999 K Street, NW

New Haven, CT 06511 Washington, DC 20006

(203) 432-4800 (202) 263-3000

P. JEFFREY SCHLESINGER

8396 Mississippi Street,

Suite G

Merrillville, IN 46410

(219) 736-5555

Counsel for Petitioner

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

TABLE OF CONTENTS

| Page

TABLE OF AUTHOR Tie sosincssesccsssecescseseseneeseseenssess li

REPLY BRIEF FOR PETITIONER .....000.000000000... 1

A. This Case Presents An Appropriate

Vehicle To Address The Relationship

Between The Post-Booker Sentencing

Guidelines And The Ex Post Facto

B. The Clear, Acknowledged Conflict

Among The Lower Courts Necessitates

This Court’s Intervention Now. ................00.000 9)

C. The Government Misunderstands

Sentencing Law Post-Booker And

Misapplies This Court’s Explicitly

Prescribed Ex Post Facto Analysis To

a niet padcenns dea e UNE cG aka ceomadeuuaean 7

I i. ast enesieiseuanw us genmanneiimeanl 10

APPENDIX

United States v. Hensley, No. 2:06 CR 168,

Further Excerpt of Sentencing Transcript

(N.D. Ind. Jan. 11, 2008), not reported............... la

‘3

TABLE OF AUTHORITIES

CASES

Gall v. United States, 552 U.S. 38 (2007) .....

Garner v. Jones, 529 U.S. 244 (2000)............

Irizarry v. United States,

Kimbrough v. United States,

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

Rita v. United States, 551 U.S. 338 (2007)....

Spears v. United States,

129 S. Ct. 840 (2009) .........eecccecececeseseeseeeees

United States v. Demaree,

459 F.3d 791 (7th Cir. 2006).....................

United States v. Lewis,

603 F. Supp. 2d 874 (E.D. Va. 2009)........

United States v. Turner,

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

Weaver v. Graham, 450 U.S. 24 (1981) .........

STATUTE

IE TE IEE WAS i sbasseuseccescooscscsssnesscssosencnesose

OTHER AUTHORITIES

U.S. Sentencing Commission, Post-

Kimbrough/Gall Data Report (2008)........

U.S. Sentencing Commission, Preliminary

Quarterly Data Report (2009)...............006

scbaiesetauis 3)

REPLY BRIEF FOR PETITIONER

The government acknowledges the _ conflict

among the lower courts regarding the question pre-

sented, which subjects similarly-situated defendants

to sentencing based on different versions of the Sen-

tencing Guidelines depending solely on the place in

which a case arises. And the government does not

dispute that the issue is important and arises with

great frequency, or that without a definitive ruling

by this Court, lower courts must continue to devote

scarce resources to questions regarding the status of

the Sentencing Guidelines under the Ex Post Facto

Clause.

According to the government, certiorari nonethe-

less should be denied because it is possible that the

defendant here might have received the same sen-

tence under the Guideline in effect at the time of the

offense and because the D.C. Circuit might someday

reconsider its conflicting ruling. Both of these con-

tentions rest on factual errors, however. The gov-

ernment mistakenly attributes to the sentencing

judge a statement made by the prosecutor concerning

the appropriateness of an above-minimum sentence.

And the government misstates the information be-

fore the D.C. Circuit at the time that it rendered its

decision.

The government’s argument with respect to the

merits fares no better. Indeed, it does not even cite,

let alone discuss, this Court’s controlling decision in

Garner v. Jones, 529 U.S. 244 (2000), which found an

Ex Post Facto violation in circumstances very similar

to the present case.

Review by this Court is plainly warranted.

A. This Case Presents An Appropriate

Vehicle To Address The Relationship

Between The Post-Booker Sentenc-

ing Guidelines And The Ex Post Fac-

to Clause.

The government speculates that petitioner would

have received the “same sentence” under the 2006

Guidelines as he did under the 2007 Guidelines, and

argues that its speculation is grounds for denying re-

view. Br. in Opp. 7. That argument is both factually

wrong and legally irrelevant.

1. The sentencing judge here twice stated that he

believed “a guideline sentence” was appropriate. Pet.

App. 24a (“I do think that a guideline sentence in

this case is altogether appropriate.”); Pet. App. 27a

(“And so, I do think that a guideline sentence is ap-

propriate.”). In other words, the judge decided that

the facts and circumstances surrounding petitioner's

case warranted a_ within-Guidelines punishment.

Under the 2006 Guidelines, a 125-month sentence

would have fallen well outside of the Guidelines

range, something the judge specifically indicated he

did not think was appropriate in petitioner’s case.

Reference to the 2006 Guidelines accordingly would

almost certainly have led the judge to impose the

minimum possible sentence—rather than the longer

sentence that the court did impose.

The government’s claim that the judge intended

to impose a sentence above the mandatory minimum,

no matter which Guidelines applied, rests on a fac-

tual error. The government statess that the judge

“expressly conclud[ed] that ‘something certainly

above the mandatory minimum sentence is appro-

priate here.” Br. in Opp. 8 (quoting Sentencing Tran-

script at 47, reprinted at App., infra, 1a).

But the government misattributes the source of

the embedded quotation. Those words—“something

certainly above the mandatory minimum sentence is

appropriate here’—were spoken by the prosecutor,

not by the sentencing judge. See App., infra, 1a (“So,

what [sic] we are not asking for the Court to go up

five levels, but I do believe that something certainly

above the mandatory minimum sentence is appro-

priate here * * *.”).

Indeed, as the government concedes, the judge

condemned the applicable 120-month mandatory

minimum as “really high,” “out of wack,” “just flat

*** wrong,” “just [not] * * * appropriate,” and “too

high.” Pet. App. 26a, 27a. Although the judge did

remark at one point that a mandatory minimum sen-

tence might not be appropriate, he did so only after

indicating his desire to issue a sentence within the

applicable Guidelines, which he believed were the

2007 Guidelines. See Pet. App. 25a.!

This is therefore a case in which the record

leaves little doubt that the judge would have imposed

a lower sentence if he had looked to the time-of-

offense Guideline.

2. Even if the government’s speculation had some

factual basis, it would remain mere speculation. In-

terestingly, the government has made the very same

argument in opposing review in other cases raising

1 Moreover, judges impose above-Guidelines sentences in less

than two percent of cases. See U.S. Sentencing Commission,

Preliminary Quarterly Data Report 1 tbl. 1 (2009); U.S. Sen-

tencing Commission, Post-Kimbrough/Gall Data Report 1 tbl. 1

(2008). Given this practice, it is extremely unlikely that the

sentencing judge below would have rendered an above-

Guidelines sentence had he utilized the 2006 Guidelines.

this question. See Br. in Opp. 6-7, Lumsden v. United

States, No. 09-5374 (Oct. 19, 2009); Br. in Opp. 5-6,

Vincent v. United States, No. 08-9391 (May 26, 2009);

US. Br. 9-11, Mower v. United States, No. 07-1539

(Sept. 23, 2008). The government apparently has not

seen a case in which the use of a later, more onerous

Guidelines standard could have resulted in a differ-

ent sentence—notwithstanding the rarity of above-

Guidelines sentences. See note 1, supra.”

The government’s speculation is not just suspi-

ciously convenient, it is also legally irrelevant. Under

2 The government also relied on other factors present in these

cases—but absent here—in arguing against review. Thus, in

Lumsden, the sentencing judge expressly stated that, even if he

had applied the time-of-offense Guidelines, and even if those

Guidelines did call for fewer enhancements, he would have im-

posed the same sentence because he would have applied an up-

ward variance for the defendant’s criminal history which he did

not apply when calculating the time-of-sentencing Guidelines

recommendation. See Br. in Opp. 6, Lumsden, No. 09-5374.

In Vincent, the defendant had already been released from

prison by the time this Court reviewed the petition and a ruling

by this Court accordingly would not have affected the length of

the defendant's term of imprisonment. See Br. in Opp. 5, Vin-

cent, No. 08-9391.

Finally, in Mower, the defendant was convicted of conspiracy

and tax evasion over a period of years. All of her offenses had

continued beyond 2001, and so the judge appropriately sen-

tenced the defendant under the 2001 Guidelines. The govern-

ment correctly pointed out that the Ex Post Facto Clause “does

not bar the application of a revised version of the Guidelines to

a conspiracy offense that began before the revision but contin-

ued after the revision’s effective date.” Br. in Opp. 8, Mower,

No. 07-1539. In any event, the defendant had failed to preserve

her Ex Post Facto claim in the district court, see ibid., and it

appears that use of the earlier version of the Guidelines would

not have altered her sentence. See id. at 10.

this Court’s Ex Post Facto jurisprudence, a defen-

dant need only show that the court’s application of

the 2007 Guidelines sufficiently risked increasing his

sentence, Garner, 529 U.S. at 251, not that it defi-

nitely did so, Miller v. Florida, 482 U.S. 423, 432

(1987). Petitioner amply satisfies this standard. Pet.

27-30. This case is therefore an excellent vehicle for

addressing the question presented.

B. The Clear, Acknowledged Conflict

Among The Lower Courts Necessi-

tates This Court’s Intervention Now.

The government attempts to minimize the clear

disagreement between the Seventh and D.C. Cir-

cuits. It claims that United States v. Turner, 548

F.3d 1094 (D.C. Cir. 2008), was an uninformed deci-

sion because it (i) “rejected the Seventh Circuit’s ex

post facto holding * * * without analyzing Kimbrough

[v. United States, 552 U.S. 85 (2007)),” Br. in Opp.

14, and (ii) “was briefed and argued before the gov-

ernment adopted its current position on the ex post

facto question.” Jd. at 14-15. Both points are wrong.

1. At the time the D.C. Circuit decided Turner,

this Court’s decisions in Rita v. United States, 551

U.S. 338 (2007), Kimbrough and Gall v. United

States, 552 U.S. 38 (2007), and Irizarry v. United

States, 128 S. Ct. 2198 (2008), had been extant for

eighteen months, one year, and six months respec-

tively. It is particularly difficult, then, to understand

how the government can claim that the D.C. Circuit

decided Turner without “analyzing Kimbrough.” Br.

in Opp. 14. Indeed, by the time the oral argument in

Turner took place on September 12, 2008, the Kim-

brough opinion was nine months old. The only major

case in the relevant line of post-Booker cases not de-

cided prior to Turner was Spears v. United States,

129 S. Ct. 840 (2009)—and Spears merely clarified

Kimbrough’s holding, something the D.C. Circuit had

already demonstrated it understood.

2. The argument that Turner was an uninformed

decision because it was briefed and argued before the

United States announced its current position on the

question presented is similarly flawed. To begin

with, as the government concedes, it did make the

D.C. Circuit aware of its rew position in August of

2008 in a post-briefing letter—filed over three

months before issuance of the Turner decision, and

well in advance of the oral argument. Br. in Opp. 15.

And if the court of appeals had asked the govern-

ment to elaborate its new position, the government

simply would have advanced the arguments Judge

Posner made in his opinion in United States v. De-

maree, 459 F.3d 791 (7th Cir. 2006)—the precise ar-

guments the Turner court confronted and rejected,

almost line by line, in its opinion. The claim that the

D.C. Circuit made its decision without the benefit of

“a full exposition of the government’s revised views,”

Br. in Opp. 15, is simply wrong.

3. The government fails to acknowledge that the

disagreement among the courts of appeals is not lim-

ited to the Seventh and D.C. Circuits. While no other

court of appeals has squarely decided whether the Ex

Post Facto Clause applies to retroactive application

of the now-advisory Guidelines, it is likely that the

existing conflict will be expanded. See Pet. 10-20.

Most important, judicial resources continue to be

consumed by an issue that only this Court can re-

solve definitively. In United States v. Lewis, 603 F.

Supp. 2d 874 (E.D. Va. 2009), for example, the dis-

trict court held that “application of the 2008 Guide-

lines in this case violates the Ex Post Facto Clause of

the U.S. Constitution” and “therefore utilize[d] the

2005 Guidelines in effect at the time the offense of

conviction occurred.” Jd. at 879. At the defendant's

sentencing .earing, Judge Hudson encouraged the

United States to appeal the sentence:

I hope your office does take this to the Fourth

Circuit. This is a good case to go to the

Fourth Circuit to clarify this point, because if

I'm wrong, let’s get it straight * * *. The law

is a bit fragmented right now, and it would be

good to have a clear guidance on how to han-

dle these things in the future.

Br. in Opp. at 9, United States v. Lewis, Nos. 09-4343

(L) & 09-4474, 2009 WL 2599739 (4th Cir. August

24, 2009) (quoting the sentencing transcript) (em-

phasis added).

This statement, directly from a district court

judge who implements the Guidelines on a daily ba-

sis, speaks volumes: The law with respect to the ex

post facto status of the Guidelines is “fragmented”;

courts are in need of “clear guidance” on how to han-

dle the very situation presented in petitioner's case.

This Court should provide the needed guidance by

granting the'petition.

C. The Government Misunderstands

Sentencing Law Post-Booker And

Misapplies This Court’s Ex Post

Facto Analysis.

The government's argument on the merits falls

far short of rebutting petitioner's showing that the

use of the 2007 Guidelines violated the Ex Post Facto

Clause. The government mischaracterizes sentencing

law post-Booker and fails even to cite this Court's

controlling decision in Garner in evaluating the

status of the Guidelines under the Ex Post Facto

Clause.

1. The government mischaracterizes sentencing

law post-Booker, most significantly by failing to rec-

ognize Gall’s determination that the Guidelines rep-

resent “the starting point and the initial benchmark”

in sentencing. Gall, 552 U.S. at 49. That the Guide-

lines are just “one factor among several” that “courts

must consider in determining an appropriate sen-

tence,” Br. in Opp. 13 (quoting Kimbrough, 552 U.S.

at 90), and that defendants no longer have “|[ajny

expectation subject to due process protection’ that

they will receive a sentence within the Guidelines

range,” Br. in Opp. 13 (quoting Jrizarry, 128 S. Ct. at

2202), does not mean that the sentencing process is a

free-for-all in which the judge may consult any

authority he or she wants in any order he or she

chooses.

Gall clearly requires as a first step that the court

calculate the preliminary range based on one set of

Sentencing Guidelines. See Gall, 552 U.S. at 49-50.

It therefore remains incumbent on district court

judges to correctly calculate the Guidelines’ pre-

scribed sentencing range and consider any relevant

policy statements produced by the Sentencing Com-

mission. See 18 U.S.C. § 3553(a)(4)-(5). “[F]ailing to

calculate (or improperly calculating) the Guidelines

range,” in fact, constitutes a “significant procedural

error.” Gall, 552 U.S. at 51. After calculating the cor-

rect Guidelines range, the judge may depart from the

range. But the initial calculation remains a uniform

and critical part of the process.

2. Furthermore, the government fails to apply—

in fact, omits even to mention—this Court's govern-

ing Ex Post Facto jurisprudence as articulated in

Garner. Under Garner, any measure—whether bind-

ing or advisory in nature—that poses more than a

“speculative” risk of increasing the length of incar-

ceration triggers the Ex Post Facto Clause. See

Garner, 529 U.S. at 251 (quoting Cal. Dep’t of Corrs.

v. Morales, 514 U.S. 499, 509 (1995)). Thus, Ex Post

Facto analysis is concerned with “the effect, not the

form, of the law * * *.” Weaver v. Graham, 450 U.S.

24, 21 (1981) (emphasis added).

Here, the formal and empirical analyses required

by Garner reveal that the application of the harsher

2007 Guidelines violated the Ex Post Facto Clause.

See Pet. 24-32. Given the empirical analysis required

under Garner, it is surprising that the government

makes absolutely no attempt to respond to the statis-

tical reality that the Guidelines exert tremendous

force in the sentencing process. And in a system

where the Guidelines exert such force, the judge’s

choice of which Guidelines to apply makes a pro-

found difference in the sentence imposed.

CONCLUSION

The petition for a writ of certiorari should be

granted,

Respectfully submitted.