Reply Brief — Custable v. United States

Supreme Court, U.S.

\ FILED

No. 10-631 MAR 14 2011

OFFICE OF THE CLERK

Sn The

Supreme Court of the Anited States

¢

FRANK CUSTABLE,

Petitioner,

Vv.

UNITED STATES,

Respondent.

Sf

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

sd

MArc W. MARTIN* JEFFREY B. STELINBACK

*Counsel of Record 53 West Jackson Blvd.

MARC MARTIN, LTD. Suite 1442

53 West Jackson Blvd. Chicago, IL 60604

Suite 1420 (847) 624-9600

Chicago, [L 60604

(312) 408-1111

mwm711@mac.com

Counsel for Petitioner Frank Custable

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

I. The Government Has Not Dispelled That

The Circuit Split Over The Role Of The

Ex Post Facto Clause In Post-Booker

Sentencings Is In Urgent Need Of This

IIE We BO hoon access scvenccnsceastaveceas 2

II. The Record Does Not Support The Gov-

ernment’s Argument That The District

Court Would Have Imposed The Same

Sentence In The Face Of Lower Guide-

lines And If There Is Error In Petitioner’s

Guideline Calculation It Would Be For

The District Court To Refashion The Sen-

tence In The First Instance....................... 4

Ill. Plain Error Review Of Question 2 Is

Inapplicable Because Petitioner Brought

His Ex Post Facto Objection To The Lower

IE PRN oes corns cccincvavinscasdvecanviiest excacnes 8

il

TABLE OF AUTHORITIES

Page

CASES

Black v. United States, 130 S. Ct. 2963 (2010)............ 7

Buchmeier v. United States, 581 F.3d 561 (7th

aie IE I I 22s cde cer ae snubacede civesecdvenssauviens 12

California Department of Corrections v. Mo-

PE a tre He I vvesve nis cick svndnsddecivecessiavens 1

Gall v. United States, 552 U.S. 38 (2007).................... 6

Gardner v. Florida, 430 U.S. 349 (1977) ..........0.0....... 7

Garner v. Jones,.529 U.S. 244 (2000)................. eee 1,4

Glover v. United States, 531 U.S. 198 (2001)............. 13

Greenlaw v. United States, 554 U.S. 237 (2008).......... 7

Hensley v. United States, 130 S. Ct. 1284 (2010) ........ a

Johnson v. United States, 520 U.S. 461 (1997) ........... 8

Miller v. Florida, 482 U.S. 423 (1987) .................. 3,12

Neder v. United States, 527 U.S. 1 (1999) ................... 7

Pepper v. United States, No. 09-6822, 2011 WL

7086438 (U.S. Maret 2, BOUT) «2.4... .cccccccseseseerceess 3, 4,7

Puckett v. United States, 129 S. Ct. 1423 (2009).....8, 9

Skilling v. United States, 130 S.Ct. 2896

MIs srs ucatcsiaer porns aceudscasioneiawaxiasinconiaasaan sR 7

United States v. Booker, 543 U.S. 220 (2005)...2, 3, 4, 11

United States v. Demaree, 459 F.3d 791 (7th

|, —___, RURE RRReOTL Ne eUARTEE PSone CONV ED ne 3, 4,11, 12

United States v. Lanham, 617 F.3d 873 (6th

Ne IE s. .casevcevicarscacsrasiavnaine ee ee eee $

lll

TABLE OF AUTHORITIES — Continued

Page

United States v. Lewis, 606 F.3d 193 (4th Cir.

ee cebubdantnadavereassuones 6

United States v. Messino, 382 F.3d 704 (7th Cir.

aR IBD GE ratio RB aR ART tah 11

United States v. Olano, 507 U.S. 725 (1993) ............... 8

United States v. O’Neill, 116 F.3d 245 (7th Cir.

le en Dr ae ic spannaacinns 10

United States v. Smith, 332 F.3d 455 (7th Cir.

ee ec sacuaeieene 7

United States v. Turner, 548 F.3d 1094 (D.C.

ig RE AIS STA ee Pi he Se NB Te A 5

United States v. Vivit, 214 F.3d 908 (7th Cir.

(a SE RAR Da BSR Od ENERO ESD? SDS OS RO i3

United States v. Whitaker, 127 F.3d 595 (7th

a Ry ace een copa neat eee hg RO I 10

United States v. Wood, 486 F.3d 781 (3d Cir.

eT on te, ns pauuadeavdussanveesones 2

MISCELLANEOUS

ae a ssp abaesanounecbeskancnemores 5

UE ss adic buwadewiseaeveckencsbinacsenéan 2

ee, Sr AD a. sca sanscuecsuncvbecondcshecseccducensen 8

Kumar v. United States, No. 10-961 Pet. Cert.

A si phg bed pacaeaaseowauutasbaacacuassus 1

Ortiz v. United States, No. 10-7719, Pet. Cert.

Nee et as css savcuonacdababiteteraracwnsaees 1

iV

TABLE OF AUTHORITIES — Continued

Page

United States v. Custable, No. 09-2593, Deft’s

ek ele es ROPER ARC ON WA IR seen SAAB AAS EM: 6

Be I te I is vite i caddis scccer eusiesocenineesbaceeanans 6, 10,13

Fs Te PRC Sotesibcsiswetecr cai ecntvedeniinveianpabiccactasnienen 10

1

REPLY BRIEF FOR PETITIONER

The government’s brief is more noteworthy for

what it lacks than what it contains. While not disput-

ing that the circuits are firmly divided on both ques-

tions presented in the petition, it defe::ds the Seventh

Circuit’s approach only in conclusory terms. See Op.

12-13." Nowhere does the government address this

Court’s ex post facto jurisprudence. While relying on

the advisory nature of the Guidelines as a reason for

avoiding petitioner’s ex post facto claim, the govern-

ment does not cite, let alone address, cases such as

Garner v. Jones, 529 U.S. 244, 255 (2000), or Califor-

nia Department of Corrections v. Morales, 514 U.S.

499, 509 (1995), which make clear that the relevant

ex post facto test is whether there is a “substantial

risk” that retroactive application of a penal law will

increase punishment. See Pet. 25-26. Nor has the

government addressed statistics demonstrating the

practical viability of the ex post facto objection in this

case,

The government attempts to divert attention by

positing a plain error theory. But this “defense” is not

‘The government notes that the ex post facto issues

presented in Questions 1 and 2 of the petition are also before

this Court in Ortiz v. United States, No. 10-7719 (Question 1), in

which the government filed its opposition on the same day as it

filed the opposition brief in this case, and Kumar v. United

States, No. 10-961 (Question 2), in which the government’s

response to the certiorari petition is presently due by March 30,

2011.

2

invoked on Question 1 of the petition. Concerning

Question 2, the plain error rule is inapplicable be-

cause petitioner brought his ex post facto-based

objection to the attention of the district court and the

court of appeals. See Fed. R. Crim. P. 51(b).

I. The Government Has Not Dispelled That

The Circuit Split Over The Role Of The

Ex Post Facto Clause In Post-Booker

Sentencings Is In Urgent Need Of This

Court’s Resolution

The government admits that “the courts of ap-

peals are divided” on the question of whether, in tne

aftermath of United States v. Booker, 543 U.S. 220,

262 (2005), retroactive application of more onerous

Guidelines violates the Ex Post Facto Clause. Opp.

10. In its sparing defense of the Seventh Circuit’s

approach, the government references its “response to

other recent petitions for writs of certiorari.” Jd. Cited

here is the government’s response in Hensley v.

United States, 130 S. Ct. 1284 (2010) (No. 09-480),

2010 WL 603304, at 6-9. Petitioner, too, cited the

certiorari proceedings in Hensley, noting that the

government in that case had acknowledged a circuit

split, but sought more time to advance its position in

the courts of appeal.” In its brief, the government does

* The government maintains that the petition suggested

that the Third Circuit hac resolved the issue in United States v.

Wood, 486 F.3d 781 (3d Cir. 2007). Opp. 13 n. 5. Petitioner dic

not go that far. See Pet. 15.

eee a

3

not address significant developments since this Court

denied certiorari in Hensley, namely, that the gov-

ernment has unsuccessfully petitioned certain courts

of appeals to fall in line with United States v.

Demaree, 459 F.3d 791 (7th Cir. 2006). Although not

mentioned in the government’s brief, since the filing

of the petition in this case, the Sixth Circuit denied

the Solicitor General’s petition for rehearing en banc

in United States v. Lanham, 617 F.3d 873 (6th Cir.

2010) (Rehearing and Rehearing En Banc Denied

Dec. 17, 2010).

The government essentially contends that Booker

sub silentio overruled Miller v. Florida, 482 U.S. 423

(1987). According to the government, Booker and later

cases have made clear that the Guidelines lack the

“force and effect of laws.” Opp. 11. But the effect of

Booker on ex post facto analysis is the question pre-

sented here. Moreover, the Guidelines still play an

important role in post-Booker sentencings, as they did

below where the district court imposed a sentence

within the Guidelines range. As this Court recently

stated in Pepper v. United States:

|Wle have recognized that the Commission

post-Booker continues to “fil{]] an important

institutional role” because “lilt has the ca-

pacity courts lack to base its determinations

on empirical data and national experience,

guided by a professional staff with appropri-

ate expertise.” Kimbrough, 552 U.S., at 109,

128 S.Ct. 558 (internal quotation marks

omitted). Accordingly, we have instructed

that district courts must still give “respectful

a rr ei

4

consideration” to the now-advisory Guide-

lines (and their accompanying policy state-

ments). /d., at 101, 128 S.Ct. 558.

No. 09-6822, 2011 WL 709543, *15 (March 2, 2011).

Furthermore, Booker did not and could not

change the structure of the Guidelines, i.e., that they

are “laws” implemented by Congress. See Pet. 3-4.

Nor has the government cited any court of appeals

case holding that the Guidelines are no longer “laws.”

Even Demaree found that Congress could not evade ex

post facto prohibitions “by delegating penal authority

to an agency.” Demaree, 459 F.3d at 793.

To be sure, the argument in favor of displacing

the Ex Post Facto Clause in federal sentencing de-

pends on the Guidelines’ advisory nature. In Garner,

however, this Court determined that the prohibition

against ex post facto laws does not lose relevance just

because an element of discretion is involved in the

decision-making process. As noted, the government

does not cite or discuss Garner.

Il. The Record Does Not Support The Gov-

ernment’s Argument That The District

Court Would Have Imposed The Same

Sentence In The Face Of Lower Guide-

lines And If There Is Error In Petitioner’s

Guideline Calculation It Would Be For

The District Court To Refashion The Sen-

tence In The First Instance

A. The government invokes a harmless error

argument of sorts. It maintains that the district court

5

“would have imposed the same sentence even if it had

used the 2001 Guidelines as petitioner requested.”

Opp. 14. The record, however, simply does not sup-

port the government’s position. At no time did the

district court state that it would have imposed the

same sentence tif the applicable advisory sentencing

range had been lower. Nor did the district court

articulate any reasons as to why a sentence above the

low-end of the applicable Guidelines range would be

appropriate. It is also clear that the 2008 Guidelines

played a significant role in the court’s choice of sen-

tence. The court sua sponte continued the sentencing

hearing, in part, because it “needled] time ... to

think in terms of the guidelines.” Pet.App. 59. The

district court commenced the next court appearance

(at which it imposed sentence) by stating that it had

“been over what the guidelines are as set forth in the

presentence report.” Pet.App. 61-62. The court fur-

ther noted “that the advisory guideline range is quite

high, 262 months to 327 months.” Pet.App. 53. In

sentencing petitioner to 262 months in prison, the

district court did not select the prison term sentence

out of “thin air,” United States v. Turner, 548 F.3d

1094, 1100 (D.C. Cir. 2008) — it was the low-end of the

sentencing range under the 2008 Guidelines. After

the court imposed the 262-month sentence, petition-

er’s counsel remarked that the sentence did not

“provide for any departure from the bottom of the

guideline range” based on 18 U.S.C. § 3553(a) factors

and petitioner’s cooperation. Pet.App. 69. In response,

the court stressed, “I think the guideline sentence is

the appropriate sentence in this case.” Pet.App. 71.

6

Lastly, under this Court’s decision in Gall v. United

States, 552 U.S. 38, 49 (2007), a sentencing court has

an obligation to compute the Guidelines correctly as

the first step in the sentencing process. If petitioner is

correct in his ex post facto contention, then serious

procedural error — which is not otherwise cured by

the district court’s pronouncements in this case —

infects the sentencing proceeding in this case. See

United States v. Lewis, 606 F.3d 193, 200 (4th Cir.

2010); Pet. 17.

B. The government advances an exotic but

undeveloped law of the case argument. See Opp. 9 n.

3 & 14. The government concedes that the 2001

Guidelines, and 2002 Guidelines for that matter, set

the base offense level at Level 6 for the fraud convic-

tions, as opposed to the Level 7 found by the district

court using the 2008 Guidelines. Petitioner argued in

the court of appeals that the base level should have

been set at Level 6 because he did not face a 20-year

maximum prison sentence for his fraud convictions,

as required to increase the base offense level to Level

7 under U.S.S.G. § 2B1.1(a)(1) (2008). See Opp. 7.

This argument was separate from petitioner’s ex post

facto objection. See United States v. Custable, No. 09-

2593, Deft’s Brief, pp. 12-17. In the court of appeals,

the government conceded error on petitioner’s Guide-

lines-based objection, but the Seventh Circuit did not

7

accept the concession and refused to remand on the

basis of the plain error doctrine.* Pet.App. 4-5.

If petitioner is correct in his ex post facto argu-

ment, then the base offense level undisputedly would

be one-level lower than that found by the district

court. If error infects the sentence, then the sentence

ought to be vacated in its entirety, and left for the

sentencing judge to address the effect of the error. Cf.

Pepper, 2011 WL 709543, *18; Greenlaw v. United

States, 554 U.S. 237, 253-54 (2008); Gardner v. Flori-

da, 430 U.S. 349, 362 (1977). Indeed, this Court

normally formulates the legal rule in a given case —

here, whether the Ex Post Facto Clause applies at

post-Booker sentencings — and leaves harmless error

consideration for the lower courts. E.g., Neder uv.

United States, 527 U.S. 1, 25 (1999); cf. Black uv.

United States, 130 S. Ct. 2963, 2970 (2010); Skilling

v. United States, 130 S. Ct. 2896, 2934 (2010). The

law of the case doctrine would not bind the district

court from Guidelines recalculation, Pepper, 2011 WL

709543, *18-19, including acceptance of the govern-

ment’s concession regarding the grouping error in this

case. See Opp. 9 n. 3. That the court of appeals re-

fused to remand on a separate unpreserved issue

* The government does not invoke plain error as to Ques-

tion 1. Petitioner’s guilty plea declaration, Pet.App. 45-46,

sentencing memorandum/PSR objections, R. 338, and motion to

correct sentence, R. 352, all raised ex post facto objections to

application of the 2008 Guidelines. Petitioner’s written objec-

tions sufficed to preserve the point. See, e.g., United States v.

Smith, 332 F.3d 455, 458 (7th Cir. 2002).

8

thus does not pose an impediment to this Court’s

review.

III. Plain Error Review Of Question 2 Is In-

applicable Because Petitioner Brought

His Ex Post Facto Objection To The Lower

Courts’ Attention

The government attempts to avoid full merits

review of Question 2 on plain error grounds. Rule

52(b) of the Federal Rules of Criminal Procedure

provides, “A plain error that affects substantial rights

may be considered even though it was not brought to

the court’s attention.”

To avoid forfeiture, a litigant must “make timely

assertion of the right before a tribunal having juris-

diction to determine it.” Puckett v. United States, 129

S. Ct. 1423, 1428 (2009) (quoting Yakas v. United

States, 321 U.S. 414, 444 (1944)); see also Johnson v.

United States, 520 U.S. 461, 465 (1997); United States

v. Olano, 507 U.S. 725, 731 (1993). Rule 51(b) of the

Federal Rules of Criminal Procedure describes a

litigant’s responsibilities in this regard:

A party may preserve a claim of error by in-

forming the court — wher the court ruling or

order is made or sought — of the action the

party wishes the court to take, or the party’s

objection to the court’s action and the

grounds for that objection.

9

Puckett discussed the reasons for the plain error

rule:

This limitation on appellate-court authority

serves to induce the timely raising of claims

and objections, which gives the district court

the opportunity to consider and resolve

them. That court is ordinarily in the best po-

sition to determine the relevant facts and ad-

judicate the dispute. In the case of an actual

or invited procedural error, the district court

can often correct or avoid the mistake so that

it cannot possibly affect th. ultimate out-

come. And of course the contemporaneous-

objection rule prevents a litigant from

““sandbagging’” the court — remaining silent

about his objection and belatedly raising the

error only if the case does not conclude in his

favor.

129 S. Ct. at 1428.

The government does not and cannot contend

that petitioner failed to “inform[] the court ... of the

action the party wishe[d] the court to take.” Both in

the written guilty plea declaration, Pet.App. 45-46,

and his written pre-sentencing submission, R. 338,

petitioner informed the district court that he sought

to be sentenced under the 2001 Guidelines (which

called for an offense level 3 levels lower than the 2008

Guidelines). Petitioner also informed the court of the

“grounds for the objection,” i.e., the Ex Post Facto

Clause’s prohibition against retroactive application of

disadvantageous penal provisions. Accordingly, the

PSR expressly recognized that the 2002 Guidelines

10

were more favorable to the defendant.’ PSR 8, 29.

And in his motion to correct sentence, which the

district court addressed on the merits, petitioner re-

asserted his ex post facto-based objection. R. 352.

In addition, both in his sentencing memorandum,

R. 338, and his court of appeals brief, Deft’s Brief, p.

34, petitioner generally cited the Guidelines provision

containing the “one-book rule,” U.S.5.G. §1B1.11.

Petitioner’s goal was to have his Guidelines calculat-

ed on the basis of lower, more advantageous Guide-

lines, and § 1B1.11(b)(1) recognizes that Guidelines

potentially may violate the Ex Post Facto Clause.

Thus, the underlying ex post facto ground for peti-

tioner’s objection was brought to the lower courts’

attention. That petitioner did not emphasize the

aspect of the Guideline that might aid the govern-

ment’s position does not transform the nature of

petitioner’s objection, or work forfeiture of his ex post

facto rights. See, e.g., United States v. O'Neill, 116

F.3d 245, 247 (7th Cir. 1997) (defendant “not required

to adhere to any ‘formalities of language and style’ to

preserve his objection”); cf. United States v. Whitaker,

* The government maintains that the 2002 Guidelines,

rather than 2001 Guidelines, is the germane earlier version of

the Guidelines. Pet. 7-8. insofar as this case is concerned, there

is no material difference between the 2001 and 2002 Guidelines.

Both produced an offense level 3 levels lower than that found by

the district court. Although not discussed in the PSR, the parties

here agree that the 6-level enhancement for more than 250

victims, U.S.S.G. § 2B1.1(b\(2\C), did not go into effect until

January 25, 2003.

11

127 F.3d 595, 601 (7th Cir. 1997) (“Citing the particu-

lar provision of the rule is not necessary if counsel

states the reasons for the objection or ... it is clear

from context.”).

Furthermore, both at the time of his sentencing

and appeal, the Seventh Circuit was firmly en-

trenched in its post-Booker ex post facto position.

Indeed, the Seventh Circuit has/had consistently

refused to reconsider Demavee, see Pet. 14-15, and no

judge on the Seventh Circuit has/had ever questioned

the decision. Obviously, the district court lacked

authority to overturn Demaree. Under the circum-

stances, elaborate arguments were not necessary to

preserve petitioner’s ex post facto objection. As stated

in United States v. Messino, 382 F.3d 704, 714-15 (7th

Cir. 2004) (Easterbrook, J., concurring):

[T]he United States [has] contended that the

defendants had not adequately preserved an

argument based on Blake.y v. Washington,

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403 (2004), and that our review therefore is

limited to a search for plain error. All three

members of the panel disagree with that

position. Both [appellants] advanced in

their opening briefs arguments based on

Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), which

led to Blakely and Booker. True, appellants

did not develop these arguments at length

in either the dist. ict court or their appellate

briefs, but the law was so firmly against

them that elaboration would have been

12

pointless. When precedent is adverse, a few

sentences flagging the point suffice to pre-

serve an argument for resolution by a higher

court.

See also Buchmeier v. United States, 581 F.3d 561,

566 (7th Cir. 2009) (en banc).

Sti more, the government acknowledges that

the courts of appeals are divided on whether the

Ex Post Facto Clause may prevent application of the

“one-book rule.” Opp. 19 n. 7. The Seventh Circuit's

approach is encompassed in United States v. Vivit,

214 F.3d 908, 919 (7th Cir. 2000). As petitioner noted,

Pet. 34, Demaree subsumes Vivit. If the Ex Post Facto

Clause plays no role at a post-Booker sentencing,

then the Clause necessarily would not preclude

application of the “one-book rule.” There is no ques-

tion that petitioner repeatedly challenged and cited

Demaree in the lower courts. Because the action

petitioner sought — use of earlier Guidelines — and the

ground for his objection — the Ex Post Facto Clause —

were brought to the lower courts’ attention, the plain

error rule does not apply to Question 2.

Even if the plain error does apply, petitioner is

eligible for relief. In view of this Court’s treatment of

the Ex Post Facto Clause, it is plain error to increase

punishment through retroactive application of penal

laws. E.g., Miller, 482 U.S. 423.° Here, retroactive

* The government’s theory that there cannot be plain error

if the circuits are split, Pet. 19-20, is unsound, as it fails to

(Continued on following page)

ee

13

application of U.S.S.G. §2B1.1(b\2\C) (2008), re-

sulted in a significant increased risk of additional

punishment. That satisfies the third and fourth

prongs of the plain error rule. Cf. Glover v. United

States, 531 U.S. 198, 202 (2001) (government con-

cedes that an increase in a prison term is prejudicial).

-

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARC W. MARTIN* JEFFREY B. STEINBACK

*Counsel of Record 53 West Jackson Blvd.

MARC MARTIN, LTD. Suite 1442

53 West Jackson Blvd. Chicago, IL 60604

Suite 1420 (847) 624-9600

Chicago, IL 60604

(312) 408-1111

mwm711@mac.com

Counsel for Petitioner

Frank Custable

recognize that the Constitution or a decision of this Court may

be the foundation for a plain error. Under the government’s view,

no defendant would be entitied to relief from this Court if the

circuits are split. While the government’s position may state a

rule for the courts of appeals, it does not state one for this Court.