# Reply Brief — Custable v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 917

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2732%3A3. Public record. Not legal advice.