garcia v. united states - solicitor general's brief

________________________________________________________________ ________________________________________________________________

No. 13-7198 ________________________________________________________________ ________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

ANGEL MONDRAGON GARCIA, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________ DONALD B. VERRILLI, JR. Solicitor General Counsel of Record MYTHILI RAMAN Acting Assistant Attorney General KIRBY A. HELLER Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217

(I)

QUESTION PRESENTED

Whether the government may decline to file a motion for a

third-point reduction in a defendants offense level for

acceptance of responsibility under Sentencing Guidelines

3E1.1(b) based on the defendants refusal to agree to an

appeal waiver as part of a plea agreement.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 13-7198

ANGEL MONDRAGON GARCIA, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. A-F) are

not published in the Federal Reporter.

JURISDICTION

The judgments of the court of appeals were entered on

August 20, 2013. The petition for a writ of certiorari was

filed on October 30, 2013. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following guilty pleas in separate proceedings in the

United States District Court for the Southern District of Texas,

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petitioners were each convicted of illegal reentry after

deportation, in violation of 8 U.S.C. 1326. Petitioner

Mondragon Garcia was sentenced to 51 months of imprisonment, to

be followed by three years of supervised release. Petitioner

Ramirez-Mata was sentenced to 72 months of imprisonment, to be

followed by three years of supervised release. Petitioner Pena-

Medrano was sentenced to 78 months of imprisonment, to be

followed by three years of supervised release. Petitioner

Hernandez Lopez was sentenced to 33 months of imprisonment, to


Castillo-Ramirez was sentenced to 46 months of imprisonment, to


Torres-Torres was sentenced to 38 months of imprisonment, to be

followed by three years of supervised release. The court of

appeals affirmed. Pet. App. A-F.

1. Section 3E1.1 of the advisory Sentencing Guidelines

provides: (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under

subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the

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government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

Sentencing Guidelines 3E1.1 (emphases omitted).

2. a. Petitioner Mondragon Garcia is a citizen of Mexico.

He was removed from the United States in March 2011, following a

state felony conviction for aggravated assault with serious

bodily injury. On April 20, 2012, he was found in the United

States, having reentered illegally. Presentence Investigation

Report (PSR) 3-6.

Petitioner Mondragon Garcia pleaded guilty to the offense

described above without the benefit of a plea agreement. PSR

2. Because petitioner refused to waive his right to appeal,

the government declined to move the court for an additional one-

level reduction for acceptance of responsibility under Section

3E1.1(b). Supplemental Addendum to PSR.

Using the 2011 Sentencing Guidelines Manual, the Probation

Office prepared a PSR that assigned petitioner a base offense

level of eight under Section 2L1.2(a). PSR 11. The Probation

Office added 16 levels under Section 2L1.2(b)(1)(A)(ii) because

petitioner was previously deported after a felony conviction for

a crime of violence. PSR 12. It also included a two-level

reduction under Section 3E1.1(a) for petitioners acceptance of

responsibility. PSR 17. Over petitioners objection, see

Supplemental Addendum to PSR, the Probation Office determined

that petitioner was not entitled to a further one-level

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reduction under Section 3E1.1(b) because the government would

not be moving for such a reduction. PSR 17. Petitioners

total offense level was 22, PSR 18, and he was in criminal

history category III, PSR 22. The resulting advisory

Guidelines range was 51 to 63 months of imprisonment. PSR 46.

The district court adopted the PSR. 5:12cr370 Docket

entry No. (Dkt. No.) 25, at 2-6 (Judgment); 5:12cr370 Dkt. No.

26, at 1 (Statement of Reasons). The court explained that the

Guidelines sentencing range was appropriate considering all the

3553(a) factors because of the violent nature of [the conduct

underlying the state conviction] and, in addition to that, the

drinking and the drug use and then returning to * * * the

country shortly after a year of having been deported.

5:12cr370 Dkt. No. 30, at 18-19 (Sent. Tr.). The court

sentenced petitioner Mondragon Garcia to 51 months of

imprisonment. Id. at 20.

b. Petitioner Ramirez-Mata is a citizen of Mexico. He was

removed from the United States in September 2011, following a

state felony conviction for aggravated assault with a deadly

weapon. He was found in the United States on March 6, 2012,

having reentered illegally. Petitioner Ramirez-Mata pleaded

guilty to unlawfully reentering the United States after

deportation. Petitioner entered his plea without the benefit of

a plea agreement. PSR 2-7.

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The Probation Office calculated petitioner Ramirez-Matas

adjusted offense level as 24 and credited him with two levels

for his acceptance of responsibility. PSR 17, 18. With a

total offense level of 22 and a criminal history category of IV,

petitioners advisory Guidelines range was 63 to 78 months of

imprisonment. PSR 57. Petitioner objected to the

governments failure to move for an additional one-level

reduction for acceptance of responsibility under Section

3E1.1(b). Supplemental Addendum to PSR.

The district court adopted the PSR. 5:12cr246 Docket entry

No. (Dkt. No.) 31, at 2-6 (Judgment); 5:12cr246 Dkt. No. 32, at

1 (Statement of Reasons). At sentencing, the court acknowledged

petitioners horrible [criminal] record, 5:12cr246 Dkt. No.

36, at 12, 18, 20 (Sent. Tr.), noting that it was violent and

aggressive, id. at 18. Although the court struggled with

whether to do an upward variance, id. at 19, it ultimately

imposed a within-Guidelines sentence of 72 months of

imprisonment, id. at 25.

c. Petitioner Pena-Medrano is a citizen of Honduras. He

was removed from the United States in January 2011, following a

state felony conviction for indecent contact with a child. He

was found in the United States on February 19, 2012, having

reentered illegally. Petitioner pleaded guilty to unlawfully

reentering the United States after having been removed.

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Petitioner entered his plea without the benefit of a plea

agreement. PSR 3-5, 7.

The PSR calculated petitioner Pena-Medranos adjusted

offense level as 24 and credited him with two levels for his

acceptance of responsibility. PSR 18, 19. With a total

offense level of 22 and a criminal history category of IV,

petitioners advisory Guidelines range was 63 to 78 months of

imprisonment. PSR 43. Petitioner Pena-Medrano objected to

the governments failure to file a motion for an additional

point under Section 3E1.1(b). Petitioners Objections to the

PSR 1-5.



1 (Statement of Reasons). In considering the appropriate

sentence, the court noted petitioners violent criminal record

and repeated illegally reentries, which it thought warranted a

sentence at the high end of the sentencing range. 5:12cr213

Dkt. No. 35, at 14-15 (Sent. Tr.). It sentenced petitioner to

78 months of imprisonment. Id. at 15.

d. Petitioner Hernandez Lopez is a citizen of Mexico. He

was removed from the United States in December 2011, following a

state felony conviction for robbery, and he illegally reentered

the United States on April 20, 2012. He pleaded guilty to

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unlawful reentry after deportation. Petitioner entered his plea

without the benefit of a plea agreement. PSR 2-4, 6.

The Probation Office calculated petitioner Hernandez

Lopezs adjusted offense level as 20 and credited him with two

levels for his acceptance of responsibility. PSR 17, 18.

With a criminal history category of III and a total offense

level of 18, his advisory Guidelines range was 33 to 41 months

of imprisonment. PSR 51. Petitioner Hernandez Lopez objected

to the governments failure to move for a one-level reduction

under Section 3E1.1(b). Petitioners Objections to the PSR 1.

The district court adopted the PSR and sentenced petitioner

Hernandez Lopez to 33 months of imprisonment. 5:12cr433 Dkt.


28, at 1 (Statement of Reasons); 5:12cr433 Dkt. No. 35, at 16

(Sent. Tr.).

e. Petitioner Castillo-Ramirez is a citizen of Nicaragua.

He was removed from the United States in April 2011, following a

state felony conviction for robbery. On May 31, 2012,

petitioner Castillo-Ramirez illegally reentered the United

States. He pleaded guilty to unlawful reentry without the

benefit of a plea agreement. PSR 3-5, 7-9.

The Probation Office calculated petitioner Castillo-

Ramirezs adjusted offense level as 24, his total offense level

as 22, and his criminal history category as II. PSR 18, 22,

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24. His Guidelines range was 46 to 57 months of imprisonment.

PSR 43. Petitioner objected to the governments failure to

move for a one-level reduction for acceptance of responsibility

under Section 3E1.1(b). Petitioners Objections to the PSR 1.

The district court adopted the PSR and sentenced petitioner

Castillo-Ramirez to 46 months of imprisonment. 5:12cr547 Docket


36, at 1 (Statement of Reasons); 5:12cr547 Dkt. No. 34, at 7

(Sent. Tr.).

f. Petitioner Torres-Torres is a citizen of Mexico. He

was removed from the United States on June 5, 2012, following a

state felony conviction for burglary with intent to commit

theft, and he illegally reentered the United States on June 15,

2012. He was on supervised release at the time. Petitioner

Torres-Torres pleaded guilty to unlawful reentry without a plea

agreement. PSR 2-7, 26.

The Probation Office calculated petitioner Torres-Torress

adjusted offense level as 16 and his total offense level as 14,

after crediting him with two levels for acceptance of

responsibility. PSR 17, 18, 20. With a criminal history

category of V, his advisory Guidelines range was 33 to 41 months

of imprisonment. PSR 50. Petitioner objected to the

governments failure to move for a one-level reduction for

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acceptance of responsibility under Section 3E1.1(b).

Petitioners Objections to the PSR 3.



1 (Statement of Reasons). The district court noted that

petitioner Torres-Torres had an extensive criminal history of

convictions, including some very serious matters, and

sentenced him to 38 months of imprisonment on the offense of

conviction. 5:12cr602 Dkt. No. 38, at 11, 13-15 (Sent. Tr.).

The court also revoked petitioner Torres-Torress supervised

release and sentenced him to a consecutive 14-month term of

imprisonment. Id. at 15.

3. The court of appeals affirmed in unpublished opinions.

Pet. App. A-F. On appeal, each petitioner argued that the

government had no authority to refuse to move for a third-point

reduction under Sentencing Guidelines 3E1.1(b) based on a

refusal to enter into a plea agreement containing an appeal

waiver. The court of appeals held that that argument was

foreclosed by United States v. Newson, 515 F.3d 374 (5th Cir.),

cert. denied, 553 U.S. 1074 (2008), which held that a

defendants refusal to waive his right to appeal is a proper

basis for the Government to decline to make * * * a motion

[under Section 3E1.1(b)], as it is rationally related to the

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purpose of the rule and is not based on an unconstitutional

motive. Id. at 378.

DISCUSSION

Petitioners renew (Pet. 9-17) their contention that the

government may not base a refusal to file a motion for a third-

point reduction for acceptance of responsibility under

Sentencing Guidelines 3E1.1(b) on a defendants refusal to

agree to an appeal waiver. Plenary review of the court of

appeals decisions is not warranted. In November 2013, the

United States Sentencing Commission amended the commentary to

Section 3E1.1(b) to clarify that [t]he government should not

withhold * * * a motion [under Section 3E1.1(b)] based on

interests not identified in 3E1.1, such as whether the

defendant agrees to waive his or her right to appeal.

Sentencing Guidelines 3E1.1, comment. (n.6). In the view of

the United States, petitioners are entitled to the benefit of

that amendment. Accordingly, the petition should be granted,

the judgment vacated, and the case remanded for further

proceedings consistent with the position expressed in this

brief.

1. Under the Sentencing Guidelines, a defendant who

clearly demonstrates acceptance of responsibility for his

offense is entitled to a two-level decrease in his offense

level. Sentencing Guidelines 3E1.1(a). A defendant may

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receive a third-level reduction in offense level only upon

motion by the government attesting to certain benefits flowing

from a timely notice of an intent to plead guilty. Sentencing

Guidelines 3E1.1(b).

The requirement that the government file a motion before a

defendant may receive the third-point reduction was inserted by

Congress in 2003, when it amended Section 3E1.1 as part of the

Prosecutorial Remedies and Other Tools to end the Exploitation

of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21,

401(g), 117 Stat. 671-672 (also amending the Sentencing

Guidelines application notes and background commentary). The

PROTECT Act prohibits the Sentencing Commission from

promulgat[ing] any amendment that would alter or repeal the

Acts amendments to Section 3E1.1 and its accompanying

commentary. 401(j)(4), 117 Stat. 673.

2. After the court of appeals affirmed the judgments at

issue here, the Sentencing Commission amended the commentary to

Section 3E1.1(b). The amendment provides that [t]he government

should not withhold * * * a motion [under Section 3E1.1(b)]

based on interests not identified in 3E1.1, such as whether

the defendant agrees to waive his or her right to appeal.

Sentencing Guidelines 3E1.1, comment. (n.6). The Commission

promulgated the amendment to resolve a circuit conflict on

whether the government may withhold a motion [for a third

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acceptance-of-responsibility point] based on an interest not

identified in 3E1.1, such as the defendants refusal to waive

his right to appeal. Sentencing Guidelines Supp. to App. C,

Amend. 775 (effective Nov. 1, 2013). The amendment rejected the

position that the court of appeals had taken in United States v.

Newson, 515 F.3d 374 (5th Cir.), cert. denied, 553 U.S. 1074

(2008), and applied in these cases.

This Court should vacate the judgment below and remand the

case so the court of appeals can consider the 2013 amendment to

the commentary to Section 3E1.1(b). Whether a court of appeals

should consider an amendment, even though it was not effective

at the time of sentencing, depends on whether the amendment

substantively changes or merely clarifies the meaning of a

guideline. United States v. Nissen, 928 F.2d 690, 694-695 (5th

Cir. 1991) (per curiam); see also, e.g., United States v.

Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011); United States

v. Geerken, 506 F.3d 461, 465 (6th Cir. 2007); United States v.

Morgan, 376 F.3d 1002, 1010 (9th Cir. 2004); United States v.

Crudup, 375 F.3d 5, 8-9 (1st Cir. 2004); United States v.

Marmolejos, 140 F.3d 488, 491 (3d Cir. 1998); United States v.

Mondaine, 956 F.2d 939, 942 (10th Cir. 1992); cf. Sentencing

Guidelines 1B1.11(b)(2) (stating that if a court applies an

earlier edition of the Guidelines Manual, the court shall

consider subsequent amendments, to the extent that such

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amendments are clarifying rather than substantive changes).

The Commission did not label Amendment 775 as either clarifying

or substantive. As discussed above, however, Congress amended

Section 3E1.1 in 2003 and specifically instructed the Commission

not to alter or repeal those changes. PROTECT Act

401(j)(4), 117 Stat. 673. The 2013 amendment, accordingly,

did not alter the text of the Guideline; it simply added two

sentences to the text of the commentary. The amendment,

moreover, did not contradict the previous version of the

commentary, instead serving a supplementary function. See

Jerchower, 631 F.3d at 1185 (listing the aforementioned

considerations as significant in determining whether an

amendment to the Guidelines is substantive or clarifying). And,

after the Commission submitted the amendment to Congress more

than 180 days before its effective date, Congress allowed

Amendment 775 to go into effect. See 28 U.S.C. 994(p); cf.

Kimbrough v. United States, 552 U.S. 85, 106 (2007).

Given the Commissions cognizance that Congress had

directed it not to alter or repeal the congressionally added

language in Section 3E1.1(b) and its accompanying commentary,

see Sentencing Guidelines Supp. to App. C, Amend. 775 (effective

Nov. 1, 2013) (quoting PROTECT Act 401(j)(4), 117 Stat. 673),

Amendment 775 is properly understood as clarifying Section

3E1.1(b), rather than substantively altering it. The Commission

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examined the PROTECT Act and could discern no congressional

intent to allow decisions under 3E1.1 to be based on interests

not identified in 3E1.1. Sentencing Guidelines Supp. to App.

C, Reason for Amend. 775. The Commission also concluded that

the defendants waiver of his or her right to appeal is an

example of an interest not identified in 3E1.1. Ibid. It

therefore resolved the circuit split in accordance with its

understanding of congressional intent. As such, the amendment

should be considered in these cases even though it was not

effective at the time of sentencing. The court of appeals

should therefore have the opportunity to consider the effect of

Amendment 775 on the sentences in these cases.

The courts of appeals have not come to any consensus on

whether the amendment to the commentary to Section 3E1.1(b) is substantive or clarifying. See United States v. Mora-Fernandez, No. 13-40221, 2013 WL 6247437, at *2 (5th Cir. Dec. 4, 2013) (per curiam) (concluding that the amendment is substantive); United States v. Rivas-Meneses, No. 11-50469, 2013 WL 6730727, at *1 (9th Cir. Dec. 23, 2013) (vacating defendants sentence and remanding for resentencing in light of the amendment to the commentary, thereby suggesting that the amendment is clarifying).

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CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment of the court of appeals vacated, and the case

remanded to the court of appeals for further proceedings in

light of the position expressed in this brief.

Respectfully submitted.

DONALD B. VERRILLI, JR. Solicitor General MYTHILI RAMAN Acting Assistant Attorney General KIRBY A. HELLER Attorney FEBRUARY 2014

garcia v. united states - solicitor general's brief

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