________________________________________________________________ ________________________________________________________________ No. 13-6733 ________________________________________________________________ ________________________________________________________________ IN THE SUPREME COURT OF THE UNITED STATES _______________ MICHAEL SNIPES, PETITIONER v. UNITED STATES OF AMERICA _______________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________ BRIEF FOR THE UNITED STATES _______________ DONALD B. VERRILLI, JR. Solicitor General Counsel of Record MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney Department of Justice Washington, D.C. 20530-0001 [email protected](202) 514-2217
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Michael Snipes v. United States (Solicitor General’s Brief)
Supreme Court reverses with instructions for Sixth Circuit to take into account this brief.
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ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES
_______________ DONALD B. VERRILLI, JR. Solicitor General Counsel of Record MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217
(I)
QUESTION PRESENTED
Whether the court of appeals erred in denying petitioner’s
application for a certificate of appealability to appeal the
district court’s denial of his motion to vacate his mandatory
life sentence under 28 U.S.C. 2255(a), when intervening
precedent establishes that petitioner’s mandatory life sentence
was imposed in error.
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 13-6733
MICHAEL SNIPES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES
_______________
OPINIONS BELOW
The order of the court of appeals denying petitioner’s
application for a certificate of appealability (Pet. App. 22-24)
is unpublished and unreported. A prior unpublished opinion of
the court of appeals in petitioner’s case is reprinted in 236
Fed. Appx. 996.
JURISDICTION
The judgment of the court of appeals was entered on July 2,
2013. The petition for a writ of certiorari was filed on
September 30, 2013. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
2
STATEMENT
In 2003, following a guilty plea in the United States
District Court for the Eastern District of Tennessee, petitioner
was convicted of conspiracy to possess 50 grams or more of
cocaine base and 500 grams or more of cocaine with intent to
distribute them, in violation of 21 U.S.C. 846 and 841(a)(1).
He was sentenced to a mandatory term of life imprisonment. See
21 U.S.C. 841(b)(1)(A). The court of appeals affirmed. 236
In 2007, petitioner filed a motion to vacate his sentence
under 28 U.S.C. 2255(a). The district court sua sponte
dismissed four of the six claims for relief on procedural
grounds. Pet. App. 4. Petitioner appealed, and the court of
appeals dismissed the appeal. Petitioner then filed a motion to
supplement his Section 2255 motion to assert that intervening
precedent established that his mandatory life sentence had been
erroneously imposed. Id. at 14. The district court denied
petitioner’s Section 2255 motion and his motion to supplement,
and it also denied petitioner’s application for a certificate of
appealability (COA). Id. at 21. Petitioner sought a COA from
the court of appeals on the question whether his mandatory life
sentence was imposed in error. The court of appeals declined to
issue a COA. Id. at 22-24.
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1. a. From 2001 to 2003, petitioner supplied large
quantities of crack and powder cocaine to various confederates
as part of a drug distribution operation in and around Johnson
City, Tennessee. Presentence Investigation Report (PSR) ¶ 6.
In September 2003, a federal grand jury indicted petitioner for
conspiracy to distribute and possess with intent to distribute
50 grams or more of cocaine base and 500 grams or more of
cocaine, in violation of 21 U.S.C. 846 and 841(a)(1).
Under the law then in effect,1 a first-time offender
convicted of an offense involving the charged drug quantities
faced a mandatory minimum sentence of ten years of imprisonment
and a maximum sentence of life. See 21 U.S.C. 841(b)(1)(A)(iii)
(2000). If the offender’s criminal history included “a prior
conviction for a felony drug offense,” then the offender was
subject to a mandatory minimum sentence of 20 years of
imprisonment and a maximum sentence of life. Ibid. And an
offender with “two or more prior convictions for a felony drug
offense [that] have become final” faced “a mandatory term of
life imprisonment without release.” Ibid. A “felony drug
1 In 2010, the Fair Sentencing Act of 2010 (FSA), Pub. L.
No. 111-220, 124 Stat. 2372, raised the threshold quantity of cocaine base triggering a ten-year minimum sentence from 50 to 280 grams. Petitioner, however, was sentenced years before the FSA’s effective date, and the amended drug quantities apply only to post-FSA sentencings. See Dorsey v. United States, 132 S. Ct. 2321 (2012). Petitioner does not rely on the FSA here.
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offense” is defined as a federal, state, or foreign drug offense
“that is punishable by imprisonment for more than one year.” 21
U.S.C. 802(44). A court may not impose a recidivism-based
statutory enhancement unless the government files an information
that notifies the defendant of the prior convictions triggering
the enhancement. 21 U.S.C. 851(a)(1).
On December 22, 2003, the government filed a notice under
Section 851 indicating its intent to seek an enhanced sentence
in the event of a conviction. The notice alleged that
petitioner had two prior convictions for a “felony drug
offense”: (1) a September 2, 1997, North Carolina state court
conviction for possession with intent to sell and deliver
cocaine, and (2) a March 29, 1999, North Carolina state court
conviction for possession with intent to sell and deliver
marijuana. See 2:03-cr-70-1 Docket entry No. (Docket No.) 14
(Dec. 22, 2003) (Notice); see also PSR ¶¶ 38 (1997 conviction),
41 (1999 conviction).
North Carolina employs a determinate sentencing scheme in
which each defendant’s sentencing range is determined by
considering his offense, his prior convictions, and any
mitigating or aggravating factors. See United States v.
Simmons, 649 F.3d 237, 239-240 (4th Cir. 2011) (en banc). At
the time of petitioner’s conviction and sentencing, no binding
Sixth Circuit precedent established how to determine whether a
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prior North Carolina conviction was “punishable” by more than
one year for purposes of Section 802(44). The Fourth Circuit
had held that courts were to determine whether a prior North
Carolina conviction “is for a crime punishable by a prison term
exceeding one year” -- i.e., is a “felony drug offense” under
Section 802(44) -- by ascertaining whether “any defendant,”
including one with the worst possible criminal history, could
have received a sentence exceeding one year for that offense.
United States v. Harp, 406 F.3d 242, 246 (4th Cir.) (describing
the Fourth Circuit’s approach to evaluating North Carolina
convictions, as set forth in United States v. Jones, 195 F.3d
v. United States, 553 U.S. 137 (2008), which held that a state
conviction for drunk driving is not a “violent felony” for
purposes of the recidivist sentencing enhancement Armed Career
Criminals Act, announced a substantive rule of statutory
construction that is retroactive to cases on collateral review).
2 Petitioner incorrectly states that Miller held that
Simmons involved a “new rule of constitutional law that applies retroactively on collateral review.” Pet. 5 (emphasis added). Simmons’s holding rested on statutory construction, not constitutional interpretation.
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Under the analysis set forth in Pruitt and Simmons,
petitioner’s prior North Carolina convictions were not properly
classified as felonies because his criminal record did not
subject him to a sentence of at least one year in prison.
Petitioner is therefore correct that he did not have two prior
convictions for a “felony drug offense” and that he should not
have been subject to a mandatory life sentence under Section
841(b)(1)(A)(iii).
b. The erroneous imposition of a mandatory minimum
sentence is a constitutional error sufficient to support
issuance of a COA. See 28 U.S.C. 2253(c)(2). A defendant
convicted of a drug offense under Section 841 involving the
quantities of cocaine at issue here, with no qualifying prior
“felony drug offense[s],” ordinarily would have faced a
statutory sentencing range of ten years to life. 21 U.S.C.
841(b)(1)(A)(iii) (2000). Petitioner, however, was subject to a
mandatory minimum sentence of life imprisonment based on the
sentencing court’s conclusion that petitioner had two prior
“felony drug offense[s].” That conclusion is erroneous under
Pruitt, and the error is a substantive one that may be raised on
collateral review. The error also produced a due process
violation by depriving the sentencing court of discretion to
impose a lower sentence (between ten years and life) after
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considering all of the mitigating and aggravating factors
surrounding the offense.
This Court has held that a similar error -- the erroneous
imposition of a mandatory minimum sentence under state law and
the resulting deprivation of sentencing discretion -- violated
due process. In Hicks v. Oklahoma, 447 U.S. 343 (1980), Hicks
received a mandatory 40-year sentence that was later shown to be
erroneous under state law. Id. at 345-346. The state court
nevertheless affirmed Hicks’ 40-year sentence on the ground that
it was “within the range of punishment that could have been
imposed in any event.” Id. at 345. This Court reversed,
holding that the erroneous mandatory minimum violated Hicks’ due
process rights because Hicks “ha[d] a substantial and legitimate
expectation that he [would] be deprived of his liberty only to
the extent determined by the jury in the exercise of its
statutory discretion, and that liberty interest is one that the
Fourteenth Amendment preserves against arbitrary deprivation by
the State.”3 Id. at 346 (citation omitted). In light of Hicks,
life sentence would find it at least debatable that the
3 Although the sentencer that was improperly deprived of all
discretion in Hicks was the jury, Hicks “is not, however, limited to imposition of sentences by juries.” Prater v. Maggio, 686 F.2d 346, 350 n.8 (5th Cir. 1982).
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sentencing court’s erroneous deprivation of all discretion to
impose a lesser sentence violated due process.
3. In this case, the lower courts did not consider whether
petitioner had made a substantial showing that his life sentence
violates due process because they denied petitioner a COA on
procedural grounds. Petitioner can show, however, “that jurists
of reason would find it debatable whether” the lower courts were
“correct in [their] procedural ruling[s].” Gonzalez, 132 S. Ct.
at 648.
The district court held that petitioner’s sentencing
challenge was time-barred, Teague-barred, and procedurally
defaulted, and the court of appeals held that petitioner’s claim
was encompassed within his plea-agreement waiver of his right to
collaterally attack his sentence. Pet. App. 16-19, 23-24. Both
courts raised these defenses sua sponte, without inviting the
government to respond to petitioner’s Simmons claim, which he
raised in a motion to supplement after the government had filed
its response to the claims asserted in petitioner’s initial
Section 2255 motion. The lower courts had discretion to raise
these defenses on their own motion. See Day v. McDonough, 547
U.S. 198, 205-206 (2006) (holding that courts may raise AEDPA
statute of limitations sua sponte; also noting that courts of
appeals have held courts may raise procedural default sua
sponte); Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (non-
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retroactivity); see also Jones, 689 F.3d at 624 n.1 (plea
agreement waivers).
Reasonable jurists could conclude, however, that the lower
courts abused their discretion by not affording the parties an
opportunity to comment on the propriety of raising these
defenses. As this Court recently explained with respect to the
statute of limitations defense, “a federal court does not have
carte blanche to depart from the principle of party presentation
basic to our adversary system,” and a court may choose to raise
the limitations defense sua sponte only where “the State does
not ‘strategically withh[o]ld the defense or cho[o]se to
relinquish it,’ and where the petitioner is accorded a fair
opportunity to present his position.” Wood v. Milyard, 132 S.
Ct. 1826, 1833-1834 (2012). The Court thus recognized that the
government may, in an appropriate case, deliberately and
consciously decline to assert non-jurisdictional defenses.4 Id.
at 1834. When the government does so, “[i]t would be an abuse
of discretion * * * for a court” to address the defense and
thereby “override a State’s deliberate waiver.” Ibid.
4 For the reasons discussed above, the district court erred
in holding that the rule announced in Pruitt and Simmons is not retroactive. See pp. 14-15, supra; Pet. App. 16. But even if the rule were not retroactive, the government would be entitled to waive the affirmative defense of non-retroactivity in appropriate cases. See Danforth v. Minnesota, 552 U.S. 264, 289 (2008) (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990)).
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The lower courts thus erred by not affording the parties
the opportunity to express their views on the propriety of
raising the defenses on which the courts relied, all of which
were non-jurisdictional and therefore waivable. Had the courts
done so, the government would have had an opportunity to decide
whether the interests of justice counseled in favor of waiving
the defenses and permitting the lower courts to reach the merits
of petitioner’s claim. See, e.g., Mungro v. United States, Nos.
5:11–cv–141–RLV & 5:04–cr–18–RLV–CH–1, 2013 WL 6800822, at *6-*7
at *1, *3 (W.D.N.C. Dec. 18, 2013) (granting Simmons relief
after government “declined to enforce” the defendant’s plea-
agreement waiver of the right to collaterally attack his
sentence).
Because petitioner can demonstrate that “jurists of reason
would find it debatable whether” he has asserted a valid claim
of the denial of a constitutional right and whether the district
court’s procedural rulings were correct, Gonzalez, 132 S. Ct. at
648, the court of appeals erred in denying a COA.
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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 MICHAEL A. ROTKER Attorney JANUARY 2014