The circuit split regarding Freeman v. United States: Can a criminal defendant seek a lower sentence under a retroactive sentencing amendment if that defendant entered a binding plea agreement?

The following are excerpts of a Petition for a Writ of Certiorari I filed in the Supreme Court in 2016 in McNeese v. United States, No. 16-66.  The Government filed this Opposition, and I filed this Reply.  The Court denied certiorari.    


The circuits are fully split ten to two whether Justice Sotomayor’s concurring opinion in Freeman v. United States, 546 U.S. 522 (2011), is the controlling opinion of the Court.  Freeman is a 4-1-4 decision regarding whether a defendant is eligible to seek a lower sentence under a retroactive sentencing amendment if that defendant had entered a binding plea agreement.  The en banc Ninth Circuit just answered this question, joining the D.C. Circuit and voting 10-1 that Justice Sotomayor’s opinion is not controlling—in conflict with ten circuits, including the court below.  See United States v. Davis, No. 13-30133, 2016 U.S. App. LEXIS 10661 (9th Cir. June 13, 2016) (en banc).

The question presented is as follows: 

Is Justice Sotomayor’s concurring opinion in Freeman the controlling opinion of the Court?



Underlying Facts

Robert McNeese was a part owner and supervisory pharmacist at a pharmacy in Tennessee.  He had no criminal history.  In July 2010, a customer visited the pharmacy to solicit sponsorships for a rodeo that he was supposedly organizing to benefit children with disabilities.  McNeese agreed to sponsor the rodeo.  In the following months, this customer returned to McNeese several times to ask for money, which McNeese agreed to lend.  The customer ultimately admitted to McNeese that he was addicted to opioids and had been using McNeese’s money to buy drugs.  The customer asked McNeese for help with his addiction, and McNeese gave him a few pills to treat opioid addiction.  The customer’s addiction only grew worse, and McNeese began giving him oxycodone pills to lessen the withdrawal symptoms.  By March 2011, McNeese was providing the customer with between 100 and 150 free pills weekly. 

When McNeese sought to end the arrangement, the customer threatened to go to the police.  Wary of the consequences for himself and his family, McNeese continued providing the pills.  The customer’s cohorts learned what McNeese was doing, and they demanded pills for themselves, similarly threatening to inform police if McNeese did not cooperate.  So McNeese gave them pills as well.  Before long, McNeese had provided thousands of pills. 

By end July 2011, the situation had spiraled out of control and was becoming unbearable.  McNeese contacted law enforcement to put a stop to everything.  He gave a recorded admission of his involvement in illegally providing oxycodone, and he assisted authorities in identifying and apprehending the others involved.  A DEA audit of the pharmacy revealed a shortage of more than 20,000 oxycodone pills.  McNeese never profited; he gave the pills away.


Charges and Sentencing

McNeese was indicted on various charges and ultimately entered a written plea agreement, pleading guilty to conspiring to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1).  The agreement stated that McNeese cooperated with authorities and stipulated to distributing at least 15,850 oxycodone pills, which converts to 2999.925 kilograms of marijuana for sentencing purposes.  Under Rule 11(c)(1)(C), McNeese and the Government agreed to a proposed sentence of 63 months’ imprisonment plus three years of supervised release. 

The plea agreement did not state the Sentencing Guidelines range from which the 63 months was derived, though later proceedings revealed the applicable range and factors underlying McNeese’s and the Government’s decision to enter agreement. 

The Presentence Report showed the applicable range.  For this amount of marijuana (2999.925 kg), the base offense level was 32.  After various adjustments (safety valve, role adjustment, and acceptance of responsibility), the resulting offense level was 29.  With a criminal-history category I (no criminal history), McNeese’s sentencing range was 87 to 108 months in prison.

At sentencing, the Government explained that it factored in an additional three-level reduction for McNeese’s substantial assistance, resulting in an offense level of 26 and a Guidelines range of 63 to 78 months.  Arguing for the court to approve the plea agreement, the Government explained that the 63-month sentence fell within the Guidelines range.  On June 24, 2013, the court approved the agreement and accordingly sentenced McNeese to 63 months in prison plus three years of supervised release.  (Pet. App. 33–34.)


Motion to Reduce Sentence

In 2014, the Sentencing Commission issued Amendment 782 to the Guidelines, which lowered the base offense levels for various drug crimes, including distributing oxycodone.  See U.S.S.G. App. C. Amend. 782, at 64–71 (Supp. 2014).  The Commission also issued Amendment 788, which made Amendment 782 retroactive.  See U.S.S.G. App. C. Amend.  788, at 86–87 (Supp. 2014).

McNeese filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), which allows a court to reduce a defendant’s sentence if the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

The question, then, was whether McNeese had been sentenced based on a sentencing range that has been lowered (making him eligible for a reduction) or whether he had solely been sentenced based on the plea agreement (making him arguably ineligible).  This Court had addressed that question in Freeman v. United States, 564 U.S. 522 (2011), but issued a 4-1-4 decision.  Four justices concluded that such sentences in plea agreements are always based on a sentencing range when the range is part of the judge’s ultimate decision (which occurs in effectively all cases), four justices in dissent concluded that such sentences are never based on a sentencing range (they are based on the agreement only), and Justice Sotomayor issued a concurring opinion, stating that the defendant could be eligible for the reduction only if the sentencing range is evident from the plea agreement itself.


District Court

The district court denied McNeese’s motion.  The court explained that the Sixth Circuit had already determined that Justice Sotomayor’s opinion was controlling and further stated that McNeese’s plea agreement did not express a specific Guidelines range.  (Pet. App. 25–30.)  Thus, McNeese was not eligible for relief under Justice Sotomayor’s opinion.  The district court noted, however, that it was “certainly clear” how the 63-month sentence was reached with respect to the Guidelines, as acknowledged in the PSR and arguments of counsel at sentencing.  (Id. at 29.)  Thus, the court indicated that, if the Freeman plurality’s framework controlled, “the result would likely be different.”  (Id.)


Sixth Circuit

McNeese appealed to the Sixth Circuit, acknowledging that the court was bound by Sixth Circuit precedent that had already held that Justice Sotomayor’s Freeman opinion was the opinion of the Court—despite the contrary view of the D.C. Circuit.  (McNeese’s Sixth Cir. Br. at 18–19.)  McNeese attempted to argue that he was still eligible for a reduction even under the framework of Justice Sotomayor’s opinion.

The Sixth Circuit affirmed, denying relief.  The Court explained that it had “identified Justice Sotomayor’s concurring opinion as providing the framework that governs” this inquiry.  (Pet. App. 11.)  The Court stated that “[t]his case tests the boundaries of what it means for a sentence under a Rule 11(c)(1)(C) plea agreement to be ‘based on’ a Guidelines range.”  (Id. at 2–3.)  The Sixth Circuit acknowledged that the PSR and the sentencing hearing made clear that the agreement’s sentence “did in fact derive from a Guidelines sentencing range,” (id. at 16), but held that McNeese was not eligible for relief because the agreement itself did not refer to the range.  (Id. at 19.)

Not long after the Sixth Circuit’s decision here, the Ninth Circuit addressed the same issue en banc, voting 10-1 that Justice Sotomayor’s opinion is not controlling and that defendants such as McNeese are eligible for a sentence reduction.  In the District of Columbia and throughout the Ninth Circuit, the result would be different for McNeese and his family.

McNeese now petitions for a writ of certiorari.



The circuits are fully split regarding whether Justice Sotomayor’s opinion in Freeman is controlling.  Nearly every circuit (including the Ninth) initially held—without detailed analysis—that her opinion is controlling, but the D.C. Circuit broke ranks and concluded otherwise.  After considering the D.C. Circuit’s reasoning, the en banc Ninth Circuit recently voted 10-1 to adopt the D.C. Circuit’s approach, overrule its own precedent, and hold that Justice Kennedy’s plurality opinion in Freeman is most persuasive.  The current disarray in the circuits is resulting in arbitrary sentences for defendants such as McNeese. 

This case presents the ideal vehicle to resolve the split, and this question is vitally important.  Not only does the issue affect all criminal defendants in McNeese’s position, it reveals the courts are sharply divided on how they should exercise one of their most fundamental duties: Interpreting this Court’s fractured decisions under the rule of Marks v. United States, 430 U.S. 188 (1977). The Marks inquiry has “baffled and divided the lower courts that have considered it,” Nichols v. United States, 511 U.S. 738, 746 (1994), and it is precisely what caused the split here.  This case presents the opportunity to clarify that fundamental issue of judicial interpretation.  Certiorari should be granted.

I.          The circuits are split whether Justice Sotomayor’s opinion in Freeman controls.

A.                The Freeman decision.

As noted, the Freeman vote was 4-1-4 on the question whether a defendant is eligible for sentence reduction if that defendant entered a binding plea agreement, i.e., whether that defendant’s sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  18 U.S.C. § 3582(c)(2). 

In an opinion by Justice Kennedy—joined by Justices Ginsburg, Breyer, and Kagan—a four-justice plurality concluded that such defendants are always eligible for a sentencing reduction, regardless of the language of the plea agreement, when the sentence is imposed in light of the Guidelines.  564 U.S. at 530.  This is because the Guidelines typically provide the starting point for the judge’s exercise of discretion when imposing the ultimate sentence, even where there is a binding plea agreement that does not express that sentencing range.  Id. at 529. 

In a dissenting opinion by Chief Justice Roberts—joined by Justices Scalia, Thomas, and Alito—the four dissenters concluded that such defendants are never eligible for a sentencing reduction because a sentence imposed under a binding plea agreement is based on the plea agreement, not on the Guidelines range.  Id. at 549–50 (Roberts, J., dissenting).

Justice Sotomayor issued a concurring opinion, concluding that such defendants are eligible for a reduction only if the Guidelines range to establish the sentence is “evident from the agreement itself.”  Id. at 539 (Sotomayor, J., concurring).  In her view, this meant that the sentence imposed was “based on” the Guidelines such that the defendant was eligible for relief.  Because Freeman’s plea agreement expressly relied on the Guidelines, she agreed with the plurality that he was eligible for relief and concurred in the judgment.  Id. at 544.

The other eight Justices did not agree with Justice Sotomayor’s view.  The plurality explained that her opinion erroneously relies solely upon the plea agreement and on what motivated the parties to agree to the fixed sentence, instead of the reasons for the judge’s sentence—which virtually always involve the Guidelines.  Id. at 533.  The plurality further stated that Justice Sotomayor’s view would create significant problems where certain defendants would not be eligible for a reduction merely because their agreements didn’t explicitly reference the Guidelines, allowing the very disparities in sentences that the Sentencing Reform Act seeks to eliminate.  Id.  The dissenters also criticized Justice Sotomayor’s distinction between defendants who merely negotiated their plea agreement based on the Guidelines and those whose plea agreement actually referenced the Guidelines as well: “This head-scratching distinction between negotiating by reference to the Guidelines and using them as a basis for the specified term makes for an unworkable test that can yield only arbitrary results.”  Id. at 546–47 (Roberts, J., dissenting.)  In sum, eight Justices concluded that Justice Sotomayor’s approach was improper and would lead to arbitrary results for criminal defendants.

The Chief Justice ended the dissenting opinion with a concern about this fractured opinion that would soon prove all-too true: “[T]hose who will really be left with a sour taste after today’s decision are the lower courts charged with making sense of it going forward.”  Id. at 551.


B.                 Lower courts initially conclude that Justice Sotomayor’s opinion controls.

The lower courts tasked with making sense of Freeman employed the interpretive rule of this Court’s decision in Marks v. United States: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 194 (1977) (quotation omitted).

At first, lower courts appeared not to struggle to apply Freeman.  Typically with very brief discussion, they uniformly concluded that, because Justice Sotomayor had concurred in the judgment and effectively laid out a “middle ground” between the plurality and dissenters, her opinion represented the narrowest grounds and therefore was the holding of the Court under a Marks analysis.  The Sixth Circuit was one of the first appellate courts to confront this issue, stating in an unpublished opinion that Justice Sotomayor’s opinion controlled.  United States v. Taylor, No. 08-6026, 427 Fed. App’x 468, 2011 U.S. App. LEXIS 16068, at *1 (6th Cir. Aug. 3, 2011).  Other circuits soon followed, relying on each other for an effectively unquestioned approach that declared Justice Sotomayor’s opinion the controlling opinion of the Court.  See, e.g., United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011) (“In the uncertain wake of Freeman, two other courts of appeals have published opinions addressing this question” and “both agree with our conclusion” that Justice Sotomayor’s opinion controls.) (citing to Sixth Circuit and Fourth Circuit); United States v. Keith, No. 04-354, 2012 U.S. Dist. LEXIS 9292, at *6 (E.D. Pa. Jan. 26, 2012) (stating that “the circuits that have addressed the issue all agree that Justices Sotomayor’s concurring opinion is the controlling opinion in Freeman” and that “other judges in this district who have considered the issue agree”) (citing First, Second, Fourth, and Sixth Circuits). 

Indeed, this approach appeared so universal that counsel in some cases did not argue otherwise—even in circuits where the question had not yet been decided.  See, e.g., United States v. Pointer, No. 08-5604, 2012 U.S. Dist. LEXIS 23396, at *3 (W.D. Wash. Feb. 24, 2012) (“Counsel for both parties . . . agree that . . . Justice Sotomayor’s concurring opinion . . . must be followed by the court in this case.”).

And when counsel did challenge the dominant view, that view was already too entrenched to persuade courts that the Freeman plurality opinion—not Justice Sotomayor’s opinion—should control.  See, e.g., United States v. Heard, 859 F. Supp. 2d 97, 100 (D.D.C. 2012) (rejecting defendant’s argument “that Marks is inapplicable here because Justice Sotomayor’s concurrence is ‘diametrically opposed to the reasoning employed by the other four Justices,’” and noting that “other courts analyzing Freeman—including the First, Fourth, and Sixth circuits—have concluded” that her opinion controls).

Thus, by early 2013—just 18 months after Freeman—the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits had uniformly concluded that Justice Sotomayor’s opinion controls.[1]  No court had held otherwise.  Thus, McNeese was bound by Sixth Circuit precedent on this point when he sought relief below.


C.                The D.C. Circuit breaks ranks.

The first crack in this jurisprudential dam emerged from the D.C. Circuit in January 2013.  In United States v. Duvall, 705 F.3d 479, 483 (2013), the parties agreed that Justice Sotomayor’s Freeman opinion controlled so the court did not decide that question.  Judge Stephen Williams, however, wrote a concurring opinion explaining his view that (1) Justice Sotomayor’s opinion is not the controlling opinion in Freeman; (2) it therefore remains open to the lower courts to determine the answer to the question posed in Freeman (whether defendants are eligible for sentence reductions even if they entered binding plea agreements); and (3) the proper approach is one roughly tracking the Freeman plurality’s view.  Id. at 485–90 (Williams, J., concurring).

A month later, the D.C. Circuit adopted Judge Williams’ approach, becoming the first circuit to conclude that Justice Sotomayor’s Freeman opinion is not the holding of the Court.  United States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 2013) (“In sum, while five Justices in Freeman agreed that the district court is not categorically barred from reducing a sentence under § 3582(c)(2) in Rule 11(c)(1)(C) cases, the concurring opinion is not controlling in this circuit . . . .”); see also id. at 350 (noting that there was no law of the circuit yet on the question because the Duvall court had no occasion to hold whether Justice Sotomayor’s concurring opinion was controlling).

Not all of the D.C. Circuit judges agreed with this approach, as revealed when the court denied rehearing en banc in the Duvall case—where Judge Williams had first stated his view that Justice Sotomayor’s opinion was not controlling.  Judge Kavanaugh, concurring in the denial of en banc review, stated that Judge Williams’ view in Epps was seriously flawed and should be reconsidered.  Judge Kavanaugh remarked that it is “obvious” that Justice Sotomayor’s opinion in Freeman is the controlling opinion of the Court because it represented the narrowest grounds under Marks to resolve the case.  United States v. Duvall, 740 F.3d 604, 608 (D.C. Cir. 2013) (Kavanaugh, J., concurring in denial of rehearing en banc).  Judge Rogers issued a concurring opinion responding to Judge Kavanaugh, defending the D.C. Circuit’s approach in Epps as consistent with its view of the Marks rule for interpreting fractured decisions.  Id. at 604 (Rogers, J., concurring in denial of rehearing en banc).  Judge Williams also issued a concurring opinion, similarly responding to Judge Kavanaugh and stating why Epps correctly held that Justice Sotomayor’s Freeman opinion was not controlling.  Id. at 618–23 (Williams, J., concurring in denial of rehearing en banc).


D.                The Second Circuit and Fifth Circuit join the dominant view.

Meanwhile, the remaining two circuits to consider the issue (the Second and the Fifth) joined the dominant view that Justice Sotomayor’s opinion is controlling.  See, e.g., United States v. Howell, 541 F. App’x 13, 14 (2d Cir. Sept. 11, 2013) (relying on Justice Sotomayor’s opinion as controlling); United States v. Banks, 770 F.3d 346, 351 n.4 (5th Cir. 2012) (“Justice Sotomayor’s concurring opinion is widely considered to express the holding in Freeman . . . .”) (citing various other circuits); see also United States v. Benitez, No. 15-41160, 2016 U.S. App. LEXIS 8520 (5th Cir. May 9, 2016) (“Today, we explicitly adopt Justice Sotomayor’s concurring opinion in Freeman . . . .”).


E.                 The Ninth Circuit adopts the D.C. Circuit’s view in a 10-1 en banc decision.

The D.C. Circuit’s contrary view began to gain traction outside that circuit.  In United States v. Davis, the Ninth Circuit acknowledged that it was bound by its previous decision holding that Justice Sotomayor’s opinion controlled, but noted that in Freeman “[a]ll eight of the other justices . . . disagreed with Justice Sotomayor’s analysis.”  776 F.3d 1088, 1090 (9th Cir. 2015).  Concurring, Judge Berzon argued that the Ninth Circuit should reconsider en banc its previous precedent on the question, overrule it, and “instead adopt the rationale of United States v. Epps” and conclude that Freeman’s plurality opinion be adopted as “the most persuasive of the three opinions in that case.”   Id. at 1091–92 (Berzon, J., concurring).

The Ninth Circuit then did just that—it granted en banc review in Davis to consider whether it should adopt the D.C. Circuit’s approach.  A month ago, the en banc court concluded, by a 10-1 vote, that the D.C. Circuit’s approach was correct:  Justice Sotomayor’s Freeman opinion was not controlling, and the Freeman plurality opinion is the most persuasive.  United States v. Davis, No. 13-30133, 2016 U.S. App. LEXIS 10661 (9th Cir. June 13, 2016) (en banc).  Judge Paez—joined by Judges Fletcher, Rawlinson, Callhan, and Owens—authored the majority opinion to this effect.  Judge Christen—joined by Chief Judge Thomas and Judges Tallman, Nguyen, and Hurwitz—issued a concurring opinion agreeing with the majority opinion on this score, but stating further that the majority missed an opportunity to add clarity to whether dissenting opinions should be taken into account when conducting the Marks analysis.  Id. at *37 (Christen, J., concurring).  Judge Bea was the lone dissenter, arguing that while he “may not agree with Justice Sotomayor’s approach,” he believed it was the controlling opinion in FreemanId. at *78 (Bea, J., dissenting).

In sum, ten circuits currently hold that Justice Sotomayor’s Freeman opinion controls.  But when the Ninth Circuit fully considered the contrary reasoning of the D.C. Circuit in Epps, it voted 10-1 that the D.C. Circuit is correct and, therefore, that every other circuit is wrong.  The jurisprudential dam on this question has burst.  This is a fully developed circuit split that this Court should resolve.

II.       The holdings of the D.C. Circuit and Ninth Circuit are correct.

The view of the D.C. Circuit and the en banc Ninth Circuit is correct: Justice Sotomayor’s Freeman opinion is not controlling, and the plurality’s approach is most persuasive.  Davis, 2016 U.S. App. LEXIS 10661 at *16–17.  The Ninth Circuit explicitly adopted what is known as the “reasoning-based approach” to applying Marks: “A fractured Supreme Court decision should only bind the federal courts of appeal when a majority of the Justices agree upon a single underlying rationale and one opinion can reasonably be described as a logical subset of the other.”  Id.  “When no single rationale commands a majority of the Court, only the specific result is binding on lower federal courts.”  Id. at *17. 

The court explained that Justice Sotomayor’s opinion cannot reasonably be described as a logical subset of Justice Kennedy’s plurality opinion, because she focused on the role the parties’ Guidelines calculations play in crafting a Rule 11(c)(1)(C) agreement, while the plurality focused on the role of the judge’s Guidelines calculation in deciding whether to accept or reject the agreement.  Id. at *19–20.  The court acknowledged that nearly every circuit has taken the contrary view that Justice Sotomayor’s opinion controls, but the court did “not find those opinions convincing,” as most engaged “with Marks only superficially, quoting its language with no analysis.”  Id. at *24.  The court then adopted the Freeman plurality approach, explaining that it best conformed to federal sentencing law, which resulted in the defendant being eligible for a sentence reduction—despite his binding plea agreement.  Id. at *30–35.

This approach is true to this Court’s decision in Marks and to federal sentencing law, contrary to the decision below.

III.    This case is the ideal vehicle to resolve the circuit split.

As the court below explained, “[t]his case tests the boundaries of what it means for a sentence under a Rule 11(c)(1)(C) plea agreement to be ‘based on’ a Guidelines range.”  (Pet. App. at 2–3 (emphasis added).)  This is because it was clear to everyone—including the district court—that the sentence in the agreement “did in fact derive from a Guidelines sentencing range.”  (Id. at 16.)  McNeese was denied relief merely because the range was not expressed in the agreement.  The district court also acknowledged that the outcome would likely be different if Justice Sotomayor’s opinion were not controlling in the Sixth Circuit.  Moreover, the issue has been well preserved in this litigation, as McNeese cited to the Epps decision as contrary authority below.  Finally, in contrast to the Ninth Circuit’s en banc Davis decision, the defendant here was denied relief, providing this Court with the opportunity to reverse the court below, explain the mistakes made, and provide relief to McNeese. 

This case is therefore the ideal vehicle to resolve the Question Presented.

IV.    This is an important federal question not just for criminal sentencing but for any case involving a fractured decision of this Court.

This fully developed circuit split means that there is confusion and arbitrariness across the country for any defendant seeking this sort of sentence reduction after entering a binding plea.  If Robert McNeese were in the D.C. Circuit or Ninth Circuit, he would be eligible for relief.  Because he is in a circuit that assumed early on that Justice Sotomayor’s opinion was controlling, he is not eligible.  Defendants in McNeese’s position now face disparate outcomes.  Additionally, a decision by this Court in this case would provide clarity for courts determining the effect of any future sentencing amendment that would otherwise apply to defendants who have entered binding plea agreements.

Moreover, and more profoundly, certiorari review here will enable the Court to add clarity to the Marks analysis itself—regardless of the particular area of law in which it occurs.  A decision here by this Court will provide guidance to the lower courts anytime they are faced with the difficult task of interpreting a fractured decision from this Court—whether a decision from the past or one that is forthcoming. 

Conflicting views on the Marks analysis are precisely what led to the circuit split regarding Freeman, and there are various questions about the Marks analysis that remain unclear.  Indeed, the ten judges adopting the majority view in the Ninth Circuit’s en banc Davis decision split 5-5 regarding whether dissenting opinions should even be considered in a Marks analysis.  See Davis, 2016 U.S. App. LEXIS 10661, at *37–38 (“I disagree with the majority’s assumption that we might be free to take dissenting opinions into account in future Marks analyses.”) (Christen, J., concurring).  This Court has explained that the Marks inquiry at times has “baffled and divided the lower courts that have considered it,” Nichols v. United States, 511 U.S. 738, 746 (1994), and that the “test is more easily stated than applied,” Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (quoting Nichols, 511 U.S. at 745–46). 

Thus, not only can the Court resolve a full circuit split regarding basic sentencing law, the Court can provide clarity to the lower courts as they undertake perhaps their most fundamental duty: Interpreting this Court’s decisions.  See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).  Review is warranted.


The petition for a writ of certiorari should be granted.

Respectfully submitted,


David E. Mills

   Counsel of Record

The Mills Law Office LLC

1300 West Ninth St., Ste. 636

Cleveland, OH 44113

(216) 929-4747


Ann C. Short

The Bosch Law Firm, P.C.

712 South Gay Street

Knoxville, Tennessee 37902

(865) 637-2142


Attorneys for Petitioner


July 12, 2016



[1]United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); United States v. Thompson, 682 F.3d 285, 290 (3d Cir. 2012); United States v. Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); United States v. Dixon, 687 F.3d 356, 361 (7th Cir. 2012); United States v. Browne, 698 F.3d 1042, 1047 (8th Cir. 2012); United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012); United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).