Do you have a "vehicle" problem for Supreme Court review when the court below did not address a separate issue that could also bar you from relief? Probably not...

You have lost in the court of appeals.  But the issue you lost on is a great candidate for Supreme Court review, so you file a petition for certiorari with that issue as the Question Presented.  The other side then opposes your petition.  Part of their argument is that, regardless of your Question Presented, the case is a bad "vehicle" for the Supreme Court because there is a separate issue in the case--not addressed by the court below--that also bars you from relief.  In other words, they are saying something like this: "Who cares about this cert issue--there's a separate problem with this particular case and the Supreme Court therefore shouldn't waste its precious time here, so cert should be denied."  

But there is a good chance that this is not a real vehicle problem.  The Supreme Court frequently takes cases that involve a separate issue that was not addressed by the court below and that may indeed be dispositive of the underlying relief you seek.  When that occurs, the Court reviews the main issue raised and simply remands the case to the court below for resolution of that second issue your opponents keep bringing up.

This concept is the centerpiece of cert-stage briefing I filed at the Supreme Court in 2016 in McNeese v. United States, No. 16-66.  The substantive issues are discussed in this post.  The Petition raised a circuit split regarding a criminal defendant's ability to seek a sentencing reduction after entering a binding plea.  The Department of Justice's Opposition acknowledged the split, but argued that a separate issue would bar my client from the sentencing reduction anyway.  Thus, they said, there is a "vehicle" problem.  What follows is the text of my Reply, which counters that there is no vehicle problem in that context.  The Court ultimately denied certiorari, but the Reply provides a framework to counter the "vehicle" argument.



There is no vehicle problem here.  When there is an issue independent from the question presented that has not been addressed below, the Court simply grants review of the question presented and remands the case to the lower courts for consideration of the independent issue.  The Government knows this, but it has a vested interest in maintaining the 10-2 circuit split currently in its favor.  Indeed, after the en banc Ninth Circuit ruled against the Government in Davis, the Government did not seek certiorari review.  The Government’s purported reasons to keep the Court from hearing this case only further confirm that it is worthy of review.  Certiorari should be granted.

I.       There is no vehicle problem.

This case is just like many others where there is an issue worthy of review, and the respondent raises a second issue not addressed by the court below that the respondent says bars the petitioner from the ultimate relief sought.  In those cases, the Court simply grants certiorari on the question presented and, if it rules in the petitioner’s favor on that question, it then remands for the lower courts to consider the second issue. 

This happens all the time.[1]

Stinson v. United States, 508 U.S. 36 (1993), illustrates this remand process and is essentially identical to the scenario here.  In Stinson, the petitioner sought a reduced sentence under an amendment to the Sentencing Guidelines, and the Government raised two alternative arguments as to why he was not entitled to the reduction.  There was a circuit split regarding one of the issues: whether the amendment was binding on the courts.  Id. at 40.  The court of appeals ruled against the petitioner, concluding that the amendment was not binding and thus he was not entitled to a reduction.  This Court granted certiorari on that issue.  The Government argued that issue and also argued the second issue, contending that the petitioner was ineligible for the relief he sought regardless of the first issue underlying the circuit split.  The Court “decline[d] to address” the Government’s alternative argument, noting that the court below had not addressed it, and left “the contentions of the parties on this aspect of the case to be addressed by the Court of Appeals on remand.”  Id. at 47–48. 

This is the same situation.  The Government acknowledges the circuit split underlying the Question Presented (whether Justice Sotomayor’s Freeman opinion is controlling) but claims that a second issue—whether a sentence reduction would be consistent with Guidelines § 1B1.10—shows “petitioner is ineligible for the relief he sought in the district court regardless of which Freeman opinion controls.”  (Opp. 10.)  As in Stinson, the Court should simply grant review of the Question Presented and then—if it is resolved in McNeese’s favor—remand so the courts below can address the “contentions of the parties” regarding the Government’s alternative argument under § 1B1.10.  (Opp. 11–13.)

The whole point of this familiar remand process is that this Court does not concern itself with issues that were not addressed below.  As the Government correctly notes, this Court is “a court of review, not of first view.”  (Opp. 13 n.3 (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).) 

This is precisely why this second issue was not included in the Petition.  It is inappropriate for this Court to address it, let alone resolve it.  This second issue is irrelevant to whether the Question Presented warrants review, and it is irrelevant to whether this case is an appropriate vehicle to answer the Question Presented.

The Government is well aware of—and frequently a party to—this Court’s basic remand procedure that would enable the Court to address the Question Presented without any concerns regarding the alternative issue.  See, e.g., Stinson, 508 U.S. at 48.  So why is the Government putting forth such effort to say this case is a “bad vehicle” when it knows that this common situation is not a vehicle problem?

One logical explanation: The Government wants the current 10-2 circuit split to remain as is.  The Government has stated that it disagrees with the D.C. Circuit and the Ninth Circuit.  (Opp. 13–15.)  Yet, after the Ninth Circuit issued its en banc decision by a vote of 10-1 against the Government, the Government did not seek review in this Court.  United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc) Order of 9/2/16 (referring to Government motion indicating “that the United States does not intend to file a petition for writ of certiorari”).  The Government does not want this Court to address the issue.  It has a vested interest in finding reasons to convince this Court to deny review, including claiming that a case is a “bad vehicle” when it is not. 

As shown, there is no vehicle problem.  Thus, in considering whether to grant certiorari here, the Court can and should set aside the Government’s alternative § 1B1.10 issue entirely.  See Stinson, 508 U.S. at 48.[2]

II.     Certiorari should be granted.

Having removed the § 1B1.10 issue, we come back to where the Petition started:  Whether the Question Presented is worthy of review and, if so, whether this case is an appropriate vehicle (as that term is properly understood) to address the Question.

A.            The Question Presented warrants review.

The Government’s Opposition confirms that the Question Presented is worthy of review.  The Government concedes the full split in the circuits (as it must), and it argues that one side is correct (i.e., that Justice Sotomayor’s Freeman opinion controls).  In light of the contrary view of the D.C. Circuit and the Ninth Circuit—which recently voted 10-1 that Justice Sotomayor’s opinion does not control—the Government has confirmed that the split regarding the Question Presented is real and entrenched.

The Government notes that the Court has previously denied certiorari in cases raising this issue, in 2012 and 2013.  (Opp. 10 n.1.)  But those decisions occurred before the fully developed circuit split emerged.  And, of course, those decisions predated the Ninth Circuit’s en banc decision a few months ago in Davis, which reflects how the jurisprudential dam has burst on the question.  825 F.3d 1014.

The Government offers only one reason why the Court should not resolve the conflict in the circuits: The Government claims the conflict “is of limited significance.” (Opp. 17.)  But the Government then shows that is not true. 

The Government first explains that plea agreements can be “drafted to avoid” any question about whether they are based on the Guidelines.  (Id. 18.)  But this tactic, which has emerged from Freeman’s divided opinion, only highlights the need for this Court’s review.  Drafting agreements “to avoid” referencing the Guidelines makes no difference in the D.C. Circuit and throughout the Ninth Circuit (all 13 of its judicial districts), where the Freeman plurality opinion controls.  In those jurisdictions, the courts look beyond the mere words of the agreement to assess if the sentence was “based on” a range later lowered by a Guidelines amendment.  If the D.C. Circuit and Ninth Circuit are correct regarding Freeman, the Government’s methodical writing of plea agreements to purposely “avoid” referencing the Guidelines—even where everyone knows the sentence was based on the Guidelines—wrongfully bars defendants such as McNeese from the sentence they are entitled to.

On this score, the Government next suggests that resolving the Question Presented will affect just a “small subset” of defendants.  (Opp. 18.)  Not so.  First, as noted, the Government is purposely drafting agreements across the country that bar defendants from relief that they would be entitled to in the D.C. Circuit and Ninth Circuit—so this tactic is only increasing the problem.  Regardless, we are talking about real people currently in prison, such as Robert McNeese, who may ultimately be serving more time than the law calls for.  Second, the Government’s view fails to recognize that this Court’s resolution will provide guidance and uniformity where any defendant who enters a binding plea agreement later seeks a sentence reduction based on any future retroactive Guidelines amendment.  (Pet. 18.)   Finally, the Government fails to acknowledge that granting review here will add clarity to how courts interpret any divided opinion of this Court under Marks v. United States, 430 U.S. 188 (1977).  (Pet. 18–19 (the Marks inquiry has “baffled and divided the lower courts that have considered it”) (quoting Nichols v. United States, 511 U.S. 738, 746 (1994)).)   

Indeed, just last week the Sixth Circuit relied on the precedent of McNeese’s case, denying relief because the defendant’s plea agreement “expressly disclaims any reliance on the Guidelines,” and the court stated that it did not matter that it “seemed clear” to the district court that the sentence was based on the Guidelines range.  United States v. Bryant, No. 16-5176, 2016 U.S. App. LEXIS 18479, at *6–8 (6th Cir. Oct. 11, 2016) (explaining that Justice Sotomayor’s Freeman opinion controls and relying on United States v. McNeese, 819 F.3d 922 (6th Cir. 2016) (the decision at issue here)).  And a recent search for cases discussing Justice Sotomayor’s Freeman opinion reveals 382 decisions—97 so far this year. 

The Question Presented is a very real issue with very real consequences.

B.             This is an ideal vehicle for the Question.

It is difficult to conceive of a better vehicle for the Court to resolve the Question Presented.  Recall that the court below 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.” (Pet. 17 (quoting Pet. App. 2–3 (emphasis added)).)  And further recall the district court’s statement that, if the Freeman plurality opinion controlled, “then the result would likely be different.”  (Pet. App. 29.)  There is no doubt that resolving the question in McNeese’s favor will mean that he is entitled to a remand for the lower courts to address the remaining issue.

The only reason the Government offers to suggest that this case is an unworthy vehicle to address the Question Presented is its claim that McNeese “did not raise his current argument in the court of appeals.”  (Opp. 13.)  This is not a serious contention.  The Government knows that McNeese would be chided by the court of appeals had he spent significant time arguing a point that circuit precedent had barred for years.  McNeese well preserved the underlying issue, acknowledging the circuit precedent regarding Justice Sotomayor’s Freeman opinion and even noting that the D.C. Circuit had reached the contrary view.  (McNeese’s 8/20/2015 Sixth Circuit Br. 18–19.)

In short, this case is factually pristine and straightforward.  It is the ideal case to address the circuit split. The Government offers no legitimate reason to conclude otherwise.


The petition for a writ of certiorari should be granted.


[1] See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 260 (2009) (reversing the judgment on the issue presented that was addressed by courts below, noting that respondents argued the lower court’s judgment should be affirmed on “independent grounds” not addressed by courts below, and “remand[ing] this case for further proceedings consistent with this opinion”); Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442, 458 n.11 (2008) (declining to consider respondent’s independent arguments that petitioner will not prevail because “they were not addressed below and are not encompassed by the question on which we granted certiorari”); Envt’l Def. v. Duke Energy Corp., 549 U.S. 561, 581–82 (2007) (explaining that respondent’s alternate argument was not addressed below, and, to the extent it is not procedurally foreclosed, respondent “may press it on remand”); Whitman v. Dep’t of Transp., 547 U.S. 512, 515 (2006) (“The various other issues raised before this Court, but not decided below, may also be addressed on remand,” including multiple issues that could bar petitioner from ultimately prevailing.); Muehler v. Mena, 544 U.S. 93, 102 (2005) (declining to address respondent’s “alternative argument for affirming the judgment below,” because it was not addressed by the court below); Devenpeck v. Alford, 543 U.S. 146, 156 (2004) (declining to “engage in this inquiry for the first time here” regarding respondent’s alternative argument and remanding to the court below “for further proceedings consistent with this opinion”); Fellers v. United States, 540 U.S. 519, 525 (2004) (“We have not had occasion to decide” an issue that arose after determining the threshold issue in the question presented, and “[w]e therefore remand to the Court of Appeals to address this issue in the first instance.”); Meyer v. Holley, 537 U.S. 280, 291 (2003) (declining to consider respondent’s alternate argument, not addressed below, that petitioner should not prevail and stating that the court below “nonetheless remains free on remand to determine whether these questions were properly raised and, if so, to consider them”).

[2] Though the § 1B1.10 issue is irrelevant, the Government has left the unanswered impression that McNeese cannot prevail on it upon remand.  The reality is to the contrary.  Without wading too far into this extraneous issue, it suffices to say that the Government agrees McNeese is entitled to prevail if his original sentence was reduced “pursuant to a government motion to reflect his substantial assistance.” (Opp. 11 (quoting U.S.S.G. § 1B1.10(b)(2)).)  And not only did the Government explain at sentencing that McNeese’s 63-month sentence arose from “a 3 level reduction” accounting for his “cooperation and assistance that was provided to law enforcement,”  (6/3/14 Tr. at 4), but the district court itself “ultimately acknowledged that McNeese had ‘gotten the benefit of what in effect is a downward departure motion.’”  (Pet. App. 6 (emphasis added).)  This also explains why the court’s Statement of Reasons did not have a box checked for “government motion,” as that box was under a heading that did not apply: “Motion Not Addressed in a Plea Agreement.”  (Statement of Reasons 3 (emphasis added).)  These are just some of McNeese’s arguments on this issue—he also contended below that § 1B1.10 is otherwise unconstitutional and can lead to absurd and unjust results.  Indeed, the Government admits under its views that McNeese would be entitled to a modification changing his sentence from 63 months to 70 months.  (Opp. 12.)  McNeese welcomes a remand for resolution of this second issue.