Orrick Appellate Team Asks U.S. Supreme Court to Resolve Major Sentencing Issue

August.22.2016

An Orrick appellate team today asked the U.S. Supreme Court to review an “urgent and recurring” question of federal criminal sentencing law that has split the circuits. In a petition for certiorari, Orrick argued that the important issue raised in Wilson Serrano-Mercado’s case “cries out” for Supreme Court review. Orrick agreed to represent Serrano-Mercado pro bono after the First U.S. Circuit Court of Appeal ruled against him last year.

The First Circuit upheld a district court judge, who enhanced Serrano-Mercado’s sentencing range under the U.S. Sentencing Guidelines, based on a finding that he had multiple prior convictions for felony crimes of violence. The government was required to prove those convictions were actually for violent crimes, but failed to do so – and Serrano-Mercado’s defense counsel did not object to the error. The First Circuit denied relief, holding that Serrano-Mercado could not show prejudice unless he proved that his prior conviction was non-violent – improperly shifting the government’s burden to the defendant.

Orrick’s team joined the case after the panel opinion, filing a petition for rehearing and rehearing en banc. A sharply divided First Circuit denied rehearing, but three judges urged the Supreme Court to review the case, observing that the panel decision conflicts with high court precedent and is fundamentally unfair. While four circuits have embraced the First Circuit’s interpretation of the prejudice requirement, five other circuits have taken the opposite view, holding that a defendant necessarily is prejudiced if he is subjected to sentencing enhancements that the government has not proven are warranted.

In the cert petition, Orrick’s team urged the Supreme Court to resolve this intractable circuit split, warning that the First Circuit’s approach exposes criminal defendants to additional punishment based on crimes they may not have committed. “The unfairness of that approach for defendants, as well as the confusion and disparity created by the substantial Circuit conflict, are manifest and detrimental to the proper functioning of the federal sentencing process,” the petition states. You can read the cert petition here: Cert Petition.

The Orrick team is led by partners Bob Loeb and Tom Bondy, and associates Mel Bostwick, Brian Goldman and Aaron Rubin.

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Robert Loeb Partner, Supreme Court & Appellate, Insolvenzschiedsverfahren

Washington, D.C.

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Robert Loeb Partner

Washington, D.C.

The breadth and depth of Bob's appellate experience, and his consistent track record of success in high-stakes matters, are why clients, including top tech and energy companies, trust him with their most important cases.

The National Law Journal’s Litigator of the Week column recently recognized Bob’s appellate major wins in energy and product liability cases for Broadreach Power and Johnson & Johnson. Bob’s recent victories also include Fifth Circuit wins for energy clients Cheniere and Eni. In the Cheniere-Midship case, Bob obtained an emergency stay from the court of appeals of the regulating agency proceedings and, then after oral argument, achieved a full victory. And for Eni, Bob convinced the Fifth Circuit to vacate a $300M judgment against Eni in a dispute with another energy company. These types of big wins in the most challenging cases show why both Chambers and Legal 500 rank Bob among the Country’s top appellate advocates.

Bob has argued before the Supreme Court multiple times (including a 9-0 victory regarding application of the Fourth Amendment to rental cars), and has filed hundreds of briefs in the Supreme Court. He has also handled cases in highest state courts in California, New York, Maine, Kentucky and New Jersey.

Before joining Orrick, Bob served as one of the leaders of an elite appellate group at the Department of Justice. There, in addition to major national security, commercial, and administrative law, Bob supervised bankruptcy appeals. At Orrick, Bob has continued to handle big ticket bankruptcy matters, such as a billion-dollar dispute over whether DHL’s claim was discharged by United’s bankruptcy, appeals from the City of Stockton bankruptcy confirmation, and a Ninth Circuit matter involving the interplay of the Takings Clause and bankruptcy law.

Bob’s recent work includes matters for Johnson & Johnson, Avon, Microsoft, Eni, Cheniere Energy, Freeport LNG, Broadreach Power, LS Power, Exxon, Medidata, Renco, MSC Cruise Line, Golden 1 Credit Union, Credit Suisse, TravelCenters of America, Gannett, and the City of Stockton.

Thomas M. Bondy Senior Supreme Court Counsel, Supreme Court & Appellate

Washington, D.C.

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Thomas M. Bondy Senior Supreme Court Counsel

Washington, D.C.

As FBI Deputy General Counsel, Tom oversaw the Bureau’s nationwide civil litigation docket, including employment disputes, Freedom of Information Act cases, Constitutional tort suits, and an array of matters implicating law enforcement and national security equities. He supervised more than one hundred Office of General Counsel personnel, and advised the FBI’s Director, Deputy Director and other executive management officials regarding especially sensitive litigation issues.

Prior to serving at the FBI, Tom spent 25 years with the Department of Justice, Civil Division, Appellate Staff, as an appellate litigator and supervisor. In that capacity, he oversaw the court of appeals and Supreme Court work of the Appellate staff’s attorneys across the full range of U.S. government subject areas, including Constitutional issues, anti-terrorism and national security, Federal Tort Claims Act, False Claims Act, Bivens, personnel and federal labor relations, Freedom of Information Act, administrative law, attorney fees, and government benefits. Tom personally briefed and orally argued more than one hundred cases in all of the federal courts of appeals and several state appellate courts, and drafted dozens of U.S. Supreme Court merits briefs, amicus briefs, certiorari petitions, and oppositions to certiorari petitions. One of the principal architects of the Justice Department’s litigation strategy in high-stakes appeals, Tom was considered one of the agency’s go-to advocates.

Tom received the Justice Department’s John Marshall Award for outstanding appellate advocacy, as well as the Attorney General’s Award for furthering the interests of U.S. national security. He has served as an instructor at the Attorney General’s Advocacy Institute and is also an Adjunct Professor at American University’s Washington College of Law.

Before joining DOJ, Tom clerked for then-Judge (now retired U.S. Supreme Court Justice) Anthony Kennedy on the U.S. Court of Appeals for the Ninth Circuit.