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


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.