Mejia-Huerta v. United States - Opposition

No. 06-1381

In the Supreme Court of the United States

OMAR MEJIA-HUERTA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
STEPHAN E. OESTREICHER, JR.
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether Federal Rule of Criminal Procedure 32 re quires a district court to give the parties advance notice before imposing a sentence outside the applicable advi sory Sentencing Guidelines range based on the criteria set forth in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004), when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties' prehearing submissions.

In the Supreme Court of the United States

No. 06-1381

OMAR MEJIA-HUERTA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 480 F.3d 713.

JURISDICTION

The judgment of the court of appeals was entered on February 28, 2007. The petition for a writ of certiorari was filed on April 18, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following guilty pleas in separate proceedings be fore the same district judge in the United States District Court for the Northern District of Texas, petitioners were convicted of various immigration and firearms of fenses and were sentenced to terms of imprisonment ranging from 36 to 120 months. In a consolidated appeal, the court of appeals affirmed the sentences im posed by the district court. Pet. App. 1a-18a.

1. Petitioners Mejia-Huerta, Pantoja-Arellano, Dehuma-Suarez, and Cruz-Martinez were each con victed of illegally reentering the United States after being deported, in violation of 8 U.S.C. 1326. Pet. App. 4a-7a. Petitioner Estrada was convicted of transporting illegal aliens, in violation of 8 U.S.C. 1324(a)(1)(A)(ii). Pet. App. 8a. Petitioner Craddock was convicted of pos sessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1). Pet. App. 9a.

2. Between December 2005 and February 2006, peti tioners were sentenced by the same district judge in the United States District Court for the Northern District of Texas. Pet. App. 48a-76a. In each instance, the court imposed a prison term exceeding the applicable advisory Sentencing Guidelines range based on the criteria set forth in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). Pet. App. 4a-9a. In addition, in each instance, the grounds for the non-Guidelines sentence were not identified in the presentence report or the parties' prehearing sub missions. Ibid.

a. Petitioner Mejia-Huerta was sentenced in Decem ber 2005. Pet. App. 67a. Although his advisory Guide lines range was 9 to 15 months of imprisonment, the dis trict court-without notice to the parties-sentenced him to 36 months of imprisonment, to be followed by three years of supervised release. Id. at 4a. The court stated that the variance from the Guidelines sentence was based on Mejia-Huerta's disrespect for the laws of the United States, his long criminal history, and the danger he poses to United States citizens. Ibid.; Mejia- Huerta Sent. Tr. 5-6. Mejia-Huerta did not object to the lack of notice or to the sentence, id. at 6-7, but he timely filed a notice of appeal. Pet. App. 4a.

b. Petitioner Pantoja-Arellano was sentenced in De cember 2005. Pet. App. 43a. Although his advisory Guidelines range was 33 to 41 months of imprison ment, the district court-without notice to the parties- sentenced him to 96 months of imprisonment, to be fol lowed by three years of supervised release. Id. at 5a. The court stated that the variance was based on Pantoja-Arellano's disrespect for the laws of the United States, his long criminal history, and the danger he poses to United States citizens. Ibid.; Pantoja-Arellano Sent. Tr. 5-6. Pantoja-Arellano objected orally to the sentence, id. at 7, and he later filed a written objection in which he argued that the court had erred in failing to give him notice under Federal Rule of Criminal Proce dure 32(h) of its intent to vary from the advisory range. Pet. App. 5a, 21a. In overruling that objection, the court noted that it would impose the "same sentence" even if it "were to vacate its prior sentence and formally notify the parties in writing that the sentence imposed may be outside of the guideline range." Id. at 23a. Pantoja- Arellano timely filed a notice of appeal. Id. at 5a.

c. Petitioner Dehuma-Suarez was sentenced in De cember 2005. Pet. App. 54a. Although his advisory Guidelines range was 21 to 27 months of imprison ment, the district court-without notice to the par ties-sentenced him to 120 months of imprisonment, to be followed by three years of supervised release. Id. at 6a. The court stated that the variance was based on Dehuma-Suarez's disrespect for the laws of the United States, his long and violent criminal history, and the danger he poses to United States citizens. Ibid.; Dehuma-Suarez Sent. Tr. 4-5. Dehuma-Suarez did not object during the sentencing hearing, id. at 5-6, but he later filed a written objection in which he argued that the court had erred in failing to give him notice under Rule 32(h) of its intent to vary from the advisory range. Pet. App. 6a, 35a. In overruling that objection, the court noted that it would impose the "same sentence" even if it "were to vacate its prior sentence and formally notify the parties in writing that the sentence imposed may be outside of the guideline range." Id. at 40a. Dehuma- Suarez timely filed a notice of appeal. Id. at 6a.

d. Petitioner Cruz-Martinez was sentenced in Janu ary 2006. Pet. App. 49a. Although his advisory Guide lines range was 21 to 27 months of imprisonment, the district court-without notice to the parties-sentenced him to 60 months of imprisonment, to be followed by three years of supervised release. Id. at 7a. The court stated that the variance was based on Cruz-Martinez's disrespect for the laws of the United States, his long and violent criminal history, and the danger he poses to United States citizens. Ibid.; Cruz-Martinez Sent. Tr. 4- 6. Cruz-Martinez objected orally to the sentence, id. at 6-7, and he later filed a written objection in which he argued that the court had erred in failing to give him notice under Rule 32(h) of its intent to vary from the advisory range. Pet. App. 7a, 26a. In overruling that objection, the court noted that it would impose the "same sentence" even if it "were to vacate its prior sen tence and formally notify the parties in writing that the sentence imposed may be outside of the Guidelines range." Id. at 31a. Cruz-Martinez timely filed a notice of appeal. Id. at 8a.

e. Petitioner Estrada was sentenced in January 2006. Pet. App. 60a. Although his advisory Guidelines range was 27 to 33 months of imprisonment, the district court-without notice to the parties-sentenced him to 41 months of imprisonment, to be followed by three years of supervised release. Id. at 8a. The court stated that the variance was based on Estrada's disrespect for the laws of the United States, the danger he poses to the public, and the fact that he was involved in the transpor tation of 27 illegal aliens. Estrada Sent. Tr. 7-8. At the conclusion of the sentencing hearing, Estrada stated that he would "file a written objection on the notice re quirement," id. at 9, but he did not elaborate any fur ther, and he did not ever file any written objection. He did, however, timely file a notice of appeal. Pet. App. 8a.

f. Petitioner Craddock was sentenced in February 2006. Pet. App. 72a. Although his advisory Guidelines range was 21 to 27 months of imprisonment, the district court-without notice to the parties-sentenced him to 60 months of imprisonment, to be followed by three years of supervised release. Id. at 9a. The court stated that the variance was based on Craddock's especially "violent and assaultive background" and the danger he poses to the public. Craddock Sent. Tr. 5-7. Craddock did not object to the lack of notice or to the sentence, id. at 8, but he timely filed a notice of appeal. Pet. App. 9a.

3. In a consolidated appeal, petitioners argued that, under Rule 32(h) and Burns v. United States, 501 U.S. 129 (1991), they were entitled to reasonable notice that the district court was contemplating a sentence above the applicable advisory Guidelines range. Pet. C.A. Br. 8-16. The government agreed that the district court had "erred in not giving [petitioners] advance notice of its intention to impose a sentence above the advisory guideline range" in each instance, Gov't C.A. Br. 13; id. at 16-18, but the government argued that, under the harmless-error and plain-error doctrines, the court's failure to provide notice did not warrant reversal of any of petitioners' sentence. Id. at 13-14, 18-21.

The court of appeals affirmed all of the sentences. Pet. App. 1a-18a. At the outset, the court noted that petitioners Pantoja-Arellano and Cruz-Martinez had made timely objections to the lack of notice, id. at 10a; assumed for the sake of argument that petitioner Dehuma-Suarez's post-sentencing pleading sufficed as a contemporaneous objection, id. at 10a-11a & n.17; ob served that petitioners Mejia-Huerta and Craddock had not objected, id. at 4a, 9a, 11a; and concluded that peti tioner Estrada's statement that he would "file a written objection on the notice requirement" did not suffice to preserve the issue, because he failed to file such a plead ing. Id. at 11a & n.22. Accordingly, the court deter mined that Pantoja-Arellano's, Dehuma-Suarez's, and Cruz-Martinez's lack-of-notice claims should be re viewed for harmless error, whereas Mejia-Huerta's, Estrada's, and Craddock's lack-of-notice claims should be reviewed for plain error. Id. at 10a-11a.

The court of appeals then concluded that the district court had not committed error of any kind in failing to give the parties notice of its intention to vary sua sponte from the advisory Guidelines ranges. Pet. App. 12a-16a. The court of appeals first noted that Federal Rule of Criminal Procedure 32(h) states that, before a sentenc ing court "may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing sub mission, the court must give the parties reasonable no tice that it is contemplating such a departure." Pet. App. 3a n.3 (quoting the rule); see id. at 12a, 15a. The court further observed that Rule 32(h) is a codification of this Court's decision in Burns, which had likewise required advance notice of sua sponte Guidelines depar tures in order to ensure focused adversarial testing of sentencing issues. Id. at 12a. The court of appeals em phasized, however, that the "non-Guidelines" sentence imposed on each of the petitioners was a "variance" based on the district court's consideration of the sen tencing criteria set forth in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004), not a "departure" pursuant to Chapter 5 of Part K of the Guidelines. Pet. App. 15a-16a.

The court of appeals noted that other circuits have disagreed on whether Rule 32's notice requirement ap plies to Section 3553(a) variances. Pet. App. 14a-15a. The court aligned itself with those courts of appeals that have held that the notice requirement applies only to departures and does not apply to variances:

[T]he plain language of Rule 32(h) limits its appli cation to departures. It contains no language even hinting that it might apply elsewhere. * * * In ad dition, as [United States v.] Booker[, 543 U.S. 220 (2005),] has rendered the Guidelines purely advisory, the concerns that precipitated [the notice require ment] are no longer viable. Sentencing post-Booker is a heavily discretionary exercise. Sentencing courts need only consider the Guidelines as informa tive and must consult the full host of factors set forth in § 3553(a) before rendering a reasonable non- Guidelines sentence. These factors are known (or knowable) by the parties prior to sentencing, thus putting the litigants on notice that a sentencing court has discretion to consider any of these factors. This knowledge eliminates the element of unfair surprise, the concern that defense counsel will waste time with a pre-sentencing filing, the possibility that defense counsel will unwittingly provide the sentencing court with a grounds for departure, and the worry of possi bly undermining the adversarial process[.]

Id. at 15a. Accordingly, the court of appeals affirmed petitioners' sentences.1

ARGUMENT

Petitioners (Pet. 14-30) seek review of whether Rule 32(h) requires a district court to provide notice of its intent to impose a sentence outside the applicable advi sory Sentencing Guidelines range based on the criteria set forth in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004) when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties' prehearing submissions. Although there is a conflict among the courts of appeals on that question, this Cour t's review is not warranted at this time, for three rea sons. First, the Court's resolution of the issue would not affect the outcome in this case. Second, the Judicial Conference is studying the possibility of amending Rule 32 to provide clarification on the notice issue. Third, the Court should not address the notice issue until after its decision in Gall v. United States, cert. granted, No. 06-7949 (June 11, 2007), because the decision in that case may shed light on the correct resolution of the issue and may thus lead the courts of appeals to alter or to refine their conclusions about the scope of Rule 32.

1. a. In Burns v. United States, 501 U.S. 129 (1991), this Court construed a prior version of Rule 32 to re quire a sentencing court to give notice to the parties before departing sua sponte from the applicable Guide lines range. 501 U.S. at 135-139; see id. at 135 n.4 (stat ing that the notice requirement applies to both upward and downward departures). The Court acknowledged that the rule contained no "express language" requiring advance notice of sua sponte departures. Id. at 132; see id. at 136. The Court concluded, however, that notice was implicitly required by the rule's mandate that the parties have "an opportunity to comment upon the pro bation officer's determination [in the presentence re port] and on other matters relating to the appropriate sentence." Id. at 135 (quoting Fed. R. Crim. P. 32(a)(1) (1990)). The Court reasoned that whether a sua sponte departure from the Guidelines is warranted is "[o]bv iously * * * a 'matte[r ] relating to the appropriate sen tence,'" and "it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the right to be notified that the court is contemplating such a ruling." Id. at 135-136 (quoting Fed. R. Crim. P. 32(a)(1) (1990)).

The Court also reasoned that reading Rule 32 to dis pense with notice would be inconsistent with the rule's "purpose of promoting focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences." Burns, 501 U.S. at 137. Finally, the Court relied on the doctrine of constitutional avoidance, noting that, if Rule 32 were "read * * * to dispense with no tice, [the Court] would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause." Id. at 138.

In 2002, Rule 32 was amended by the addition of a new subsection that expressly codified the Court's hold ing in Burns. That subsection provides that the district court, before it "depart[s] from the applicable sentenc ing range on a ground not identified for departure either in the presentence report or in a party's prehearing sub mission, * * * must give the parties reasonable notice" of "any ground on which the court is contemplating a departure." Fed. R. Crim. P. 32(h). At the same time, the language on which the Court relied in Burns was retained and designated as Rule 32(i)(1)(C). See Fed. R. Crim. P. 32(i)(1)(C) (stating that the sentencing court "must allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence").

b. This Court subsequently decided United States v. Booker, 543 U.S. 220 (2005), which rendered the Sen tencing Guidelines advisory rather than mandatory. Since Booker, courts have considered whether Rule 32's notice requirement applies not only to a departure under the Guidelines but also to a decision by a sentencing court to exercise its post-Booker discretion to impose a non-Guidelines sentence based on the criteria in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). In the govern ment's view, Rule 32's notice requirement applies to such a decision.

Although Rule 32(h) refers only to "departures," Fed. R. Crim. P. 32(h), Rule 32 elsewhere continues to mandate that the district court allow the parties "to comment on * * * matters relating to an appropriate sentence," Fed. R. Crim. P. 32(i)(1)(C). As described above, this Court concluded in Burns that the mandate that the parties be allowed to comment on sentencing matters requires that they receive notice of sua sponte departures. The same reasoning that led this Court to that conclusion also indicates that notice is required be fore a sentencing court may impose a non-Guidelines sentence based on the criteria in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). Just like a departure, a decision to impose a non-Guidelines sentence under Section 3553(a) is "[o]bviously" a "matte[r ] relating to the appropriate sentence," and "it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of [that decision] but not the right to be notified that the court is contemplating such a rul ing." Burns, 501 U.S. at 135-136.

The other reasons for the notice requirement recog nized in Burns also support the conclusion that the re quirement extends to notice that the sentencing court is contemplating a non-Guidelines sentence under Section 3553(a). By construing Rule 32 to require notice before imposition of non-Guidelines sentences under Section 3553(a), courts avoid the constitutional issue of whether notice is required by due process. See Burns, 501 U.S. at 138. In addition, notice promotes Rule 32's goal of "full adversary testing of the issues relevant" to sen tencing. Id. at 135. Even under the post-Booker advi sory Guidelines system, determination of the Guidelines range remains the "starting point for constructing a de fendant's sentence." United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006).2 Although the parties know that the sentencing court will consider the Section 3553(a) factors and may impose a sentence outside the Guide lines range based on those factors, "application of those factors turns on relevant facts, some of which might be in the [c]ourt's mind but not previously disclosed." United States v. Anati, 457 F.3d 233, 237 (2d Cir. 2006). If the presentence report and the parties' submissions have not discussed the matter, the parties need notice of the grounds on which the court is considering imposing a non-Guidelines sentence in order to ensure the full airing of the issues that will determine the sentence. Ibid.; United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006).

This Court's recent decision in Rita v. United States, No. 06-5754, 2007 WL 1772146 (June 21, 2007), also sug gests that a district court must give the parties notice that it is contemplating a non-Guidelines sentence. The Court in Rita noted that the Guidelines still generally provide the framework for the sentencing process. The Court explained that the district court will normally be gin the process "by considering the presentence report and its interpretation of the Guidelines." Id. at *9 (cit ing 18 U.S.C. 3552(a) and Rule 32). The sentencing court will then consider arguments for a departure (where the case "falls outside the 'heartland' to which the Commission intends individual Guidelines to apply") or for a variance "because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or per haps because the case warrants a different sentence re gardless." Ibid. The Court emphasized that, regardless of the ultimate sentence imposed, the sentencing court must conduct "the thorough adversarial testing contem plated by federal sentencing procedure." Ibid. In mak ing that point, the Court cited Rule 32(h) and (i)(1)(C), as well as Burns, for the "importance of notice and meaningful opportunity to be heard at sentencing." Ibid.

2. As petitioners observe (Pet. 16-26), the courts of appeals have reached differing conclusions on whether notice is required before a court may impose a non- Guidelines sentence based on the criteria in Section 3553(a). The Second, Fourth, Sixth, Ninth, and Tenth Circuits have held that notice is required. See Anati, 457 F.3d at 235-237; United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006); United States v. Cousins, 469 F.3d 572, 579-580 (6th Cir. 2006); Evans-Martinez, 448 F.3d at 1166-1167; United States v. Atencio, 476 F.3d 1099, 1103-1105 (10th Cir. 2007). The Third, Fifth, Seventh, Eighth, and Eleventh Circuits have held to the contrary. See United States v. Vampire Nation, 451 F.3d 189, 195-196 (3d Cir.), cert. denied, 127 S. Ct. 424 (2006); Pet. App. 14a-16a; United States v. Walker, 447 F.3d 999, 1006 (7th Cir.), cert. denied, 127 S. Ct. 314 (2006); United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005); United States v. Irizarry, 458 F.3d 1208, 1211-1212 (11th Cir. 2006), petition for cert. pend ing, No. 06-7517 (filed Oct. 26, 2006).

Despite the conflict among the courts of appeals, this Court's review is not warranted in this case. As the court of appeals noted, petitioners Mejia-Huerta, Estrada, and Craddock failed to preserve their notice claims in the district court. Pet. App. 11a.3 Accordingly, they would be entitled to relief only if they could show plain error that affected their substantial rights, and only if the error seriously affected the fairness, integrity or public reputation of the sentencing proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). They cannot make that showing, because a sentencing court's failure to provide notice that it is contemplating a Sec tion 3553(a) variance is not a plain or obvious error. See, e.g., United States v. Gentry, 214 Fed. Appx. 403, 405 (5th Cir. 2007); United States v. Dean, 202 Fed. Appx. 775, 777 (5th Cir. 2006); United States v. Mateo, 179 Fed. Appx. 64, 65 (1st Cir. 2007); see generally, e.g., United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006) (no plain error where there is no controlling case law and the circuits are divided); United States v. Teague, 443 F.3d 1310, 1319 (10th Cir.) (same), cert. denied, 127 S. Ct. 247 (2006). Similarly, there can be no doubt that a favorable ruling from this Court on the no tice issue would have no effect on the sentences of peti tioners Pantoja-Arellano, Dehuma-Suarez, and Cruz- Martinez. The district court explicitly stated that it would impose the "same sentence" on each of those peti tioners even if it "were to vacate its prior sentence and formally notify the parties in writing that the sentence imposed may be outside of the guideline range." Pet. App. 23a, 40a; see id. at 31a. Although petitioners make a conclusory assertion that, with sufficient notice, they "could have introduced evidence to rebut the district court's assertions that all of [petitioners] were danger ous and lacked respect for the laws of the United States and could have addressed whether the criminal history scores from the Guidelines were non-representative" (Pet. 27), petitioners have made no proffer of any evi dence that counsel would have provided. Because the outcome of this case would have been the same under any view of Rule 32, further review is unwarranted.

Further review would also be inappropriate because the Judicial Conference is studying the possibility of amending Rule 32 to provide clarification on the notice issue. The Conference's Committee on Rules of Practice and Procedure recently circulated for public comment a proposal to amend Rule 32(h) to require a sentencing court to provide notice to the parties of any ground for imposing a non-Guidelines sentence not previously iden tified in the presentence report or by the parties them selves. "After discussion at the Standing Committee of recent decisions taking various approaches to the ques tion whether notice must be given, the proposed amend ment to subdivision (h) was withdrawn to permit further study." See Committee on Rules of Practice & Proce dure, Judicial Conference, Report of the Judicial Con ference Rules App. at H-3 (Sept. 2006). If, after that further study, the Conference decides to clarify the rule, this Court's intervention would be unnecessary. Peti tioners suggest (Pet. 29-30 & n.8) that review is war ranted now because any amendment to the rule would not go into effect until at least 2010. But, even assuming petitioners' calculations are correct, the fundamental point remains the same. Any decision by this Court on the scope of Rule 32 would have limited long-term effect in the event of a rule change.

Finally, review would be premature at this juncture because a case currently pending before the Court may shed light on the proper resolution of the notice issue and may thus lead the courts of appeals to alter or to refine their conclusions about the scope of Rule 32. The Court has granted a writ of certiorari in Gall v. United States, No. 06-7949 (June 11, 2007), to address the stan dard of review that courts of appeals should apply in assessing the reasonableness of out-of-Guidelines sen tences. The decision in Gall is likely to provide addi tional clarification on the role of the Sentencing Guide lines in the post-Booker sentencing regime. The deci sion may therefore provide the lower courts with insight into the importance of notice in achieving Rule 32's goal of full adversary testing of the issues relevant to sen tencing.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
STEPHAN E. OESTREICHER, JR.
Attorney

JULY 2007

1 The court of appeals also rejected other contentions that petition ers have not renewed in this Court. Pet. App. 16a-18a.

2 See United States v. Anati, 457 F.3d 233, 236-237 (2d Cir. 2006); United States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006); United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006).

3 Petitioner Estrada suggests (Pet. 11 & n.4) that he preserved his notice claim by lodging a "verbal pro forma objection" at his sentencing hearing. The court of appeals concluded otherwise (Pet. App. 11a & n.22), and that fact-bound conclusion does not warrant this Court's review. See United States v. Johnston, 268 U.S. 220, 227 (1925) ("We do not grant a certiorari to review evidence and discuss specific facts."). In any event, as the court of appeals correctly observed (Pet. App. 11a n.22), Estrada's statement that he would "file a written objection on the notice requirement" provided neither sufficient detail on the substance of the objection nor an opportunity for the district court to cure the alleged error or to make clear that any error had not affected Estrada's sentence.