No. 13-1512
In the Supreme Court of the United States
STEVEN DWIGHT HAMMOND AND
DWIGHT LINCOLN HAMMOND, JR., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
DONALD B. VERRILLI, JR. Solicitor General
Counsel of Record
LESLIE R. CALDWELL
Assistant Attorney General
ROBERT A. PARKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether imposing five-year mandatory minimum
sentences under 18 U.S.C. 844(f)(1) for petitioners’
offenses of maliciously damaging or destroying
property of the United States by fire would violate the
Eighth Amendment.
2. Whether petitioners’ oral agreement not to appeal
their convictions or sentences gave rise to an
implicit bar on the government’s appealing the district
court’s sentence, which was below the statutory minimum
specified by 18 U.S.C. 844(f)(1).
(I)
TABLE OF CONTENTS
Page
Opinion below ..................................................................................1
Jurisdiction ......................................................................................1
Statement.........................................................................................1
Argument.........................................................................................9
Conclusion......................................................................................18
TABLE OF AUTHORITIES
Cases:
Graham v. Florida, 560 U.S. 48 (2010).....................10, 11, 14
Harmelin v. Michigan, 501 U.S. 957 (1991)............10, 12, 13
Hutto v. Davis, 454 U.S. 370 (1982)......................................13
Lockyer v. Andrade, 538 U.S. 63 (2003)...............................13
Robinson v. California, 370 U.S. 660 (1962)........................12
Rummel v. Estelle, 445 U.S. 263 (1980)..........................12, 13
Solem v. Helm, 463 U.S. 277 (1983) ......................................10
United States v. Anderson, 921 F.2d 335 (1st Cir.
1990) .......................................................................................15
United States v. Benchimol, 471 U.S. 453 (1985)................14
United States v. Blick, 408 F.3d 162 (4th Cir. 2005)...........15
United States v. Broughton-Jones, 71 F.3d 1143
(4th Cir. 1995)........................................................................16
United States v. Burton, 201 Fed. Appx. 186 (4th Cir.
2006) .......................................................................................16
United States v. Guevara:
941 F.2d 1299 (4th Cir. 1991), cert. denied,
503 U.S. 977 (1992)............................................8, 15, 17
949 F.2d 706 (4th Cir. 1991).............................................16
United States v. Hare, 269 F.3d 859 (7th Cir. 2001)...........15
United States v. Johnston, 268 U.S. 220 (1925) ..................11
(III)
IV
Cases—Continued: Page
United States v. Peebles, 146 Fed. Appx. 630
(4th Cir. 2005)........................................................................16
United States v. Russell, 402 Fed. Appx. 772
(4th Cir. 2010)........................................................................16
United States v. Stubbs, No. 97-4948, 1998 WL
387253 (4th Cir. 1998).....................................................17, 18
Weems v. United States, 217 U.S. 349 (1910)......................12
Constitution, statutes and rule:
U.S. Const. Amend. VIII............................................7, 8, 9, 11
18 U.S.C. 844 ..............................................................................2
18 U.S.C. 844(f)(1)..........................................................passim
Sup. Ct. R. 10 ...........................................................................11


In the Supreme Court of the United States
No. 13-1512
STEVEN DWIGHT HAMMOND AND
DWIGHT LINCOLN HAMMOND, JR., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-11)
is reported at 742 F.3d 880.
JURISDICTION
The judgment of the court of appeals was entered
on February 7, 2014. A petition for rehearing was
denied on March 19, 2014 (Pet. App. 23-24). The petition
for a writ of certiorari was filed on June 17, 2014.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District
Court for the District of Oregon, petitioners were
convicted of maliciously using fire to damage or destroy
federal property, in violation of 18 U.S.C.
(1)

844(f)(1). Section 844(f)(1) specifies a mandatory minimum
sentence of five years of imprisonment for those
offenses. The district court, however, sentenced petitioner
Dwight Hammond, Jr. (Dwight) to three
months of imprisonment for his one count of conviction
and sentenced petitioner Steven Hammond (Steven)
to concurrent terms of one year and one day of
imprisonment for his two Section 844 convictions. The
court of appeals vacated the sentences and remanded
with instructions to resentence petitioners “in compliance
with the law,” Pet. App. 11. See id. at 1-11.


1. Dwight and his son, Steven, own a cattle ranch
in Oregon, the land of which is interspersed among
tens of thousands of acres of federal land administered
by the Bureau of Land Management (BLM).
See Pet. 3-4; Gov’t C.A. Br. 13 (map). Each petitioner
was convicted on a Section 844(f)(1) count for a September
2001 fire, and Steven was additionally convicted
on a Section 844(f)(1) count for August 2006 fires.
Pet. App. 4; C.A. E.R. 35, 41.
a. In 1999, before the 2001 and 2006 fires at issue,
petitioners set fire to their own land. C.A. E.R. 52-54.
The fire crossed into and burned about 90 acres of
adjacent land owned by the federal government. Id.
at 54. Shortly thereafter, BLM employees met with
petitioners to make clear that petitioners must cooperate
with BLM to coordinate and manage controlled
burns to avoid damaging public lands, which are used
for many purposes other than grazing. Pet. App. 3;
C.A. E.R. 54-56; see Gov’t C.A. Br. 3-4. BLM warned
petitioners that they could be civilly or criminally
liable for burning public land without permission.
C.A. E.R. 57. Steven had previously vowed “never” to
cooperate with BLM, id. at 386, and, after 1999, he
3
repeatedly expressed frustration with BLM’s grazing
and fire restrictions, telling one BLM employee that
he had started multiple fires in the area “and you guys
never caught me,” id. at 346. Gov’t C.A. Br. 4-5.
b. The September 2001 fire. On September 30,
2001, petitioners led an unauthorized hunting expedition
on federal land and illegally shot several deer.
C.A. E.R. 77, 82, 87-89, 92-96, 239-240. A BLM district
manager, who was lawfully hunting in the same
area, ran into and spoke with Dwight at about 8 a.m.;
witnessed the shooting of several deer about 30 to 45
minutes later; and then briefly saw Steven at the
scene before Steven ducked into the brush to hide. Id.
at 50-51, 79, 92-94, 96-97. As the district manager
drove away in his truck with his companions, they saw
a group of four men behind them carrying rifles. Id.
at 95. The district manager told his companions that
he was “very uncomfortable with the situation, and
[they] needed to leave,” which they did. Id. at 95-96.
After the district manager departed, Steven handed
out boxes of matches and stated that “we [a]re
going to light up the whole country on fire.” C.A. E.R.
202-203; see Pet. App. 3; see also C.A. E.R. 97-99
(sequence of events). Steven gave one of the boxes of
matches to his then 13-year-old nephew, Dusty Hammond,
and instructed the boy to walk in the direction
along the fence line and to drop the lit matches “until
[he] r[a]n out.” C.A. E.R. 204-205, 207. Dusty complied,
dropping lit matches to the grass along the
fence line separating petitioners’ land from federal
land. Id. at 205-206; see id. at 287-288. Dusty observed
smoke rising from behind him in the direction
in which Steven had walked. Id. at 206. Dusty later
testified that he assumed that the smoke had been
4
caused by “everybody else that walked the other direction.”
Ibid.
The fire quickly raged out of control, trapping
Dusty near a creek and forcing others who were
camping and hunting in the area to flee. Pet. App. 3;
C.A. E.R. 97-100, 158-159, 207. Dusty thought he
“was going to get burned up” by the 8-to-10-foot-high
flames, but the 13-year-old managed to escape on his
own. C.A. E.R. 207. The fire damaged 139 acres of
federal land and required that the tract be removed
from production for two growing seasons. Pet. App. 3;
C.A. E.R. 287-289.
The fire destroyed any evidence of petitioners’ illegal
deer hunt. C.A. E.R. 248-250. Petitioners then
attempted to cover up their arson. When Dusty made
it back to the ranch after escaping the fire, Dwight
and Steven both ordered him to “keep [his] mouth
shut” about what they had done. Id. at 210-211. Dusty
feared Steven and kept the arson secret for years.
Id. at 212. Steven also called BLM a few hours after
the fire was started, falsely reporting that he planned
to do a prescribed burn confined to his own land. Id.
at 234-235; Gov’t C.A. Br. 9. When later questioned
by BLM investigators, petitioners denied being involved
in the fire. C.A. E.R. 298-301, 331, 336-338.1
c. The August 2006 fires. On August 22, 2006,
BLM firefighters were conducting fire-suppression
operations on federal land in an effort to prevent the
1 Petitioners assert (Pet. 7) that the district court at sentencing
“rejected Dusty’s version of what had happened.” That is incorrect.
The court noted that Dusty was young at the time of petitioners’
offense conduct but stated that it was “sure he remembered
things as best he could.” Pet. App. 14. The court made no
findings contradicting, much less rejecting, Dusty’s testimony.

5
spread of a nearby wildfire. C.A. E.R. 615, 623, 772-
773, 795-797, 800-804. A firefighter observed three
spot fires lined up in a row, which was “not characteristic
of what a wildfire would do.” Id. at 511-512; see
id. at 481, 487, 491-492. Those fires spread and combined
to cover an acre of land. Id. at 509. Steven
drove up and admitted that he started the fires in
order to provide a buffer to protect his property from
the wildfire. Id. at 663-664, 813; see Pet. App. 3. A
BLM supervisor, Lance Okeson, informed Steven that
he was prohibited from setting fires on federal land
and that Stevens’ actions had endangered firefighters.
C.A. E.R. 664-665. Steven “got upset” and told Okeson
that BLM “better just clear out.” Id. at 665.
The next morning, two firefighters again observed
Steven driving on a road on federal land. C.A. E.R.
523, 528-532. The firefighters proceeded in the direction
from which Steven had driven and encountered
several suspicious fires. Id. at 533-538. Later that
day, Okeson observed Dwight in the same area walking
away from a freshly lit fire. Id. at 670-672. When
Dwight reached the road, the men locked eyes, and
Dwight fled on foot. Id. at 672-673. Okeson laid
chase; caught up to Dwight; and told Dwight that he
knew that Dwight had lit the fire, that people were
“all over this mountain,” and that Dwight was “going
to get someone killed,” id. at 678. See id. at 674-679.
Dwight shrugged and initially refused to respond. Id.
at 679-680. After Okeson attempted to contact a BLM
law-enforcement officer on his radio and another BLM
employee (Joe Glascock) arrived, Dwight told Okeson
that he “d[id]n’t have to” make the call and to come
that evening to petitioners’ ranch to “work this out.”
Id. at 680, 682-683. By the time Okeson and Glascock
returned to the road, the fire had spread such that the
men were surrounded by fires on both sides of the
road. Id. at 685. Okeson radioed a fire-suppression
aircraft to circle above for safety, while he tried to
preserve evidence of the arson and while Glascock,
who was concerned for Dwight’s safety, left on his
four-wheeler to attempt to locate Dwight. Id. at 684-
687, 823-824. Both men were forced to flee to safety.
Id. at 687, 824-825.
The next day, Glascock met with Steven and discussed
the fires. C.A. E.R. 831-833. When Glascock
told Steven that his father (Dwight) had been caught
coming from the fire, Steven stated that petitioners
had “been doing this a long time” and that Glascock
“need[ed] to do what [he] c[ould] to make this go
away.” Id. at 833. Steven threatened to frame Glascock
if BLM did not drop the issue, warning Glascock
that “[i]t could be an ugly situation” and that “if I go
down, you’re going down with me * * * because
you started those fires and not me.” Ibid.
2. a. A federal grand jury charged petitioners with
multiple counts of arson, conspiracy to commit arson,
and witness tampering. Supp. C.A. E.R. 137-155 (superseding
indictment). At trial, the jury advised the
district court that it had reached a verdict on several
counts but was deadlocked on others. C.A. E.R. 1246,
1257-1258. The district court accepted a partial verdict
finding each petitioner guilty on a Section
844(f)(1) count for the 2001 fire and finding Steven
guilty on an additional Section 844(f)(1) count for the
2006 fire. Pet. App. 3-4; C.A. E.R. 1256-1258, 1263-
1266. The jury acquitted petitioners of other counts of
arson and resumed deliberating on the remaining
counts. C.A. E.R. 1257-1258, 1266-1267.
7
While the jury continued deliberating, the parties
reached an agreement that they presented orally to
the district court. Petitioners agreed to “waive their
appeal rights and accept the verdicts as they’ve been
returned thus far by the jury.” C.A. E.R. 1268; see
Pet. App. 4. In exchange, the government would accept
the partial verdict and agreed to recommend that
(1) petitioners “remain released pending” sentencing
and (2) Steven’s sentences run concurrently. C.A.
E.R. 1268. The government specifically advised petitioners
that the mandatory minimum sentence for
their Section 844(f)(1) offenses was five years of imprisonment.
Id. at 1271. The district court accepted
petitioners’ waiver of their appeal rights and dismissed
the remaining counts of the indictment that
were not resolved by the partial verdict. Id. at 1270.
b. Over the government’s objection, the district
court held an expedited sentencing hearing (C.A. E.R.
1-33) without waiting for petitioners’ Presentence
Reports to be prepared. Id. at 20; see id. at 18; Pet.
App. 13. The district court accepted petitioners’ argument
that imposing the five-year statutory minimum
sentence would constitute cruel and unusual
punishment violating the Eighth Amendment and sentenced
Dwight to three months and Steven to one year
and one day of imprisonment. Pet. App. 16-20.
The district court stated that, in its view, Congress
would not have intended Section 844(f)(1)’s five-year
mandatory minimum to apply to “th[e] sort of conduct”
here. Pet. App. 17. The court stated that Section
844(f)(1)’s mandatory minimum might properly
apply if the defendants had “burn[ed] sagebrush in
the suburbs of Los Angeles where there are houses up
those ravines,” but that the court did not “think that’s
8
what the Congress intended” “[o]ut in the wilderness
here.” Ibid. The court additionally concluded without
elaboration that imposing the statutory minimum
sentence would violate the Eighth Amendment because
a five-year sentence “is grossly disproportionate
to the severity of [petitioners’] offenses,” does “not
meet any idea I have of justice, proportionality,” and
“would shock the conscious to me.” Ibid.
3. The court of appeals vacated and remanded for
resentencing. Pet. App. 1-11.
First, the court of appeals rejected petitioners’
contention that their agreement with the government
barred the government from appealing their sentences
and that the government’s appeal should therefore
be dismissed. Pet. App. 6-9. The court concluded that
the government never agreed to waive its right to
appeal an illegal sentence and that the parties’ agreement
was not ambiguous on that point. Id. at 6-7. The
court noted that petitioners had argued that the
agreement’s silence on the question should be understood
as an “implied waiver” of the government’s right
to appeal, id. at 7 (citing United States v. Guevara,
941 F.2d 1299 (4th Cir. 1991), cert. denied, 503 U.S.
977 (1992)), but it refused to imply such a waiver here.
Id. at 7-8. The court explained that federal courts are
not authorized “to remake a plea agreement or imply
terms into one” and that it therefore could not properly
read a government-appeal waiver into an agreement
that was silent on that issue. Ibid. (citing cases).
Second, the court of appeals vacated the district
court’s sentencing judgment. Pet. App. 9-11. The
court explained that “[a] minimum sentence mandated
by statute is not a suggestion that courts have discretion
to disregard.” Id. at 9. The court acknowledged

that in a rare case a term of imprisonment might be so
“grossly disproportionate” that it violates the Eighth
Amendment, but it rejected petitioners’ view that a
five-year sentence here would meet that standard. Id.
at 9-11. “Given the seriousness of arson,” the court
concluded, “a five-year sentence [would] not [be]
grossly disproportionate to the offense.” Id. at 10.
The court explained that Congress could have “justifiably
consider[ed] arson, regardless of where it occurs,
to be a serious crime” warranting a five-year minimum
sentence under Section 844(f)(1) because “[e]ven
a fire in a remote area has the potential to spread to
more populated areas, threaten local property and
residents, or endanger the firefighters called to battle
the blaze.” Ibid. The 2001 fire in this case, the court
noted, “which nearly burned a teenager and damaged
grazing land, illustrates this very point.” Ibid. Furthermore,
the court observed, the Supreme Court has
rejected Eighth Amendment challenges to “far tougher
sentences for less serious” or comparable offense
conduct. Id. at 10-11 (citing cases). The court accordingly
vacated petitioners’ sentences and remanded
with instructions to resentence petitioners “in compliance
with the law.” Id. at 11.
ARGUMENT
Petitioners contend (Pet. 15-36) that imposing Section
844(f)(1)’s minimum five-year sentence for their
arson offenses would violate the Eighth Amendment.
The court of appeals correctly rejected that contention;
petitioners identify no division of authority over
the proper standard to apply in assessing such an
Eighth Amendment claim; and petitioners’ fact-bound
challenge to the court of appeals’ application of that
standard warrants no further review. Petitioners
10
further contend (Pet. 36-39) that review is warranted
to resolve a disagreement between the Fourth Circuit
and other courts of appeals about whether a plea
agreement in which the defendant waives his right to
appeal his sentence should also be read to contain an
implicit waiver of the government’s right to appeal the
sentence. The court of appeals’ decision is correct and
does not implicate a division of authority warranting
review. The petition should be denied.
1. “[T]he Eighth Amendment contains a ‘narrow
proportionality principle’” that “‘forbids only extreme
sentences that are “grossly disproportionate” to the
crime.’” Graham v. Florida, 560 U.S. 48, 59-60 (2010)
(quoting Harmelin v. Michigan, 501 U.S. 957, 997,
1001 (1991) (Kennedy, J., concurring in part and concurring
in the judgment)). In determining whether a
sentence is grossly disproportionate, “[a] court must
begin by comparing the gravity of the offense and the
severity of the sentence.” Id. at 60. This initial, “objective”
inquiry requires courts to “grant substantial
deference to the broad authority that legislatures
necessarily possess in determining the types and
limits of punishments for crimes.” Solem v. Helm, 463
U.S. 277, 290 (1983). Only “‘[i]n the rare case in which
[this] threshold comparison . . . leads to an inference
of gross disproportionality’” should a court then
proceed to “compare the defendant’s sentence with
the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the
same crime in other jurisdictions” to determine
whether the initial inference of disproportionality is
correct. Graham, 560 U.S. at 60 (second brackets in
original) (quoting Harmelin, 501 U.S. at 1005 (Kenne-
11
dy, J., concurring in part and concurring in the judgment)).
The court of appeals applied the correct standard
for evaluating petitioners’ Eighth Amendment claim.
Pet. App. 9-10 (citing Graham, 560 U.S. at 60). And
petitioners acknowledge (Pet. 17-18) that the court of
appeals’ analysis “is consistent with circuit court decisions
across the country” and that “no circuit court
case” supports petitioners’ position. Without disagreement
among the courts of appeals, the fact-bound
application of the settled legal standard in this case
warrants no further review. See, e.g., United States v.
Johnston, 268 U.S. 220, 227 (1925) (“We do not grant
* * * certiorari to review evidence and discuss
specific facts.”); Sup. Ct. R. 10 (review is rarely warranted
if “the asserted error consists of * * *
misapplication of a properly stated rule of law”).
Furthermore, the court of appeals’ decision is correct.
Congress had good reason to “consider arson,
regardless of where it occurs, to be a serious crime”
warranting a five-year minimum sentence under Section
844(f)(1). Pet. App. 10. That provision applies to
arsonists only when they “maliciously” damage or
destroy federal property by fire, 18 U.S.C. 844(f)(1),
and petitioners have admitted that the jury, inter
alia, found beyond a reasonable doubt that petitioners
specifically “intended” the 2001 fire set on their land
“to cross over into the public land,” C.A. E.R. 13; see
id. at 14. The court of appeals explained how the facts
of petitioners’ crimes “illustrate[]” why Congress
would consider such arsons serious enough to warrant
a five-year sentence: petitioners maliciously set fires
that damaged or destroyed federal property and endangered
the safety of others, including firefighters,
12
campers and hunters lawfully using public land, and
petitioners’ own grandson/nephew. Pet. App. 10. The
fires also had the potential to spread further to other
areas. See ibid. Petitioners went to great lengths to
cover up their serious crimes: Steven, for example,
submitted a false report with BLM and threatened to
frame a BLM employee for arson if the agency did not
stop investigating the fires that petitioners set. See
pp. 4, 6, supra.
This case bears no resemblance to any prior decision
of this Court invalidating a non-capital term-ofyears
sentence on proportionality grounds. See
Weems v. United States, 217 U.S. 349, 357-358, 364-
367, 382 (1910) (invalidating 15-year sentence for
falsifying official document under the Philippines
Penal Code, which required that, inter alia, the prisoner
perform “hard and painful labor” and “always
carry a chain at the ankle, hanging from the wrists,”
for at least 12 years) (citation omitted); see also
Rummel v. Estelle, 445 U.S. 263, 273-275 (1980) (concluding
that Weems rested on the “triviality” of the
offense; the sentence’s duration, and the “extraordinary
nature” of the “highly unusual” punishment). 2

Since Weems, the Court has rejected every proportionality
challenge to a sentence less than life without
parole, including many sentences substantially longer
than the five-year sentence at issue here. See, e.g.,
2 The Court in Robinson v. California, 370 U.S. 660 (1962), invalidated
a conviction for which a 90-day sentence was imposed, but
Robinson did not apply a proportionality rationale; it held that a
State could not constitutionally criminalize the “status” of being a
drug addict as distinct from offense conduct involving unlawful
activity. Id. at 666-667; see Harmelin, 501 U.S. at 993 n.14 (plurality
opinion) (discussing Robinson).

Hutto v. Davis, 454 U.S. 370, 370-371, 374 (1982) (per
curiam) (upholding 40-year sentence for possession
and distribution of nine ounces of marijuana in case
that did not involve a statutory recidivist enhancement);
Rummel, 445 U.S. at 264-266, 284-285 (upholding
mandatory life sentence under statutory threestrike
recidivist enhancement for defendant whose
three minor fraud offenses triggering that enhancement
involved a total of about $229); see also Harmelin,
501 U.S. at 990, 996 (upholding life sentence without
parole for possession of 672 grams of cocaine); cf.
Lockyer v. Andrade, 538 U.S. 63, 66, 77 (2003) (rejecting
habeas challenge to 50-years-to-life sentence
based on three-strikes recidivist enhancement for
defendant who stole nine videotapes worth $150).
In upholding those sentences, the Court has repeatedly
explained that “federal courts should be
‘reluctan[t] to review legislatively mandated terms of
imprisonment’” and that “‘successful challenges to the
proportionality of particular sentences’ should be
‘exceedingly rare.’” Davis, 454 U.S. at 374 (brackets
in original) (quoting Rummel, 445 U.S. at 272, 274).
Although this Court has hypothesized a term-of-years
sentence that would be grossly disproportionate to the
offense—for example, a lengthy prison term for a
minor infraction such as “overtime parking,” Rummel,
445 U.S. at 274 n.11—no court has held that a fiveyear
sentence rises to that level, particularly for criminal
conduct as serious as that here. See Pet. 17 (conceding
as much).3
3 Petitioners cite (Pet. 29-35) a number of district court and
court of appeals decisions in which defendants were convicted of
offenses under Section 844(f)(1) in connection with acts of terrorism
or the use of explosives, presumably in an effort to show that

14
2. Petitioners further contend (Pet. 36-39) that petitioners’
express agreement to waive their appellate
rights also gave rise to an implicit agreement barring
the government from appealing the imposition of an
unlawful sentence below the statutory minimum. That
contention lacks merit. Petitioners agreed to accept
the jury’s partial verdict of conviction and to waive
their right to appeal and, in exchange, the government
dropped the outstanding charges against petitioners
and agreed to recommend that petitioners be released
pending sentencing and that Steven’s sentences be
served concurrently. The government complied with
those obligations and never agreed to forgo its own
right to appeal the imposition of an unlawful sentence.4
Contrary to petitioners’ claim, courts cannot “imply
as a matter of law a term” in a plea agreement “which
the parties themselves did not agree upon.” United
States v. Benchimol, 471 U.S. 453, 456 (1985) (per
curiam). Although petitioners’ appeal waiver did not
petitioners’ conduct was comparatively less serious. Even if that
were true, it would not support petitioners’ contention that a fiveyear
sentence for petitioners’ arson offenses would be unconstitutional
here. Not only does the lack of a threshold inference of
disproportionality foreclose such a comparison, see Graham, 560
U.S. at 60, nearly all of the decisions that petitioners cite involve
sentences significantly longer than five years while the others are
distinguishable.
4 Petitioners note (Pet. 38) that defense counsel told the district
court that petitioners wanted to “bring this matter to a close” and
that “the parties” would therefore “accept the [district court’s]
judgment as to the sentence that’s imposed.” C.A. E.R. 1270. But
as the court of appeals explained, the statement, with which the
government did not concur, “cannot reasonably [be] read” in
context “as meaning that no party could take an appeal” from an
unlawful sentence. Pet. App. 6-7.

15
involve a promise to plead guilty, petitioners have
provided no reason to construe their agreement with
the government any differently. Cf. Pet. App. 4 n.1
(construing agreement using provisions applicable to a
plea agreement). A defendant may agree to accept
conviction and waive his right to appeal in exchange
for specific promises by the government. Nothing in
logic or plea-agreement law requires that a defendant’s
appeal waiver must be read to imply a corresponding
appeal waiver by the prosecutor. See id. at
8; United States v. Hare, 269 F.3d 859, 861 (7th Cir.
2001) (rejecting contention that a defendant’s appeal
waiver must be “matched against a mutual and ‘similar’
promise” by the government); cf. United States v.
Anderson, 921 F.2d 335, 337-338 (1st Cir. 1990) (concluding
that argument that government waived its
right to appeal sub silentio by failing to expressly
preserve that right in a plea agreement “stands logic
on its ear”).
Petitioners base (Pet. 37-38) their appeal-waiver
argument on the Fourth Circuit’s decision in United
States v. Guevara, 941 F.2d 1299 (1991), cert. denied,
503 U.S. 977 (1992). Guevara stated that construing a
plea agreement as permitting the government to appeal
the district court’s sentence when the defendant
has expressly promised to plead guilty and to waive
her own right to appeal would be “far too one-sided.”
Id. at 1299. The court determined that such an
agreement should be construed as including an “implicit[]”
government waiver of its right to appeal that
parallels the defendant’s “explicit[]” waiver. Id. at
1299-1300; cf. United States v. Blick, 408 F.3d 162, 168
n.5 (4th Cir. 2005) (noting in dicta that Guevara
“evened the playing field somewhat” by extending
16
such an appeal waiver to the government). Guevara,
however, cites no authority to support its rule of construction,
nor does Guevara address the inconsistency
between its reasoning and this Court’s decision in
Benchimol. See United States v. Guevara, 949 F.2d
706, 707-708 (4th Cir. 1991) (Wilkins, J., dissenting
from denial of rehearing en banc) (concluding that
panel’s decision is foreclosed by Benchimol).
The government has not found any Fourth Circuit
opinion that has applied Guevara to dismiss a government
appeal in the more than 20 years since Guevara
was decided. 5
Indeed, subsequent Fourth Circuit
decisions appear to have significantly curtailed
Guevara’s reach. In United States v. BroughtonJones,
71 F.3d 1143 (4th Cir. 1995), the court concluded
that a defendant’s valid, express, and materially
unqualified appeal waiver (id. at 1146) did not prohibit
the defendant from appealing on the ground that her
subsequent sentence was “illegal” because the sentence
“exceeded [the district court’s] statutory authority,”
id. at 1147. The Fourth Circuit subsequently
concluded in a non-precedential decision that “[t]he
5 Guevara’s practical impact has been limited by changes that
have been made to the standard language of government plea
agreements used in the Fourth Circuit that expressly preserve the
government’s right to appeal notwithstanding a defendant’s waiver.
Guevara’s rule of construction thus lacks prospective importance
in the only jurisdiction in which it applies. See, e.g.,
United States v. Russell, 402 Fed. Appx. 772, 773 n.* (4th Cir.
2010) (per curiam) (unpublished) (rejecting challenge to government
appeal under Guevara because plea agreement expressly
preserved government’s appeal rights); United States v. Burton,
201 Fed. Appx. 186, 188 (4th Cir. 2006) (per curiam) (unpublished)
(same); United States v. Peebles, 146 Fed. Appx. 630, 632 (4th Cir.
2005) (per curiam) (unpublished) (same).

Guevara rule of reciprocity” reflects an interpretive
rule of parity that does not prohibit a government
appeal if the defendant could have brought a similar
appeal. United States v. Stubbs, No. 97-4948, 1998
WL 387253, at *2 (4th Cir. 1998) (per curiam) (unpublished)
(“Reciprocity * * * requires that the
government be able to appeal the legality” of a sentence
notwithstanding Guevara, “just as a defendant
would be allowed [to do so] despite a valid waiver of
his right to appeal.”). And because Broughton-Jones
permits a defendant to appeal on the ground that his
sentence “exceeded the district court’s authority,” the
court of appeals held that the government could similarly
appeal a criminal sentence on the ground that
the district court “exceed[ed] its authority” in determining
its length. Ibid. (discussing Broughton-Jones).
Guevara’s rule of construction does not aid petitioners.
Guevara rests on the view that a guilty-plea
agreement that includes a defendant’s appeal waiver
would be “far too one-sided” if it were construed to
allow the government to appeal. 941 F.2d at 1299.
But unlike Guevara, petitioners did not forgo trial by
pleading guilty. Petitioners entered an agreement to
waive their appeal only after a jury found them guilty
beyond a reasonable doubt and, in exchange, the government
dropped remaining unresolved counts and
provided other valuable consideration. Such an agreement
is not “too one-sided” under Guevara. Moreover,
even if Guevara’s reciprocity-based rule of construction
might have applied in this case, it would not
have prohibited the government from appealing petitioners’
sentences on the ground that the district
court “exceed[ed] its authority” by imposing a sen-
18
tence below the statutorily required minimum. See
Stubbs, 1998 WL 387253, at *2.
In any event, Guevara lacks prospective importance
in the only jurisdiction in which it applies. See
pp. 16-17 & n.5, supra. Consequently, this Court’s
intervention would not be necessary to eliminate any
division of authority that might result from Guevara
even if that decision’s reasoning would apply in this
case (which it would not).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
LESLIE R. CALDWELL
Assistant Attorney General
ROBERT A. PARKER
Attorney
FEBRUARY 2015

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