Petition for Writ of Certiorari — Paul Richardson, Petitioner v. United States

!-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Paul RIChardson

PETITIONER

-

(Your Name)

VS.

United States Of America

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals f o r the Sixth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Paul RIchardson

(Your Name)

P.O. Box 34550

(Address)

Memphis Tenn, 38134

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

(1) Was the Sixth Circuits reading of thier precedents applying

relevant conduct, unreasonable simply because petitioner would

benifit from this application?

(The Probation Office in this case recommended the application

of Relevant Conduct because petitioners crimes are infact relevant.)

(2) Was it abuse of Discretion for the District :and the Appeals court

not to adoptthePresentence report recommenting that the relevant

conduct be appplied, because the Crimes were infact related.

both Stemming from State charges?

(Petitioners charges were charged in State for both

crimes and they were later split up).

-

J

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Gall V. United States. 552 U.S. 38, 51 (2007'

/

United States V. Philips, 516 F. 3d 479 (6th cir. 2008) Passjurn

Uited States V. Faison. 3339 F. 3d 518, 520-21 (6th Cir 2003)

4

STATUTES AND RULES

U.S.S.GsS2k2.1(a)(1)(b)(6)(B)

Pa s s i urn

USS..GflBl.3(a)(2)

Pa 55 i urn

Pa s s i urn

U.S.S.G.fl5K2.23

Pass ium

U.S .S.G.5G1.3(b)

Pa S 5 urn

18 U.S.C.922(g)

4

18 U.S.0 .924(a)(1)(2)

B1:S:G:

Application noteS

US .S .G1B1.3()(1)_(3)

U.S .S.G.2K2.1(a)(l)

U.S.S.G.2K2.1(b)(6), Application note 14

U.S.S.G. 4Al.1(e)

OTHER

U.S.S..G4B1.4(b)(3)(A)

U.S. S .G. §5G1 .3

U.S .5 .G. §5K2 .23

Pa S 5 i urn

4;5,6

Pa s S i urn

Pa s 5 i urn

1,2

Pa S S i urn

Pass i urn

Pass iurn.•.;

Pa s S i urn

LIST OF PARTIES

[Ik All parties appear in the caption of the case on the cover page.

[1 All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

1;

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................1

JURISDICTION................................................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

STATEMENTOF THE CASE ............................................................................................4

REASONS FOR GRANTING THE WRIT.......................................................................... 8

CONCLUSION.................................................................................................................... 16

INDEX TO APPENDICES

APPENDIX A

Court Of Appeals Opinion

APPENDIX B District Court Opinion.

APPENDIX C

Petition For Rehearing.

APPENDIX

Appellant brief By Attorney in the case in Appeals

Court for the Sixth Circuit

APPENDIX E

APPENDIX F

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[,JFor cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

A

to

; or,

[ ] reported at 16-5402

[ ] has been designated for publication but is not yet reported; or,

[1 is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

; or,

[1 reported at

has

been

designated

for

publication

but

is

not

yet

reported;

or,

[1

[1 is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

. ; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

court

-

to the petition and is

; or,

[ ] reported at

[1 has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

\

V

JURISDICTION

[,IFor cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

Aug 3, 2017

,

____________________

[ ] No petition for rehearing was timely filed in my case.

[,JXA timely petition for rehearing was denied by the United States Court of

Nov 16, 2017

Appeals on the following date:

,and a copy of the

order denying rehearing appears at Appendix

i

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ____________________ (date)

in Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[I A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including*

(date) on

(date) in

Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

(2)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

As A Pro-Se petitioner, and Under This courts holding in Haines

V.Kerner. 404 U.S. 519 (1972) There are over 1.5 .-- Statutes and rules

applicable thats'protected under the Due Process Equal protection

rights associated with petitioners ease that they would run the risk

of misinterpretation to one individuals ideas about their application.

Thuc defendant/Petitioner would leave one's own interpretation to

settle those applications to indivuduals similarily situated.

The Equal Protection of theFIFTHAmendment Protects Simililarily

situated defendants accross the spectrum of Federal Review,

(3)

STATEMENT OF THE CASE

Appellant was indicted in August 17, 2004 on one count of being a

felon in possession of a firearm under 18 U.s.c. §922(g). Appellant

pleaded guilty on the indictment on January 12. 2005, A presentence

investigation Report [PSIR] was then prepared. There were no objections

by Appellant to the reports conclusion that his criminal history

qualified him as an armed career criminal pursuant to U.S.S.G. §4B1.4

(b)(3)(A). Appellants total offense level was 30 and he had 17 criminal

history points, placing him in Criminal History Category VI. Appellants

advisory guideline range was therefore 168-210 months. with a "Restrict

ed" guideline range of 180-210 months, due to the mandatory Minimum

Appellant was sentenced to 196 months incarceration, 5uprevisedrelease for three years. and a One hundred dollar Special assessment.

Appellant then appealed to theSixth Circuit arguing that the district

court failed to properly consider, the factors under 18 U.S.C. §3553(a).

That appeal was denied. Then, in the wake of Johnson V. United States.

135 S. Ct. 2551(2015) Appellant filed a motion under 28 U.S.C. - §2255

for a writ of habeas surpus challenging his sentence as an armed

career criminal. The district court granted Appellant's motion and

vacated his sentence, scheduling the matter for a new sentencing

hearing. A supplemental PSIR [hereinafter SPSR] was prepared prior

toAppellant's resentencing hearing. The U.S. Probation Department

calculated Appellants new advosory guidelines sentence as follows:

U.S.S.G. §2K2.1(a)(1) assigns a level 24, for felon in

possession of a firearm, "if the Defendant committed any part of

the instant offense subsequent to sustaining at least two felony

convictions of either a crime of violence or controlled substance

offense." Specifically, the SPSR cited to Appellants convictions

in Paragraphs 44,47 and 49 of the report as supporting this conclusion.

the Probation Department then added for additional four points under

U.S.S.G §2K2.1(b)(6)(B) as "the defendant used or possed any firearm

or ammunition in connection with another felony offense. He possessed

a firearm during robberies on August 30, 2003, and December 24, 2003."

With acceptance of responsibility and a timely notice of intent to

plead guilty, the SPSR calculated a Total Offense level of 25.

(4)

-I

The SPSR recalculated Appellants cr iminal

history points to be 15,

as opposed to the 17 points calculated in

the original PSIP.

The prior PSIR had added an additional two

points, under former

U.S.S.G §4A1.1(e), for having committed the

instant offense within

two years of being released from prison in

three state cases. This

still resulted in a Criminal HistoryCateg

ory of VI.

The resulting advisory guideline range was

110-120 months imprisonment,

as teh Maximum term of imprisonment for the

Appellant under 181J.S.C.

§924(a)(1)(2) is ten years. The GOvernment

offered one objection

to the SPSR; the defense offered no objectio

ns to the SPSR. The GOvernménts objection was as follows:

0bjectionl: The government maintains that

the offense in paragraphs

51 and 52 should not be considered as rele

vant conduct to the instant

offense because there is no indication that

the instant offense is

connected to those offenses as part of the

same course of conduct

or common scheme or plan. The probation offe

red a very lenghty response

to the governments objection. Probation argu

ed that- pursuant to

U.S.S.G §2K2.1(b)(6), Application note

14, and US.S.G1Bl.3(a)2),

Application note 5 the firearm in the pres

ent offense, possessed

on October 3, 2003, was related to his two

prior State convictions

for being a felon in possession of a hand

gun on August 30, 2003 and

December 24. 2003, in the course of Committi

ng aggravated robberies

and aggravated burglaries. Therefore, his

federal possession of the

.

'fir

earm

conv

iction was part of a common purpose or modu

:.

s operandi,

or part of the same course of conduct. Adde

ndum of Feb.24,2016;Pgs.14.

More Specifically, the probation departme

nt argued:

In united StatesV. PhiUi2s, 516 F. 3d 479

(6th cir. 2008)

the defendant was convicted of violating

18 U.S.C.922(g)

The SIxth CIrcuit upheld the four-level incr

ease pursuant

to §2IC2.1(b)6) based on two additional inci

dents of illegal

possession of firearms that were determin

ed to be relevant

conduct to the instant offense, which occu

rred on May 9,

2004. The Sixth Circuit determined that both

which offurred on August 3, 2002 and Marc

incidents,

h 9, 2006, were

(5)

identical to the offense of conviction and that the defendants

repeated possessions of firearms were linked to the common

pu±pose of self-defense. Therefore, based on the similarity

of the offenses to the instant offense and regularity of

the offenses, the Sixth Circuit determined that Phillips's

2002 and 2006 possessions of firearms were part of the

same course of conduct as his 2004 felon in possession

conviction and upheld the four-level increase pursuant to

§2K2.1(b)(6).(id) The probation Department went on to note

that because Appellants state cases constituted relevant

conduct, he should be credited for the time he served for

those state sentences under U.S.S.G%G1.3- Imposition of

a Sentence of a Defendant Subject fo an Undischarged Term

of Imprisonment or Anticipated State Term of Imprisonment,

and U.S.S.G. §5K2.23- Discharged terms of Imprisonment.

At the first re-sentencinghearing on-February 16, 2016 the district

court essentially overruled the governments objection, finding that

Appellants advosory guideline range was 110-120 months incarceration.

However, the Probation Department brought up the issue of Current verses

Consecutive sentences, prior to the district court finishing the imposition

of a 155 month sentence. The probation Officer reminded the Judge that

because the prior state offenses were added as part of Appellants relevant

conduct under U.S.S.G2K2.l(b)(6), that under U.S.S.G. § 5G1.3 the

guidelines recommended running the sentences concurrent to eachother.

(id at page Id#365-66

.

The court adjurned so the parties court research

the issue and an Addendum court be added to the SPSR regarding the

issue of consecutive verses concurrent sentences. The District court

Ultimately held that the cases were not relevant and refused to gralt

(6)

petitioners concurrent sentencing arguemen.t and ordering the sentences

to beran consecutively to Appellant's states sentences. The Sixth

Circuit- , Court of Appeals Affirmed this decision. This is the Petition

as a direct result of that decision.

\.

(7)

REASONS FOR GRANTING THE PETITION

Pursuant to 1J.S.S.G2K2.1(b)(6). application note 14 and U.S.S.G.1B1.3(a)(2),

application note 5 petitioners offenses of August 30, 2003 "Possession

of a handgun and December 24, 2003 aggravated robberies and aggravated

burglaries was related to the instant offense of October 3, 2003 possession

of a firearm. This was part of petitioners modus operandi. Indeed as

part of a gang, in the Streets of Memphis Tennessee, one could say

that this was a requirement, something like food and water for survival

to possess a firearm. Thus petitioners past lifestyle required him

to possess at all times, a firearm. Indeed the PRobation office was

correct in their assessment instating over the Governments objections

that pursuant to the above mentioned guidelines "application notes"

petitioners prier and subsequent crimes were related, and thus showed

a particular modus operandi.More so, this can be seen that person's

similary situated possess firearms. One only.'has to look at the local

Memphis news to see that this "possession of a firearm at all times"

was a

everyday requiiement for survival.and the past criminalistic

profession that petitioner was in, tho:no longer a part of, petitioner

use to make his living, in a gang, and a firearm was part of the tools

that was used. As harsh as that lifestyle may seam. and as crazy as

it may seam that petitioner is arguing for instead of against the

application of relevant conduct, this is the fact's of the case, and

the rules of the Guidelines and the inperpretation of current case

law dealing with such is clear. because this law would help, instead

of hurt petitioner should not be anbasis for the District court, the

Governments, and subsequent Appeals court unreasonable application

and reading of thier own case law. Equal protection requires protection

(:8)

I

and a reasonable application of the relevant ease law to all

similarly situated petitioners. The probation office, the one's

tasked with and trained with applicationsäsuhawauéd

Specifically:

In United States V. Phillips, 516 F. 3d 479 (6th

Cir. 2008), the defendant was convicted of violating

18 u'.S.C.922(g). The Sixth Circuit Court of appeals

upheld the four-level increase prusuant to §2K2.1(b)(6)

based on two additional incidents of "illegal possession"

of firearms that were determined to be relevant

conduct to the instant offense, which occurred on

May 9, 2004. The Sixth circuit determined that both

incidents, which odcurred on August 3. 2002, and

March 9, 2006, were identical to the offenseof conviction and that the defendants repeated possessions

of firearms:were linked to the common purpose of

"self Defense". Therefore, based on the similarity

of the offenses to the instant offense and"regularity"

of the offenses, the Sixth circuit determined that

Phillips 2002 and 2006 possessions of firearms were

part of the same course of conduct as.his 2004 felon

in possession conviction and upheld the fouri;level

increase pursuant to §2K2.1(b)(6)(id).

In the Sixth Circuitscopiñion, the court recognizes that petitioner

was in an unusual position of arguing that the district court should

have applied aztharsher guidelines range, because he would be eligible

(9 )

I

for a downward sentence ajustment under 5G1.3(b), effectively reducing

the total time he would spend in prison. But their flaw was:in

their analysis of the fact that petitioners counsel only argued

that he carried a firearm for self defense. Indeed the firearm

had multi use properties. Pctitioncr not only uoedthe fircarm

for zclf defense being in Memphis tennessee. and in a gang, but

they were also times when that firearm was used to commit those aggravated crimes. Indeed petitioners prioricharge was felon in possession

of a firearm. The Sixth Circuit states in the conclusion this

contradictory statement "the "fact" that Richardson had a firearm

for all three offenses is not sufficient to support a finding that

he regularly engaged in similiar offenses, because as :discussed,

th6 State offenses (aggravated robery and aggravated burghry)

and Federal offense - (being a felon in possession of a firearm are

not similar)" must categoricaly fail. First as a categorical matter,

when these crimes were used to enhance his offenses under the ACCA

the court "took a peek" at his underlying offenses elements and

discovered that the Aggravated nature element was the use of a

firearm to commit these offenses. Thus, jüst becasue the name of

the offenses are notthe same e.g Agg robbery agg assault compared

to felon in possession, they carry the similar elemental properties

inordcr to convict an individual undar such. provisions. Ihdeed

Tennesees' Aggravated Robbery Statute §39-13-402 (1) States that

in order for it to be listed as a Aggravated robbery it has to

be accomplished with a deadly weapon or by display of any arti.cl

used

fashioned to lead the victim to reasonably bnlieve it to

be a deadly weapon. THus the hairs that the Sixth Circuit ty

to split, areunplitable, and their reason for trying

,(10 )

to is not an sensible reading of their case law. In Phillips

the court came to their "own" conclusion that 516 F. 3d at 48385 because in all instances the defendant appeared to be carrying a firearm for self-defense. Indeed the court contridicts their elf

when it cites United States V. Faison. 339 F. 3d 518. 520-21 (6th

cir. 2003)whre they held that similar offenses (Aggravated robbery

and Agg assault) versus (felon in possession ) are not similar,

when they held that felon in possession charge was related to his

various concaine trafficking charges, because the firearm was related

to his cocaine trafficking. These are different charges from Felon

in possession of a firearm complained of. The main factor in all

case's:is firearm the context of all offenses was the use of a

firearm. petitioners modus operandi was to carry a firearm for

protection and for use to tommit crimes, indeed the August 2003

offense relishes this fact, petitioner was convicted and sentenced

to 8 years imprisonment for Agg robbery and Agg burglary, and one

impriasonment for:fortbeing a felon f!.hpossession of a firearm".

The same firearm used in the August 2003, offense wai the same

firearm petitioner was found with in October 2003 federal offense.

This created a jrocedural and substantive due process violation

when both the district and appellant court failed to find, in this

18 U.S.C. §922(g) prosecution, that prior state convictions for

being a felon in possession of a handgun, were not relevant conduct

under §1Bl.3(a)(1)(3) as related to §2K2.l(b)(6)(B), and therefore

not sufficiently related in nature or scope to justify running

his federal prison sentence concurrent with his state prison sentences

( 11 )

0

In United States V. PhiUip_s.516 F. 3d 479, 483-84 (6th dr 2008)

in August 2002, Phillips was shot in a road rage incident in the

state of Kentucky. His vehicle was searched after the shooting,

and two pistols were discovered in a brief case, and a rifle was

in the trunk. After, two years later in May 2004 Phillips was arrested

on suspicion of driving while intoxicated, after a traffic stop.

A search of his vehicle, discovered two hand guns, and military

rifle and a shotgun. This led to a conviction of 18 U.S.C. § 922(g)

in Federal court. before being prosecuted for the may 2004 matter,

Phi1lis was questioned by ATF and Kentucky state police in connection

with his alleged role as an armed body guard. This occurred in

Marc,h of 2006, near a hotel room associated with mr Phillips. United

States V. Phillips. 516 F. 3d at 482 Phillips" a search of the

hotel room uncovered a semi-automatic pistol. THe District court,

when sentencing Phillips on this may 2006 case found that the August

2002 and March 2006 cases were relevant - conduct under U.S.S.G.

B1.3(a)(2). United States V. Phillips, 516 F. 3d at 482. Phillips

argued that it was error to count his prior and subsequent possessions

as relevant conduct. The Government suessfuUy argued that his possession

of firearms were connected to a "common purpose", that being his

desire to protect himself due to the attempt on his life, and

possession of the firearms in 2002 and 2006 were "same course

of conduct". as the 2004 offense. THe Sixth CIrcuit agreed with

the government. ID.

The court reasoned that the 2002 and 2006 convictions

could be added as relevant conduct, if the district

court found that the offenses were part of the 'seme

Ci 2 )

S

course of conduct or common scheme or plan" under

U.S.S.GUB1.3(a)(2). In quoting the guideline, the

Sixth Circuit reasoned:

"For two or -more offenses constitute part of a common

scheme or plan, they must be substantially connected

to eachother by at least onecommon factor, such as

commom victims, commom accomplices, common purpose,

or similiar modus operand". Application note 9(a).

Ifth±s criteria isñot met. Phillip's prior possessions may nevertheless

be counted as relevant conduct if they were part of the same course

of conduct."Offenses that do not qualify as part of a common scheme

or plan may non the le-,49 qualify as part of the same course of conduct

if they are sufficiently connected or related to other as to warrant

the conclijsion that they are a part of a single

oj__22_going series of offenses". U.S .~ S_ , G § lB1 .3 application note 9

(B). We (Meaning the Sixth Circuit) consider the degree of similarity

of the offenses, the regularity of the offenses,, and the time interval

between the offenses to'assist us in determining whether offenses

are sufficiently connected to be considered

rt of the same course

of conduct. Id. The Guidlines counsel a "sliding scale approach

to these factors, explaining that "[wlhen' one of the above factors

is absent a stronger presence of at least one of the other factors

is required. Id; See also Hill, 479 F. 3d at 1482 (describing Guidelines

. a sliding scale approach").

commentary as requiring -''

The Sixth Circuit in Phillips, went on to note that sister circuits

have held that "contemporaneous or nearly cotemp.raneous possession

of uncharged firearm is... relevant conduct." Indeed the court,

f

Q \

*

even cited:a Ninth Circuit case where a defendant has possessed

a gun contemporaneous with his offense of conviction and admitted

that he regularly possessed stolen guns. UnitedStates V. Phillips ,

516 F. 3d at 483 (internal citations ommitted). In the instant

case, appellant was caught po:ssessingthreeT hand guns within a three

month period of time, and signed a affidavit attesting that he

possessed the Gamma handgun in to of the offenses. (R. 83, position

of Paul Richardson; page ID # 199; corrected page ID #94([sic]).

Like Phillips, appellant had a state case, then an intervening

Federal case, folowed by another State case. THe Phillips

court

found this pattern particularly important in concluding the State

matter on either side of the Federal case were relevant conduct.

Applying thèseAuthorities, and the factors idntified

in application note 9 to U.S.S.G.1B1.3, we hold that

the district court properly attributed Phillp's possession

of firearms in 2002 and 2006 as relevant conduct. Phillips

argues that this case isanalogous to Hill. but there

are two siginificant differences present here that

applyt 0 the §1B1.3 factors and distinguish this case

from Hill. FIrst, the degree of regularity is stronger

here than in Hill, where the sole other offense considered

"relevant conduct" was an iso l

ated drug transaction

nineteen months prior to the offense of conviction.

In the present case, there are two incidents- in addition

to the charged conduct-that are iddnticàl to the offenses

of conviction. Moreover, one of these incedents occurred

after phillips was arrested and incdicted in connection

the offense of conviciton, which suggest that

(14)

suggest that his arrest for being a felon in possessibn

did not dater him from pos s ession firearms and that

he may have carried firearms regularly. Id. at 485.

In the instant matter as bar, Appellant's prior and subsequent

offenses qualify as relevant conduct under both1criteria of U.S.S .- G.

§1B1.3- Application Notes 9(A) and 9(B). Under the first test,

as they were part of

common purpose, or modus operandi (regularly

carrying'a gun as a matter of course or fot: self-defease), Under

the second test, they were part of the same course of conduct,

as they were part of an ongoing series of offenses. Those offenses

were: similiar in nature (illegally possessing a firearm), occurred

regularly (each time he was caught, he had a firearm), and there

was a short time interval between offenses (essentially once every

other month for five months).The degree of similarity of the offenses,

the regularity of the offenses, and the time interval between the

offenses far exceeds the circumstances found in Phillips.

Two of the prior cases, where there was an illegal possession,

Phillips was not even charged. Here, Appellant was charged and

convicted of being a felon in possession, of a handgun. so there

is no doubt about his continuing course of condicdt in carrying

a handgun. (R. N/A. SPSR,pgs. 13-14 ¶I51 & 52). FOr some reason,

defense counsel at the district Court árguedthat the third gun

possession was not relevant conduct. This was clearly an error

on defense counsel's part. However, the district ccurt Judc should

havo found that the third po s session was also relevant conduct,

Sua sponte.Therefore, Plain error standard of review should be

found in this case as well as A Substantial Due process violation

(15)

For the reasons above, it is respectfully requested that petitioners

case be remanded to the Sixth Circuit for futher consideration

in light of the facts of the case and the law that is applicable

to petitioners case, as petitioners two prior state court convictions

for being a felon in possession of a firearm are similiar in

nature in degree to petitioners Instant federal Offns:of Conviction

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

(16)