Petition for Writ of Certiorari — Liston Watson, Petitioner v. United States

--

NO

IN THE SUPREME COURT OF THE UNITED STATES

LISTON WATSON, Petitioner

V.

UNITED STATES, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Respectfully Submitted

Liston Watson

Reg. No 73392-061

F.C.I. Brelin

P.O. Box 9000

Berlin, NH, 03570

QUESTIONS PRESENTED FOR REVIEW

Where the Petitioner's Plea Agreement was breached when the

Court sentenced Petitioner to additional prison time to counts 1 and

5 outside his Plea Agreement; is in conflict with this Courts

decision in Santobello v. New York (404 U.S. 257 (1971); and whether

the promise of no jail time as to counts 1 and 5 of the indictment

constitutes a significant promise to which the prosecution is

compelled to fulfill ?

Where a "Sentence Bargain" between the prosecution and

Petitioner through a 11(c)(1)(c) Plea Agreement binding upon the

Court; Should Petitioner be afforded the right to withdraw his plea

as stated in the Plea Agreement upon the Courts deviation from the

"Sentence Bargain"?

Whether the Sixth Circuit Court of Appeals erred when it

failed to make factual findings by analyzing the fourth element of

plain- error, where the first three having been conceded.

I

Table of Contents

PAGE

*

QUESTION PRESENTED

1

TABLE OF CONTENTS

11

TABLE OF AUTHORITIES

111

OPINION BELOW

1

PARTIES TO THE PROCEEDINGS

2

JURISDICTION

3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

4-5

STATEMENT OF THE CASE

6-9

THE DISTRICT COURT PROCEEDINGS

6-9

THE COURT OF APPEALS DECISION

9-10

REASONS FOR GRANTING PETITION

11-20

CONCLUSION

21

PRAYER FOR RELIEF

22

PROOF OF SERVICE

Index to Appendicies

11

Table of Authorities

-

Page

Cases

Brown v. Poole, 337 F. 3d 1155 (9th Cir 2003).................12

Doe v. Harris 640 F.3d 972,-975 (9th Cir. 2011) ...............12

Glover v. United States, 531 U.S. 198 1 2031 121 S.Ct. 696 148 L.Ed 2d. 604

(2001) ....................................14

Johnson v. United States 520 U.S. 461, 467 (1997) ..............10

Mabry v. Johnson, 467 U.S. 504, 507-08 (1984) ................12

Puckett v. United States, 556 U.S. 129, 135-36, 143 (2009) . . . . . . . . . . 10,14,16

Santobello v. NewYork, 404 U.S. 2571 262 (1971) . . . . . . . . . . . . . . . 12,14

.13

Sateriale v. R.J. Renoylds-Tobacco-Co, 697 F.3d 777, 791 (9th Cit. 2012)

Vander Boegh, 772 F.3d at 1063 ........................16

United States v. Curry, 536 F.3d 571 573 (6th Cit. 2008) ...........15

United States v. Darion Mitchell, 63 Fed. APDX 224, 2003 U.S. App. -Lexius

9588 .....................................11

United States v. Hendrickson, 882 F.3d 812 N.10 (6th Cir 2016) ........17

United States v. Johnson, 979 F.2d 396, 399 (6th Cir 1992) ...........15

United States v. Miandell, 50 F.9 973 (6th Cir. 1990) ............13

United States v. Well, 211 F.3d 988 995 (6th Cir 2000) ............15

.

Constitution And Statues

U.S. Const. Amend V.

18 U.S.C. § 2113 (a) and (d)

18 U.S.C. § 924(c)

28 U.S.C. § 1254 (1)

U.S.S.G § 2b3.1 (b)(1)

U.S.S.G § 2b3.1 (b)(2)(c)

-

Fed R. Crim. P. 11

Fed R. Crim. P. Criminal Law § 59

:iii

.

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

[X]

For cases from federal courts:

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

the petition and is

[x] reported at U.S.App. LEXIS 24268 (6th Cir. Nov.28,2017). or,

[ ] has been designated for publication but is not yet

reported; or,

LI is unpublished.

The opinion of the United Siates district court appears at Appendix -A3

-the petition and is

154845

; or,

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

[ I is unpublished.

[yj

reported

at

U.S.

Dist.

LEXIS

[ ] 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,

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

[] is unpublished.

The opinion of the ______________________________________________ court

appears at Appendix

to the petition and is

[ I reported at

; or,

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

[ I is unpublished.

1.

to

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page

LISTON WATSON, Petitioner # 73392-061

F.C.I. BERLIN

FEDERAL CORRECTIONAL INSTITUTION

P.O. BOX 9000

BERLIN, NH 03570

Pro Se Representation for petitioner

Attorney for Respondent

United States

Solicitor General Department of Justice

Washington, DC 20530

JURISDICTION

[) For cases from federal courts:

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

was Novmber 28, 2017

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

[xi A timely petition for rehearing was denied by the United States Court of

Appeals on the following date. January 'i-,

2018

, and a copy of the

order denying rehearing appears at Appendix

A

[ ] 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

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

appears at Appendix

and a copy of the order denying rehearing

.

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

to and including

Application No. _A

(date) on

(date) in

.

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

-I

3.

Constitution and Statutory Provisions Involved

Fifth Amendment; No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in case arising in the land or

naval forces, or in the Militia, when in actual service in time of

war or public danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or; limb; nor shall be

compelled in any criminal case to be a witness against himself;nor

be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just

compensation.

Federal Rules Of Criminal Procedure

Rule 11(c)(1)(c); Agree that a -specific sentence or sentence

range is the appropriate disposition of the case, or that a

particular provision of the

.

Sentencing Guidelines, or policy

statement or sentencing factors does or does not apply (Such a

recommendation or requests binds the Court once the Court accepts the

Plea Agreement.

.

Rule 11(c)(5); rejection of the Plea Agreement or deviation from

the "Sentence Bargain" permits the defendant to withdraw his guilty

plea.

Criminal Law § Guilty Plea-Prosecutor's Promise; The disposition

of criminal charges by agreement between the prosecutor and the

accused, and the adjudication element inherent in accepting a plea of

4

guilty must be attended by safeguards to ensure the defendant what is

reasonably due in the circumstances while those circumstances will

vary neverless a constant factor is that when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so

that it can he said to be part of the inducement or considertion,

such promise must be fulfilled.

5

&

STATEMENT OF CASE

The petitioner Liston Watson ("Watson or Petitioner"), was

indicted on November 4, 2016 on five counts of bank robbery in

violation of 18 U.S.0 §§ 2113(a) and (d). and five counts of

possession of a firearm in furtherance of a crime in violation of

18 U.S.C.

§

924(c). On February 23, 2016 Mr.Watson move to

replace Counsel and express concern on the record that his then

Counsel Mrs. Lockard was not securing information from third

parties t1 at would have mitigated his crimes. Watson explained in

layman's term- that Counsel's performance during the plea

negotiation process was putting him in a disadvantageous position

in a case that potentially meant a life sentence for him. The

District Court denied this motion issuing a continuance for

Watson and Counsel with more time to work it out.

On April 25, 2016 Watson, through Counsel, moved for a

suppression hearing but instead Counsel withdrew the motion to

suppress as part of a Global Plea Agreement with the Government

which was contingent upon Mr.Watson not filing any pre-trial

motions. During this same hearing Watson also objected to the

fact that he was been pressured by Counsel to plea guilty that

Counsel wanted, an answer "within, the meeting "with in an hour",

and was not giving him ample time to think about it. He then

motioned for a continuance which the Government opposed and the

Court denied.

Mr.Watson plead guilty on April 25, 2016. His written

11(c)(1)(c) Plea Agreement included two counts of bank robbery

and two counts of § 924(c), with an agreed sentence of 360 months

for the § 924(c) violations and no time for the robberies. With

the acceptance of the plea, three counts of robbery and three

counts of § 924(c) were dismissed by the prosecution. The written

plea agreement he signed advised him in-correctly that the

Statutory Maximum on the bank robbery counts was up to 20 years

imprisonment (See Plea Agreement .Pg ID 98 marked Appendix B).

The transcript of the colloquy reflects that the Statutory

Maximum was stated correctly to be 25 years.

On June 13, 2016 the District Court Judge held an on the

record in-chambers conference with Counsel and notified the

parties that the written plea agreement was mistaken in advising

the Defendant that counts 1 and 5 carry a maximum penalty of up

to 20 years (See Transcript Pg Id 183 In 6-17 marked Appendix C).

During the conference, the District Judge advise Counsel as

follows.

The Court.."[I]t accurs to us that perhaps when the time comes

for sentencing, we should run the tape back a bit and inquire

further whether Mr.Watson is really on board with this plea

agreement with the correction of 20 years maximum on counts 1 and

5 to 25 years which is correct.

.we'll

And you know if he decides to back out

The Court

backout and we'll start over."

. .

..

Thereafter on June 24, 2016 Mr.Watson moved pro-se to

withdraw his plea, citing "Ineffective Assistance of Counsel" on

July 7, 2016 he also move to appoint new Counsel. On July 11,

2016 the Court held a hearing on both motions. During the hearing

Mr..Watson reiterated his desire for new Counsel (See Transcript

Pg ID 219 marked Appendix D). He stated unequivocally that he

wanted to withdraw his guilty plea. He explained that although he

had repeatedly request the substance of evidence that the

7

prosecutor said they had against him which made him sign the plea

that evidence was not disclosed prior to the plea "and again,

those evidence I asked for the past two months" Watson stated he

first recieved disclosure of the evidence "two minutes ago"

Because of Mr.Watson request for new counsel Mrs.Lockard did

not argue on his behalf for the withdrawal of the plea. However

Mrs.Lockard reminded the Court of its earlier promise, during the

June 13th conference offering a new Rule 11 colloquy to correct

the Statutory Maximum for the bank robbery and (b) an opportunity

to withdraw his plea. The Court advised Mr.Watson to talk it over

with his new attorney and maybe she will think about it. Through

his new attorney on October 20, 2016 a motion to withdraw guilty

plea on Mr.Watson behalf citing the failure to comply with

federal Rules Of Criminal Procedure 11(b)(1)(h)and (I) which

reference the requirement to notify the defendant of maximum

possible penalties. Without allowing oral argument the Court with

written order denying it.

Among the facts and proceeding relevant to this petition

following Mr.Watson conviction The United States Probation Office

prepared a pre-sentence investigation report ("PSR") which

calculated a base offense level of 20 pursuant to U.S.S.G. §

2h3.1(a) an according with U.S.S.G. § 2b3.1(b)(1) the property of

a financial institution was taken increased by two levels; also a

five level increase pursuant to U.S.S.G. § 2b3.1(b)(2)(c) because

a firearm was possessed in connection with the bank robbery and a

four level enhancement for pseudo counts for a total offense

level of 31. With the defendant timely plea and acceptance of

Ei

responsibility the offense level was reduced 3 levels for an

ultimate offense level of 28. The PSR. stated the calculation was

overridden by the 11(c)(1)(c) plea of 360 months which the "PSR"

found to be fair and appropriate sentence recommendation in

agreement with the plea. With no additional recommendation for

any other sentence to further counts. As reviewed by the Courts

(see sentencing Transcript Pg Id 284-288 marked Appendix E).

ON December 1, 2106 Mr. Watson again wrote a letter to the

Judge stating he was pressured to plea guilty, against his better

judgement, prior to receiving the operability report from the

Government.

On December 12, 2016 Mr.Watson was sentenced to a five year

term on the first 924(c) count and twenty five year term on the

second 924(c) count to be served consecutive. As to the bank

robbery counts the prosecution request to amend the sentence to

include a concurrent "one day" additional sentence to each count

to be served consecutive to the thirty years totaling of 30 years

and "one day" which the District Court imposed.

THE COURT OF APPEALS DECISION:

In petitioner's brftef submitted to the United States Courts

of Appeals from the Sixth Circuit, Mr.Watson asserted numerous

grounds for relief such as abuse of discression by the District

Court. Among those relevant to this petition Mr.Watson assert the

breacll of his Plea Agreement and Failure to provide him with the

opportunity to withdraw his guilty plea comprising of Sixth

Amendment violation of due process for the "one day" sentence

enhancement pursuant to Federal Rules of Crminal Procedure §

11(c)(1)(c) and 11(c)(5).

Additionally Mr.Watson moved pro-se to supplement his

appellate brief which was denied on July 18, 2017 citing that

there is no right to supplement brief or hybrid representation on

appeal.

Mr.Watson argues that the District Court erred by not

letting him withdraw his plea after it breached his plea

agreement. He never objected on this ground so the Appellate

Court reviewed for plain error, Puckett v. United States, 556

U.S. 129, 135-36, 143 (2009)."Therefore, we look for (1) error,

(2) that is plain and (3) that affect[s] substantial rights

Johnson v. United States, 520 U.S. 461, 467 (1997) alteration in

original) (internal quotation marks omitted). If we find all

three we may in our discretion correct a forfeited error but only

if (4) the error seriously affect[s] the fairness integrity, or

public reputation of judicial proceedings. The Courts stated that

Mr.Watson "mentions "Plain Error" in a heading but never outlines

its four elements and never argues that they are met." And

continued to state that the Government in its argument has

conceded to the first three plain error elements. However the

Appeals Court affirmed the judgement stating a party may not

raise an issue on appeal by mention[ing it]... in the most

skeletal way leaving the Court to

put

..

flesh on its bones"

therefore considered the argument abandoned.

On December 10, 2017 Mr.Watson timely filed a motion for

rellearing which was denied on January 4, 2018.

10

REASON FOR GRANTING PETITION

Where Petitioner Plea Agreement was breached at

sentencing due to the un-fulfilled promise of the

prosecution

Federal Rules of Criminal Procedure 11(c)(1)(c): A

recommendation or request binds the Court once the Court accepts

the Plea Agreement.

Mr. Watson entered a 11(c)(1)(c) binding JudiciallyApproved plea agreement guaranteeing a maximum sentence of 360

months in prison, and stood convicted, the prosecution breached

the Plea Agreement by moving to amend the sentence bargain and

the District Court acted contrary to Federal Law clearly

established by the Supreme Court and Federal Rules of Criminal

Procedure. Mr. Watson contend that the District Court erred by

de-facto rejecting the sentence bargain included in the Plea

Agreement pursuant to Rule 11 without affording Mr. Watson the

opportunity to withdraw his pleas, (see United States v. Darian

Mitchell, 63 Fed Appx 224; 2003 U.S. App lexis 9588.

On April 25, 2016, Liston Watson stood in open court before

the Honorable Sandra S. Beckwith Judge of the U.S. Federal Court

Southern District of Ohio and pursuant to a written plea

agreement

Petitioner plea guilty to two counts of armed bank

robbery in violation of 18 U.S.0 §ss 2113(a) and (d)and two counts

of possession of a firearm of furtherance of a crime in violation

of 18 U.S.C. § 924(c). Mr. Watson also admitted to a series of

other robberies in

exchange for Watson's waiver of his

4 constitutional and numerous other rights the prosecution

11

dismissed the remaining six counts thereby promise Watson a

maximum sentence of 360 months for the 924(c) offenses and no

time for the robbery offenses (See Plea Hearing Transcript Pg Id

158 line 18-25 Pg 159 line 1-6 marked Appendix F) and five years

supervised release as explained both in the written plea

agreement, and Judge Beckwith during the Plea Colloquy. Judge

Beckwith then accepted Watson's plea and admissions and stated

that

"with the aid of PSR will determine what facts are

relevant to sentence". "[And] if I choose not follow the terms of

the plea Agreement regarding the sentence I will give you the

opportunity to withdraw your plea of guilty or any of your pleas

of guilty" (emphasis added).

Watson stood convicted; under clearly established Supreme

Court law the Plea Agreement bound the Government; see Mabry v.

Johnson, 467 U.S. 504, 507-08 (1984)(a defendant's guilty plea

implicates the constitution not the plea bargain standing alone);

Santobello v. New York 404 U.S. 257 262 (1971)([W]hen a plea

rests in any significant degree of promise or agreement of the

prosecution, so that it can be said to be a part of the

inducement or consideration such promise must be fulfilled.) In

Watson's case the government was bound by its agreement in open

Court that there would be no jail time for the robbery offenses

and the punishment could be no greater than 360 months. Under

Santobello v. New York,404 U.S. 257 261,62 (1971) a criminal

defendant has a due process right to enforce the terms of his

plea agreement; see also Doe v. Harris, 640 F.3d 972 975 (9th

Cir. 2011); Brown v. Poole, 337 F.3d 1155 1159 (9th Cir. 2003).

Improbably, the day of the schedule sentencing the

12

Prosecutor moved to amend the sentence recommendation to include

an additional "one day" prison sentence to counts 1 and 5 to be

served concurently but consecutive to the already agreed 360

months sentence.(see sentencing hearing Pg Id 305 lines 1-14

marked Appendix G). Not only did the prosecution breached the

Plea Agreement by seeking to amend the sentence after the deal

was sealed. This clearly states ("when a guilty plea is entered

in exchange for a specific benefit such as the dismissal of other

counts or an agreed maximum punishment both parties, including

the State must abide by the terms of the agreement). Such an

implied term would render the agreement illusory by providing the

State unfethered license to terminate it. See Sateriale v. R.J.

Renoylds Tobacco Co,697 F.3d 777 791 (9th Cir. 2012). ([Am

enforceable termination clause that gives a promisor an

unrestricted power to terminate a contract at anytime without

notice renders the promise illusory and unenforceable at least so

long as the purported contract remains wholly executory). Plea

Agreements are contractual in nature and subject to the standards

of construction applicable contracts. See United States v.

Miandell, 50 F.d 970 973 (6th Cir. 1990).

II

Should Petitioner be afforded the right to withdraw

his plea as stated in the Plea Agreement;upon the

Courts deviation fron the "sentence bragain".

The language of the agreement between appelant Watson and

the United States leaves no room for disagreement. The parties

incorporated a reference to Rule 11(c)(1)(c) moreover they

specifically incorporated the protections provided by rule

13

0

11(c)(5); rejection of the Plea Agreement or deviation from the

"sentence bargain" permits defendant to withdraw his guilty plea.

Applying the plain meaning standard applicable to contracts in

general, conclude that the parties agreed to a specific sentence

of 360 months and binding on the Court.

The District Court unreasonably applied clearly-established

Supreme Court authority by failing to recognized that the breach

[was] undoubtedly a violation of the defendant's rights Puckett

v. United States, 556 U.S. 129 136 (2009) (citing Santobello, 404

U.S. at 262). This Court also held in Santobello v. New York, 30

LED 2d 427, 404 U.S. 257 The interest of justice and proper

recognition made in connection of the prosecution duties in

relation to promise made in connection with any agreement on a

plea of guilty require that the judgement be vacated and that the

case be remanded to the Courts for further consideration as to

whether the circumstance [of each case where due process]

requires only that there be a specific performance of the

agreement on the plea (in which case petitioner should be

resentenced by a different judge) or petitioner should be

afforded the relief he seeks of withdrawing his guilty plea. The

breach prejudice the defendant where the exposure to an increase

jail time calls into question the Sixth Amendment violation as

established by this Court in Glover V. United States, 531 U.S.

198, 203 121 S.Ct. 696 148 L Ed 2d 604 (2001J1"Any [increase in

the] amount of actual jail time" may constitute prejudice.

("Authority does not suggest that a minimal amount of additional

time in prison cannot constitute prejudice. Quite to the

14

contrary, our jurisprudence suggests that any amount of actual

jail time has Sixth Amendment significance.

III

Whether the Sixth Circuit Court of Appeals

erred when it failed to analyze the fourth

element of the Plain Error Review

The district Court erred in its decision to grant Petitioner

the opportunity to withdraw his plea and the Appellate Court

erred when it reviewed the case for Plain Error. The Plain Error

Review is not a standard of argument developed by parties seeking

relief but rather an administrative process established within

the confines of the Judicial System to apply fairness to redress

clear and obvious "Error" that acured in the lower courts. Partly

this standard of review is to determine the substantive

reasonableness of a sentence is reviewed under a abuse of

discretion standard, United States v. Curry, 536 F3d 571 573 (6th

Cir. 2008). A sentence maybe substantively unreasonable if the

sentencing Court impose a sentence arbitrarily based on

impermissible factors or unreasonably weigh a pertinent factor.

[Also] whether the Government's conduct violated the agreement

similarly presents a question of law that this Court review Dc

Novo. United States v. Wells, 211 F 3d 988 995 (6th Cir. 2000).

The Court must hold the Government to a greater degree of

responsibility than the defendant

...

for imprecisions or

ambiguities in Plea Agreements United States v. Johnson, 979 F.2d

396 399 (6th Cir. 1992)(citation and quotation omitted).

15

THE ERROR SERIOUSLY AFFECTS TEE FAIRNESS,

INTEGRIT'!J AND PUBLIC REPUTATION OF

JUDICIAL PROCEEDINGS.

(A)

A plain error that affects substantial rights may be

considered even though it was not brought to the Court's

attention"). Plain -Error review involves four prongs:

First there must be an error or defect- some sort of

deviation from a legal rule that has not been intentionally

relinquished or abandoned, i.e., affirmatively waived by the

appellant. Second the legal error must be clear or obvious,

rather than subject to reasonable dispute. Third, the error, must

have affected the Appellants suUstantial rights, which in the

ordinary case means he must demonstrate that it affect the

outcome of the District Court proceedings. Fourth and finally, if

the above three prongs are satisfied, the Court of Appeals has

the discretion to remedy the error- discretion which ought to be

exercised only if the error seriously affects the fairness,

integrity or public reputation of judicial proceedings. Puckett

v. United States, 556 U.S 129, 135, 129 S.Ct. 1423, 173 L. Ed. 2d

266 (2009)(citations, alterations and internal quotations

omitted).

In the instant case, the Appellate Courts made the

determination that Petitioners's argument is considered abandoned

under Vander Boegh, 772 F.3d at 1063. Having made that

determination, the Appeals Court states, although the Government

concedes the first three plain error elements, Watson has not

16

shown plain error because he has again presented a perfunctory

argument. He mentions "Plain Error" in a heading, but never

outlines its four elements and never argues they are met.

Instead, Watson simply describes what happened at sentencing "the

parties agreed upon a flat 360 months sentence"'"IIT]he District

Court breached, this agreement in sentencing this defendant to 360

months incarceration 'and one day"' and defendant was not

permitted to withdraw the plea." "A party may not raise an. issue

on appeal by mention[ing it]... in the most skeletal way, leaving

the Court to... put flesh on its bones." United States v.

Hendrickson, 822 F.3d 812 n.10 (6th Cir. 2016)1 alteration in

original)(internal quotations marks ommited).

The Appeals Court should have made the factual findings by

analyzing the fourth element of the plain error, based on reason

that the first three were already been conceded by the

Government. The Appellate Court should have made the

determination in light of the fourth prong in regards to the

breach of agreement in sentencing Petitioner to 360 months and

one day instead of the agreed upon 360 months. The Appellate

Courts stated that its within their discretion to correct a

forfeited error but only if the first three elements of the Plain

Error prong is met. Here, in petitioner's case his brief

mentioned the plain erred and the Government conceded to the

first three elements, also acknowledge by the Appellate Courts;

wherefore the petitioner's burden to prove the first three

elements have been met, which includes: (1) error: where the plea

agreement has a specified sentence of 360 months (2) that it is

17

plain: The Court sentenced the petitioner to an increase jail

time outside the agreement of 360 months (3) that affect[s]

substantial rights: the increase was imposed arbitrarily without

due process which the petitioner never plead to nor was found

guilty of by a jury whic'l violates his constitutional rights.

Petitioner contends the error affects the outcome of the District

Court proceedings in relation to the error. With the Petitioner

numerous attempts to withdraw his guilty plea and proceed to

trial the District Court correct proceeding would have given

Petitioner the opportunity to with draw his guilty plea in

accordance with rule 11(c)(5) and the terms of the Plea

Agreement. For these reasons the government conceded to the first

three elements. Within reasonableness the only element to be

considered by the Appellate Courts was the fourth element which

states "if the error seriously

affect[s] the fairness and

integrity, [and] public reputation of Judicial proceedings". This

error clearly affects fairness, due to the fact that the plea

states clearly an agreed sentence and if this sentence bargain is

not met the defendant reserves the right to withdraw. Also it

affects the public reputation of Judicial proceedings because

Federal Rules of Criminal Procedure Rule 11(c)(5) which governs

this proceeding also states that the deviation from the "Sentence

Bargain" gives the defendant the right to withdraw his guilty

pleas. This was clearly established in the Plea Colloquy by Judge

Beckwith who advised the petitioner that

"if I choose not to follow the terms of the Plea

Agreement regarding the sentence I will give you

the opportunity to withdraw your plea of guilty

-

18

or any of your pleas of guilty".

Therefore the right the Petitioner is seeking to withdraw his

plea was clearly established within the bounds of the Judicial

process. The district Court failure to offer the petitioner the

opportunity to withdraw his guilty plea prior to sentencing him

outside of the specified agreement is exactly the safeguard or

reason for Federal Rules of Criminal Procedure 11(c)(5) to

prevent the Court from circumvent or conflicts with the Criminal

Procedure or Statutory Provisions. In this very instance. [When

thereason for a rule ceases, so should the rule itself.(Maxim)]

Also for these same reasons the Petitioner's argument cannot be

considered underdeveloped, because the government acquiesce in

error, conceded would not require the petitioner to demonstrate

the first three plain error elements. Moreover, the government

concession weights in favor of the Petitioner, and well as it

satisfied the first three elements of the plain error review.

Because the first three elements where already conceded to

and the fourth element of the plain error coincided with the laws

and facts, in the petitioner's favor, thus his argument was not

in the presentation perfunctory. As the petitioner has

demonstrate supra., the error seriously affect[s] the fairness,

integrity, [and] public reputation of judicial proceedings.

Petitioner had establish the existence of the three elements

required in the plain error test. From these source the appeals

Judges should have made the determination on the forth element of

the plain error. Given the importance of defining the "fourth

element" of the plain error review that seriously affects the

19

-

fairness integrity [and] public reputation of judicial

proceedings, and the constitutional violation, Petitioner seeks

this Court review.

Furthermore the Appellate Courts abused its discretion by

failing to treat similarly situated parties similarly. (see

United States v. Darian Mitchell, 63 Fed Appx,224;2003 U.S. App.

Lexis 9588); where the Appellate Court for the Sixth Circuit

vacated Mr.Mitchell's sentence agreeing that "a District Court

erred by de-facto rejecting the sentencing bargain included in

the Plea Agreement entered pursuant to Rule 11 of Federal Rules

of Criminal Procedure without affording Mr.Mithchell the

opportunity to withdraw his plea. Finding merit in his third

contention, we VACATE his sentence". Similarly the Appeals Courts

in its decision states Watson simply describes what happened at

-

sentencing; the parties agreed upon a flat 360 month sentence

[T]he District breached this agreement in sentencing the

defendant to 360 months and one day; and defendant was not given

the opportunity to withdraw his guilty pleas. Here Petitonner has

demonstrated the exact reasoning the Appellate Courts has

determined in the above case to be adequate to vacate Mitchell's

sentence where this right was denied. Therefore the Petitioner's

position and request is in fact fair and equitable-in this very

case and in vast majority of cases to which this rule apply.

Petitioner respectfully asked that his sentence be vacated in

agreement with the facts and clearly established precedence and

Judicial laws.

all

CONCLUSION

For all the facts established aligned with the logical

application of law under Federal Rules of Criminal Procedure

11(c)(5), Mr. Watson should have been given the opportunity to

withdraw his guilty plea due to the un-fulfilled promise of the

Prosecution and the deviation from the "Sentence Bargain" by the

District Court

In Frye, Justice Kennedy, writing for the majority, noted that

ninety-seven percent of federal convictions are the result of

guilty pleas, for the most part our's is a system of pleas not of

trials, to a large extent horse trading [between prosecutor and

defense counsel] determines who goes to jail an for how long that

is what plea bargaining is it is not some adjunct to the criminal

justice sysytem; it is the criminal justice system, therefore the

negotiation of a plea bargain rather than the unfolding of a

trial is almost always the critical point for a defendant.

Therefore as stated by this Court in Santobello plea bargaining

is an essential component of the administration of justice,

properly administered is to be encouraged.

Therefore Petitioner respectfully ask this Court to vacate

his sentence to assure and enforce the safeguards within the

Judicial process to guarantee a defendant of what he is promised

by the prosecution and the Courts. If they are allowed to breach

an agreement with no rights afforded to the injured party then

the promise is illusory and unenforceable as determined by this

Courts.

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PRAYER FOR RELIEF

Wherefore, based on the above LISTON WATSON prays this

Honorable Court remand this case to the Sixth Circuit Court of

Appeals with instruction to vacate his sentence due to the

District Court denial of his Constitutional and procedural claims

presented herein. Or issue a Writ of Certiorari for further

review.

Respectfully submitted on this

LSTON WATSON # 73392-061

Pro Se Petitioner

F.C.I Berlin

P.O. BOX 9000

Berlin, NH 03570

22

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day of March 2018.