Petition for Writ of Certiorari — Chad Allen Dorton, Petitioner v. United States

CASE No. ___________

IN THE SUPREME COURT

FOR THE UNITED STATES COURT OF AMERICA

UNITED STATES OF AMERICA

Respondent,

v.

CHAD ALLEN DORTON

Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

FROM THE OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Douglas L. Payne

LAW OFFICE OF DOUGLAS L. PAYNE

401 West Irish Street

Greeneville, Tennessee 37743

(423) 639-2220

BPR No. 013380

Counsel for Petitioner

QUESTION PRESENTED

Did the district court err in applying the sentencing guidelines offense

enhancement for obstruction of justice?

LIST OF PARTIES

The parties are listed in the caption.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . ii

TABLE OF CITED AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISION INVOLVED. . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Did the district court err in applying the sentencing guidelines

offense enhancement for obstruction of justice?

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

APPENDIX A - OPINION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

APPENDIX B - JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF CASES, STATUTES, AND AUTHORITIES

United States Court of Appeals Cases

Page

United States v. Jamieson, 42741 F.3d 394 (6th Cir. 2005). . . . . . . . . . . .

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United States v. Van Shutters, 163 F.3d 331 (6th Cir. 1988). . . . . . . . . . . . . 8

Statutes

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States Constitution:

United States Constitution, Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rules

Supreme Court Rule 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Sentencing Guidelines

U.S.S.G. § 3C1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

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OPINIONS BELOW

1.

Opinion, United States Court of Appeals for the Sixth Circuit, United

States of America v. Chad Allen Dorton, C.A. No. 17-6462, July 2, 2018 (unpublished

slip opinion).

2.

Judgment in a Criminal Case, United States Court for the Eastern

District of Tennessee at Greeneville, United States of America v. Chad Allen Dorton,

District Court No. 2:16-CR-096, December 7, 2017.

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STATEMENT OF JURISDICTION

The United States Court of Appeals for the Sixth Circuit entered its opinion in

this case on July 2, 2018. This Court’s jurisdiction is invoked under Title 28, United

States Code § 1254(1). Rule 13 of the Supreme Court allows for ninety days within

which to file a Petition for a Writ of Certiorari after entry of Judgment by the

appellate court or the denial of the Petition for Rehearing, whichever is later. This

Petition is, therefore, timely filed within the period allotted by the rules.

Petitioner, Chad Allen Dorton, respectfully prays that a Writ of Certiorari issue

to review the Opinion of the United States Court of Appeals for the Sixth Circuit. In

that Opinion, the Sixth Circuit affirmed the District Court.

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CONSTITUTIONAL PROVISION INVOLVED

5th Amendment to the U.S. Constitution:

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 cases 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 offence 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.

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STATEMENT OF THE CASE

On November 9, 2016, a federal grand jury, returned a superseding indictment

against Defendant for possession with intent to distribute 1,000 kilograms of

marijuana.

On September 14, 2017, the Defendant proceeded to trial. The jury found him

guilty as charged.

A Presentence Investigation Report was prepared by the U.S. Probation Office.

The report disclosed a total offense level 32 and a criminal history category of IV

(guideline range 168-210).

On October 24, 2017 the government filed a Notice of No Objection to

Presentence Investigation Report.

On October 27, 2017, the defendant filed a Notice of Objections to the

Presentence Investigation Report.

On December 4, 2017, the District Court conducted a sentencing hearing and

sentenced the Defendant to 168 months of imprisonment concurrent to several state

court proceedings, a term of supervised release of five (5) years, and a special

assessment of One Hundred Dollars ($100.00).

The Judgment encompassing the court’s decision was entered on December 7,

2017.

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On December 4, 2017, the Defendant filed his Notice of Appeal.

On July 2, 2018, the Court of Appeals for the Sixth Circuit affirmed the District

Court’s Judgment.

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ARGUMENT

The district court erred in its application of the two level increase of the

sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

U.S.S.G. § 3C1.1 reads as follows:

Obstructing or Impeding the Administration of Justice

If (1) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction, and (2) the obstructive conduct related to (A) the

defendant’s offense of conviction and any relevant conduct; or (B) a

closely related offense, increase the offense level by 2 levels.

The Presentence Investigation Report contains the following information

relevant to the ultimate question in this case of whether the Defendant, Chad Allen

Dorton, obstructed justice and was thereby subject to the two level adjustment

pursuant to U.S.S.G. § 3C1.1. Paragraphs 4 and 6 of the Presentence Report read as

follows:

4.

The following represents a summary of the evidence presented at

trial. Christopher Burchett testified to the following. November

2014, Burchett began traveling to Oregon to obtain marijuana to

bring back to Tennessee for distribution. Over time, he employed

several people to assist him. He explained how the overall

conspiracy worked and stated that from November 2014 to

November 2016, a total of approximately 2,000 to 2,500 pounds

(907 to 1,133 kilograms) of marijuana was obtained in Oregon

and brought back to Tennessee and sold. Burchett testified the

defendant joined the conspiracy in June 2015, when he made his

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first trip to Oregon with co-defendant Carter to retrieve marijuana

to bring back to Tennessee, for Burchett. Burchett paid defendant

Dorton to obtain marijuana for him from his sources in Oregon.

The defendant’s trips to Oregon continued through February

2016. Burchett testified the defendant traveled to Oregon for him

on six or seven occasions and brought back a total of 700 to 800

pounds of marijuana, valued at approximately $3,000,000.

Burchett testified that defendant also purchased “shatter,”

finished Butane Honey Oil product (hashish oil), for him while in

Oregon, on a few occasions.

6.

Co-defendant Marshall testified that after law enforcement

officers had impounded one of Burchett’s trucks in March 2016,

but failed to find marijuana hidden in a spare tire, the defendant

used wire cutters to unlawfully enter the impound lot to retrieve

the hidden marijuana. He sold the 15 to 17 pounds of marijuana

to co-defendant Marshall for $28,000.

16.

Adjustment for Obstruction of Justice: The defendant

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction, and the obstructive conduct related to the defendant’s

offense of conviction and any relevant conduct; or a closely

related offense; therefore, two levels are added. USSG §3C1.1.

The defendant received a two (2) level adjustment for obstruction of justice. Page

ID# 1997 as the probation office writes: “the defendant used wire cutters to

unlawfully enter an impound lot to retrieve marijuana that had not been located by

law enforcement officers.”

To this finding the defendant objected only the grounds that even if true, the

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defendant did not impede the investigation, prosecution or sentencing of the

defendant or another individual. Further, because the defendant was not indicted

until November 2016 the alleged incident occurred before he was investigated or

prosecuted.

It is fair to say that the conduct did not obstruct or impede the administration

of justice and at most was an attempt as was conceded by the government.

The theft of the drugs was not an attempt to destroy evidence to hide the

defendant’s involvement in the conspiracy. This is unlike the case of United States

v. Van Shutters 163 F3d 331m (6th Cir. 1998) where after his own arrest, the

defendant sought out a third party to destroy evidence of the offense.

Nor is it clear from the record that the defendant knew he was under

investigation and was attempting to evidence. See United States v. Jamieson 427 F3d

394 (6th Cir. 2005).

The record is clear, the defendant was seeking money not destruction of

evidence. In fact, the government’s own proof was that the defendant was not the

courier for the marijuana at issue.

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For the foregoing reasons, the obstruction of justice does not apply to Mr.

Dorton; and he was denied due process of law.

CONCLUSION

For the reasons stated above, this Petition should be granted.

Respectfully submitted,

CHAD ALLEN DORTON

By:

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/s/ Douglas L. Payne

DOUGLAS L. PAYNE

Attorney for Appellant, BPR # 013380

401 West Irish Street

Greeneville, Tennessee 37743

(423) 639-2220

APPENDIX A - OPINION

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APPENDIX B - JUDGMENT

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and exact copy of this Petition for

a Writ of Certiorari has been served upon the Solicitor General of the United States,

U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, DC

20530-0001 and David L. Gunn, Assistant United States Attorney, 220 West Depot

Street, Suite 423, Greeneville, Tennessee 37743 by placing a true and exact copy of

said Petition in the United States Mail, with sufficient postage thereon to carry the

same to its destination.

This 1st day of August, 2018.

/s/ Douglas L. Payne

DOUGLAS L. PAYNE

Attorney at Law

401 West Irish Street

Greeneville, Tennessee 37743

(423) 639-2220

Attorney for Defendant-Appellant

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