Petition for Writ of Certiorari — Avniel Awan Anthony, Petitioner v. United States

Supreme Court briefJan 3, 2019

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No.

IN THE

SUPREME COURT OF THE UNITED TATES

I vn(

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AI'.JTtt-OCJL(

—PETITIONER

(Your Name)

vs.

United sfaks G r

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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S/cvk5

Cci

ol 4pp/

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

PETITION FOR WRIT OF CERTIORARI

Avnict

Aw6w

A i\)TI-l0t j~/

(Your Name)

-P-b-doy, 2636 (/

uf (JS

(Address)

T\/- 77720

(City, State, Zip Code)

(Phone Number)

QUESTIONS PRESENTED

The Probation Department assess

ed the Movant with two separa

enhancements under USSG 3C1.1

and 3C1.2 for obstruction of

and Reckless Endangerment for

justice

incident alleged to have taken

outside the jurisdiction of the

place

United States, in a Cancun Air

port

in.3 Mxico.

The district judge sentenced

the Movant to a 72 month above

guid61ines sentence citing inc

ide

nts that allegedly occurred in

Mexico without a determination

the defendant in open court,

guilt by a jury or admission by

or statiig"facts" uponMhich cou

ba relied on to find guilt.

The defendant (Movant) appeal

ed to the 5th Circuit Court of

Appeals, where the District Cou

rt's decision was affirmed. The

Appelánt.'s appeal counsel sub

Supreme Court on Certiorari,

mitted a motion for the United

States

in which certiorari was grante

d on

June.2,' 2018 and thg Supreme

Cou

rt remanded to :.the 5th Circui

and vacated the judgment in lig

ht of Rosales-Mireles. The 5th

Circuit reaffirmed 11-15-18 ins

ist

ing that there was no. plain err

or.

Does the U.S. Probation Depart

ment have authority to apply

enhancements.for conduct allege

d to have happened outside the

jurisdiction of the United Sta

tes.

enhancements on allegations not

proven to be facts.

Does the District Court have

by applying 2 separate enhanc

jurisdiction to punish Movant

ements for unproven conduct tha

t alleg-

edly occurred in Mexico, before

in U.S. territory, and if so,

And if so, can it apply double

the Movant was in U.S. custod

y or

did the district court err in

an 72 month above the guideline

imposing

s sentence in an upward varian

resulting from the same 2 enhancements

without a finding of fact

by a jury or admission by the defendant?

Or in violation of the

USSG § 3C1.2 comment (N.1).

Did the District Court err in ordering

the tsentence to run

consecutive to the pending state charges

in the Statement of Reasons

where this conimand appears nither in the

qirl pronouncemenl of the

sentence nor the written judgment?

Did th District Court err in failing to

notice of possible departure and for the

departure?

give Movant fair

reasons listed in the

Did the District Court err when it abus

ed its discretion and

failed to give any weight to defendants

ment

al health history in

considering the 3553(a) factors and the

need for the rehabilitation

and mental health treatment?

Were trial counsel Hermesmeyer ineffect

ive for not raising

pioper, objections or submitting0Mbvnt's

ation or requesting more time to submit

counsel Joel Page for refusing to cite

the evidence? And appeal

Hermesmeyer's deliberate

indifference? Or improperly advising the

Eli

MHMR rcods for coride-

Movant?

LIST OF PARTIES

{Al1parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page.

4 list of

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

petition is as follows:

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TABLE OF AUTHORITIES

Rosales-Mireles x

United States.,.........

....

Haines v. Kerner, 404 U.S. 519 (1972.)..

Stinson v. United States, 508 U.S. 36

U.S. v. Blocker, 612 F.3d 413.

,) 1 U.S. v. Regs

...

U.S. v. Booker, 543 U.S. 220 (2005)

..p.. 7

U.S. v. Cabral Castillo, 35 F.3d.182.

6, 17

U.S. v. Herbert, 813. F..3.d 551. (5th. Cir

2015)

..Pj..

US. v. Warden,...291F.3d..363

Johnson v. U.S., 135 S. Ct. 2251 (2015.)

ii) United-, States v. Martinez, 250

7.30 941 (2Q01)

Kentucky. v.....Stincer,..4.8.2..U.S.• 7.30

p5.

U.S. v. Dom.i.ng.ue.z.,...542..U..S......7,4....................................

.........

U....S....v......Mo.s.s..

........

..........

15)'Spnce,....212.9..F..3d.162...............

Pepper v. .State,- . 131 S. Ct.. 12.2.9 (2011) ........

Gal1...v.,j)n,,i,.ted

..38,,

(2007, )

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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

[L(For cases from federal courts:

The opinion of the United States court of appeals apears at Appendix A C to

the petition and is

tI7 4

reported at

; or,

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

is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

.j f

[ ] reported at

;or,

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

[v'J is unpublished.

II ] 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,

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

[ ] is unpublished.

Al /A

The opinion of the

appears at Appendix --NL( k to the petition and is

a 1A

{ ] reported at

; or,

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

Li is unpublished.

court

JURISDICTION

[ ] For cases from federal courts:

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

was AJcVpr1/,(7c /51li 26 I3

[1'Nopetition for rehearing was timely filed In my case.

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

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix N

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

N (Pc

to and including

(date) on

N (A

(date)

in Application No. t'k/l\A_N

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 N / \

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

appears at Appendix

and a copy of the order denying rehearing

II] An extension of time to file the petition for a writ of rtiorari was granted

to and including N( 1k

(date) on

(date) in

4 1AApplication No.

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

PETITION FOR WRIT OF CERTIORARI

Avnil Awan Anthony respectfully pet

itions for a writ of

Certiorari to review the judgment

of the United States Court of

Appeals for the 5th Circuit in the

United States of America v.

Avniel Awan Anthony, No. 4:1-CR-12

8-1, by Stewart, Chief , Judge,

and DENNIS and WILLETT.

I. JURISDICTION

The Court of Appeals denied Movant

s Appeal 11-15-2018 and

uphed th,e appeal ater.this court

previously grntedcertiorari

on June 25, 2018. This court's jur

isdiction is invoked under 28

U.S.C. § 1254(1).

Honorable Court,

COMES NOW, Avniel Awan Anthony, Mov

ant in pro-se capacity, and

rspectfu1ly fils this petitio''

n for writ of certioari, in suppor

herein, Movant states the following

LIBERAL CONSTRUCTION

Movant petitions honorable court to

liberally construe this

motion under the provisions and gui

delines in Haines v. Kerner, 404

U.S. 519 (1972) where this court hel

d "a pro-se pleadings are to

be held to a less stringent standa

rd than formal pleadings drafted

by attorneys;" See also U.S. v. Sch

er, 2011 U.S. Dist. LEXIS

108222 5th Circuit (a pro-se compla

int, however inartfully plead

must be held to less sbringent sta

ndards. Franklin v. Rose, 765

F.2d 52 (5th Cir. 1985).

That liberal construction allows act

ive interpretation of a

pro-se pleadings to encompass any

allegations which may raise a

-3-

claim for relief.

BACKGROUND

On 10/3/16, Movant pled guilty to 1 coun

t of false statement

in a passport application. Movant's appl

icable guidelines were

10-16 months resulting from an offense leve

l of 10 criminal history

Category 3. The district Judge upward depa

rted from the guidelines

and sentenced the defendant to 72 months

"the guidelines did not adequately take

imprisonment stating that

into account all the facts

of the case." In which the Judge continue

d to recite the defendant's

Fiistry.and vague uifounded allegacion in

the PSR, that allegedly

happened in Mexico which Movant denied the

veracity of in open

court adamantly denying the PSR's version

of events.

At that time, the district Judge did not

fact find but continued

to sentence the defendant to the 72 mont

h above guideline sentence

in violation of Rule 32(i)()(b) Federal

Rules of Crimina'l Prqcedure

and Rule 52(b).

The District Judge also never orally stat

ed whether Defendant's

sentence was to run concurrently or cons

ecutive to any pending

state charges, not. mentioned it in the judg

ment of sentence. It

appears for the first time in the Statemen

t of Reasons.

Movant's attorney became Kevin Joel Page

who appealed to the

Fifth Circuit refusing to respect the pro-

se Movant's wishes at

that time to argue that Movant never ente

red a roof or fell through,

but he continued to argue against this and

denied relief.

Counsel Joel Page then filed a petition

to the Supreme Court in January 2018 and

this court 6/25/18.

-4-

for writ of certiorari

certiorari was granted by

This court vacated the judgment of the

Fifth Circuit and

remanded in light of Rosales-Mireles v.

U.S. And the Fifth Circuit

onca again affirmed without hearing any

argument from the Movant

or addressing the legal issues on meri

ts.

Movant would like to demonstrate tothe

court that the trial

counsel and appellant counsel have bothbeen

,ineffectire an have

refused to present any argument or issu

e that the Movant has brought

to their attention. They have both eith

er walked out or refused to

work, or submitted motions misrepresent

ing my arguments or wishes

as is evident by counsel Joel Page ' 5 appe

al motions in which he

argue that "An thony'ar

gues he wenC into and fell ""through a roof

in the airport," and claiming that. "He

argues this is two distinct

acts." It is evident from the trial tran

scripts that the Movant

has always maintained that he never werr

b into or fell through

any roof, and there was no evidence pres

ented to prove it happened,

nor was the Movant allowed time çr oppo

rtunity 4o gather 6r present

evidence to counter these allegations.

And this should have been

the argument on appeal -the:'entire time

. The District Judge never

made a finding of fact, and the trial coun

sel Hermesmeyer submitted

an objection but withdrew it right away

The appellate counsel and the Appellate

Court and U.S. Attorney

have been "sandbagging" by arguing arou

nd the issues that need to

be brought back in front of the court,

issues which seriously

affect the fairness, integrity, or publ

ic reputation of the judicial

proceedings plain errors.

This case is not about a simple guidelin

es error. It is about

a guidelines error that was caused by a

the judge, and USPO, and Movant's tria

miscarriage of justice by

l counsel. Which the Appellate

-5-

counsel Page refuses to directly address as follows:

ARGUMENTS AND AUTHORITIES

1) Does the USPO (United States Probahion Office) have authority

to apply enhancements for conduct alleged to have occurred

outside the jurisdiction of the Unied States

in,,Mexico

And if so, can it apply double enhancements on allegations

not proven to be facts?

The- U.S. Probation Department assessed the defendant 4 offense

1evels, with two\sepaate enhaiement namely ckles1y endaerin.

another during flight from alaw enforcement officer and obstruction

of justice. (See ROA 118). This district court applied these enhancements to calculate the defendants guidelines erroneously as the

district court has no jurisdiction under 18 U.S.C.

§ 3231 to

punish defendant for any conduct originating outside the district's

of the United States, especially when such conduct did not consti

tute a crime atthe time in the United States and furthermore being

only nothing more than allegations and vague conjecture. Also immigration officials are not "law enforcement" or "police." At the time

of the alleged incidents the PSR clearly states that the Movant

was "released," not to other law enforcement agents but "immigration officials" where there is no further documentation of any legal

process other than Movant being forced drugged and forced on a

flight against his will deprived of all his rights. This is an

obvious miscarriage of justice in which enhancements shall not be

applied. See Stinson v. United States, 508 U.S. 36. "Commentary in

the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitu

tion, or a federal

statute, or is inconsistent with, or a plai

nly erroneous reading

of that guideline." And U.S. v. Blocker, 612

F.3d 413 "An error

resulting from a straightforward application

of the guidelines is

plain."

Also here, there is no evidence to support

§'3583(i), and bt for the distiict court's

claims. 18 U.S.C.

indequate exp1intion,

this sentence would be different. See U.S.

v. Reggs. In this case

in front of the courts as of now, there is.

no evidence to support

the claims. The PSR doesn't reveal how many

law enforcement officials

wre Livo1ved op whether polic(t- resources

wer diverted. These are

all vague speculative claims with no supporti

ng evidence in the

record.

2)1 Does the district court. have jurisdiction

to punish Movant by

applying 2 separate enhancements for unproven

egedly oc.irred in Mexicf?, before the Mvant

conduct that all-

was in U.S. custody

or U.S. territory, and if so,. did the dist

rict court err in

imposing a 72 month above guidelines sentence

in an upward

variance resulting from the same 2 enhancem

ents without a

finding of fact by a jury or admission of

guilt by the defendant?

The trial counsel Hermesmeyer stated in the

guidelines take into account obstructive type

occurred prior to any attempt Ab custody by

record that "the

of conduct that

U.S. law enforcement."

It occurred in Mexico." This alone shows that

the trial counsel

and the judge were aware of the question of

jurisdiction, yet the

trial counselnever entered an objection to

this illegal prosecution,

niether did the district Judge question the

validity of the enhance-

ments or fact find. If the trial counsel woul

d have objected to these

-7-

enhancements in the PSR or in .-. open

court,, during, before or after

sentencing. This objection if raised

ofense level of 6 criminal history

dant at 0-6 months, the result of

could have resulted in an

Category of 3 putting the defen-

which could have probable diff-

erent outcome, as the sentencing jud

ge never said that :hewould

have continued with the same senten

ce irrespec1 tiveof the gu,de-

lines. Therefore there was error.

The error was plain, it affected

the substantial rights of the defend

ant, and it seriously affects

the fairness, integrity and public

reputation of judicial proceed-

ings. See U.S. v•. Booker, 543 U.S.

220 (.2.p05). And "shocks the

conscience" in light of such an ext

reme departure.

Furthermore, the PSR uses the same

language and conduct to

apply both enhancements. 3C1.1 say

s "cr

awled through the ventila-

tion ducts," and 3C1.2 says; "he cra

wled through the ceiling and

into the air ducts." A play on wor

ds which is forbidden by the

0 comentary, in

§3C1.2, comment (n.) because "Ev

en if".

the alleged conduct occurred from

'start to finish' it could all

still fall under U.S.S.G. § 3C1.2 and

encompass 3C1.2 at the same

time (same conduct) but since the

Movant maintained that it never

happened that way, .Movant directs

the court's attention to Booker

v. U.S., 543 U.S. 220. This court

ruled that a court cannot enhance

a sentence on a determination of fac

t not determined by jury or

admitted to by the defendant. Fed.

Rules of Grim. Procedure 32(1)

(3)(B) also see Rule 52(b). U.S. v.

Cabral Castillo, 35 F.3d 182.

(Double counting).

It is clear from the record that the

defendant Anthony told

the district judge in open court tha

t the information in the PSR

concerning the alleged incidents in

MOM

Mexico at the Cancun Airport

was not true or accurate info, and the district judge

did not att-

empt to fact find oif. allow defendant time or opportunit

y to gather

or present evidence in his favor. The district judge

instead

departed upward with a 72 month sentence with the expla

nation that

he believed his initial assessment of the facts that

appear to be

undisputed .n the defeidant's "background," in whic1 is.'a

t best

"vague" because defendant already received points for

his criminal

history. And other charges that received no points, is

because

either there was a finding of no guilt, or else were

juvenile

offenses which there were rW records for (sea1ed) 25

year€ old!!!

The district judge didn't offer a detailed response

(facts) as to

why he adopted a false ambiguous report translated from

language as facts against the defendant's refusals to

-..

a different

accept the

false allegations. In imposing an upward variance the.

- district court

must more thoroughly articulate its reasons, and its

reasons should

.be fact spcifi!c (emphasi mine) and corsislint with

the sétencing

factors enumerated in 18 U.S.C. § 3553(a), U.S. v.

Herbert, 813

F.3d 551 5th Cir. 2015. Here in the case of Movant, Antho

ny, the

many allegations the district Judge is citing are not

dant has not been adjudged guilty or admitted to any

facts. Defen-

allegations

in Mexico. There is mere "speculation."

Abuse of discretion. U.S. v. Warden, 291 F.3d 363, 365.

Rules of Crim. Proc. 52(b) Reversible plain error the

defendant

was never given notice that these false allegations would

to enhance his sentence or be used: as a basis for the

Fed.

be used

district

Judge to depart upward, or given opportunity to prepa

re a defense

against such allegations, in accordance with Fed. Rules

Procedure 32(h) Notice of Possible Departure.

of Crirn.

The PSR only notified defendant that the pros

ecution was

requesting an upward variance and sentence outs

ide the guidelines

for the uncharged conduct of "identity theft."

Not vague allegations

about "altercations" on the beach in Cancun or

when the defendant

was being drugged and beaten by Mexican official

s and forced on,

a plane without a hearng or writ.

It is clear from the record that the defendant

impression that he was only pleading guilty to

in a passport application ONLY. Not accepting

was under the

a false statement

responsibility for

other unfounded allegations occurring in Mexi

co. Defendant was being

adised against his best interes by trial cous

el Hermesmeyer.

(Also see Johnson v. U.S., 135 S. Ct. 2251 (201

5) concerning fai*..

notice.)

Did the district court err in ordering the sent

ence to run

consecutively to the pending state-:charges in

the Statement

of Reans where thiscommand appear niether,

in th

pronouncement of the sentence or. the written

judgment?

oral

Neither the courts oral sentence nor the effe

ctive portion of

its written judgment stated that the defendan

t's sentence should

run consecutively to a non-existing sta:te char

ge.

That term appeared for the first time in the

Statement of

Reasons. Because the defendant has a right to

be present during

sentencing conflicts in the oral and written

pronouncement must be.

• resolved in favor of the' oral pronouncemen

t. See United States V.

Martinez. 250 F. 3d 941 (2001). Fe.ce

C-r ,frl

It is clear that the defendant Anthony has to

be present at

any part of sentencing. It is unfair and unco

nstitutional to add

stipulations to his sentence after he has left

-10--

the courtroom and has

no chance to defend himself or know atilieLfull consequences of his

sentence. Furthermore, the defendant had no sentence yet in which

the district judge could make a consecilitive order at that time.

The district judge had no authority. Kentucky v. Stincer, 482 U.S.

730. This was also plain error which affects the substantial

rights.of the defendant and seriously affects the fairness, integrity and,iubI4c reputation o,f judicialipro9eedings, aihd this error

in itself merits discretionary remand.

4) Did the distriot court err and abuse its discretion when it

failed to giveThovant far nolice of possibre departure fo

the reasons listed in the departure?

The PSR only notified the defendant and his counsel that it

was requesting a sentence outside the guidelines for identity theft,

uncharged conduct in..connection with..the

instant offense. Not the

defendant's Cistory oroth

false allegations that the 'Iistrict

judge presented no evidence to support, such as allegations of

'altero.ations' on the. beach and fleeing. This was an error of the

Fed. Rules of Criminal Procedure 32(h) Notice of Possible Departure.

For the reasons stated and the district judge obviously departed

for other reasons. The defendant was not in position to object as

he was heavily dosed on psyche medication and following the instructions of his attorney who told him to just agree with the judge.

If the defendant could have been given notice for the reasons the

district judge would depart he could have prepared a defense which

would have shown mitigating circumstances as to his long juvenile

backgroundsuch as his psyche records. The defendant was not even

competent to sign these documents to plead guilty without a psychiatric examination.

-11-

5) Did the district court abuse

its discretion and was it plain

error when it failed to fact fin

d or give any weight to defendant's mental health history in

considering the 35

and the need for rehabilitation

and mental health treatment?

A(2)(D)d 7 S

The district court erred in not

considering any part of the

defendant's mental,health histor

y, in the 3553(a)' fac)tors being

that it is obvious from the PSR

that the defiendant has a long

history of mental health issues

including paranoid skitzophreni

and hallucinations, also PTSD.

Rule 32(d)(2)(A) Fed. Rules of

Crim.

Procedure says that the ddfendant

's psyche history must be submit

ted'Mfor cons idTMeratlon. And Ti4

U.S.0 3661 sates "No limitation

shall be - placed on the informati

on concerning the background, cha

r,acter, and conduct of a person

convicted of an offense which a

court of the United States may

receive and consider for the pur

pose

of imposing an appropriate senten

ce." The Movant's NHMR history

or records were never reqested,

consideed or submitted. Nonwit

h-'

standing the indications, of men

tal health in paragraphs 90-91 of

the PSR, which if that history

was submitted could have presen

ted

mitigating factors that could pro

bab

ly warrant a downward departure

and result in a different senten

ce had the psyche history been

requested or presented. This rep

resents a clear error which aff

ects

ths.ubs tan tialrights of the def

endant and seriously affects the

fairness, integrity and public

reputation of judicial proceedin

especially when a sentence so.:hi

gh above the suggested guideline

is imposed without such safeguard

s being afforded or reviewed.

-12-

See U.S. v. Dominguez, 542 U.S. 74

and U.S. v. Moss. Abuse of

discretion. U.S. v. Warden, 291 F.3

d 363. See Fed. Rules of Grim.

Proc. 52(b). Movant probably would

have received a lesser sentence

absent the error.

REASONS FOR GRANTING THIS MOTION

.dd

F.,

6) Were trial counsel Her

mesmeyer

"ineffective" for not raising

objections, submitting Movant's psy

che history for consider-

ation or requesting evidentiary pro

ceedings? Or advising Movant

to plead guilty?

Both trial counsel Heresrpeyer and

app

ellate counsel Joel Page

have been "sandbagging" and refusi

ng to consult with the defendant,

respond to the defendant or presen

t the defendant's issues or argu-

ments based on the merits of the Mov

an4

iP:s case. Both lawyers work

for the same office and one lawyer

assistance q,f counsel On 14ms61f

is not going to file ineffective

or his çe1league, aid Itherefore

Movant must bring the deliberate ind

ifference of both lawyers to the

attention of this court to obtain

relief or Movant's issues will

never be resolved or corrected. The

plain errors in the record

mostly allowed by their ineffectiven

ess or deliberate indifference

will never be remedied without thi

s court's help. In the interest

of justice the Movant submits the

following information:

(A) Trial counsel Heresmeyer enters

an objection on the

basis of lack of notice with respec

t to the basis for

standard departure or above guidel

ines sentence then

withdraws the objection. This was

plain error that

affected the rights of the defendant

-13-

to effective counsel.

If the objection would have been the

defendant would

have had the opportunity and time to

present mitigating

evidence or gather evidence such as psyc

hiatric records

or information to contradict or mitigate

the allegations

in the defendant's history which coul

d have definitely

brought abut a differenboutome, bei

ng;' the, district

judge never stated that the sentence

would have been the

same irrespective of the guidelines.

The trial judge

would not have been allowed to continue

with the above

guidelines sent,pce had it not been for

this egregious

error by trial counsel, or the withdraw

n objection.

The defendant also maintains that he

would have went to a

trial to disprove all the false allega

tions used to depart upward

had he known or been made aware, by his

advising him to plead guilty, that he

trial counsel who was

could receive an above

guidelirI'es sentence for" false allegati

ons in the PSR that were

presumed to have taken place in Mexico.

The trial judge asked Hermesmeyer:

"And proceeding in this fashion is the

strategically, in your view, for your

best way to proceed

client?"

And Heresmeyer replies:

"Yes."

This follows, that the Movant was foll

owing the instructions

of his attorney. So all of the rights

he forfeited or advised Movant

to forfeit, and the terms Movant agre

ed to was because Movant

trusted his judgment. Movant is :not an

expert of the law. Herrnesmeyer

is, and he is flagrantly forfeiting the

d'lovant's rights, forfeiting

-14-

objections and allowing the miscarria

ge of justice to go unimpeded.

Hermesmeyer also never entered an obj

ection to the enhancements

for conduct alleged in Mexico, althou

gh he mentioned it in the rec-

ord. He never attempted to object whi

ch if he had, could have brought

about a lower guidelines sentence,

as the U.S. Probation Department

shoul not be allowd to assess thdefe

ndant for1any ,conduct aLle-

ged that the court has no jurisdict

ion to punish the defendant for

occurring outside the jurisdiction

of the United States.

In the U.S. Attorney's brief, he eve

n stated 'Anthony filed

objections to the other aspects in

the PSR but did not pbject to

the proposed enhancements under sec

tions 3C1.1 and 3C1.2 or tpthe

total offense level. This further pro

ves the ineffectiveness and

deliberate indifference of Heirmesme

yer.

Hermesmeyer also mentions the Movant

's psyche history in the

record but never attempted to submit

his MHMR history for consider-

ation which could've bpught about

--a diffe,rent outcome" had they

been presented. Movant was heavily

sedated on medication at the

time of sentencing proceedings and

could not be expedted to be aware

of the deliberate indifference:of thi

s trial counsel whois expected

to do a reasonable jOb. The defendant

vehemently denied the alleg-

ations which formed the basis of the

enh

ancements in question,

and counsel Hermesmeyer did nothing

to assist,- the defendant in def-

ending himself and even withdrew an

objection when given the opp-

ortunity to take more time to gather

and

During sentencing - the trial judge

submit evidence.

made it clear that there

were mitigating factors attorney Her

mesmeyer could have raised,

however, he failed to inform the cou

rt of those factors that the

court could have used to give the def

endant a lower, sentence, such

-15-

as his diagnosis of PTSD, paranoia skitzophreni

a, and bi-polar

disorders. Counsels have been hiding the defe

ndant's psyche records

from;the court and refusing to bring them to

light.

(B) Appellate Eounsel Joel Page shuld have

same arguments against Hermesmeyer but has been

H refuses to cbisul't with Movnt dr argue the

One example being that the Movant is clearly

brought these

just as ineffective.

ca-6e or its merit.

in the record stating

he never went into or fell through any roof nor

was he handcuffed

nor entered any airplane and the info was fals

e. Joel Page contin-

ues toMmaintain that defendant "fell,' through"

the roof Min the air

port, but deserves no points, instead of argu

ing that it was never

proven or admitted to that the defendant "fell

through':' any roof

and the district court lacked jurisdiction to

punish defendant so

harshly above his guidelines with no authorit

y to do so, or with-

out a finding of fact by the judge at least,

or allowing defendant

to prese1t adverse evidnce'.

He has refused to present plain error in aski

ng this court

to rule on this objection(s) (lack of) by Herm

esmeyer and bring

the matter on appel of the court not having

jurisdiction to apply

the enhancements, of the district judge not elab

orating as to a

legal explanation for how the sentence he impo

sed takes into acc-

ount the 3553(a) factors and is an appropriate

sentence in light

of the defendant's psychiatric history (MHMR).

Counsel Joel Page refuses to mention or brin

g forth the

issue of jurisdiction concerning the two enha

ncements in question

and challenge their validity on the merits,

-16-

under 18 U.S.C. 3231.

The enhancements in question don't fal

l under this authority. He

has also refused to obtain Movant's

psyche records after many

requests and submit them. Joel Page

has also failed to raise the

issue of plain error where the distri

and rule on Movant's denial of the

ct judge failed to fact find

charges alleged against him in

Mexico ,which formd tie basis of" the,

) judge departipg upward from

the guidelines violating Fed. Rules

of Grim. Procedure 32(i)(3)(B).