Petition for Writ of Certiorari — Bryan Christopher Marshall, Petitioner v. United States

No. _______

In The

Supreme Court of the United States

-------------------------- ♦ ---------------------------

BRYAN CHRISTOPHER MARSHALL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-------------------------- ♦ --------------------------

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-------------------------- ♦ --------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------- ♦ --------------------------

Joshua Snow Kendrick

Counsel of Record

KENDRICK & LEONARD, P.C.

Post Office Box 6938

Greenville, South Carolina 29606

(864) 760-4000

josh@jkendrickleonard.com

Counsel for Petitioner

Dated: January 2, 2019

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

QUESTIONS PRESENTED

Petitioner Bryan Marshall had the incredibly

bad fortune to fall victim to two very different, and

very wrong, rulings. Each ruling defied this Court’s

precedent and represented a lower court struggling

with authority that must be clarified to avoid

continuing confusion.

Marshall protested police action in a

constitutionally-protected manner. Despite that

protection, he was arrested and searched. The search

revealed a gun which triggered a harsh Armed Career

Criminal Act sentence based on prior convictions not

properly considered serious drug offenses under

federal law.

Having faced incorrect legal decisions related

to both the beginning and end of his case, Marshall

presents these questions to the Court:

1.

Whether a state drug statute that lists a

variety of means by which it can be violated,

including one which does not meet the

definition of a drug distribution crime, is

categorically a predicate offense for purposes of

the Armed Career Criminal Act?

2.

Whether a crowd protesting police action can

remove an individual’s speech from the

protections of the First Amendment with

presenting an immediate threat to law

enforcement officers?

ii

LIST OF PARTIES

Petitioner Bryan Marshall was the Defendant

and Appellant below.

The United States of America was the Plaintiff

and Appellee below.

CORPORATE DISCLOSURE STATEMENT

Petitioner is an individual and there are no

corporate interests to disclose.

iii

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ...................................... vi

OPINION BELOW ..................................................... 1

STATEMENT OF JURISDICTION ........................... 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED......................................... 1

STATEMENT OF THE CASE ................................... 3

REASONS FOR GRANTING THE PETITION ......... 6

1.

Whether a state drug statute that

lists a variety of means by which

it can be violated, including one

which does not meet the definition

of a drug distribution crime, is

categorically a predicate offense

for purposes of the Armed Career

Criminal Act?......................................... 6

The decision below was wrong .............. 6

iv

Why this Court should grant

certiorari .............................................. 12

2.

Whether a crowd protesting police

action can remove an individual’s

speech from the protections of the

First

Amendment

without

presenting an immediate threat

to law enforcement officers? ............... 17

The decision below was wrong ............ 17

Why this Court should grant

certiorari .............................................. 19

CONCLUSION ......................................................... 20

APPENDIX:

Unpublished Opinion of

The United States Court of Appeals

For the Fourth Circuit

entered August 29, 2018 ................................ 1a

Judgment of

The United States District Court

For the Fourth Circuit

entered August 29, 2018 .............................. 33a

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Denying Petition for Rehearing

entered October 2, 2018 ............................... 34a

v

Judgment in a Criminal Case,

With Attachment

entered September 14, 2016 ........................ 36a

Attachment:

Preliminary Order of Forfeiture of

The Honorable Joseph F. Anderson, Jr.

entered June 13, 2016 ....................... 48a

Article IV § 14-91-Disorderly Conduct................... 53a

vi

TABLE OF AUTHORITIES

Page

CASES

Cintron v. United States AG,

882 F.3d 1380 (11th Cir. 2018) ...................... 16

City of Houston v. Hill,

482 U.S. 451 (1987) ........................................ 18

Descamps v. United States,

133 S. Ct. 2276 (2013) ................................ 7, 10

Edwards v. State,

642 S.E.2d 738 (S.C. 2007) .............................. 8

Hess v. Indiana,

414 U.S. 105 (1973) ........................................ 17

Mathis v. United States,

136 S. Ct. 2243 (2016). ........................... passim

North Carolina v. Heien,

135 S. Ct. 530 (2014). ..................................... 19

State v. Johnson,

20 S.C. 387 (1884) .......................................... 11

State v. Raffaldt,

456 S.E.2d 390 (S.C. 1995) .............................. 8

State v. Samuels,

743 S.E.2d 773 (S.C. 2013) ............................ 11

vii

State v. Watson,

2013 WL 8538756 (S.C. Ct. App. 2013) ........... 8

Terminiello v. Chicago,

337 U.S. 1 (1949) ...................................... 17, 18

The Confiscation Cases,

87 U.S. 92 (1874) ............................................ 11

United States v. Bain,

874 F.3d 1 (1st Cir. 2017) .............................. 13

United States v. Figueroa-Beltran,

892 F.3d 997 (9th Cir. 2018). ......................... 15

United States v. Goodwin,

3:17-cr-01143-JMC

(D.S.C. December 14, 2018) ........................... 13

United States v. Hinkle,

832 F.3d 569 (5th Cir. 2016) .......................... 14

United States v. House,

872 F.3d 748 (6th Cir. 2017) .......................... 14

United States v. Madkins,

866 F.3d 1136 (10th Cir. 2017) ...................... 15

United States v. McDow,

0:17-cr-01142-JMC

(D.S.C. December 14, 2018) ........................... 13

United States v. Rhodes,

736 Fed. Appx. 375 (4th Cir. 2018) ......... 13, 14

viii

United States v. Rodriguez-Negrete,

772 F.3d 221 (5th Cir. 2014) ............................ 8

United States v. Shannon,

631 F.3d 1187 (11th Cir. 2011). ............... 15, 16

United States v. Tibbs,

685 Fed. Appx. 456 (6th Cir. 2017) .......... 14-15

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. I........................................ passim

U.S. CONST. amend. XIV ............................................ 3

STATUTES

18 U.S.C. § 924(e)(1) ................................................... 1

18 U.S.C. § 924(e)(2)(ii) .............................................. 2

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

S.C. Code § 44-53-370 ................................................. 9

S.C. Code § 44-53-370(a)(1) ........................................ 9

RULE

SCACR Rule 268(d)(2) ................................................ 8

ix

OTHER AUTHORITIES

Columbia, South Carolina City Ordinance

14-91, located at https://library.municode.com/

sc/columbia/codes/code_of_ordinances ....................... 4

South Carolina pattern jury instructions can be

found

here:

https://web.archive.org/web/20160113231514/

http:/www.sccourts.org/juryCharges/GSInstru

ctions.2015.pdf ............................................................ 8

1

OPINIONS BELOW

The district court issued a written opinion on

the motion to suppress (Issue 2) which is located at

168 F. Supp. 3d 846 (D.S.C. Mar. 11, 2016). The

Fourth Circuit’s opinion is at ___ Fed. Appx. ____.

Both opinions are unpublished and both are in the

attached appendix. (1a-35a)

STATEMENT OF JURISDICTION

The Fourth Circuit denied a petition for

rehearing and rehearing en banc on October 1, 2018.

28 U.S.C. § 1254(1) authorizes jurisdiction in this

Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The first question presented involves the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(1)

which states:

In the case of a person who

violates section 922(g) of

this title

[18

U.S.C.S.

§ 922(g)] and has three

previous convictions by any

court referred to in section

922(g)(1) of this title [18

U.S.C.S. § 922(g)(1)] for a

violent felony or a serious

drug offense, or both,

committed on occasions

different from one another,

2

such person shall be fined

under this title and

imprisoned not less than

fifteen

years,

and,

notwithstanding any other

provision of law, the court

shall not suspend the

sentence of, or grant a

probationary sentence to,

such person with respect to

the

conviction

under

section 922(g) [18 U.S.C.S.

§ 922(g)].

This case involves the “serious drug offense” portion

of the statute, 18 U.S.C. § 924(e)(2)(ii), which states:

…an offense under State

law,

involving

manufacturing,

distributing, or possessing

with intent to manufacture

or distribute, a controlled

substance (as defined in

section

102

of

the

Controlled Substances Act

(21 U.S.C. § 802)), for

which a maximum term of

imprisonment of ten years

or more is prescribed by

law…

The second question presented involved the

First Amendment to the United States Constitution,

which states:

3

Congress shall make no

law

respecting

an

establishment of religion,

or prohibiting the free

exercise

thereof;

or

abridging the freedom of

speech, or of the press; or

the right of the people

peaceably to assemble, and

to petition the Government

for a redress of grievances.

The First Amendment is applicable to the States by

the Fourteenth Amendment.

STATEMENT OF THE CASE

Petitioner Bryan Marshall was at a cookout at

a friend’s house. Shots were fired in the neighborhood

and Marshall and several others drove around the

neighborhood looking for the shooter. At the same

time, a neighbor made a 911 call reporting the shots.

The 911 caller reported that Marshall and the other

men in Marshall’s truck were not the shooter.

Police responded to the neighborhood to

investigate the shots that were fired (and did not hit

anyone). They approached the house where the

cookout was being held at the same time Marshall

and his friends returned to the house. There was no

traffic stop. Marshall parked his truck on private

property. As Marshall exited the truck, police started

to question him and repeatedly asked to search his

truck.

4

Marshall objected. He protested the police

questioning and refused to allow a search of his

vehicle. Marshall’s protests were loud, boisterous,

and involved profanity. As the police continued

questioning him, people from the house walked

outside. Though they never came close to the police

officers, they joined in Marshall’s protest of the police

questioning and attempts to search his vehicle.

Marshall was arrested for disorderly conduct

under a Columbia, South Carolina city ordinance

which states in relevant part:

It shall be unlawful for any

person within the city

limits to engage in the

following conduct, knowing

or

having

reasonable

grounds to know that it will

tend to promote or provoke

a fight, assault or brawl:

(1) To utter, while in the

presence of others, any

lewd or obscene epithets or

make any lewd or obscene

gestures with his hands or

body…

Columbia, South Carolina City Ordinance 14-91,

located at https://library.municode.com/sc/columbia/

codes/code_of_ordinances (emphasis added). The

police used that arrest as a reason to tow and then

search Marshall’s vehicle. They found a gun and

marijuana. He pled guilty in state court to the

5

marijuana and received probation. Marshall’s gun

case was dismissed. However, as Marshall was

pleading guilty, the federal government was planning

to adopt the very same charges for federal

prosecution.

Marshall moved to suppress the evidence,

arguing there was no probable cause to arrest him for

engaging in protected speech.1 The district court

denied the motion.

As Marshall continued negotiating with the

federal government, his prior record became critical

to the outcome of his case. He had four prior drug

convictions, all of which involved marijuana and only

one of which involved Marshall serving any jail time.

After a series of Pre-sentence Reports (PSRs) which

went back and forth between designating Marshall

subject to the Armed Career Criminal Act (ACCA)

and not applying the Act, the Probation Office finally

decided it applied. The district court sentenced

Marshall to 262 months in prison. His conditional

plea agreement preserved the arguments related to

both his sentence and the illegal arrest and resulting

search.

The Fourth Circuit affirmed Marshall’s

conviction and sentence. It found the fruits of the

search of the vehicle should not be suppressed

because the arrest was proper. The Fourth Circuit

agreed Marshall’s actions were not in violation of the

law, but the hostility of a crowd in the vicinity allowed

the officers to arrest him. It also found the ACCA

1 Marshall raised other grounds at the suppression hearing but

they are not before this Court.

6

enhancement was proper, claiming the statute

Marshall pled under was divisible.

REASONS FOR GRANTING THE PETITION

Marshall’s conviction and sentence were

legally flawed. His conviction was founded on an

arrest for actions clearly protected by the First

Amendment. The Fourth Circuit used the actions of

the crowd to strip Marshall of his First Amendment

right to protest police action, despite the crowd also

engaging in protected protest of police action.

Marshall’s sentence was based on a

fundamental misunderstanding of both the ACCA

and this Court’s precedent interpreting it. The

Circuits’ difficulty applying Mathis to state drug

statutes has led to growing Circuit disagreement and

confusion on that issue.

1.

Whether a state drug statute that lists a

variety of means by which it can be violated, including

one which does not meet the definition of a drug

distribution crime, is categorically a predicate offense

for purposes of the Armed Career Criminal Act?

The decision below was wrong

The Fourth Circuit found the convictions used

to enhance Marshall’s sentence were predicates for

ACCA enhancement, in violation of this Court’s

holding in Mathis v. United States, 136 S. Ct. 2243

(2016).

7

A court may not look behind the elements of a

generally drafted statute to see how a crime was

committed. Mathis, 136 S. Ct. at 2255 (citing

Descamps v. United States, 133 S. Ct. 2276 (2013)).

This analysis is often relatively simple. It becomes

more involved when statutes are drafted with lists of

activities that may violate the statute. In those

circumstances, courts must determine if they are

dealing with “means” or “elements.” If the statute

contains means, or various ways it can be violated, a

court applies the categorical approach and only looks

to the least culpable conduct that violates the statute.

If the statute lists various elements constituting

separate crimes, a court applies the modified

categorical approach and can consult reliable

documents in the record to determine what the

defendant pled guilty to.

Mathis instructs courts to start with two

obvious observations. If a state appellate opinion

clearly resolves the matter, it should be followed. Id.

at 2256. The face of the statute may also reveal the

answer. Id. If neither of those sources clarify the

issue, the court can look at the record of the actual

conviction. Id. If there is still no answer, the court will

apply the categorical analysis. What the court cannot

do is apply the modified categorical approach in every

case where there is no clear answer.

The first two steps favor Marshall’s statute of

conviction being indivisible. Numerous South

Carolina cases hold the drug statute in South

Carolina can be violated in a variety of ways. The

Supreme Court of South Carolina has approved of a

possession with intent to distribute indictment listing

8

all the ways the statute can be violated. Edwards v.

State, 642 S.E.2d 738, 739 (S.C. 2007).

The South Carolina trafficking statute is

nearly identical to the drug statutes at issue in

Marshall’s case. The only difference between

trafficking and the statutes in this case is the weight

of the drugs involved.2 The Supreme Court of South

Carolina has held that the trafficking statute

contains a variety of different ways to commit the

crime. State v. Raffaldt, 456 S.E.2d 390, 394 (S.C.

1995).

It is unclear how the Fourth Circuit avoided

these opinions. Its decision was based on cases that

do not address the ultimate questions of means versus

elements, including an unpublished opinion which

carries no weight in South Carolina courts.3 When

2 South Carolina pattern jury instructions are no longer listed

on the State’s judicial website, but can be found here:

https://web.archive.org/web/20160113231514/http:/www.sccourt

s.org/juryCharges/GSInstructions.2015.pdf

(last

accessed

January 1, 2019).

The referenced jury instruction is at pp.191-92 of those

instructions.

3 The Fourth Circuit relied on State v. Watson, 2013 WL 8538756

(S.C. Ct. App. 2013) and United States v. Rodriguez-Negrete, 772

F.3d 221, 226-27 (5th Cir. 2014) in support of finding the South

Carolina drug statutes contain elements, not means. RodriguezNegrete also cites Watson in support of this finding. SCACR,

Rule 268(d)(2) states unpublished opinions in South Carolina

have no precedential value and should not be cited as authority.

Watson is not the law in South Carolina.

Even if Watson was the law, the opinion in that case draws little

distinction between “PWID” and “purchasing.” While it makes a

9

cases that do address those questions are reviewed,

they reveal the South Carolina drug statute simply

lists alternative ways to commit a crime, not various

crimes.

The plain language of the statute supports this

conclusion. It lists out a variety of ways it can be

violated:

(a) Except as authorized by

this article it shall be

unlawful for any person:

(1) to

manufacture,

distribute,

dispense,

deliver, purchase, aid, abet,

attempt, or conspire to

manufacture,

distribute,

dispense,

deliver,

or

purchase, or possess with

the intent to manufacture,

distribute,

dispense,

deliver, or purchase a

controlled substance or a

controlled

substance

analogue;

S.C. Code Ann. § 44-53-370(a)(1). The only difference

in punishments for violations relates to the type of

reference to the two being separate crimes, it also finds they are

generally the same and allows an amended indictment under the

drug statute to go forward without being considered by the grand

jury. This is as clear a sign as any that S.C. Code § 44-53-370 is

a crime that can be committed a variety of ways. If it listed

different crimes, no new crime could be added without additional

grand jury consideration.

10

drug and its weight, not which way the statute was

violated. Mathis, 136 S. Ct. at 2256 (“If statutory

alternatives carry different punishments, then under

Apprendi they must be elements.”). There are no

additional statutes setting out separate definitions

for the means listed in the statute.

The first two considerations point to an

indivisible statute that describes means, not

elements. While that should end the analysis, the

third instruction in Mathis offers even more support

for Marshall’s position. Looking at the record

documents in this case confirm the statute is

indivisible.

Marshall’s PSR lists describes five indictments

for the drug statutes at issue.4 Of the four charges

used to enhance Marshall’s sentence, two indictments

list “distribution” as the sole means of committing the

crime. However, the other two list all the means in

the statute. There is a fifth indictment referenced

that is not part of this case but further illustrates the

way this crime is charged, listing all the ways the

statute can be violated. This manner of charging is

critically important to determining how to consider

this statute.

In Descamps, the United States Supreme Court

recognized a simple test for determining when a

statute is divisible. When dealing with a divisible

statute, a charging prosecutor must select the specific

4 One of those indicted charges is not at issue here because the

PSR reflects it was pled down to a possession charge. It is useful

for illustrative purposes.

11

crime to allege in the indictment. Descamps v. United

States, 133 S. Ct. 2276, 2290 (2013).

Well-settled precedent holds that an

indictment charging several offenses in one count is

“wholly insufficient.” The Confiscation Cases, 87 U.S.

92, 104 (1874). Such an indictment fails to provide

“definite notice of the offence charged” and does not

protect against “subsequent prosecution for one of the

several offences.” Id. South Carolina law has long had

the same requirement. In a case nearly as old as the

Confiscation Cases, the South Carolina Supreme

Court was clear that a statute forbidding several

things in the alternative is one offense and the

indictment can charge all the acts in the statute. State

v. Johnson, 20 S.C. 387, 391 (1884). If the statute

should be considered disjunctively, the pleader must

elect the acts to charge. Id.

Despite drug charges often being indicted with

multiple means of committing the offense in the body

of the indictment, no South Carolina court has found

drug offense indictments defective for duplicity. The

South Carolina Supreme Court has noted that a

duplicitous indictment is defective. State v. Samuels,

743 S.E.2d 773, 774 (S.C. 2013). Such an indictment

would not go unnoticed.

Both this Court and the Supreme Court of

South Carolina hold that a divisible statute must be

charged by selection of the appropriate crimes within

the statute. Simply listing all the terms in a statute

would only be appropriate if those terms were

alternative ways to commit a specific crime, as is the

case with South Carolina drug offenses.

12

All three ways of analyzing the divisibility of a

statute under Mathis confirm the statute in this case

is indivisible. Because the statute prohibits

“purchasing” drugs, it is categorically overbroad and

Marshall should not have been sentenced under the

ACCA.

Why this Court should grant certiorari

The opinion below is more than just a wrong

decision. It reflects a fundamental misunderstanding

of this Court’s precedent. Many drug statutes are

drafted the way South Carolina’s is, prohibiting a

wide variety of ways one can be involved with illegal

drugs. It is not just the Fourth Circuit that is

struggling with the instructions from this Court in

Mathis. A growing split and sense of confusion in the

Circuits compels this Court to grant certiorari and

resolve the conflict among lower courts.

Because of the incredibly long sentences the

ACCA imposes, this matter is also of significant

importance to defendants and the judicial system.

Defendants face a disadvantage in plea negotiations

when it is difficult to tell whether the ACCA will

apply. Because it is a statutory mandatory minimum,

there is nothing that can be done once it applies.

At the same time, most of the litigation in the

district courts and the Circuits continues to focus on

the ACCA (and career offender enhancements, which

are often dictated by the same opinions). There is

little to no certainty in how a prior drug conviction

will affect a sentence.

13

The Fourth Circuit provides a prime example

of the confusion in this arena. No published opinion

offers the sentencing courts any guidance on how to

consider the South Carolina drug statute, which is

categorically overbroad. One panel of the Fourth

Circuit, in this case, found the modified categorical

approach should be used and granted no relief to

Marshall. In another case, a different panel assumed

the modified categorical approach applied but held

relief was warranted on nearly identical facts. United

States v. Rhodes, 736 Fed. Appx. 375 (4th Cir. 2018).

There are two brand new opinions from a South

Carolina district court finding neither Marshall nor

Rhodes is binding and that both were likely decided

incorrectly. United States v. Goodwin, 3:17-cr-01143JMC (D.S.C. December 14, 2018); United States v.

McDow, 0:17-cr-01142-JMC (D.S.C. December 14,

2018).

A defendant in the Fourth Circuit is faced with

a difficult choice. Either plead to what the

Government offers or gamble on which way the

district court views this matter. While the matter is

not as markedly confusing in other Circuits as it is in

the Fourth Circuit, there is enough conflict between

the Circuits on the general application of the

divisibility analysis to state drug statutes to warrant

this Court’s involvement.

The First Circuit considered a similar statute;

trafficking cocaine in Massachusetts. United States v.

Bain, 874 F.3d 1 (1st Cir. 2017). That statute also

contains a variety of ways it can be violated, including

one which would not categorically match ACCA

enhancement. Id. at 28-29. Operating under the plain

14

error standard, the First Circuit held state law on the

statute was unclear and the record lacked

documentation to decide the matter. In denying relief,

that Court decided it could not decide. This is the

opposite conclusion reached by Rhodes in the Fourth

Circuit, which held in similar circumstances the

ACCA did not apply.

The Fifth Circuit analyzed a Texas drug

statute as instructed by Mathis. United States v.

Hinkle, 832 F.3d 569, 574 (5th Cir. 2016).5 The

opinion reveals a nearly identical situation in state

law as the one in this case. Id. at 575-76. The Fifth

Circuit found the ACCA did not apply. It considered

state case law that held various ways of committing a

crime could be listed in an indictment, much like the

South Carolina cases cited here. Id. Though a

prosecutor could specify means in a Texas indictment,

he or she was not required to. This is consistent with

Mathis. Had the Fourth Circuit considered this case

the same way, it would have been compelled to grant

Marshall relief.

The Sixth Circuit has held a similar Michigan

statute was divisible, based on how it is charged in

Michigan (the specific act was listed in the

indictment) and the sentencing provision (different

alternatives carried different sentences). United

States v. House, 872 F.3d 748, 753 (6th Cir. 2017)

(citing with approval the unpublished opinion in

United States v. Tibbs, 685 Fed. Appx. 456, 462-63

5 Hinkle considered a career offender enhancement under the

Guidelines, not an ACCA enhancement. However, the wording

of the two enhancements results in courts using the law that

applies to one interchangeably with the other.

15

(6th Cir. 2017). The Fourth Circuit’s decision in this

case found divisibility despite the exact opposite

conditions; South Carolina charges include every way

to violate the statute and the sentence remains the

same no matter which means of commission is

present in a case.

The Ninth Circuit recently took an entirely

different tack in determining whether a Nevada state

drug law was divisible. Faced with an inability to

decide the matter, it just asked, by way of a certified

question to the Nevada Supreme Court. United States

v. Figueroa-Beltran, 892 F.3d 997, 1004 (9th Cir.

2018). While that may seem a good way to determine

divisibility, Mathis suggests the uncertainty inherent

in a case where such a request is made should result

in a finding of indivisibility. Mathis, 136 S. Ct. at

2257.

The Tenth Circuit opinion in United States v.

Madkins is somewhat confusing, because it applies

the modified categorical approach but seems to

consider an act contained in the statute that is

broader than the generic definition of a serious drug

offense. 866 F.3d 1136, 1145 (10th Cir. 2017). Relying

on Kansas case law, the Tenth Circuit found a term

in the statute encompassed activity that would not

trigger an ACCA enhancement and did not apply the

Act. Id. at 1147-48.

The Eleventh Circuit has considered an almost

identical situation to Marshall’s, analyzing a Florida

trafficking statute that also prohibited the purchase

of drugs. United States v. Shannon, 631 F.3d 1187,

1188 (11th Cir. 2011). The statute is similar to the

16

South Carolina statute under which Marshall was

convicted. Id. at 1189. Interestingly, this case was

decided before the Mathis opinion but is in line with

that decision.

A more recent Eleventh Circuit opinion, also

considering a Florida drug statute, reaches the

conclusion a Florida trafficking statute is indivisible.

Cintron v. United States AG, 882 F.3d 1380 (11th Cir.

2018).6 Using Florida state appellate opinions, the

Eleventh Circuit found the statute could be violated

in a variety of ways, as it contained means of violation

instead of separate crimes. Id. at 1385-86.

The Circuits approach these cases differently.

In some instances, lack of clarity leads to

indivisibility, while in others the same lack of clarity

leads to divisibility. Marshall’s case is a particularly

bad example of a Circuit stretching logic to make a

case fit into the ACCA enhancement when it should

not. Despite multiple signals under the Mathis

analysis that the South Carolina drug statute is

indivisible, the Fourth Circuit insisted on finding

ways to apply the modified categorical approach and

ultimately the ACCA.

Mathis recognized that “coherence has a claim

on the law.” Mathis, 136 S. Ct. at 2257. State drug

laws, often drafted in a broad manner, are considered

in relation to the ACCA like any other laws. This

Court has made it clear facts simply do not matter to

the ACCA. Id. A statute containing various ways it

6 This case involves an immigration matter but recognizes the

analytical framework in ACCA cases is analogous to the

framework in immigration cases. Cintron, 882 F.3d at 1384, n.3.

17

can be violated is considered categorically. Marshall’s

prior conviction was under a statute that is

categorically overbroad and should not trigger a

sentence under the ACCA.

2.

Whether a crowd protesting police action can

remove an individual’s speech from the protections of

the First Amendment without presenting an

immediate threat to law enforcement officers?

The decision below was wrong

Marshall was arrested because the police

claimed he was inciting a crowd to violence. Because

both Marshall, and the crowd at issue, were merely

protesting police action, his arrest was improper and

invalidates the subsequent search.

The concurring opinion from the Fourth Circuit

states Marshall’s counsel failed to raise the proper

argument and used the incorrect test for the

argument he did raise, which led to the Fourth

Circuit’s decision on this issue. The concurring

opinion stated counsel used the “clear and present

danger” test instead of a purportedly more protective

“incitement to imminent lawlessness” test.

Hess v. Indiana held that language could not be

punished unless it was likely to produce imminent

disorder. 414 U.S. 105, 108 (1973). Over a decade

later, this Court held a significant amount of verbal

criticism and challenge to police officers was protected

by the First Amendment, quoting the requirement

from Terminiello that speech must be likely to

produce a clear and present danger of a serious

18

substantive evil. City of Houston v. Hill, 482 U.S. 451,

463 (1987)(quoting Terminiello v. Chicago, 337 U.S. 1,

4 (1949).

Both tests invoke similar protection. Speech

must be calculated to provoke specific, immediate

unlawfulness before it loses First Amendment

protection. Inconvenience, annoyance, or unrest does

not meet the test; it must rise “far above” those terms.

Id.

The district court described a crowd protesting

police action; it did not find any threatening behavior.

In fact, the law is clear the crowd would need to be an

immediate and specific threat to the officers as a

direct result of Marshall’s speech before he would lose

his protections under the First Amendment.

The crowd may have been hostile towards the

police. But it was not so far beyond unrest as a result

of anything Marshall said as to authorize his arrest.

The case law in this area is settled and clear;

police protest is not illegal. More importantly, an

individual citizen cannot be arrested because of

another’s legitimate protest of police action. That is

exactly what happened here. Despite recognizing two

tests from this Court that require far more than

“hostility” the Fourth Circuit insisted the arrest in

this case was proper. The decision to arrest was not a

result of Marshall’s actions, but a result of a crowd

that admittedly posed no danger, imminent, clear and

present, or otherwise.

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Why this Court should grant certiorari

This argument goes to the heart of American

protest against police action. It is of exceptional

importance that the traditional Supreme Court test of

“serious substantive evil” (or “incitement to imminent

lawfulness”) not be replaced with the far lower bar of

“hostile.” The Fourth Circuit held Marshall could be

arrested not for his speech, but for the actions of a

crowd that neither the district court nor the Court of

Appeals found ever came near the officers. This is a

unique twist on the Government’s ability to suppress

speech.

No one seems to disagree that Marshall could

curse at the police. It is the actions of a crowd at the

house where the encounter took place the Fourth

Circuit used to strip Marshall of his First Amendment

right to protest police action, despite the fact the

crowd had the same First Amendment right.

This is a novel issue. The Fourth Circuit cited

no case law to support its divergence from this Court’s

well-settled law on a citizen’s ability to protest. In

fact, it cites North Carolina v. Heien, for the claim

that it was unclear whether the officers could arrest

Marshall. 135 S. Ct. 530, 536-40 (2014). Heien

involves a reasonable mistake as to the application of

a statute. There is no real question this Court has

repeatedly held that police can only arrest for protest

speech in the face of imminent, clear, and present

danger. In other words, hostility is never enough.

There must be an immediate danger. None was

present here.

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The Fourth Circuit seems to be creating its

own, dangerous Circuit split with its opinion. By

lowering the bar for an arrest based on protected

speech, the speech is no longer protected. This Court

should grant the writ to clarify the contours of First

Amendment protection of protest speech, lest such

protection be lost to citizens.

CONCLUSION

Marshall respectfully requests this Court grant

the petition, vacate the decision of the Fourth Circuit,

and remand this matter with instructions to either

suppress the evidence found as a result of the illegal

arrest of Marshall or sentence Marshall without the

career offender or Armed Career Criminal

enhancement.

Respectfully submitted,

/s/ Joshua Snow Kendrick

Joshua Snow Kendrick

Counsel of Record

KENDRICK & LEONARD, P.C.

P.O. Box 6938

Greenville, South Carolina 29606

(864) 760-4000

Josh@KendrickLeonard.com

Counsel for the Petitioner