Petition for Writ of Certiorari — Milton Terry Kelton, Petitioner v. United States

Supreme Court briefMay 29, 2019

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FILED

MAY 2 9 2019

IN THE

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

SUPREME COURT, L'.S.

MILTON TERRY KELTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petitioner for a Writ of Certiorari to the

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Milton Terry Kelton

Reg. No. 86501-132

USP - Leavenworth

US Penitentiary

PO Box 1000

Leavenworth, KS 66048

received

JUN 5 - 2019

1 OFFICE

THE CLERK

-Q1 k>2FME v-OuP.T

QUESTIONS PRESENTED

WHETHER THE HONORABLE JUDGE BRIAN C. WIMES AND THE U.S.

ATTORNEY JAMES BOHLING UTILIZE TWO-INAPPLICABLE STATUTORY

ENHANCEMENTS ENACTED BY THE UNITED STATES SENTENCING COMMISSION

AFTER THE OFFENSE DATE OF SEPTEMBER 30, 1988. AMENDMENTS #66 AND

#139 IN CALCULATION OF THE BASE OFFENSE USED TO DENY THE

APPELLANT'S 782 MOTION FOR REDUCTION OF SENTENCE IN VIOLATION OF

THE EX POST FACTO CLAUSE AND DUE PROCESS RIGHTS?

---------IIv

WHETHER THE HONORABLE BRIAN -Ch—WIMES AND -U .-S-i—ATTORNEY - JAMES

BOHLING DISREGARD OR OVERSIGHT OF THE SUPREME COURT AND APPEALS

COURTS PRECEDENTS FOR EX POST FACT CLAUSE (Plain Errors) AND

APPELLANT'S RIGHTS TO HAVE THESE ERRORS CORRECTED CAUSED KELTON

TO CONTINUE TO BE IMPRISONED UNDER AN INFIRMED UNCONSTITUTIONAL

SENTENCE?

III. WHETHER THE HONORABLE BRIAN C. WIMES AND U.S. ATTORNEY JAMES

BOHLING COMMIT A VIOLATION OF FEDERAL RULES OF CRIMINAL PROCEDURE

52(b)'S PLAIN ERROR RULE WHICH WAS RAISED BY APPELLANT IN HIS

MOTION FOR REDUCTION OF SENTENCE. THAT BOTH OFFICERS OF THE

HONORABLE COURT FAILED TO REVIEW OR CORRECT. BUT UTILIZED IT TO

DENY APPELLANT'S 782 AMENDMENT MOTION. WITH FULL KNOWLEDGE THE

WRONG SENTENCING MANUAL WAS USED TO PREPARE THE P.S.R.?

IV. WHETHER THE HONORABLE BRIAN C. WIMES AND U.S. ATTORNEY JAMES

BOHLING UTILIZE BASE OFFENSE 42 INSTEAD OF 32 AS THE STARTING

POINT IN DOING THE CALCULATION OF TOTAL OFFENSE LEVEL FOR THE

IMPOSITION OF GUIDELINE RANGE FOR 782 AMENDMENT WHICH THE COURT

LIFE?

DENIED STATING THE GUIDELINE RANGE REMAINED 360

PARTIES TO THE PROCEEDINGS

Petitioner, Milton Terry Kelton ("Kelton"), was a criminal

defendant in the United States District Court for the Western

District of Missouri, in USDC Criminal No.

90-00010-01/16-CR-W-BCW.

As Appellant in the United States Court

of Appeals for the Eighth Circuit ("Eighth Circuit") in USCA No.

19-1471.

Respondent, United States of America, was the Plaintiff

in the district_“cdurt, and the Appellee_in"the”Eighth "Circuit^

Judge Brian C. Wimes, Western District of Missouri.

iii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED

PARTIES TO PROCEEDINGS

TABLE OF CONTENTS

iii

APPENDIX TABLE OF CONTENTS ..

v, vi, vii

TABLE OF AUTHORITIES

OPINION BELOW

1—

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF CASE

THE PROCEEDINGS BELOW

II. THE FACTUAL BACKGROUND

REASON FOR GRANTING THE PETITION

THE UNITED STATE COURT OF APPEALS FOR THE EIGHTH

CIRCUIT ERRED IN AFFIRMING KELTON'S JUDGMENT AND

DENYING HIS PETITION FOR APPEAL ...

-27

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

DF Sendee . .

fortn 5?

. . 22

APPENDIX TABLE OF CONTENTS

PAGE

Eighth Circuit Order in USCA No. 19-1471 dated March 12,

2019, denying Kelton's Petition for Appeal from the U.S.

District Court for the Western District of Missouri

Kansas City 4:90-CN-00010-HFS-1

Pro Se Notice of Docket Activity

The followng was filed on 3/18/2019

Case Name: United States v Kelton, Milton

Case Number: 19-1471

Docket Text:

BRIEF FILED - APPELLANT BRIEF filed by Mr. Milton Terry

Kelton, w/service 03/19/2019 [4768293] [19-1471]

Document Description: Appellant Brief

Document Description: Exhibits

Judgment order in Amendment 782 Reduction of Sentence

Motion dated 12/11/2017

Denying the Motion

APPENDIX TABLE OF CONTENTS (CONTINUED)

PAGE

Judgment Order in Defendant's Pro Se Motion for

Reconsideration regarding Motion to Reduce Sentence

Pursuant to 2014 Drug Guidelines Amendment 782 (Doc.

# 131) Denial of 18 USC § 3582 (c) (2)

Dated November 14, 2018

Exhibit "A"/ AMENDMENT # 66 to Title 21 USCS §§ 848(a)

Statutory Provisions under (2D1.1)

Exhibit "B", AMENDMENT # 139 to Title USCS §§ 848(a)

Statutory Provision under (2D1.1)

Exhibit "C", the cover page of the indictment with the

correct statutory range 10.years to Life, not 20 years

to life that the court sentenced Kelton to under an ex

post facto clause violation, which raised the mandatory

minimum up to twenty (20) years instead of ten years ..

APPENDIX TABLE OF CONTENTS (CONTINUED)

PAGE

Exhibit "D", cover page of the PSR with the wrong

mandatory minimum sentence

(20 years) and the

incorrect dates for preparation of (PSR) and Date

for Revisions

4/27/90 and 10/29/90

Exhibit "E", Revised Drug Quantity and Base Offense

Level reduction the day of Sentencing Hearing, so the

4 level enhancement could be used to sentence Kelton

to an illegal Life Sentence. An ex post facto clause

violation and plain error

Exhibit■"F", The 1987 Guideline Manuals Statutory

Provision for 21 USC § 848(a) CCE for first time drug

offenders of 848(a)

10a

Exhibit "G" , Copy of the Bureau Of Prisons Document

of the DATE OF OFFENSE September 30,1988.

11a

vii

TABLE OF AUTHORITIES

PAGE

CASES

Estell v Gamble, 429 U.S. 97, 106

(1976)

Haines v Kerner, 404 U.S. 519, 520(1972)

. . 24

Henderson v United States, 588 U.S. 266, 272, 135 S.Ct.

185 L.Ed.2d 85 (2013)

Lerner v Gill, 751 F.2d 450, 455 (1st Cir. 1985)

Lindsey v Washington, 301 U.S. 397, 401 (1937); INS v

St. Cyr, 533 U.S. 289, 325 (2001)(citing Lindsey) ...-12-13-14

Miller v Florida, 484 U.S. 423, 430 (1987)

Murtishaw v Woodford, 255 F.3d 926, 965 (9th Cir. 1999) 13

Preter v United States, Parole Commission, 762 F.2d

1230, 1239 (7th Cir. 1985)

viii

TABLE OF AUTHORITIES (CONTINUED)

PAGE

CASES

Shepard v Taylor, 556 F.2d 648, 654 (2d. Cir. 1977) .. 15

Weaver v Graham, 450 U.S. at 32 N. 17 (1981)

United States v

Alfaro, 336 F.3d 876, 833 (9th Cir. j

2003)

United States v Kelton, CR 90-00010/16 - BCW

United States v Borer, 394 F.3d 569, 574 (7th Cir. 2004)15

United States v Paskow, 11 F.3d 873, 877 (9th Cir. 1993) 15-16

United States v. Rosales-Mireles,2018 BL. U.S. No.169493(June 18,2018)

United States v. Tykarsky, 446 F.3d.458,480,(3d cir.2006)

United States v. Johns,5 f.3d. 12761272(9thcir.1993)... 4

United States v. Byers, 561 F.3d,825829(8thcir.2009)...4

STATUTES, RULES AND REGULATIONS

PAGE

21 U.S.C. § 841(a)(1)

2-25-26

21 U.S.C. § 841(b)(1)(B)

21 UrS.C. § 846 rv

21 U.S.C. § 848(a)

21 U.S.C. § 841(b)(1)(c)

. .......... ..

. 2-5—9-24

. 2

18 U.S.C. § 1952

2-19

18 U.S.C. § 1958

18 U.S.C. § 1343 and 2

18 U.S.C. § 2314 and 2

28 U.S.C. § 1254(1)

STATUTES, RULES AND REGULATIONS

(CONTINUED)

PAGE

Federal Rules of Criminal Procedure 52(b)

6-25

Plain Error Rule

4-16-18-20

18 U.S.C. § 3582(c)(2)

3-17-22

18 U.S.C. § 3006(A)

7-14-22-iv

3®

Supreme Court Rule 29

Amendment § 782

\}~$a

Amendment # 66

Amendment # 139

U.S.S.G. 3E1.1 (a)

U.S.S.G. 3C1.1

19-20

U.S.S.G. 2A1.5 (C)

U.S.S.G. 1B1.10

U.S.S.G. 2D1.1

U.S.S.G. 3553(a)

PETITION

FOR WRIT OF CERTIORARI

Petitioner

respectfully

submits

this

tion for a Writ Of Certiorari to review

the judgment of the United States Court

of Appeals for the Eight Circuit.

OPINION BELOW

The opinion of the United States Court

Of Appeals for the Eighth Circuit is un

published, United States v. Kelton, No.

19-1471 (8th cir.2019),is attached in the

Appendix at la.

Denial of U.S. District Court,WESTERN

District "of Missouri.Attached at 3 a

JURISDICTION

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

Defendant-Appellant appealed from the dist

rict Court's judgment in a criminal/civil

case to the United States Court of Appeals

for the Eighth Circuit. On March 12,2019

the Court of Appeals for the Eighth

Circuit issued an order affirming Keltons

Judgment.

This Court has Jurisdiction

pursuant to Title 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

FIFTH AMENDMENT OF THE U.S. CONSTITUTION

The

fifth

Amendment

the

U.S.

Constitution provides, in pertinent part:

"...Nor shall any person be deprived of

life, liberty or property without due

process of law...."

SIXTH AMENDMENT OF THE D.S.CONSTITUTION

The Sixth Amendment of the U.S.Constitution

provides, in pertinent par:

n • o •

an to be informed of the nature and

cause of the accusation;and to have the

assistance of counsel for his defense • • •

STATEMENT OF THE CASE

A. The Proceedings Below::

On January 10,1990, a federal grand jury

returned a 23-count indictment against

Kelton and others alleging various narcotic

of f ens esT( p SR “1TK 3.) The charges “included'I

conspiracy to distribute cocaine, in viola

tion of 21 U.S.C.§ 846; continuing criminal .

enterprise, in violation of 21 U.S.C. §848(a);

Seven counts of distribution of cocaine,

inviolation of 21 U.S.C.§ 841(a)(1) and

(bi)(l)(B); seven counts of interstate tran

sportation in aid of racketeering enterprises,

inviolation of 18 U.S.C. § 1952; two counts

of use of interstate commerce facilities

in murder for hire, in violation of 18

U.S.C. § 1958; and three counts of fraud

by wire, in violation of 18 U^S.C. §§ 1343

and 2§,-and one count of interstate trans

portation of stolen property, in violation

of 18 U.S.C. §§2341 and 2.(PSR1,1[ 1.)

On January 16,1992, the propation officer

filed the final revision of Presentence

Report (PSR) with the Court.(PSR i). The

PSR calculated Kelton's sentencing Guideline

Range as 360 Month to Life> based on a

total offense level of 40 and a criminal

history category of VI. (PSR 19, II 105) .

The PSR concluded that Kelton was likely

responsible for the distribution of 50

to 150 Kilograms of cocaine.(PSR 7-8,

1(36.) The PSR arrived at offense level

40 by adding a enhancement pursuant to

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

for threatening a government witness and

a codefendant (PSR 11,12,1MI58,67 ) , and

then subtracting two levels pursuant to

§ 3E1.1(a)., for acceptance of responsib

ility:

On January 16, 1992, the district court

sentenced Kelton to concurrent sentences

of Life on Counts One^and Two, as all othef:.

counts concurrently.

On September 22, 2015, Kelton filed a pro

se motion pursuant to 18 U.S.C.§ 35(?2(C)(2)

and Amendment 782 (D.E. 125). The Court

Denied Kelton's reduction of sentence Motion

on December 11,2017. (D.E. 130). Kelton

filed a Motion for reconsideration of the

Court's order denying him a sentence

reduction under § 3582(C)(2).

In his pro se motion for reconsideration',

Kelton asks the court to reduce his original

sentence pursuant to Amendment 782 of U.S.S.G.

and 18 U.S.C. § 3582(C)(2).

§ 3582(C)(2) REDUCTIONS, GENERALLY

If a court has found a reduction consistent

with U.S.S.G § 1B1.10, it may then determine

if 11 the authorized reduction is warranted,

either in whole or in part, according to

the factors set forth in [18 U.S.C.]

3553(a)." Dillion v. United states, 560

U.S. 817,826(2010).

"A sentencing court has discretionary

authority, under 18 U.S.C.§ 3582(C)(2)

and U.S.S.G. lBl.lo, to reduce the term

of imprisonment for a defendant.. who was

sentenced based on a guideline range

subsequently lowered by the Sentencing

Commission." United States v. Byers, 561

F.3d

825,829

(8th

cir.

2009)(quoting

United “States v.Whiting 522 F.3d 845,852

(8th cir.2008).

The

government

has

asserted

opposition response to the reconsideration

motion that it's a successive § 3582

(C)(2) Motion after the denial of the

first motion.

Petitioner

Kelton

contends

that

the

Honorable.Court (Judge Brian C. Wimes, nor

the U.S, Attorney JAmes gohling ever

addressed the Issues in the motion before

the court. Because, the

EX POST FACTO

CLAUSE VIOLATIONS, AND THE 11 PLAIN ERROR

MISCALCULATIONS THAT THE preparer of the

PRS

comitted

the

revised

final

submission to the Court, utilized the

wrong sentencing guideline manual.

They were totally ignored and overlooked

by the Court and the assistant United States

Attorney.

Because thats the only way they

could have come up with the rationale that

Kelton has pointed out no fundamental change

in the law that would justify a reconsideration

of the Courts order denying the reduction

request.

When there were approximately 13 clear

andt- plain errors committed by the PSR prepared

that the court adopted.

Appellant Kelton was indicted in the western

District of Missouri on January 10,1990 on a

22 Count Indictment.

On april 5,1990 Kelton

entered a NOLO CONTENDRE Plea to all 22-counts

without benefit of a plea agreement.

Because under the 1987 Sentencing Guideline

Manual, the statutory Provision for 21 U.S.C. §

848(a),

had a Base Offense Level of 32 for

First Time Drug Offenders charged with § 848(a).

The appellants Date of Offense was September

30,1988, which was the date of the last overt

act in the conspiracy case.

The sentencing range was 10 years to Life under:

criminal history category VI.

Offense Level of

And the Base

32, had a 210—262 Month sentence

Range on the: CCE (848)(a) of Count One.

The Honorable Court ordered a PSR and the

Appellant Languished in the segregation unit

of leavenworth Federalj Prison for 24 months?;

and 7 days awaiting sentencing.

On January 16,1992, Probation Officer

Ruthann Bean filed the final revised version

of the PSR with the court. Probation Officer

Bean Utilized the Guideline manual in effect

on January 16,1992. Which was the wrong manual

and this error created Three PLAIN ERRORS of

Ex Post Facto Clause violations, and eleven

(11) Miscalculation of the sentencing guideline

ranges in Keltons

case. Errors pursuant to

r J

Federal Rules of Criminal Procedure 52(b).

All Plain errors that affected the substantial

rights of appellant kelton that are particularly

egregious, that rise to exceptional circumstances.

;

Which meet the Fourth Prong of the rigorous

standards of the Plain Error Rule review.

Satisfying the Plain Error Standard is difficult.

The courts have held that Rule 52(b) is only

satisfied when four requirements are met:(j). there

is an error.(2).the error is plain,(3)the error

affects the fairness and integrity or public

reputation of Judicial proceedings(4) the error

seriously affects substantial rights.

Henderson v.United States,588 U.S. 266,

272, 133 S.Ct. 1121, 185 L.Ed 85(2013).

Kelton asserts that the Ex Post Facto Cla

use violations that took place in his

proceedings under the Two-Amendments to

the Statutory Provisions of § 848(a)

after the Date of Commission of Offense

September 30,1988.

Which raised Appellant

Keltons Base Offense level were inapplicable.

The sentencing commission enacted both

Amendment #66and Amendment # 139 After the

Offense date. Amendment # 66 was enacted on

October 15, 1988;and Amendment # 139 was

enacted on November 1, 1989. Amendment # 66

raised the Base offense level up to 36. And

Amendment #139 raised the base offense level

up to 38,for CCE and included Commentary

where if the Base offense level from the

2D1.1 Drug Quantity Table was lower than

38, then a Four(4) Level additional enhan

cement could be applied. Also these amendments

Raised the Mandatory Minimum from 10 years up

to 20 years instead of ten. Appellant Keltons

Indictment was under the 10 years to life in

Guideline manual for 1987.

EX POST FACTO CLAUSE VIOLATIONS IN COUNTS

FIFTEEN AND SIXTEEN OF THE INDICTMENT STATE:

Between September 1, 1988 and September 30th,

1988, said dates being approximate. Defendant

Keltonand Co-defendants herein knowingly and

intentionally iad and abet, procure and caused

another to travel in interstate Commerce from

the State of California to Kansas, City, Mo.

in the Western District of Missouri, with the

intent to carry on and facilitate the carrying

on of unlawful activity, that is the Business

enterprise involving controlled substances to

wit: the possission of Cocaine, a schedule I I

Controlled substance with intent to distribute

said substance, and thereafter did attempt with

the others to carry on such unlawful activity;

all in violation of Title 18 U.S.C.§ code section

1952 and 2.

The presentence Investigation report stated

definitively that Two-Kilo's, were involved in

Both: Counts Fifteen and Sixteen. September 30th,

being the Date of the Last Overt Act in Keltons

CCE and Conspiracy Case.

The United States Sentencing Guideline Manual

in use and effect on that date.was the 1987

version of the Guideline Manual of the USSC. And

And the Continuing Criminal Enterprise stat

ute had a 10 year to life maximum sentence

exposure and the maximum Base Offense level

was

32 for

First Time Drug Offenders that

were charged with 848(a).

Then on October 15, 1988 the Commission

enacted Amendment # 66 that elevated the Base

Offense Level to

36, which was Four(4) level

higher than authroized for the offense that

occurred before October 15

1988. If the Court

had read the Statute and Provisions of the

Guidelines for 21 U.S.C.§ 848(a), Its clear

in the commentary that No enhancement apply to

the statute for Role in the Offense. Therefore,

Keltons-jBase Offense Level couldn't be elevated

above Base Offense Level 32 as a first time

Offender of the § 848(a) Statute for Drugs.

Given the fact that no drugs Amount was on the

face of the Indictment for the 848(a) charge or

found by a Jury or admitted to by

Kelton. The

Maximum Sentence exposure of the CCE Count was

Only Twenty-Years under the cathall provision

of 21 U.S.C.§ 841(b)(1)(C) (0-20) years maximum

Term). Plus , the mandatory sentencing scheme

under which Kelton was sentenced was ruled to

be unconstitutional by the United States

Supreme Court.

But to add insult to injury and further

create Errors in the proceedings.

On November 1, 1989 the United States Sent

encing Commission enacted another Amendment

to the CCE

848(a) statute. Amendment # 139t

which elevated the base offense level up to

38. And it also raised the mandatory minimum

up to 20 years.

The Court under the direction of Probation

Officer Ruthann Bean

Lowered Petitioner Kelton

Base Offense level down to 36 by lowering the

Drug quantity at the sentencingshearing on Jan.

16, 1992. Then the Amendment # 139 Four level

enhancement for base offenses lower than 38

was used to add the adjustment up to Offense

Level 40. Then Two level were added for the

Obstruction Of Justice

enhancement taking

Kelton froma Maximum of 32 Offense authorized

above the Maximum legally applicable to 42

and the Court imposed a Illegal sentence of

Life. The appellants Base Offense level was

raised from 32 up to 42, Ten Levels. Which is

a Ex Post Facto Clause Violation committed.

■V-

Defendant Keltons sentence exposure and

maximum offense level was elevated by use

of the erroneous Offense level of 42 that

was established by use of two inapplicable

Guideline amendments that were enacted

after the Offense date of September 30,1988.

These two amendment egregiously caused

the offense level to be raised ten(1)levels.

AS.

results of these Plain error ex post

facto clause violations, Kelton was subject

to not one , but two different Illegal

enhancements of the statutory provision of

§ 848(a).

Sentencing

Guidelines

Procedure

The courts typically apply the guidelines in effect at the time of sentencing if an amendment added

after the defendant's conduct is "retroactive," or is only intended to clarify application of a guidelines and

was not intended to make any substantive changes to the guidelines or their commentary. However, the

guidelines are governed by the limitations of the ex post facto clause. U.S. Const, art. I, § 9. Thus, if

the guidelines in effect at the time of sentencing will produce a sentence harsher than those in effect at

the time the crime was committed, a violation of the ex post facto clause occurs.

The court, under U.S. Sentencing Guidelines Manual § 1B1.11, is required to apply either the Sentencing

Guidelines in place on the date of sentencing, or the Sentencing Guidelines in place on the date that the

offense of conviction was committed, whichever yields the least harsh result.

U.S. Sentencing Guidelines Manual § 1B1.11 provides that the court is to use the Guidelines Manual in

effect on the date that the defendant is sentenced, unless the court determines that this would violate the

Ex Post Facto Clause of the United States Constitution, in which case it is to use the manual in effect

on the date that the offense of conviction was committed. Because an amendment to a Sentencing

Guideline has the potential to increase a defendant's punishment for a crime committed prior to the

amendment, the Ex Post Facto cCause is violated if a defendant is sentenced under the Guidelines in

effect at the time of sentencing when those Guidelines produce a sentence harsher than one permitted

under the Guidelines in effect at the time the crime is committed.

The courts have held that for purposes

of Plain error, a sentencing error is

plain if its contrary to the Supreme

Court or Circuit Court precedent, Which

is clearly the case here because under

the Lindsey v.Washington., 301 U. S.^: 397> 401

(1937), INS.St.Cyr,533 U.S. 289,325(2001)

(citing ) Lindsey for removal of the poss

ibility of a sentence of less than the

maximum!operated to the defendants] detri

ment ).

In Lindsey v. Washington, 301 U.S.

at .401, the court held that a change in

the Statutory Sentencing Provisions could

not be applied retroactively even though

the new provision didn't increase the

maximum sentence, but only made it mandatory.

(Lindsey established that one is not barred

from challenging a change in the Penal

code on Ex Post Facto grounds simply because

the sentence received under the new provisions

were not more onerous than that what he

might have received under the old provisions).

Lindsey v. Washington, also held that

Ex Post Facto clause looks to the standard

of punishment that is prescribed by a

[law] rather than to the sentence actually

imposed. It is this reason than an increase

in the possible;. Penalty is Ex post Facto..

Regardless of the length of the sentence

actually imposed. 301 U.S. at 401(Underlines

Emphasis Added),.' Lindsey also held that

a sentencing law violates the U.S. Constitution

if it’s effect is to make Mandatory what

was before only the maximum sentence.

SEE. Weaver v. Graham, 450 U.S. at 32

N. 17(1981). United States v. Alfaro, 336

F.3d 876,883(9th cir.2003) Held [tofall]

within the Ex Post Facto Clause Prohibition.

Two critical elements must be present:First

the Law must be Retrospective, that is

it must apply to events occurring before

it's enactment. And second, it must Disadvantage

the Offense Affected by it. Miller v.

Florida, 484 U.S.'423,430(1987).

Here, the 848(a) Statute Provisions

of the Amendments of Both #66 and #139

that were enacted on October 15, 1988

and November-1, 1989 were- applied erroneously

to offenses that took place before September

30th, 1988. Thereby qualifying for the

first requirement for an Ex Post Facto

Clause Violation, United States v. Alfaro,336

f.3d at 883 9 also stated" A Removal of

Discretion!in Sentencing].disadvantages

an Offender for Ex Post Facto purposes,

citing Lindsey v. Washington, 301 U.S.

397(holding that a statute that makes

mandatory what was before only the maximum

sentence violated the Ex Post facto Clause);

United States v. Johns, 5 F 3d, 12671272(9th

cir. 1993) Holding that the loss of a

valuable opportunity to have a lessoer

sentence imposed does violate Ex post

Facto Clause); Murtishaw v. Woodford,

255 F.3d 926,965(9th cir. 1999) relying

on Lindsey and Johns, holds that ]Taking]

discretion away frqm the sentencing Court

violated the Ex Post Facto Clause).

Here the 848(a) Statute used to impose

the sentence took the discretion away

from the sentencer. Which the Supreme

Court held violates Ex Post Facto Clause.

This meets the Supreme Courts Requirement

for a Ex Post Facto Clause Violation.

Under Lindsey, and INS v. Cry, Keltons

Sentence under the TWO-MORE ONEROUS New

§ 848(a) Amendments to the Statute in

(# 66 and #139) of,the United States Sentencing

Guidelines used to impose a LIFE SENTENCE

cause the Removal of the Possibility of

a sentence Less than [.LIFE ]. And it

was possible for Kelton to receive as

low as Ten(10)years and up to 20 Years

based on the Guidelines Offense Level

32 under the §841 (b)(1)(C) ( 0-20 years

maximum.

The PSR elevated the standard

OfaPunishment of the Mandatory Minimum

Sentence under § 848(a) to 20 years, which

is more onerous than the ten(10) years

Mandatory Minimum Authorized by law at

the time of the Last overt act on September

30, 1988. In deed Clearly the Amendmed

harsher 1992 Version of the Sentencing

Guidelines Manuals Base offense level

of 42 that exposed Kelton was not authorized.

Other Circuits Agree: United States

v, goer, 394 f.3d 569,574(7th cir.2004);

Preter v. United States Parole Comm. 767

F.2d, 1230, 1239( 7th cir. 1985) ( it is

true that Kelton might have been sentenced

to 20 years under the sentencing guidelines

for CCE § 848(a) absent the two Amendments.

;

But the Ex Post Facto Clause looks to

the Standard of Punishment prescribed

by the Statute, rather than the sentence

actually imposed). United States v. Tykarsky,

446 f. 3d 458,480(3d. cir.2006)( ex post

facto Violation Occurs even when the Laws

Minimum Punishment is not greater than

the Old Laws minimum punishment. Citing

Miller v. Florida, 482 U.S. at 432, 433(eiting

lindsey v. Washington, 301, U.S. 397,

401(1937)(Spura); Shepard v. Taylor,556

f.2d 648,654(2d cir.1977).

The Ex Post Facto Clause is violated

even when the maximum statutory penalty

for a crime remains the same, unchanged.

Lerner v. Gill, 751 f.2d ., 450,455 (1st

cir.1985), Rejecting Date of the Indictment

as Relevant date for Ex Post Facto Analysis:

and United States v. Paskow, 11 f.3d,

873,877(9th cir. 1993)( the principle

in lindsey then is that in the determination

of the disadvantagement to the defendant,

a Court must focus on the change on the

defendants eligibility to receive a lesser

sentence than the New Law may permit,

and regardless of whether the defendant

would actually have received the less

sentence.

The United States Supreme Courts decision

in Rosales-Mireles v. United States, decided

that even though a defendant failed to

raise and objection at the time of sentencing.

When the sentence Imposed was incorrectly

computed and calculated mistakenly. Even

with the strigent Plain Error Rule with

it's High Bar for defendants who seek

„.v. j.

.5.

)

relief for a mistake that they failed

to raise at trial. Like the Kelton Case

they have a right to ask the appellate

Court for a discretionary review. Every

Court but the Fifth Circuit has said that

Obvious guideline errors that probably

resulted in a defendant serving a longer

sentence, are ones that seriously affect

the fairness, intergity and public reputation

of the judicial proceedings, as required

under the Plain Error Rule. Kelton aserts

thathis Miscalculations of the statutory

sentences under "the guidelines falls under

the purview of the Plain Error Rule.

SCOTUS Says

Sentence Calculation Errors Should be Fixed

The case is Rosales-Mireles v. United States, 2018 BL

21^344, U.S., No. 16-9493, 6/18/18.

A mistaken calculation under federal sentencing

guidelines that is plain and affects a defendant’s rights

should be corrected, the U.S. Supreme Court held June

18.

Such a mistake will “in the ordinary case, as here, se

riously affect the fairness, integrity, or public reputation

of judicial proceedings,” the court said in an opinion by

Justice Sonia Sotomayor.

The decision, which reversed the U.S. Court of Ap• peals for the Fifth Circuit, resolved a circuit split

The Fifth Circuit said the error didn’t seriously affect

the fairness, integrity, or public reputation of judicial

proceeding, because it didn’t "shock the conscience,”

serve as an indictment of the justice system, or seri

ously question the judge’s competence, or integrity.

The federal plain error rule sets a high bar for defen

dants seeking relief for a mistake they failed to raise at

• trial. But the Fifth Circuit set thatbar too high, the jus

tices said.

The “shocks the conscience” standard isn’t part of,

the plain error rule, it explained. "The court repeatedly

has reversed judgments for plain error on the basis of

inadvertent or unintentional errors of the court or the

parties below,” it said.

The decision affirms that the plain error rule “means

what it says, and does not involve some dramatically

higher showing of error*”

It is beyond question that the Circuit

court and Supreme Court Precedent were

ovrlooked, and defendants sentence clearly

violated the Ex Post Facto Clause, and

its an Illegal and Unconstitutional sentence

per se. The law at the time of the offense

and date are identified by the trial testimony

of codefendants, Grand jury Minutes of

Kim Harrison and other conspirators. Who

all gave September 30, 1988 as the date

of the last overt acts,; There was no conspiratorial conduct after September 30, 1988

in furtherance of the 848(a) CCE presented

at the trial. The date of the Indictment

as a END Date was not relevant for the

Ex Post Facto Analysis, Lerner v. Gill

751, f. 2d> 450,456(7th cir.1985) (Rejectd

the Date Of Indictment as a relevant date

for the ex post facto clause analysis.

Under Lindsey:V Washington, and Weaver

v. Graham, Requires that the more onerous

Illegal sentence of Life and the Miscalculated

40 year sentences under the 1992 Guideline

manual for those counts in the Indictment

Inclusive of Amendment# 66 and- # 139 be

vacated and corrected, because they all

violate Ex Post Facto Clause of the United

States Constitution.

The Kelton Case is a Travesty of justice

and a manifest / injustice, because, he

should have been released 10 years ago.

And definitely was eligible for Reduction

of Sentence under the 782 Amendment Motion

that Judge Brian C. Wimes failed to use

the Corect starting point for the Two-Level

)

Probation Officer Ruthann Beans errors

have caused the Honroable court to impose

and illegal sentence that calls for correction.

It was the Plain errors committed by

Ms. Bean that inadvertenly misled both

Judge Howard F. Sachs and Judge Brian

C. Wimes, causing the mistake regarding

the sentence originally and the mistake

regarding the eligibility of Kelton to

get Time served under the 782 Amendment

after a plenary full resentencing.

Had Judge Brian C. Wimes been cognizant

of the Ex Post Facto Clause violations

done by Probation Officer Bean, and her

use of the wrong guideline manual in. the

January 16, 1992 Sentencing, The Court

could have correctly adjudicated the 782

Amendment Motion before it.

By virtue of Ms. Beans infringement

of the Plain Error Rule and Ex Post Facto

Clause, Kelton is still under the penalty

of an Illegal Life Sentence and seven

40 years sentences that are infirmed.

«'

THIRD EX POST FACTO CLAUSE VIOLATION

ENHANCEMENT UNDER AMENDMENT # 311

The statutory provisions for 18 U.S.C.

§ 1958 on the Dates of the Offenses in

February 1989 and March 16,1989 that

alleged in the indictment in Counts

Seventeen and eighteen. When commission

of the crimes occurred had a maximum

sentence of three(3) years. On April 5,

1990 when appellant entered a plea of

Nolo Contendre. All conduct pursuant to

Keltons specific offenses related to the

murder for hire solicitation were covered

by U.S.S.G. §2A1.5. Which accounts for

instances

where

acts

necessary

for

completion of the crime solicited had not

occured.

And attempt to commit other than an

assault, where no bodily injury occurs

is 18 U,S.C. 113(a), and it carries a

maximum

sentence

three(3)

years

imprisonment

(18

U.S.C.

1113),

base

offense level 20.

AMENDMENT # 311 TO 18 U.S.C. § 1958

18 U.S.C.

§ 1958 Use Of Interstate

Commerence facilities in the Commission

of Murder for Hire.

The Statute was

Amended and the Penalty Provisions were

elevated by Amendment # 311 by the

Sentencing Commission.

If the Offense resulted in an attempted

murder or assault with intent to commit

murder( which would yield a base offense

level of 38) or U.S.S.G. Manual§ 2A1.1.

If the offense

resulted in the death

of the victim (which would yield a base

}

offense

level

43).

U.S.S.G.

Manual

§2A1.5(C). (a) Whoever travels or causes

another to travel in interstate commerce

or causes another to use the mail or any

facility of commerce(Phone) with intent

to commit murder in violation of the laws

of any State or the United States. Shall

imprisoned

for

not

than

ten(10)years and fined under this title

or both; and if personal injury results,

shall be fined under this title and

imprisoned for not more than Twenty

years, or both.

And

death

results,

shall

punished by Death or life imprisonment,

or shall be fined not more than $ 250,000

or both.

The ten(10) year sentences imposed

on both Counts Seventeen and Eighteen

on Kelton were both Ex Post Facto Clause

violation.

Because Amendment # 311 was

enacted after the Offenses were committed

on Nov. 1,1990. But Ruthann Bean the

Probation Officer who prepared the PSR

used

the wrong Guideline manual in

calculation of the Sentencing range and

statutory provisions. The 1987 Guideline

Manual was the one in effect at the time

the

commission

the

offenses

applicable to Keltons case. And the

stautory maximum sentence was Three(3)

years. This error like the other 11

all ' plain

Error

Rule

errors

were

violations

that

caused

sentences

excess of the maximum authorized.

1 ' J

ARGUMENT

In question # one presented Appellant

Kelton wishes to seek review of the

Judgment order from the District Court

entered by the Honorable Judge Brian C.

Wimes on December 11, 2017; and the

Judgment Order of the Eight Circuit Cours

of Appeals on March 12,2019 Case No#

19-1471.

Affirming

the

Denial

appellants 782 Motion, where No right

might exist to appeal or petition for

discretionary review, or where the right

has been lost by failure to take timely

Action.

Milton

Terry

kelton

respectfully

petitions thai Court to Issue Writ Of

Certirari to review the Judgments of Both

Judge Brian C. Wimes Dated December 11,

2017 denying Motion for Reduction Of

Sentence. And in support of this Petition

shows the Following:

Appellant Kelton was subjected to a

Miscarriage

Justice

through

the

imposition of a Unconstitutional sentence

of Life without Parole where the wrong

Guideline

manual

was

used

the

Probation and Parole officer who prepared

the PSR. Which inadvertenly caused the

Honorable Court to adopt a PSR with (3)

three Ex Post Facto Clause Violations,

and 11 (eleven) miscalculated guideline

sentences that were Plain Errors.

In question # 2 the petitioner asserts

that the Honorable Courts Judge Brian

C. Wimes and the Assistant U.S. Attorney

Mr. James Bohling utilized the wrong starting

point for the calculation of the Base

Offense level for the 21 USC § 848(a)

count in the 782 Motion for reduction

of sentence. Because two Amendmments to

the Statutory Provisions pursuant to the

Sentencing commissions enactment of #

66 and # 139 Amendments. Called for a

10 level enhancement from Offense level

32 up to a level 42. Which constituted

an Ex post facto clause Violation due

to the more onerous punishment( Life Without

Parole) than the correct prescribed Stautory

Provision in Guideline Manual for 1987

for First Time Offenders of the § 848(a)

Statute. Amendment # 66 was enacted and

became effective on October 15, 1988 and

Amendment # 139 was enacted on November

1, 1989, Both dates being after September

30, 1988 when the Last overt act of the

Conspiracy was committed and the date

of offense.

In Question # 3 the Appellant asserts

that had the Honorable Judge Brian.C.

Wimes used the Offense level 32 as the

starting point for calculation of .the

Base Offense level after a Downward adjustment

for Amendment 782 . Without the 10-levels

of the two enhancements of# amendments

# 66 and # 139. The Guideline Sentencing

Range would have been Base Offense level

30 minus 2

for U.S.S.G § 3E1.1 for acceptance

(28)

Criminal History

140-175 Months).

And the Court could have

SERVED

and

IMMEDIATE

requested by the appellant.