Petition for Writ of Certiorari — Carlos Alberto Ochoa-Orozco, Petitioner v. United States

Supreme Court briefJun 11, 2019

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supreme Court, US'

FILED

JUW 1 | 2019

IN THE

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

— PETITIONER

Carl os'

(Your Name)

vs.

Unifpd Stafrps Of Amprirg)

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court- Of Appeal g For The—Fi f£b—Circuit

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

PETITION FOR WRIT OF CERTIORARI

Carlos Alberto Qdnna-Ornznn

(Your Name)

P.0. Box 800 Herlong F.C.I-.

(Address)

Herlongt California 96113

(City, State, Zip Code)

(Prisoner)

(Phone Number)

QUESTION(S) PRESENTED

1. Whether the district court violated Appellant's right to due

process, and his Sixth Amendment right to affair trial, where' the

district court 'lacked' venue pursuant to Rule 18, Fed. R. Crim. P.

2. Whether pursuant to the Sixth Amendment, it is a violation of

Appe 1 lant'is right to a fair trial, where the Assistant U.S. Attorney

threatens the defendant, by assuring him that [i]f he takes the

witness stand in his own defense, he'll make sure that he receives

a life sentence.

3. Whether Appellant must be resentenced where the District Court,

sentenced him in accordance with the charges contained in the indi

ctment, but Appellant plead to a different charge, contained in the

Plea Agreement.

4. Where there is an obvious Apprendi/Blakely error, must Appellant

be resentenced.

5. Whether Appellant must be resentenced where counsel was so in

effective at [both] the trial-level, and Appellate level, that his

representation amounted to (no representation.)

6. Whether Appellant must be retried where the cumulative effect

of "numerous’'' Constitutional errors; Procedural errors; Due Process

i-A

QUESTION(S) PRESENTED

er26r§ rendered the proceedings inherently unfair.

7. Where the rulings of the District Court, and the Appellate

Courts' are in conflict with this court((the SupremeCGourt) in

relation to their holdings to this particular case ?

i-B

LIST OF PARTIES

[ ]

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

['a/'O

All parties do not appear in the caption of the case on the cover

page. A list of all pari:ies ;to the proceeding in the court whose

judgment is the subject of this petition is assfollows:

Marcia A. Crone, U.S. District Judge, 300 Willo Street, Suite 239, Beaumont

Texasn7770i

Kimberly C. Priest Johnson, U.S. Magistrate Judge, 7940 Preston

Road, Suite 110, Piano, Texas 75024

Christine A= Nowak, U.S. Magistrate Judge, 200 North Travis

Street, Sherman, Texas 75090

Ernest Gonzales, AUSA, (Also Government Appellate Counsel) 101East Park Boulevard, Suite 500, Plano Texas 75074

Gaylon P. Riddels, Appellant's Trial Counsel, 201 South Travis

Street, Sherman Texas 75090

John A. Kuchera, Appellant's Appellate Counsel, 210 N. 6th Street,

Waco, Texas 76701

Ochoa-Orozco

Appellant., pro se

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

-3

STATEMENT OF THE CASE

.4,6

REASONS FOR GRANTING THE WRIT

7.24

»‘

CONCLUSION

INDEX TO APPENDICES

APPENDIX A Opinion Of The Appellate Court.

APPENDIX B

Letter d^rom AppellateSGourt, (ho Action on Request

For Re hearing, or Re hearing En Banc. )

APPENDIX C Affidavit, And Sworn Statement.

APPENDIX D Copies of letters, "Requesting Discovery" from the

Court Clerk, Eastern District Of TX, and Legal Counsel Mr. Riddels.

APPENDIX E

APPENDIX F

ii-A

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

United States v. Anderson,

328 U.S. 699, 902L.Ed. 1529'(1946),

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct 2348 (2000) ....

8,9,10, 20

Blakely v Washington,

542 U.S. 296, 303-304 (2004) ....................

United States v. Cabrales,

524 U.S. 1, 6-7, 141 2 L.Ed 2d 1998) ...

Evitts v. Lucey.

469 U.S. 387,396 (1985) ..............................

Williams v. Florida,

399 U.S. 78, 93-97, 90 S.Ct. 1893 (1970)

STATUTES AND RULES

18 U.S.C.S. §-s3161(b) .............. ...............................

21 U.S.C.S§ § 841(B)(1)(A), (B)(1)(B) & (B)(1)(C)

. . .10,19

21 U.S.C.S. § 841(c) ................................................

... 8, 9

21 U.S.C.S. § 841(B)(1)...........................................

10;,', 200

28 U.S.C.S. § 114 & §§ 1393,1441 ........................

21. ,

28 U.S.C.S. § 1867(a) .............................................

Federal Rules Of Criminal Procedure,

Rl: U

Rule 18 Fed. R. Grim. P*

2 21

§ 1460,

-i

Fer. R. Crim. P.

OTHER

United States Constitution, Article III § 2, cl 3 ". .14yl5‘3

United States Constitution, Amend, VI

iii-Ai

TABLE OF AOTHORITIES CITED

CONTINUED

CASES

PAGE NUMBER

Glover v. U.S. ,

531 U.S. 198, 201, 204 (2001) ..

United States v. Johnson,

89 L.Ed 236, 323 U.S. 273 (

)

221

Fenson v. Ohio,

488 U.S. 75, 85 (1988) ...............

United States v. Carol!,

(1993), CA Fla. 6 F.3d 735 .....

United States v. Dickie,

775 F.2d 607,609 (5th Cir. 1985)

United States v. Fernandez,

480 F.2d 466 (3rd Cir. 1976)

221

United States v. Garza,

593 F.3d 385,389-91 (5th Cir. 2010)

United States v. Gomez-Alvarez,

781 F.3d 787,791 (5th cir. 2015) ..

United States v. Griggs,

(1995) CA 8 MO.,71 F.3d 276 ............

United States v. Haines,

803 F,3d 713,738-39 (5th Cir.2001)

United States v. Hsrrea-Rojas

243 F.3d 1139 (9th.Cir.2001)............

U.S. v. Hitt,

249 F.3d 1010,1026 (D.C. Cir. 2001)

United States v. O'Leary,

(1994) CA 5.La) 35 F.3d 153..............

United States v. Parr,

17 FRD 512 (D.Tex. 1955)-------- --------

United States v. Pomranz

43 F.3d 156 (1995)-542 U.S. 915m 142 L.Ed 2d 156 (1998)..., 23

United States v. Sanchez-Villarreal,

857 F.3d 714,721 n.6, (5th cir. 2017)

iii-B

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBERS

United States v. Spencer,

(1993 CA 2 Vt.);4 F.3d 115 .............

Zicarelli v. Gray,

543 F.2d 466 (3rd Cir. 1976)..........

Gentry v. Sevier,

597 F.3d 838,851-52 (7th Cir. 2010)

Marshal V. Cathel,

428 F.3d 452,465-71 (3rd Cir. 2005)

United States Sentencing Guidelines

U.S.S,G. §J2D1.1 ..................................

11,17,18,19

U.S.S.G § 201.1 & '2dl.ll

12,17,18,19

U.S.S.G. § 201.1(c)

16,17

U.S.S.G. § 3553(a)

United States Code

8,9

21 USCS § 841(c)

21J0SCS § 841(b)(1)(a),(b)(1)(b),& (b)(1)(c) .....

10,19

21 USCS

UQ,'20

841(b)(1)

iii-C

TABLE OF AUTHORITIES CITED

PAGE NUMBER:;

CASES

18 U.S.C.S 3161(b) ..

21 U,S.C.S. § 841 (c)

21.U.S.C.S. § 841 (b)(1)(A) , (b)(1)(B) & (b)(1)(C) .. U()vl9

21 U.S.C.S>,§?841 (b)(1) ............

. .10,20 '

28 U.S.C.S. § 114 & §§1393,1441

28 U.S.C.S. § 1867(a) ..................

Federal Rules Of Criminal Procedure

Fed. R. Crim. P. Rule § 1460

Fed. R. Crim. P. Rule 18,

;.2i

Constitutional

United States Constitution, Art. Ill § 2, cl 3,

• • • . . . 14, ,15:’

United States Constitution Amend. VI, ................

>20

AM Jurisprudence

32 A AM 2d § 1209V

Other

Strickland v. Washington,

466 U.S. 668y '687-88 (1984)

7>1$ >21

iii-D

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

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix —b.— to

the petition and is

; or,

[ ] reported at

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

|y] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

; or,

[ ] reported at

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

[vf is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

to the petition and is

Appendix

; or,

[ ] reported at

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

[ ] is unpublished.

The opinion of the —

appears at Appendix

_court

to the petition and is

; or,

[ ] reported at

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

[ ] is unpublished.

JURISDICTION

[Vf For cases from federal courts:

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

was,. March 13. 2019

[id No petition for rehearing was timely filed in my case. Petitioner filed a. Petition

for Rehearing, pro se, after Counsel never communicated with Petitiioner .

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

(date)

(date) on

to and including---------in Application No. —A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix---------[ ] A timely petition for rehearing was thereafter denied on the following date:

______________ _ and a copy of the order denying rehearing

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

(date) in

(date) on

to and including____

Application No. —A

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

21 U.S.C. § 841(a)(1)

21 U.S. C.§ 846

United States Constitution Amendment Five

United States Constitutional Amendment Sixth

Federal Rules Of Criminal Procedure Rule 18

Federal Rules Of Criminal Procedure 3161(b)

Article III, Clause 2, U.S. Constitution

United States Sentencing Guidelines § 2D1.1, and 2D1.11

21 U.S.C.S. 841 (b)(1)(B), and (b)(1)(C)

28 U.S.C. §§ 1393,1441

American Jurisprudence, 32 A AM Jur. 2d § 1209 ■§ 1460

STATEMENT OF THE CASE

Petitioner was charged by (an) indictment with the felony offense

of ^Attempted Conspiracy to Possess with the Intent to Manufacture

and Distribute Methamphetamine•" in violation of

21 U.S.C. §§ 846

and 841(a)(1). On September 08, 2017, Petitioner entered a

Guilty Plea

Not

to the charged offense and proceeded to trial before

a jury. On the following Monday, September 11

2017, after being

informed by the trial attorney, (that if he persisted with the

trial, that the U.S. Attorney was going to add an additional (2)

"two;offense level-points" and thereby assure that he would receive

aL^lifefsentence" upon his conviction, because he was not going to

walk on the case.") Subsequently, Petitioner did decide to plead

guilty, and did ostensibly out of fear plead guilty to the charged

offense. Which for aljLintended purposes he understood to be the

charge of " A Violation of 21 U.S.C. § 846 "Attempted Conspiracy"

to Possess with the Intent to Manufacture and Distribute Methamphetamine•

If II

However, after being told that "if he took the stand in

and testified in his own defense, assuredly he would be convicted

and sentenced to a life sentence."

On June 1, 2018, the district court sentenced Petitioner to 365

months (30, thirty years in prison, and five years of supervised

release, and no fine. The Court also assessed $ 6, 044.28 in res

titution. On June 5, 2018 Petitioner did file a timely 'notice of

appeal' to the Appellate Court. Trial counsel was allowed to with-

STATEMENT OF THE CASE

draw and attorney John A. Kuchera, was duly appointed to handle

the appeal.

During the time of the appeal, Appellant was

in transit and was

subsequently transferred to several different locations, as a res

ult Appellant never had an opportunity to "speak" directly with

Appellate

Counsel, concerning issues which I felt were relevant

to the appeal, as well, where Appellant did receive a letter from

counsel when he was in transit, being held over in the (SHU) in

Mendota, FCI., California, Appellate counsel did inform Appellant

of his appointment. Appellant did immediately write back to Appe

llate counsel asking him to wait/hold off for a short period, be^.

fore filing the brief to the Supreme Court, in order to afford

Appellant the opportunity to 'consult and talk1 with him about the

appeal. On the very, next day, Appellant did receive a copy of the

brief.

(which proved that counsel had already finished the brief).

Where Appellant did arrive at the present institution, and -did.

again attempt to, establish: contact with cotiinse-1. Wherein addition,

Appellant has not been able to communicate with counsel where coun

sel fails to respond to written communications. Wherefore, Appell

ant is forced to file this Writ pro se.

REASONS FOR GRANTING THE PETITION

Appellant prefaces the following by asserting that (1) the

government has deprived and denied Appellant enforcement of

right(s) guaranteed by the Fourtheenth Amendment, Sixth Amend

ment, and the Fifth Amendment, Due Process, and therefore, this

court’s protection must be invoked. (2) The United States Court

Of Appeals has allowed and entered a decision that conflicts

with "decision(s)" of other District and Appellate Courts

the exact same important matters as those in Appellant's cause.

(3) Appellant asserts that the Appellate, and District Court(s)

have so-far departed from the accepted and usual course of jud

icial procedure, and has ostensibly sanctioned such a departure

tha tbit "-calls for. the exercise of this court's supervisorypower.

REASONS FOR GRANTING THE PETITION

In addition to the above Appellant asserts that he was denied the

f- -

effective assistance of counsel at both the District Court level,

and the Appellate level. A list of counsel(s) failures and ommissions will show that Counsel(s) representation was wholly ineffective,

and below the standards set forth in Strickland v. Washington, .

ISSUES OVERLOOKED BY TRIAL AND APPELLATE

COUNSEL, AND OTHER LEGAL ERRORS

1^)* Appellant asserts that there was a, Jencks Act violation, which

counsel failed to raise before the District Court, or in the Appell

ate court on appeal. Appellant asserts that he never was allowed to

view the statements of witnesses against him.

;20. Venue:\ Violation of Venue, Counsel's failure to Object. Where

Appellant was arrested in the Northern District

of Texas, and whe

re (all) of Appellant's conduct allegedly occurred in the NorthernDistrict, of Texas, Appellant was tried outside of the district in

the Eastern District of Texas. Defense counsel, nor appellate

counsel bothered to address this obvious constitutional violation.

3). Appellant asserts that there exist an Apprendi and Blakelyy

violation where the district Court did sentence Appellant above the

statutory maximum of 20 years, where there was a detremination of

drug quantity, especially, where there was not a determination as

to the amount attributable to each defendant in the conspiracy.

4). Appellant asserts that the

Indictment'" as handed down by the

Grand Jury was defective where it was insufficient to prevent a

claim of "double Jeopardy" in the event of a mistrial, See U.S. v. Hitt, 249 F.3d 1010, 1026 (DC Cir. 2001).

5). Appellant further asserts that there was a violation of Appell

ant's right to a "Speedy Trial" both pursuant to the Sixth Amendment

under § 3161(b) Speedy trial provisions, and Federal Rules Of Crim(

inal Procedure, Rule 18, And Article III, cl 2,

where the district

court lacked venue.

6<). Appellant further states that he has suffered numerous DueProcess Violations, (a) Counsel did fail to object to the many in

consistent statements made by the Government and DEA agents, the

Government's misconduct by altering the record with his ink-pen,

twisting Appellant's statements to fit the government's purpose.

(b) Appellant states that counsel was ineffective where he was

aware that Appellant's plea was not counseled or voluntary, further

counsel acted as a surrogate prosecutor, when he delivered a mess

age from the Assistant U.S. Attorney, that [ijf Appellant took the

witness stand in his own defense, that the Government was going to

seek a (2) two point enhancement, thereby, assurring appellant a

life sentence.

7. Appellant counsel ommitted obvious issues without any strategic

purposes, simply preforming a rote function, apparently never read

ing the "Record"

of the case.

6). The district did fail to correct any factual inaccuracies in

the presentence report, thereby causing appellant to be sentenced8

on a basis of inaccurate information

Where in U.S. v. Herrera-

Rojas, 243 F.3d 1139 (9th Cir. 2001) the court held: "If the distr

ict court fails to make the required findings or determinations

during the sentencing hearing, the sentence must be vacated and

the defendant resentenced.

Wherefore, for all of the above reasons, Appellant asserts that •

this Petition should be granted.

REASONS FOR GRANTING THE PETITION

LOWER COURT'S ERRONEOUS RULINGS AND CONTRARY CONSTITUTIONAL

HOLDINGS

This Court should grant certiorari to address the many "const

itutional" violations manifest in the lower court(s) decision(s)

and discretionary jurisdiction, which are/were erroneous, and

contrary to established law.

APPRENDI AND BLAKELY ERRORS

Where the statutory maximum sentence allowed by 21 U.S.C. §

841(c), for Methamphetamine offenses "without" a specified

drug quantity is 20 years, here Appellant was sentenced to 360

months (30 years), without a specified drug amount being attrib

uted to him. Thus his sentence is in excess ofthe applicable

statutory maximum, wherefore, an Apprendi violation exist.

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348'(2000),

there the Supreme Court held that: "Any fact, other than the

fact of a previous conviction, which will increase a sentence

beyond the prescribed statutory maximum must be submitted to

the jury and proved beyond a reasonable doubt. 120 S. Ct. at

2362-63."

REASON FOR GRANTING THE PETITION

"Applying Apprendi to drug convictions under 21 U.S.C. § 841,

we'held;that "drug quantity must often be treated as an element

of the offense under § 841" and thus must be submitted to a

jury to be proved beyond a reasonable doubt."'See Blakely1s

holding: "Any fact other than a prior conviction----exceeding

the maximum authorized by the facts established by a 'plea » j

of guilty, or a jury verdict, or admitted by the defendant,

See Blakely v^ Washington, 542 U.S. 296, 303-304 (2004).’''

The penalty scheme of 21 U.S.C. § 841(b)(1) contemplates three

potential sentencing ranges for manufacturing methamphetamine

according to the drug quantity involved. 21 U.S.C.S. 841 (b)(1)(A) prescribes a statutory maximum of life in prison if the

offense in volves jn) grams

or more of methamphetamine, 21 U.S.

C.S.§ 841 ('b)(l)(B) imposes a statutory maximum of 4j)

years t

for offenses involving five grams or more of Methaamphetamine,

21 U.S.C.S. § 841 (b)(1)(c) limits the maximum sentence to 20

years if no specific drug quantity is determined. Apprendi

mandates that it is for the jury to weigh the facts and make

the initial determination of a drug quantity range, and in dos

ing so the jury is not bound by any single inflexible rule.

Here in Appellant's Cause (see Dkt # 160,(Sentencing Hearing,

June 1, 2018, The government was never able to determine which

individuals or which defendant/and/or co-defendant(s) were

responsible for those amounts (See page ID0666, pages 13-14,In's

23-25, and page ID 667,In’s 1 and 2) ROA.651-652-622-75.

Appellant preserved error, See United States v. Haines,

803 F.-

3d 713,238-39 (5th Cir.2013). (Appellants Complaint on appeal

regarding the assesmenlT'of a mandatory minimum sentence based

on conspiracy wide drug quantity rather than the quantity attr

ibutable to each individual, was adequately preserved by object

ing to '!any and all enhancements [in the PSR] to his sentence

based on facts other than those decided by the jury or admitted

by the defendant; United States v. Sanchez-Vi1larrea1, 852 F.3d714, 721 n. 6 (5th cir. 2017)(see Sent. Trans, pages 667-676-22of531) Holding that defendant preserved error, given that his

argument to district court as;to why he should be given mitgating-role adjustment were same as argument made on appeal);

United States v. GomezeAlVarez^781iF.3d 787, 791 (5th Cir. 2015).

Regarding the plea colloquay in appellant's case, despite (six)

attempts on the part of the district Court and the Government

to extract an admission from Appellant, appellant only stated

that "My role was to safegard the liquid." ROA 583-84.

However, despite the above, Appellant was given a (GuidelineSentence) by the District Court Judge, and therefore, his sent

ence was imposed in violation of the Sixth Amendment, as well

as the United States Sentencing Guidelines, (U.S.S,G.'s). § 2D1.1 dictates an entirley different (Sentencing scheme) than

what the District Judge employed when sentencing Appellant.

Where the "Indictment, Judgment & Comlttment, and Criminal

Docket, sheet",all list Appellant's charge as "Conspiracy to

Possess With The Intent To Manufacture and Distribute Methamphetamine." The District Judge did impose sentence pursuant to

statutory sentencing scheme which placed Appellant's "Offen

se Level at 38, pursuant to U.S.S.G.'s §

2D1.1. However, this

was error where Appellant should have been sentenced pursuant

to § 2D1.T1, U.S.S.G.'s Manual, November 1, 201 .

INEFFECTIVE ASSISTANCE OF COUNSEL INDIGENT DEFENDANT'S

AND NON ENGLISH SPEAKING DEFENDANT'S

The Sixth Amendment provides that "[i]n all criminal prosecuti

ons, the accused shall enjoy the right...to have the assistance

of counsel for his defense." The Sixth amendment right to coun

sel applies to all federal and state criminal prosecutions. In

Penson v. Ohio,

488. U.S. 75,85 (1988), (court erred in denying

indigent defendant representation during appeal as of right aft

er counsel withdrew because defendant lacked representation dur

ing decision making process); See Evitts v^ Lucey, 469 U.S. 387396 (1985).

Appellant asserts that there exist in the Eastern and Northern

district of Texas a corrupt and bias judicial system which has

devolved into a socio-political extremist judicial complex with

systemic prejudicial overtones (due) to the fact that this area

is a [known drug corridor.], and anyone unfortunate enough to be

come associated with a drug conspiracy, whether their involvment

is accidental, happenstance, minor or due to innocent gullability,

they are automatically prosecuted to the full extent of the law,

and given the most harshest of sentences. However where there

are unique circumstances which skew the prosecution of methamphetamine cases (particularly) in this geographical area. Most

often than not persons trafficking and manufacturing methamphetamine, are doing so at the behest of the Mexican Cartel's (this

is an undisputed fact). However, the

(victims/defendant's) are

very often poor, uneducated, easily exploited, rual migrant ill

egals seeking the American dream. However, whom is to blame, the

Border Patrol, the Immigration Officials' at the Border ? the

DEA ?, the Mexicam government, the American Government, whoms

task is the protection of our borders from"all" foreign threats

and agents ?

Regardless, the issue is not whom to blame, but how our criminal

justice system responds to the threat and its impact on our

3usti.ce> system. However, where justice is dispenced based on

race, economic considerations, or biased plea deals, or titfor-tat, negotions between the District Attorney's office, and

defense attorneys

or where judges have become so jaded and

cynical due to surfeit and apathhy, that the fact of judicial

integrity is mired in a systemic farce that only resembles law

under our American judicial system.

COUNSEL'S FAILURE TO ADVOCATE FOR APPELLANT

AND TO REPRESENT APPELLANT PURSUANT TO THE HOLDINGS

IN STRICKLAND v.WASHINGTON> '

Appellant asserts that from the outset, counsel did fail to rep

resent him in a meaningful way as is required by Strickland v.

Washington, 466 U.S. 668, 687-88 (1984) See also Glover v. U.S.,

531 U.S. 198, 201, 204 (2001)(counsel's failure to investigate

and present substantial mitigating evidence... was prejudicial;

counsel's failure to due any presentence investigation was prejudical because no potential mitigating evidence...) Gentry v. Sev

ier , 597 F.3d 838, 851-52 (7th Cir. 2010).(Counsel's failure to

investigate any aspect of the case was ineffective (pre-trial)

assistance.

Viewing the "official docketsheet" it is soberingly clear that

counsel failed to file a single "pre-trial

motion. Where Appell-

was preparing for trial. Equally sobering, is the fact that it is

pellucidly clear that there is a violation of 18 U.S.C. § 3161(b) t

s "Speedy TrialProvision," which Appellate counsel has completly

ignored also. Additionally, where it is abundantly clear that

there is a venue/jurisdiction issue, where appellant was arrested

in the Northern District of Texas, yet, he was tried in the East

ern District Of Texas, in violation of Article III, of the U.S.

Constitution, which states that:

"trial of all crimes... shall

be held in the state where the said crimes shall have been commitC

"vi

->r

ted U.S. Const. Art. Ill § 2 cl 3. Here Counsel completly ignored

this important issue, which if pursued could have greatly changed

the outcome of the entire trial, appellant asserts that he has

never set foot in the Eastern District,-and that there is nothing

to tie him to the Eastern District of Texas.

Counsel's lackluster representation is further evidenced by the

sentencing transcripts, here it becomes au apparent that the ent

ire proceeding(s) are simply a "dog and pony show" and that Appell

ant is being "railroaded" away for 30 years, for basically being

a gullible, and financially^-needy-dupe.

Where during the sentencing, a perusal of the (Sentencing HearingTranscript(s)) reveals a startling discrepency concerning drugamounts: On(Page 5 of 31, Page ID # 659,In. 10-13, it clearly

states: "My client objects to the quantities derived in this case,

that he is not responsible for a base offense level of 38. My

client an I believe that the government is basically assessing

his base offense level too high, and he should not be responsible

for 32.66 cubic grams, of Methamphetamine (actual)." In the gover

nment's response to the above, the amount changes----from 32.66

cubic grams--to ^ it was over 30 kilos, kilograms, of methamphet

amine.." The Government's expert, later changed this amount to 38.

52 kilograms of Methamphetamine (actual), in the same breath.

(Seepage 11 of 31, Page ID # 665)(Sentencing Transcripts)--Again

the government expert changes the amount and form of the drug---to Methamphetamine crystal, which is distinctly different from a

mixture of substance(s). Without any objection from Appellant's

counsel.

Where in the original Police Report. Mr Kusko, the government's

expert/chemist, on the day of Appellant's arrest, at the location

in Crandall, Texas, Mr. kusko stated that there was approximately

20 Kilograms of Methamphetamine. Yet, contained in the (PSR), Pre

sentence Report at 11 13, it again indicates a total of 32.66 Kil

ograms of Methamphetamine. However, again at

sentencing the

amount morphed to 38.52 Kilograms, without a single objection

from defense counsel, or a single question concerning the chang

ing amounts/discrepencies in the amounts, which basically doubled

from the day of the arrest----to the day of sentencing.

As well, counsel did fail to contest any of the discrepencies

contained in the (PSR), or the statements attributed to Appellant

by the DEA Agents'

AMPHETAMINE, METHAMPHETAMINE OR PHENYLACETONE

Where the distincition between "Methamphetamine" and "Pure Methamph'etamine" refers to relative purity o£ any Methamphetamine,

compound and not to particular form ol Methamphetamine, and thus,

court erred when it refused to consider for sentencing purposes

percentage of "pure Methamphetamine" under § 2Dl.l(c). that would

be present in any given amount of DL-Methamphetamine, which court

found could have been produced by the conspiracy, on ground that

Pure Methamphetamine, refers only to D-methamphetamine,

United-

States v. Garroll, (1993, CA 11 Fla) 6 F.3CI 735,

Appellant asserts that this is the exact same error that the Dis

trict Court engaged in when computing his "Offense

Category"

thus , violating Appellant's Fifth Amendment Right to Due Process,

as well, sentencing Appellant under an uncorrect Guideline.

In calculating defendant's base offense level court erroneously

used Methamphetamine category of 2D1.1, which refers to mixture

of methamphetamine and (various impurities), rather than methamp

hetamine (actual), category, which refers to pure methamphetamine,

where chemist testimony indicated that they were refering to only

pure methamphetamine. United States v. Spencer, (1993 CA 2 Vt 4.F.3d 115).

In sentencing defendant for conspiracy to manufacture o£ methamp

hetamine, court properly used Drug Quantity Table in 2D1.1 rather

than chemical quantity Table in § 2D1.11

as directed by § 2D1.-

11(c)(1), because defendant's offense involved unlawful manufact

ure of methamphetamine, and § 2D1.1 gives a higher base offense

level, United States v» Griggs, (1995, CA 8 MO. 71 F.3d 276, reh,

en banc, den (1996, CA 8).

Wherefore, it is clear from the above, that when the court has

to determine an amount of Methamphetamine in a case which alleges

manufacturing, it is required that the court explicitly set the

quantity £f methamphetamine relevant to assessment under § 2D1.1,

end 2D1.11, where § 2D1.1 and § 2D1,11, call for different sente

ncing ranges.

WHETHER APPELLANT WAS CONVICTED OF CONSPIRACY TO

POSSESS WITH THE INTENT TO DISTRIBUTE METHAMPHETAMINE &

MANUFACTURE OF METHAMPHETAMINE, OR NOT "MANUFACTURING OF

METHAMPHETAMINE" In the government's 'Brief for the United States,' the government

____l

characterizes the discrepency between the written judgment, and

the record, e.g., Plea Agreement, as a "clerical error." In the

written judgment it describes the offense of conviction as "Consp

iracy to Possess With The Intent to Manufacture and Distribute

Methamphetamine" While Appellant actually pleaded guilty only, to

"agreeing to watch over a substance that he "thought" might be

illegal." Not as the government asserts that he plead guilty to

"Conspiracy to Possess with the intent to distribute methamphetamihe."

Here this was an attempt at misdirection,and obfuscationobf:fehe

truth by the government, and an attempt to justify the harsh and

draconian sentence imposed on Appellant when the government was

fully aware that Appellant was nothing more than a flunky and pawn,

being used by others. It is

plainly obvious that Appellant was

sentenced pursuant to § 2D1.1 "manufacturing" guideline, pursuant

to $§ 2D1.11(c)(1) which cross-references § 2D1.1, as the correct

guideline when offense involves manufacturing of controlled subst- - - -J

-■ _-s ;

ances and encompasses conspiracy _t() manf acture methamphetamine,

United States v. 0'Learyj (1994, CA 5 La) 35 F.3d 153.

Looking to the (Sentencing Transcripts)(Dkt. # 160, page 25 of 31,

page ID 679, In. 11,it clearly sets forth in the colloquay that19

Appellant is being sentenced/punished for the manufacture of methamphetamine, as is evidenced by the Assistant U.S. Attorney's

statements, at the sentencing hearing.

Mr. Gonzales:

" Your Honor, we would argue that the defendant deser

ves a punishment at the top of the Guidelines. As the

Court can see here, he still fails to accept responsi

bility for his actions. He's: still denying his invblvment

olvment in the tranaction that led to the seizure of

the 38 kilos."

As an example of that, his objection at No. 7, he

insist that the pots on the stove did not contain methamphetamine and oil, and says that the pots contained

oil and diesel, a total denial that he was involved in

the conversion of methamphetamine, and tries to convi

nce this court that that was not methamphetamine. The

chemist just testified... ."

Where the penalty scheme of 21 U.S.C.S. § 841(fr)(l)',contemplates

three potential sentencing ranges for manufacturing^methamphetamine, according to the drug quantity involved. 21 U.S.C.S. § 841(b)(1)(A), - 50 grams or more [life]; 21 U.S.C.S. § 841(b) (1) (B*),

imposes a statutory maximum of 40 years for j) grams or more, §

21 U.S.C.S. 841 (b)(1)(C) limits the maximum sentence to 20

years if no specific drug quantity is determined.

21 U.S.C.S. § 846 makes it a crime to attempt to manufacture methamphetamine. The penalty for attempt is determined according to

to the scheme in 21 U.S.C.S. 841(b)(1), and the United States

Sentencing guidelines Manual. Here, the District judge sentenced

Appellant to 365 months (30) years. Yet, counsel simply acquiesced,

failing to argue or even to reccrgwise that the statutory maximum

pursuant to Apprendi was/is 20 years. Where the court did impose

Appellant's sentence pursuant to the "Sentencing Reform Act of

1984; U.S.C. § 3553(a); and after having consulted the Advisory.

Sentencing Guideline(s).: ■

Appellant states that counsel failed to advocate and to represent

him in an effective manner.

In Strickland, 466 U.S. at 690 (court

must determine whether, in light of all of the circumstances the

identified act or omissions were outside the wide range of profe

ssionally compentent assistance. (Counsel's failure to investigate

possible defense was ineffective assistance. Marshall v. Cathel,

428 F.3d 452 465-71 (3rd Cir. 2005).

DISTRICT COURT'S LACK OF VENUE

Rule 18. Place of Prosecution and Trial. Amendment VI provides:

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the state

and district where in the crime shall have been committed, which

district shall have been previously ascertained by law... .

28 U.S.C. [former] 114 [See§§ 1393,1441] provides: All prosecutions

for crimes or offenses shall be had within the division of such

district where the same were committed, unless the court, or the

judge thereof, upon the application of the judge- thereof, ‘or uporT

application of the defendant... See-United States v. Johnson,

L.Ed 236, 323, U.S. 273, Where, offense(s) with which defendant is

charged are alleged in the indictment to have been committed in

particular district, case must be tried in that district, unless

defendant has waived his right in that respect, and court is with

out power to transfer case to any other district. United States

v. Parr, 17 FRD 512 (D.Tex. 1955). It follows fortiori that when

a district is not seperated into divisions♦.. trial at any place

within the district is allowable, See United States v. Fernandez,

4J30 F.2d 726 (2nd Cir. 1973). See also Zicarelli v. Gray, 543 F.2d

466 3rd Cir. 1976) and cases cited therein.

Fed R. Crim.: P. 18^ which required- the place of trial to be fixed

within the district with due regard to the convenience of appella

nt and the witnesses.. . . Williams v. Florida, 399 U.S. 78, 93-9790 S.Ct. 1893, 26 L.Ed. 2d 446 (1970). (Consideration of vicinage

requirement.) See 28 U.S.C. § 1867(a) ;

[u]nless a statute or the rules permit otherwise, the government

must prosecute an offense in a district where the offense was

committed. The court must set the place of trial within the dist

rict with due regard-for the convenience of the defendant, any

victim, and the witnesses, and the prompt administration of justi22

ce. See United States v^_ Dickie, 775 F.2d 607,609 (5th Cir. 1985).

See United Statesw. Garza, 593 F.3d 385,389-91 (5th Cir.2010).

Where the district court similarly transferred the case to another

district sau sponte without giving any reason(s).’ In Garza, How

ever , the court concluded that pursuant to the.Rule 18 factors,

that the transfer did result in substantial delay and inconvenien

ce .

On March 07, 2017, appellant states that he was arrested in Crand

all » Texas, in connection with a conspiracy to manufacture and

distribute Methamphetamine. Appellant was subsequently held on a

Complaint (filed on 03/08/2017). Wherefore, it is appellant's ass

ertion that the District Court lacked jurisdiction to remove the

case from the Northern District to the Eastern District of Texas,

it is Appellants assertion that he has nor did he committ a crime

in the Eastern District of Texas,

Where the state of Texas is div-

ided into (11) eleven districts/Administrative Judicial Regions,

As of 09/12/2017, Appellant asserts that "Crandal Texas; and Irving,

Texas are both in the 1st, Judicial District Of Texas. Appellant

further asserts that he was arrested in Crandall, Texas, and that

he never, entered into the EasternaDistrict of Texas which is in the

10th Judicial District.

This is in conflict with the Supreme Courts decision in United Stat

es ,v. Anderson, 33'28UUiS. 3699,990..L.ed 1529, (1946), United Statesv. Pomranz, 43 F.3d 156, (1995); 524 U.S. 915, 142 L.Ed 2d 156,

(1998). and

United States v. Cabrales, 524 U.S. 1, 6^-7 141 L.Ed23

2d 156, 118 S.Ct. 2296 (1998).

AM Jur: 32 A Am Jur 2d Federal Courts § 1209.

§ 1460 Cure or waiver of Defects:

(a) The District court of a jurisdiction in which is filed a case

laying venue in the wrong division or.district shall dismiss, or if

it be in the interest of justice, transfer such case to any district

or division in which it could have been brought.(Locus Delicti).

Appellants asserts that there was never a discussion concerning the

validity of the court’s Venue, and that the court

sau sponte' did

transfer the cause to the Eastern District, without cause.

It is again Appellant's assertion that Counsel was ineffective where

he failed to object to the Court's venue, or to raise the issue

pre-trial

thus, effectively waiving the issue, or preserving it

for Appellate review. The Law is plain and straight forward, Stat

ing that: ["All prosecutions for crimes or offenses shall be had

within the division of such district where the same were committed,

unless

the Court, or the judge thereof, upon the application of the

defendant ..."]

Wherefore, Appellant asserts a Sixth Amendment

violation.

Wherefore, Appellant respectfully prays for the relief that

that he seeks, based on the above information and case law.

In the alternative, Appellant would ask this court to remand

his case back to the District Court, for an evidentiary hear

ing, and new trial proceedings.

CONCLUSION .

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Carlos

Date:

This

Alberto OcBoa-Orozco

, day of June 2019

‘

)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.