Petition for Writ of Certiorari — Michael J. W. Potter, Petitioner v. United States

Supreme Court briefSep 10, 2019

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Docket Number: _____________

IN THE UNITED STATES SUPREME COURT

Michael J.W. Potter, Petitioner

United States of America, Respondent

On Petition for Writ of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Joseph O. McAfee

Counsel of Record

100 West Summer Street

Greeneville, TN 37743

Email: joseph@mcafeeattorneys.com

Phone: (423) 972-4391

Question for Review

Whether entry of a mandatory sentence of life

imprisonment violated Appellant’s rights under the

Eighth Amendment to the United States Constitution.

Parties to the Proceeding

All Parties to this proceeding appear on the cover page

of this Petition for Writ of Certiorari and are listed in

the caption.

Table of Contents

Location

1. Opinions Below………………………………….…...……..4

2. Jurisdiction………………………………………….…...….5

3. Constitutional and Statutory Provisions Involved…....6

4. Table of Authorities………………………………………..8

5. Statement of the Case…………………….……….………9

6. Argument……………………………………………..……10

7. Conclusion………………………………………….………14

Index to Appendices

1. Opinion and Judgment of the United States Court

of Appeals for the Sixth Circuit (June 11, 2019)

…………………………………………………...Appendix A

2. Judgment of the United States District Court for the

Eastern District of Tennessee (August 6, 2018)

………………………………….…..……………Appendix B

3. 18 U.S.C. § 3551…………………...…………..Appendix C

4. 18 U.S.C. § 3553……………………………….Appendix D

5. 21 U.S.C. § 841………………………….……..Appendix E

6. 21 U.S.C. § 851……………………..………….Appendix F

Opinions Below

a. The Judgment of the United States Court of Appeals

for the Sixth Circuit appears at Appendix A and is

reported as follows:

United States v. Michael J.W. Potter, 927 F. 3d 446 (6th

Cir. 2019).

b. The Judgment of the United States District Court for

the Eastern District of Tennessee appears at Appendix

B and is unpublished.

Jurisdictional Statement

The judgment of the United States Court of

Appeals for the Sixth Circuit was entered on June 11,

2019. This petition is being filed on or before ninety

(90) days following entry of the judgment.

The United States Supreme Court has

jurisdiction to consider this matter as conferred under

28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

1. United States Constitution:

Eighth Amendment ……………….……..Text Below:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted. U.S. Const. amend. VIII.

2. 18 U.S.C. § 3551………………………See Appendix C

3. 18 U.S.C. § 3553……………………...See Appendix D

4. 21 USC § 841……………………..…...See Appendix E

5. 21 USC § 846…………………………...….Text Below:

§ 846. Attempt and Conspiracy

Any person who attempts or conspires to commit

any offense defined in this subchapter shall be

subject to the same penalties prescribed for in the

offense, the commission of which was the object of

the attempt or conspiracy. 21 USC § 846.

6. First Step Act of 2018…………………….Text Below:

(2) in section 401(b)(1) (21 U.S.C. 841(b)(1))—

(A) in subparagraph (A), in the matter following

clause (viii)—

(i) by striking “If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be

sentenced to a term of imprisonment which may

not be less than 20 years” and inserting the

following: “If any person commits such a violation

after a prior conviction for a serious drug felony

or serious violent felony has become final, such

person shall be sentenced to a term

imprisonment of not less than 15 years”; and

(ii) by striking “after two or more prior convictions

for a felony drug offense have become final, such

person shall be sentenced to a mandatory term of

life imprisonment without release” and inserting

the following: “after 2 or more prior convictions

for a serious drug felony or serious violent felony

have become final, such person shall be sentenced

to a term of imprisonment of not less than 25

years.”

FIRST STEP Act of 2018, Pub. L. No. 115-391, §

401(a)(2), 132 Stat. 5194, 5220 (amending 21

U.S.C. § 841(b)(1)(A)(viii)).

Table of Authorities

Cases

Page

1. Ewing v. California, 538 U.S. 11

(2003)……………………………………………….….11

2. Harmelin v. Michigan, 501 U.S. 957

(1991)………………………………………………11, 13

3. Miller v. Alabama, 132 S.Ct. 2455

(2012)…………………………………………..….11, 12

4. United States v. Potter, 927 F. 3d 446

(6th Cir. 2019)…………………………………………11

5. Woodson v. North Carolina, 428 U.S. 280

(1976)………………………………………………11, 12

Statutes

1. 18 U.S.C. § 3551……………………………………..6, 10

2. 18 U.S.C. § 3553…………………………………6, 10, 13

3. 21 U.S.C. § 841……………………………..…6, 9, 10, 13

4. 21 U.S.C. § 846………………………….…….………6, 9

5. 28 U.S.C. § 1254(1)……………….……….…………..5

6. FIRST STEP Act of 2018, Pub. L. No. 115-391,

§ 401(a)(2), 132 Stat. 5194, 5220…………6, 7, 10, 13

7. U.S. Const. amend. VIII…………………6, 10, 11, 12

Statement of the Case

Following a conviction by jury of Conspiracy to

Distribute 50 grams or more of methamphetamine in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A),

Petitioner was sentenced to a mandatory minimum

term of imprisonment of life. Prior to his conviction in

the District Court, the United States filed an

Information Filed by United States Attorney to

Establish Prior Conviction which set forth that the

Petitioner had been convicted of seven (7) prior felony

drug offenses in the state courts.

Petitioner has no convictions for crimes of

violence as an adult, according to the Presentence

Investigation Report prepared in his case prior to the

judgment appealed from.

Before sentencing, the Petitioner objected on

several grounds to the required Mandatory Minimum

sentence of life imprisonment. Petitioner’s objections

specifically to the imposition of a mandatory minimum

term of life imprisonment were overruled. The District

Court followed the procedure required to establish the

relevant prior felony drug convictions and sentenced

Petitioner to a term of life imprisonment. Petitioner

timely appealed to the United States Court of Appeals

for the Sixth Circuit where his sentence was affirmed.

Argument

The District Court made the correct decision

under the current law to sentence the Petitioner to a

mandatory term of life imprisonment. The United

States Court of Appeals for the Sixth Circuit made the

correct decision under the current law to affirm the

sentence entered by the District Court. Despite both

of the aforementioned Courts having made the correct

decision under the law, the law should be declared

unconstitutional as applied to the Petitioner and

others similarly situated.

Pursuant to 18 U.S.C. § 3553(a)(2), District

Courts must sentence those convicted before them to

sentences which are sufficient not great than

necessary. This mandate, however, is not mandatory

itself. 18 U.S.C. § 3551(a), with its “[e]xcept as

otherwise specifically provided,” language leaves room

for statutes elsewhere like 21 U.S.C. § 841(b)(1)(A) to

call for mandatory sentences wherein the sentencing

judge cannot consider any range of potential sentences

under the law.

Since the Defendant’s conviction in December

2017, the First Step Act of 2018 was passed and

became law. Currently, Petitioner would be subjected

only to a mandatory minimum twenty-five years if he

were sentenced today rather than August 2018.

FIRST STEP Act of 2018, Pub. L. No. 115-391, §

401(a)(2), 132 Stat. 5194, 5220. Had Petitioner been

sentenced only a few months later than he was in

August 2018, he would not have been subject to the

mandatory minimum term of life imprisonment that

he received.

Before the Sixth Circuit, Petitioner argued his

mandatory sentence of life imprisonment for

defendants convicted as he was and who also had two

prior felony drug convictions violated the Eighth

Amendment’s prohibition on cruel and unusual

punishments. Petitioner went on ask the Sixth Circuit

to extend the Court’s holding in Miller v. Alabama to

apply to adults who commit nonviolent crimes. The

Sixth Circuit held that such an argument “faces

insurmountable obstacles before this court.” United

States v. Potter, 927 F. 3d 446, 454 (6th Cir. 2019).

Petitioner now respectfully suggests that such an

argument does not faces any insurmountable obstacle

before this Court.

Petitioner further recognizes that prior

precedents not only in the Sixth Circuit but before the

Court are, in fact, obstacles. In Harmelin v. Michigan,

501 U.S. 957 (1991) the Court announced that the

Eighth Amendment only prohibits those sentences

which are grossly disproportionate to the crime. Id. at

996-997. Ewing v. California, 538 U.S. 11 (2003) the

Court upheld a portion of California’s “three strikes

law” which resulted in Mr. Ewing’s sentence of 25

years to life imprisonment for stealing three golf clubs.

Id. at 12-13, 28. Therefore, Petitioner concedes that

strict proportionality is not required for purposes of

our analysis but we nonetheless submit that his

sentence is, in fact, grossly disproportionate as set

forth in the following paragraphs.

In Woodson v. North Carolina, 428 U.S. 280

(1976), the Court determined that the imposition of

the death penalty does not per se constitute cruel and

unusual punishment. Id. at 285. The Court stated

that the conclusion of Woodson rests squarely on the

predicate that the penalty of death is qualitatively

different from a sentence of imprisonment, however

long. Id. at 305. Discussed in Woodson was the fact

the North Carolina death penalty statute failed to

allow particularized consideration of relevant aspects

of the character and record of the defendant before

sentencing him to death. Id. at 304. Consideration of

both the offender and the offense in order to arrive at a

just and appropriate sentence has been viewed as a

progressive and humanizing element. Id.

In Miller v. Alabama, 567 U.S. 460 (2012),

defendant Miller, was convicted of capital felony

murder committed at age 14. Id. at 467-469. The

Court held that children are constitutionally different

from adults for purposes of sentencing because

juveniles have diminished culpability and greater

prospects for reform. Id. at 471. Further, imposing

the death penalty for nonhomicide crimes against

individuals, or imposing it on mentally retarded

defendants, violated the Eighth Amendment. Id. At

470. The Court held a mandatory life-without-parole

sentence for juveniles violates the Eighth Amendment.

Id. at 470. In a world where juveniles cannot be

sentenced to a mandatory minimum sentence of life

imprisonment whatever the crime, should we not then

extend this type of holding to non-violent drug

offenders like Petitioner?

The Petitioner must and does recognize that

both Miller and Woodson above are readily

distinguishable from this case. However, the logic

applied to both cases by the Court mixed with the

current trend toward lowering mandatory minimum

sentences as accomplished by the First Step Act,

indicate that mandatory life sentences for nonviolent

drug offenders are grossly disproportionate to the

offenses.

There exist few differences between the

mandatory life sentence the Petitioner received and a

sentence of death. Both Petitioner and one who

receives the death penalty have no hope of release

despite what they may achieve or how much they may

take advantage of rehabilitation and training in the

future. Both Petitioner and one who receives the

death penalty will ultimately die while incarcerated.

Effectively, then, there is no difference between a

sentence of mandatory life and the death penalty but

for the fact that the death penalty, no what horrible

acts one might commit to receive it, is prohibited by

the Eighth Amendment under Woodson if the

applicable statute calls for death as the mandatory

sentence.

The mandatory nature of the punishment itself

in dealing with a life sentence is what constitutes the

violation. Here, Petitioner is sentenced pursuant to

the statute and, unlike that which is called for in 18

U.S.C. § 3553, the District Court was powerless to

enter a sentence which is sufficient but not greater

than necessary or to consider the Defendant as an

individual human being in any way.

Under Justice Kennedy’s concurring opinion in

Harmelin, Petitioner suggests that in light of the First

Step Act’s lowering mandatory minimum sentences, he

has made a “threshold showing” that his sentence may

be grossly excessive under the Eighth Amendment.

Harmelin, at 1004-1005. This is especially true in

light of the fact that each mandatory minimum

sentence under 21 U.S.C. § 841 has now been lowered

substantially. Close examination of the FIRST STEP

Act of 2018 does, however, reveal that the reforms

which lowered mandatory minimum sentences moving

forward do not apply retroactively to persons like

Petitioner who were sentenced prior to its enactment.

Petitioner suggests there are few things which exist in

the world, aside from the law here, which could be

more cruel and unusual than to live each day with the

knowledge that had he been sentenced even five

months later, Petitioner may have had the chance to

earn his release from incarceration before dying.

Petitioner does not suggest he would receive the

newly enacted mandatory minimum of twenty-five

years. Perhaps so, but this example illustrates the

point of Petitioner’s request. If his sentence were to be

declared unconstitutional, the District Court would be

empowered to consider his history and character as

well as other factors as set forth in 18 USC § 3553 and

sentence him to a punishment which is sufficient but

not greater than necessary. 18 USC § 3553(a)(2).

Taking into account the circumstances of this

case, the current state of the law, and others similarly

situated in the Bureau of Prisons, now may be the

time to examine the constitutionality of Petitioner’s

mandatory minimum sentence of life imprisonment for

a non-violent drug offense. We respectfully request

that the Court grant our request.

Conclusion

Wherefore, Petitioner hereby asks the Court to

grant this request for a writ of certiorari and to place

this case on the docket to be fully heard on the merits.

Respectfully Submitted,

/s/ Joseph McAfee

______________________