Petition for Writ of Certiorari — Charles Raymond Stagner, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES RAYMOND STAGNER ,

Petitioner,

Vv.

UNITED STATES OF AMERICA

On Petition for Writ of Certiorari

to the United States Court of Appeals

For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Robert A. Ratliff, Esq.

Robert A Ratliff, PC

713 Dauphin Street

Mobile, Alabama 36602

(251) 438-2250

October 16, 2019

I. QUESTIONS PRESENTED FOR REVIEW

I. Whether the Fifth Amendment Guarantees the Petitioner the

Right to a Judgment of Acquittal If the Government Fails to

Prove the Petitioner Intended to Distribute Methamphetamine

When He Possessed Only Fifteen Grams?

I. Whether Petitioner’s Due Process Rights Were Abridged When

the Trial Court Admitted Evidence of past Conviction for

Conspiracy to Manufacturer Methamphetamine under Fed. R.

Evidence 404(b)?

Ill. Whether a Sentencing Court Should Assess a Two Level

Reduction for Acceptance of Responsibility?

IV. Whether a Sentence Is Substantively Unreasonable If it Is

Imposed with No Consideration for a Prior Drug Addiction and a

Prior Conviction?

Il. LIST OF PARTIES AND RULE 29.6 STATEMENT

The caption of the case contains the names of all of the parties to

the proceedings before the court of appeals.

The Petitioner is an individual and thus no parent corporations or

publicly held corporations are involved in this matter,

ii

III. TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED ............0..0.0. 0.00 cece cece ee i

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TABLE OF CONTENTS cases ccc vnecoustuus¢ewssaxpsenasvuni ill

TABLE OF CITED AUTHORITIES ............ 0.0000 cece ceee. Vv

OPINION BELOW 2... ce sus recus cuwy eaudedaccnpecwmscuduva 2

STATEMENT OF THE BASIS FOR JURISDICTION ............ 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS CASE ........0. 0c ccc ccecscesves 3

STATEMENT OF THECASE ............. 0.000 cece cece ee eeee 3

STATEMENT OF THE PACTS .0. 6c cess sees cuwiawarbucecce 4

ISSUES PRESENTED ............0.0 0.00. c cc ccceccccuuceeues 6

I. Whether the Fifth Amendment Guarantees the Petitioner the

Right to a Judgment of Acquittal If the Government Fails to

Prove the Petitioner Intended to Distribute Methamphetamine

When He Possessed Only Fifteen Grams?

I. Whether Petitioner’s Due Process Rights Were Abridged When

the Trial Court Admitted Evidence of past Conviction for

Conspiracy to Manufacturer Methamphetamine under Fed. R.

Evidence 404(b)?

II. Whether a Sentencing Court Should Assess a Two Level

Reduction for Acceptance of Responsibility.

iii

IV. Whether a Sentence Is Substantively Unreasonable If it Is

Imposed with No Consideration for a Prior Drug Addiction and a

Prior Conviction.

REASONS FOR GRANTING THE WRIT ..................0.-. 6

CONCLUSION ou ascuwesavsdaak wv sana sumevewereupyvunyews 384

CERTIFICATE OF WORD LIMITATIONS ...................-. 36

CERTIFICATE OF SERVICE ..........0. 0. ccc cceeceeecceeuce 37

APPIIMOUS, «ue eur ees eed bas tan wewsvuwn damee unas gaan 38

Exhibit 1 (Court of Appeals Opinion)

Exhibit 2 Judgment and Commitment)

Exhibit 3 (Constitutional and Statutory Provisions Involved in this

case)

iv

IV. TABLE OF AUTHORITIES

Pages

Cases:

J.E.B. v. Alabama, 511 U.S. 127 (1994) oe eee 22

Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) ............ 23

Maryland v. Pringle, 540 U.S. 366 (2003) 2.0.0... eee eee 8

Mistretta v. United States, 488 U.S. 361 (1989) ................. 24

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) .......... 17

United States v. Booker, 543 U.S. 220 (2005) ..............2-.. 25

United States v. Broussard, 987 F.2d 215 (5th Cir.1993) .......... 21

United States v. Browne, 505 F.3d 1229 (11th Cir. 2007) .......... 12

United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000) ....... 15,17

United States v. Cohen, 888 F.2d 770 (11th Cir. 1989) ............ 16

United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006) ............ 27

United States v. Dickerson, 248 F.3d 1036 (11th Cir. 2001) ........ 16

United States v. Dorsey, 819 F.2d 1055 (11th Cir. 1987) .......... 15

United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007) ......... 15

United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) ........... 17

United States v. Fells, 78 F.3d 168 (5th Cir.1996)............0... 22

United States v. Hernandez, 476 F.3d 791 (9th Cir. 2007) .......... 9

Vv

United States v. Hunt, 459 F.3d 1180 (11th Cir. 2006) ............ 32

United States v. Irey, 612 F.8d 1160 (11th Cir. 2010) .......... 28,29

United States v. Juarez, 607 Fed. Appx. 779 (10th Cir., 2015) ...... 10

United States v. Lopez, 907 F.3d 537 (7th Cir. 2018) ............. 10

United States v. Mohamed, 920 F.3d 94 (1st Cir. 2019) ........... La

United States v. Niles, 708 Fed. Appx. 496 (10th Cir. 2017) ........ 12

United States v. Peery, 977 F.2d 1230 (8th Cir.1992) ............. 22

United States v. Poole, 878 F.2d 1389 (11th Cir. 1989) ............. 9

United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008) ....... 26,27,30

United States v. Purchess, 107 F.3d 1261 (7th Cir.1997) .......... 22

United States v. Sanders, 341 F.3d 809 (8th Cir. 2003) ........... 12

United States v. Sarmiento, 744 F.2d 755 (11th Cir. 1984) ........ ie}

United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989)......... 20

United States v. Skipper, 74 F.3d 608 (5th Cir. 1996) ............. Tel

United States v. Smith, 106 F.3d 350 (11th Cir.1997)............. 21

United States v. Smith, 127 F.3d 987 (11th Cir.1997)............. a1

United States v. Stagner, 2019 U.S. App. LEXIS 22278 ........... 2

(July 26, 2019)

vi

United States v. Walker, 399 Fed. Appx. 75

(Gtr Cir, October 26, 2010) cis, cuss cee yond ome eras eens 11

United States v. Wright, 133 F.3d 1412 (11th Cir. 1998) .......... 20

United States v. Zapata, 139 F.3d 1355 (11th Cir. 1998) ....... 16,17

United States v. Williams, 865 F.3d 1328, 1344

(11th Cir. 2017), cert. denied, 188 S.Ct. 1282 (2018) .......... 9

Statutes:

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TS WGC. SORBBHG) fcc nee cdweh cxxe wwe set ewan wmwn omg ae 25

Bl USE SOG vaiiwwsae ds vans meskes Wem i One amwr nanan 5.

21 U.S :C.-§841() Gb) atid (©) oo. cnc cca ces cans eee ewe om 33,34

A eh Te, csorm aden tronics bia Ms capi aan ysten Age acectge Me 11

OT UBC (6846 becca ncicns sens sonseass ews biges sans izesswes 12

By AB aes. x pins» Vowel od 4 se cow eres weal p swe Hie wml gre wn ce me 35

Oe Is cas Gere dm vwGe peecnwapsuawimue tama cane 4

Sentencing Reform Act of 1984, Pub. L. No. 98-4738, 98 Stat. 1987

(codified as amended at 18 U.S.C. §§ 3551-3586 (1988) and 28 U.S.C. §§

991-998 (1988)) 2. cece e cee e eens 25

Sentencing Guidelines, Rules, and Miscellaneous:

WISTS! GSS rank alec aie Sach cates ome e goes) eas aaa aS 19,23,24

Rule 404(b), Fed. R.Evid. 0.0.0.2... 0... c cece eee eee 15,16,17,18

Frankel, Jail Sentence Reform, N.Y. Times,

January 15, LOTS ab B21 2 cece ewes wits cies wie cme 24,25

viii

No.

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES RAYMOND STAGNER,

Petitioner,

v.

UNITED STATES OF AMERICA

On Petition for Writ of Certiorari

to the United States Court of Appeals

For the Eleventh Circuit

PETITION OF WRIT OF CERTIORARI

The Petitioner, by and through his undersigned counsel, hereby

respectfully petitions for a writ of certiorari to review the judgment of

the Eleventh Circuit Court of Appeals in the herein-referenced matter.

V. OPINION BELOW

The opinion of the court of appeals (App., infra, 1a), dismissing

the appeal before it, is found at United States v. Stagner, 2019 U.S.

App. LEXIS 22278, _ Fed. Appx. __, 2019 WL 3381791 (United States

Court of Appeals for the Eleventh Circuit July 26, 2019). The judgment

and commitment order of the district court, case no.

1:18CR00039-WS-N, convicting and sentencing Petitioner is also

attached hereto. (App., infra, 2a)

VI. STATEMENT OF THE BASIS FOR JURISDICTION

The judgment of the district court was entered on October 4, 2018.

(App., infra, 2a) A timely notice of appeal was filed by Petitioner on

September 25, 2018 and the case was docketed in the court of appeals

(Eleventh Cir., No. 18-14239). The court of appeals filed its opinion on

July 26, 2019. (App., infra, 1a)

Petitioner hereby files this petition for a writ of certiorari and

invokes the jurisdiction of this Court under 28 U.S.C. §1254(1).

2

VII. CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS CASE

See Exhibit 3 - App., infra, 3a

VIII. STATEMENT OF THE CASE

Petitioner Charles Raymond Stagner (hereinafter referred to as

“Petitioner” or “Mr. Stagner”) was named in a two-count indictment by

the February 2018 Federal Grand Jury for the Southern District of

Alabama, Mobile, Alabama. Count One charged that on or about March

8, 2017, the Petitioner did knowingly and willfully possess with the

intent to distribute 0.5 grams of methamphetamine, a Schedule IT

controlled substance, in violation of 21 U.S.C.§841(a)(1) and 18 U.S.C.

§2. Count Two charged that on March 16, 2017, the Petitioner did

knowingly and intentionally unlawfully possess with the intent to

distribute approximately 15 grams of methamphetamine, a Schedule II

controlled substance, in violation of of 21 U.S.C.§841(a)(1) and 18

U.S.C. §2.

On April 18, 2018, both the Government and the Petitioner

executed a Plea Agreement. However, the Petitioner’s guilty plea

hearing set for April 25, 2018 was cancelled by the Government and/or

the Court. On June 28, 2018, the Petitioner was found guilty by a jury

verdict of the Indictment’s Counts One and Two. Petitioner was

subsequently sentenced on September 25, 2018 to a term of

incarceration of 132 months and a subsequent term of supervised

release of eight years. (See, App., infra, 2a)

A timely notice of appeal was filed by Petitioner on September 25,

2018.

Petitioner is currently in the care and custody of the United

States Attorney General at the Federal Prison Camp FPC Montgomery,

Maxwell Air Force Base, Montgomery, Alabama.

IX. STATEMENT OF FACTS

On March 8, 2017, an investigator for the Saraland, Alabama

Police Department (hereinafter referred to as the “SPD”) was contacted

by an unknown confidential informant who reported that the Petitioner

was selling methamphetamine. This unknown informant advised the

SPD that he could buy methamphetamine from the Petitioner at his

residence in Saraland. The informant met up with investigators of the

SPD where both the informant and his vehicle were searched for

contraband. None were found.

The informant contacted the Petitioner and confirmed that he was

en route to his residence. The investigators provided $40 in

pre-recorded U.S. currency to the informant to use to make the

anticipated purchase. The informant was also equipped with electronic

devices to record the transaction.

The buyer/informant traveled to Petitioner’s residence, followed

by investigators from SPD, and Petitioner met the informant in an

outbuilding behind his residence. The transaction was completed

involving a one-half gram of methamphetamine. The buyer left and

re-met up with SPD where investigators took possession of the drugs

and that electronic equipment.

On March 16, 2017, SPD obtained a search warrant for

Petitioner’s residence and several investigators and officers executed it

the same day. Prior to entering Petitioner’s residence, investigators

encountered the Petitioner outside and proceeded to search him. Such a

personal search found a black pouch. Examination of the pouch

indicated about two grams of methamphetamine. (Upon testing by the

Alabama Department of Forensic Sciences, the weight was determined

to be 1.7 grams.) An investigator advised Petitioner of his rights and

5

Petitioner agreed to waive his rights and answered questions.

Upon questioning and searching, investigators recovered 12.8

grams of methamphetamine. In addition they found a digital scale and

multiple glass pipes. Petitioner advised the officers that he buys

methamphetamine from various individuals, not for distribution but

only for personal use.

X. ISSUES PRESENTED

I. Whether the Fifth Amendment Guarantees the Petitioner

the Right to a Judgment of Acquittal If the Government

Fails to Prove the Petitioner Intended to Distribute

Methamphetamine When He Possessed Only Fifteen

Grams?

Il. Whether Petitioner's Due Process Rights Were Abridged

When the Trial Court Admitted Evidence of past Conviction

for Conspiracy to Manufacturer Methamphetamine under

Fed. R. Evidence 404(b)?

Ill. Whether a Sentencing Court Should Assess a Two Level

Reduction for Acceptance of Responsibility.

IV. Whether a Sentence Is Substantively Unreasonable If it Is

Imposed with No Consideration for a Prior Drug Addiction

and a Prior Conviction.

XI. REASONS FOR GRANTING THE WRIT

I. Whether the Fifth Amendment Guarantees the Petitioner

the Right to a Judgment of Acquittal If the Government

Fails to Prove the Petitioner Intended to Distribute

6

Methamphetamine When He Possessed Only Fifteen

Grams?

On June 26, 2018, Mr. Stagner’s counsel proffered an oral motion

for judgment of acquittal. (Doc. 40, Oral Motion) One of the primary

arguments for such a motion was that the Indictment over-charged the

Petitioner in light of the totality of evidence. Specifically, both counts of

the Indictment charged the Petitioner with possession with intent to

distribute methamphetamine; however, the evidence reflects, and the

Petitioner consistently advocated, that all of the narcotics confiscated

both on March 8th and 16th, 2017 were obtained by Mr. Stagner for

personal use and not with the intent to sell or distribute.

The totality of the evidence reflects possession and not an intent

to sell or distribute. First of all, the Petitioner repeatedly maintained

that all of his methamphetamine were for personal use. Second, the

physical evidence confiscated by law enforcement supported personal

use. And third, no direct evidence was introduced by the Government

supporting an intent to sell or distribute. As admonished by the Court,

the burden of proof is with the Government to prove intent. (See,

Transcript of Jury Trial, June 26, 2018, p. 8)

It is established law in the Eleventh Circuit that the conviction of

a defendant for the offense of possession with the intent to distribute a

controlled substance under 21 U.S.C. §841(a)(1) must be based upon

the Government proving knowing possession and an intent to

distribute. United States v. Williams, 865 F.3d 1328, 1344 (11th Cir.

2017), cert. denied, 138 S.Ct. 1282 (2018). Also see, Veukad V.

Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003). Intent

to distribute, it is also well-established, can be proven circumstantially

from the quantity of drugs and the existence of implements that are

commonly used in connection with the distribution of drugs. United

States v. Poole, 878 F. 2d 1389, 1392 (11th Cir. 1989)

However, if the courts are going to rely on the quantity of drugs to

convict an individual to a harsher controlled substance felony than

mere possession, a uniform understanding must exist among the

circuits as to the standard of what is possession and what is sufficient

possession to presume or prove intent to distribute. Such a uniform

understanding does not currently exist. Consequently, this writ should

be granted in order for this Honorable Court to sustain a standard

representing a circumstantial intent to distribute.

8

Law enforcement, when searching the Petitioner’s home, found

fifteen grams of methamphetamine. Petitioner consistently maintained

that this amount was merely possessed for personal use. The

Government insists that these fifteen grams were possessed with the

intent to distribute. The Eleventh Circuit, in its opinion below (See,

App., infra, la), held that fifteen grams were “sufficient for a

reasonable juror to find that he was guilty.” Unfortunately, prior cases

before this Court and before the circuits provide little uniform direction

to the lower courts.

In United States v. Hernandez, 476 F.3d 791 (9th Cir. 2007), the

Ninth Circuit addressed a case where a defendant was arrested as he

entered the United States from Mexico at a port of entry after a

customs and border protection officer found a cellophane bag containing

methamphetamine in defendant's pocket at a secondary inspection

station. A test determined that the package contained the equivalent of

111.3 grams of pure methamphetamine.

The defendant was convicted after a jury trial of importation of

more than 50 grams of methamphetamine under 21 U.S.C. §952 and

§960 and of possession of methamphetamine with intent to distribute

9

under 21 U.S.C. §841(a)(1) and sentenced to the statutory minimum

sentence of 120 months. He sought review of the judgment of conviction

and the Ninth Circuit held that the district court refused to instruct the

jury on the lesser included offense of simple possession was not

harmless and was fatal to the conviction under 21 U.S.C.S. § 841(a)(1).

A rational jury could have found that defendant possessed the 111+

grams of methamphetamine for personal use.

Conversely, in the Seventh Circuit case of United States v. Lopez,

907 F.3d 537 (7th Cir. 2018), evidence supported the finding that

defendant intended to distribute at least 50 a of

methamphetamine; 10 ounces of methamphetamine exceeded the

amount an individual would have for personal use, supporting the

reasonable inference that he intended to distribute it, rather than use

it for himself.

In the Tenth Circuit, the case of United States v. Juarez, 607 Fed.

Appx. 779, 2015 U.S. App. LEXIS 6108 (10th Cir., April 15, 2015)

affirmed the application of intent to distribute. In the Juarez case, the

defendant's convictions for drug and conspiracy offenses under 21

U.S.C. §§846, 841(a)(1), and 843(b) were supported by sufficient

10

evidence that he purchased more methamphetamine than he could

personally use, that he had an intent to resell it, and that he repeatedly

ordered it over the phone. The defendant typically ordered 1-2 ounces of

methamphetamine a week, which equates to 28-56 grams per week.

The Sixth Circuit, in United States v. Walker, 399 Fed. Appx. 75,

2010 U.S. App. LEXIS 22413 (6th Cir. October 26, 2010) added to the

confusion by sustaining the small amount of 55 grams of

methamphetamine as supportive of an intent to distribute.

While various circuit courts have provided some direction as to

what amount could be used for personal use, no uniformity has arisen.

In United States v. Mohamed, 920 F.3d 94, 2019 U.S. App. LEXIS

9818 (1st Cir. April 3, 2019), uncontroverted testimony was presented

regarding the typical usage quantities of methamphetamine. A first

time user might use less than a quarter gram at a time, while a person

"abusing quite frequently" can use up to a "teener," or 1.75 grams, each

time.

A trial court in the Fifth Circuit, in United States v. Skipper, 74

F.3d 608, 611 (5th Cir. 1996), took testimony at sentencing that parties

consumed up to a half ounce (fourteen grams) of methamphetamine in

11

a single day.

In addressing intent versus mere possession, the Eighth Circuit,

in United States v. Sanders, 341 F.3d 809, 2003 U.S. App. LEXIS 18552

(8th Cir. September 9, 2003), was presented with testimony from law

enforcement that methamphetamine users use a gram or more a day.

Finally, the Tenth Circuit case of United States v. Niles, 708 Fed.

Appx. 496, 2017 U.S. App. LEXIS 17678 (10th Cir. September 13, 2017)

presented uncontroverted facts that “the average daily drug user

consumes ‘about a gram lor twol”.

Under Rule 29, a conviction will be upheld if a reasonable jury

could conclude that the evidence established guilt beyond a reasonable

doubt. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007).

With respect to both counts, possession with intent to distribute, the

evidence must establish that the defendant knowingly possessed the

methamphetamine with the intent to distribute it. United States v.

Sarmiento, 744 F.2d 755, 761 (11th Cir. 1984). While the Government

introduced evidence of possession, it did not present any evidence of

any intent to distribute, and it could not for Petitioner did not possess

such an intent.

12

On March 8, 2017, as outlined in Count One of the Indictment,

investigators watched as Petitioner possessed a small amount of

methamphetamine for personal use. (Transcript of Jury Trial, P. 14)

The Government alleged that on that day there was a sale of

methamphetamine but despite police, all with body cams, and an

alleged confidential informant with video taping equipment, no video

exists as to the alleged sale.

In addition to the small amount of methamphetamine found in its

search of March 15, 2017, law enforcement investigators only found and

confiscated personal use pipes (Transcript of Jury Trial, pp. 60-69)

The Fifth Amendment guarantees the Petitioner the right to a

judgment of acquittal if the Government fails to prove the Petitioner

intended to distribute methamphetamine when he possessed only

fifteen grams. Petitioner proffered such a motion yet it was denied as

the courts have not established any uniform guideline for personal use

versus larger quantities connoting an intent to distribute. It is time for

such a guideline to be established.

Il. Whether Petitioner's Due Process Rights Were Abridged

When the Trial Court Admitted Evidence of past

Conviction for Conspiracy to Manufacturer

13

Methamphetamine under Fed. R. Evidence 404(b)?

On June 23, 2018, counsel for Petitioner filed a motion (Doc. 37,

Motion) to limit the introduction by the Government of 404(b) evidence.

A motion in limine is such a motion seeking to prevent the interjection

of matters which are irrelevant, inadmissible, or prejudicial.

The subject motion averred that the Government will seek to file

proof of prior convictions of the Petitioner for other crimes. (See, Rule

404(b), Fed.R.Evid.) As such information is inadmissible hearsay and

an attempt to convict the Petitioner on character evidence, Petitioner

made its Motion in Limine. Without this motion sustained and in place,

the Government introduced, made reference to, and otherwise left the

jury with the impression that the Petitioner had the propensity for

criminal conduct, even though such conduct is completely unrelated to

the offense at bar.

The district court denied this motion, prejudicing the Petitioner

before the jury.

The defense challenged the admissibility of “other crimes”

evidence under Rule 404(b) on the grounds the it was not probative of

any issue other than character and is too unrelated and too removed in

14

time to have any evidentiary value. For “other crimes” evidence to be

admissible under Rule 404(b), it must be relevant to an issue other

than character, there must be sufficient proof to enable a jury to find

that the defendant committed the other crime, AND the probative

value of the evidence cannot be substantially outweighed by undue

prejudice. United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000)

The Chavez test was applied in United States v. Edouard, 485

F.3d 1324 (11th Cir. 2007). "A defendant who enters a not guilty plea

makes intent a material issue which imposes a substantial burden on

the government to prove intent, which it may prove by qualifying Rule

404(b) evidence absent affirmative steps by the defendant to remove

intent as an issue." Also see, United States v. Zapata, 139 F.3d 1355,

1358 (11th Cir. 1998) ("Where the extrinsic offense is offered to prove

intent, its relevance is determined by comparing the defendant's state

of mind in perpetrating both the extrinsic and charged offenses.");

United States v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987). Thus,

where the state of mind required for the charged and extrinsic offenses

is the same, the first prong of the Rule 404(b) test is satisfied. Id.;

United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001).

15

However, to justify the issue of intent, evidence must be

presented to compare the Petitioner’s state of mind in perpetrating

both the charged offenses and the Rule 404(b) offense. This matter was

not addressed by either the Petitioner or the Government. In this case,

Petitioner's charged offenses include, inter alia, possession with intent

to distribute. By pleading not guilty, Petitioner made his intent a

material issue. See United States v. Zapata, 139 F.3d at 1358.

Nevertheless, no testimony of mental state or intent was presented as

to the extrinsic acts. Accordingly, the first prong of the analysis was not

satisfied. Evidence of other crimes, wrongs, or acts is not admissible to

prove a defendant's character in order to show action in conformity

therewith. Fed. R. Evid. 404(b)(1). Such evidence is admissible for other

purposes, however, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake. Id.

404(b)(2). Courts have said that Rule 404(b) is a rule of "inclusion" that

allows evidence of other acts unless the evidence "tends to prove only

criminal propensity." United States v. Cohen, 888 F.2d 770, 776 (11th

Cir. 1989). The Government, in the proceedings below, sought to admit

evidence of other crimes only of the Petitioner’s criminal propensity.

16

For evidence of other crimes or acts to be admissible under Rule

404(b): (1) it must be relevant to an issue other than the defendant's

character; (2) there must be sufficient proof to enable a jury to find by a

preponderance of the evidence that the defendant committed the act in

question; and (3) the probative value of the evidence cannot be

substantially outweighed by undue prejudice, and the evidence must

satisfy Rule 403. United States v. Chavez, 204 F.3d 1305, 1317 (11th

Cir. 2000). In assessing the probative value of the evidence, one

evaluates the government's incremental need for the evidence to prove

guilt beyond a reasonable doubt, the similarity of the extrinsic act and

the charged offense, and the closeness or remoteness in time of the

charged offense to the extrinsic evidence. United States v. Ellisor, 522

F.3d 1255, 1268 (11th Cir. 2008).

Finally, some circuits note that temporal remoteness is an

important factor to be considered as it "depreciates the probity of the

extrinsic offense." United States v. Beechum, 582 F.2d 898, 915 (5th

Cir. 1978 ). The importance of this rule’s conflicting interpretation

cannot be over-stated. This Court should accept this writ to provide

direction and interpretation for the lower courts.

17

III. Whether a Sentencing Court Should Assess a Two Level

Reduction for Acceptance of Responsibility.

U.S.S.G. §3E1.1(a) provides that if the defendant clearly

demonstrates acceptance of responsibility for his offense, decrease the

offense level by 2 levels.

In the Application Notes of this Guideline, the United States

Sentencing Commission outlines that such a reduction in sentencing is

applicable to a defendant if the following considerations are present:

(A) truthfully admitting the conduct comprising the offense(s) of

conviction;

(B) voluntary termination or withdrawal from criminal conduct

or associations;

(C) voluntary payment of restitution prior to adjudication of

guilt;

(D) voluntary surrender to authorities promptly after

commission of the offense;

(E) voluntary assistance to authorities in the recovery of the

fruits and instrumentalities of the offense:

(F) voluntary resignation from the office or position held during

the commission of the offense;

(G) post-offense rehabilitative efforts (e.g., counseling or drug

treatment); and

(H) the timeliness of the defendant's conduct in manifesting the

18

acceptance of responsibility.

A review of Petitioner’s actions reflects a resonance with these

Guideline circumstances. The transcripts of both the jury trial and

sentencing indicate Petitioner truthfully admitting the conduct

comprising his possession of methamphetamine. The only reason he did

not fulfill the execution of a plea agreement was his refusal to admit

guilt of an intent to distribute, an intent which he did not have. He

voluntary terminated from criminal conduct or associations; and he

voluntary surrendered to authorities promptly after commission of the

offense. And finally, he acted timely in manifesting his acceptance of

responsibility. He provided the Government every reasonable

opportunity to save resources and avoid a trial but it was the

Government that refused to agree on a plea agreement. The importance

of this situation is paramount. The Government should be restrained

from so penalizing a criminal defendant.

Caselaw throughout the circuits have addressed this

subparagraph (a) and provides an interpretation to “clearly

demonstrating acceptance of responsibility.” Even if a defendant takes

a matter to trial, a defendant can be entitled to sentencing credit for

19

acceptance of responsibility. United States v. Wright, 133 F.8d 1412

(11th Cir. 1998)

In determining whether a defendant is entitled to an acceptance

of responsibility adjustment, a district court may properly consider "the

offender's recognition of the wrongfulness of his conduct, his remorse

for the harmful consequences of that conduct, and his willingness to

turn away from that conduct in the future." United States v. Scroggins,

880 F.2d 1204, 1215 (11th Cir.1989).

Although, a "district court may consider the nature of [the

defendant's legal challenges to his conviction] along with the other

circumstances in the case when determining whether a defendant

should receive a sentence reduction for acceptance of responsibility,"

United States v. Smith, 127 F.3d 987, 989 (11th Cir.1997) (en banc)

("Smith"), an otherwise deserving defendant cannot be denied a

reduction under § 3E1.1 solely because he asserts a legal challenge to

his conviction that is unrelated to factual guilt. In Smith, the full

appellate panel held that a panel of this court had gone "too far" in

concluding that "it is impermissible [for a district court] to consider [a]

challenge to the legal propriety of a sentence" in denying a reduction in

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offense level for acceptance of responsibility. 127 F.3d at 989 (quoting

United States v. Smith, 106 F.3d 350, 352 (11th Cir.1997) (as amended)

("Smith I")). The original panel had erred, the appeals court concluded

in Smith, in deciding that a district court categorically may not

consider a defendant's legal challenge to a presentence report.

Similarly to the Smith fact pattern and holding, the Petitioner

went to trial to challenge a legal conclusion drawn from the facts,

specifically whether the Petitioner maintained intent to sell or

distribute. He readily admitted to the guilt of possession. Other circuits

have concluded that legal challenges alone cannot form the basis for a

denial of a downward adjustment for acceptance of responsibility. See

United States v. Purchess, 107 F.3d 1261, 1267 (7th Cir.1997)

(concluding that "district court should not — the reduction for

acceptance of responsibility because the defendant challenges a legal

conclusion drawn from the facts the defendant admits"); United States

v. Fells, 78 F.3d 168, 172 (5th Cir.) (holding that district court erred in

denying reduction for defendant who "freely admitted all the facts but

challenged their legal interpretation"), United States v. Broussard, 987

F.2d 215, 224 (5th Cir.1993) (holding that district court erred in

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