Petition for Writ of Certiorari — Lenroy McLean, Petitioner v. United States

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No.

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IN THE

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SUPREME COURT OF THE UNITED STATES

LENROY Mclean

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— PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS SECOND CIRCUIT

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

PETITION FOR WRIT OF CERTIORARI

Lerlroy Mclean #61 524-054

(Your Name)

805 N. ave F.

(Address)

Post, Texas 79356

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

QUESTION I

Should the Second Circuit Court of Appeals exercise it's discretion

to correct the forfeited error of Petitioner's miscalculated guideline

sentence that has affected his substantial rights with previous factual

decision intact?

QUESTION II

Does words mean things and/or they have specific definitions,

especially in arguable basis either in law or in facts of a forfeited

plain error sentencing?

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LIST OF PARTIES

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

xlx] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

On Appeal:

Attorneys for the Government

1) Sarah Kathleen Eddy (AUSA)

2) Michael D. Lockard (AUSA)

U.S. attorney's office

one St. Andrew's Plaza

New York, New York 10007

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TABLE OF CONTENTS

1

OPINIONS BELOW

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

6

CONCLUSION

8

INDEX TO APPENDICES

APPENDIX A

Rehearing Denial

APPENDIX B

Appeals Court Denial

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

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TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Williams v United States, 117 Led 2d 341, 365

Alleyne v United States, 133 S.ct 2151,186 Led 2d 314(2013)....

Hughes v United States, 138 S.ct 1765(2018)........................

United States v Rosales-Mireles, 138 S.ct 1897(2018)...

United States v Rios, 765 F.3d 133, 138 (2 £ir 2014)...

United States v Adams, 104 F.3d 1028, 1031 (8 cir 1997)

United States v Davis, 682 F.3d 596, 612 (7 cir 2012)..

Molina-Martinez v United States, 578 U.S.___ ,

f2016)

Planned Parenthood v Case, 505 U.S. 833(1992)

Vermilya-Brown Co. v Connell, 335 U.S. 3777 399(1949)

Shapiro v United States, 335 U.S. 1 (1 948)........................

Singer v United States, 323 U.S. 338, 346(1945)......

4

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7

7

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STATUTES AND RULES

21 U.S.C § 846 provides:

Any person who attempts or conspires to commit any offense defined in

this subchapter shall be subject to the same penalties as those prescribed

for the offense, the commission of which was the object of the attempt of

conspiracy.

28 U.S.C §1254 provides:

Cases in the court of appeals may be reviewed by the Supreme Court by

the following methods: 1) By writ of Certiorari granted upon the petition

of any party toany civil or criminal case, before or after rending of

judgment or decree.

28 U.S.C § 2106 provides:

The Supreme Court or any court of appellate jurisdiction may affirm,

modify, vacate, set aside or reverse any judgment, decree, or order or a

court lawfully brought before it for review, and may remand the cause and

direct the entry of such appropriate judgment, decree, or order or require

such further proceedings to be had as may be just under the circumstances.

28 U.S.C § 3582(c)(2) provides:

The court may not modify a term of imprisonment once it has been imposed

except that...in the case of a defendant who has been sentenced to a term

of imprisonment based on a sentencing range that has been subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C § 994(o), upon a

motion of the defendant of the Director of the Bureau of Prisons, or on its

own motion, the court may reduce the term of imprisonment, after consider­

ing the factors set forth in section 3553(a) to the extent that they are

applicable, if such a reduction is consistent with applicable policy

statements issued b^ the sentencing commission.

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OTHER continuation...

Fed. R. Crim. P. 52 (b) provides:

A plain error that affects substantial rights may be considered even

though it was not brought to the court's attention.

Amendment 782 section 2D1.1 (c)(1) provides:

If-----the defendant was convicted under 21 U.S.C. § 860A'of manufactur

ing or possessing with intent to manu-facture, methamphetamine on

premises where a mi-nor is present or resides.

Amendment 782 section 2D1.1 (a)(3) provides:

39—if the defendant is convicted under 21 U.S.C § 841(b)(1)(E) or

2:1 U.S.C. § 960 (b|(5), and the offense of conviction establishes that

death or'serious oodily injury resulted from the use of the substance

and that thedefendant committed the offense after one or more prior

convictions for a similar offense.

v

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

j£x] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

®__to

[ ] reported at

; or,

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

[ ] is unpublished.

[ ] For cases from state courts:

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

Appendix_____ to the petition and is

; 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

[ ] reported at

5 or,

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

[ ] is unpublished.

1.

JURISDICTION

^ For cases from federal courts:

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

was December 5th, 2019

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

A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: March 10th, 2020 , and a copy of the

order denying rehearing appears at Appendix A

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

to and including______

(date) on

(date)

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

to and including____

(date) on

(date) in

Application No. __ A

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

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fifth Amendment to the. Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous

crime ,n unless on a presentment or indictment of a Grand Jury, except

cri in'case arising in’-the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor shall be compelled

in any criminal case to be a witness against himself, not be deprived

of Life, Liberty or property without due process of law; nor shall

private property be taken for public use, without just compensation.

Ninth Amendment to the Constitution provides:

The enumeration in the Constitution, or certain rights, shall not be

construed to deny or disparage others retained by the-people.

Fourteenth Amendment to the Constitution provides:

All persons born to the naturalized in the United States, and subject

to the reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of the United States; nor shall

any state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within it's jurisdiction

the equal protection of the law.

3

STATEMENT OF THE CASE

Petitioner stands convicted of conspiracy to distribute cocaine in

violation of 21 U.S.C. § 846, the District court had a quantity at the

time of Petitioner's trial and instructed the jury that "...you do not

need to determine the precise quantity of drugs involved in the con­

spiracy. Rather, you must decide whether the conspiracy involved more

than five kilograms of cocaine" (T.T. pg. 1563 line 18-24).

In this case the drug quantity was never established by the jury to

trigger the appropriate or mandatory guideline range of petitioner. See

Wiliams ; v United States, 117 L.ed 2d 341,365

Petitioner's PSR report asserted that "the guideline for a violation

of said statue (21 U.S.C. § 84 6) is found in § 2D1 .1 (a) (3) . '-Asenotfed-in

the offense conduct section, Mclean (Petitioner) distribute and/or intend

to distribute approximately 300 kilograms of cocaine. The offense level

specified in the drug quantity table under § 2D1.1(c)(1) set 2>a base f

'offens^/_level of 38" (PSR report paragraph #24)-Petitioner moved for an

objection of such, because the evidence at trial further demonstrated

that petitioner was completely unaware of the amount of cocaine imported

or sold, let alone had any involvement in as much as 300 kilograms of

cocaine.

The District court veer the PSR report assertion without any supported

facts of petitioner's knowledge and found that, Petitioner has met the

threshold of 150 kilograms and fixed the base offense level at 38 points

and applied a two-level hencement for weapons possessed by coconspirators

[Alleyne v United States, 133 S.ct 2151, 186 Led. 2d 314(2013) requires

any fact, apart from criminal history-that triggers or increases the man­

datory minimum to be found by the jury or in the case of~a plea, admitted

by the defendant.]. Petitioner was sentenced between 150 to 450 kilograms

of cocaine to 228 months and a five years term of supervise released.

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Petitioner filed his appeal from a motion for sentence reduction under

18 U.S.C. § 3582(c)(2), which was denied by the District court on the

24th of April 2019. The District court's had miscalculated the guideline

range whenttheyysentenced petitioner between 150 to 450 kilograms-an error

that affected Petitioner's substantial rights that warranted a sentencing

modification, because such was lowered by the Amendment 782 and the thres­

hold of 150 kilograms of cocaine with a base offense level of 34 with a

168 to 210 months period, below the 228 months sentenced he had received.

The United States Court of appeal for the second circuit denied petition

er's appeal with an obfuscated ruling of such been "lack an arguable basis

either in law of in fact".

This petition for writ of certiorari seeks review of the denial of such

that "lack an arguable basis either in law or in fact" dated December 5,

2019-Petitioner timely filed a motion for rehearing en-banc which was

summarily denied on March 10th, 2020.

5

REASONS FOR GRANTING THE PETITION

Question I

Should the Second Circuit court of appeals exercise it's discretion to

correc| £he forfeited error of Petitioner's miscalculated guideline sent­

ence that has affected his substantial right With previous

intact?

factual decision

The facts of the case gyrated around petitioner's base offense level that

was lowered by the amendment 782, under 18 U.S.C. § 3 582 (c) (2)-the provisio

ion authorizes a district court to reduce petitioner's sentence if the

petitioner has-been sentenced to a term of imprisonment based on-a sentence

ing range that has subsequently been lowered by the USSG commission.

To base means to make, form or serve as a foundation for or to use (some­

thing) as the thing from which something else is develope. Likewise, a

base is the starting point or quantity from which a reckoning or conclusion

proceeds. Hughes v United States, 138 S.ct 1765 (2018).

Here, the district court made a required preponderance of the evidence

findings as to the drug quantity to justify a sentencing based on 150 kilos

grams of cocaine, after the jury was instructed on the strating point of

"more than five kilograms of cocaine" at trial. Petitioner puts emphasis

on the fact that, the end of a runway (threshold)wwas 150 kilograms and

with the help of the jury-the district court established a starting point

of five kilogram.

Such placed petitioner on the U.S.S.G tables between 50 to 150 kilograms

of cocaine with a base offense level of 36 within a 168 to 210 months

bracket-with the amendment of 782, petitioner's base offense level would

have change to 34. The District court had sentenced petitioner between 150

to 450 kilograms of cocaine which carries a much hefty penality on the

U.S.S.G table a plain U.S. sentencing guideline manual error that affects

petitioner's substantial rights that is precisely the type of error that

ordinarily warrants relief under Fed. R. Crim. P. 52(b).

6

A miscalculation of a U.S.S.G sentencing guidelines that has been

determined to be plain and to affect petitioner's substantial rights calls

for a court of appeals to exercise it's discretion under Fed. R. Crim. P.

, 52(a). See United States v Rosales-Mireles,

U.S.

, 138 S.ct 1897

201 Led. 2d 376 (2018).

Petitioner is aware of the fact that-the district court in petitioner's

§3582(c)(2) proceeding cannot make finding inconsistent with that of the

original sentencing court. See United States v Rios, 765 F.3d 133, 138

(2nd cir 2014); See also United States v Adams, 104 F.3d 1028, 1031 (8th

cir 1997)(holding that it is implicit in a § 3582 proceeding that the"

district court is to leave all of its previous factual (decision intact)".

But "[n]othing prevents a district court from making new findings of facts

when ruling on a § 3582(c)(2) motion, so long as those findings are not

inconsistent with those made at the briginal sentencing". United States v

Davis, 682 F.3d 596, 612( 7th cir 2012). The second circuit court of

appeals retained a broad discretion in determining whether a remand for

resentencing is necessary. See Moiina-Martinez v United States, 578 U.S.

____ , _____, 136 S.ct. 1 338, 1 94 Led 2d 444, 458 (201 6).

Question II

Does words mean things and/or they have specific definitions, especially

in arguable basis either in law or in facts of a forfeited plain error

n&entencingrerfor ?

The district promulgate that "...I think clearly that 150 kilogram thres­

hold has been met" (Sentencing Trans, pg. 27, line 15-16)-as in 150 kilo­

grams

of cocaine, but not more than

150 kilograms.

^CTIS 3 > c!'r’in , oi) i- nr>r^nv^ r

O i Vs •<’’ i. O j"!T a "l* .

The Webster's universal encyclopedic dictionary (Barnes and Nobles books)

define threshold as been-"end,oBoundary;vspecifically the end of a runway"

and the merrian-webster's collegate dictionary 11th edition define met is

past tense of meet which means to confirm to especially with exactitude

and provision [a concept to--all requirements].

It'is these definitions and our abiding by uniform definitions that allow

for the rule of law--absent that--the use of arbitrary and capricious. See

Planned Parenthood v Case, 505 U.S. 833(1992).

7

There the court noted "no judicial system could do society's work if it

eyed each issue afresh in every case that raised it".

In Vermilya-Brown Co. v Connell, 335 U.S. 377, 399(1949) the court stated,

"neither should we embark upon a course of making the same naked words mean

one thing in one act and something else in another".

In Shapiro v United States, 335 U.S. 1. Fn.5(1948) the court cited Carrol,

Through The Looking Glass, Ch.6 "The question is, said Alice f I whether you

can make words mean so many different things ft’ II . (Pointing out the adsurdity

of varying definitions for the same words). AfIso see Singer v United States

323 U.S. 338, 346(1945) "...words means what they say".

Certainly the lower courts error prejudice the Petitioner and their abuse

of discretion violated his Due Process under the Fifth and fourteenth

amendment-Because the commission amended section 2D1.1(c)(1) and 2D1.1(a)

(3) of the U.S.S.G. guidelines, effectively reducingrthe base offense

level and 2) Petitioner would have received a much lower sentence determine

by the permissive of Fed. R. Crim. P. 52(b) correction of a forfeited

error, of the mathematical formula asserted herein as in 150 kilograms of

cocaine-bot not more than 150 kilograms with a strating point of five kilograms-that had affected his substantial rights of a base offense level of

34 on the U.S.S.G. table of 168 to 210 months.

CONCLUSION

For the foregoing reasons and based on the afore cited authority, Petitioner

ioner prays that this court grant certiorari to review the judgment of the

lower courts.

Respectfully Submitted

Date

enrov Mclean 61524-054

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