Petition for Writ of Certiorari — Jose Heriberto Ramirez, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JOSE HERIBERTO RAMIREZ

— PETITIONER Pro se "petitioner"

(Your Name)

vs.

SOUTHERN DISTRICT OF TEXAS

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIOR/ iRI Tcf^ED

MAY 1 2 2020

{ SUPREME^ur^1^

FIFTH CIRUCUIT COURT OF APPEAL

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

PETITION FOR WRIT OF CERTIORARI

JOSE HERIBERTO RAMIREZ

(Your Name)

FCC-BEAUMONT-LOW, POB 26020

(Address)

Beaumont, TX 77720

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

Petitioner is challenging all Drugs Minus-Two pursuant to Title 18 U.S.C. § 3582

(c)(2). Reduction of Sentence, Petitioner is eligible to receive the two-points

under:

Dillon v. United States, 560 U.S. 817 130 S. Ct. 2683,

Uinted States v. Burrell, 622 F. 3d 961, 962 (8th Cir. 2010).

Pepper v. United States, 131 S. Ct. 1229, 1241, 179 L. Ed 196 (2011).

Whether independent review (Which was not) is an obigation for the low Court and

the Appeal Court to maintain control of and to clarify the legal principles in

question once the historical facts of case and law are established to determine

whether the facts satisfy the relevant statutory or Constitutional standards when

the rule of law as applied to the established facts is violated?

United States v. Henderson, 636 F. 3d 713; 2011 U.S. App. LEXIS 5993

United States v. Jones, 633 Fed. Appx. 259; 2016 U.S. App. LEXIS 2402

United States v. Larry, 632 F.3d 933; 2011 U.S. App. LEXIS 2369

• Alabama v. Bozeman, 533 U.S. 146, 153, (2001)

Anderson v. Yungkau, 329 U.S. 482, 485, (1947)

Dillon v. United States, 560 U.S. 817, 826, (2010)

Lexecon Inc, v. Milberg Weiss Berhad Hynes & Larach, 523 U.S. 26,

35, (1988)

In re United States ex rel. Historical Cell Site Data, 724 F.3d

600, 607 (5th Cir. 2013)

United States v. Cooley, 590 F.3d 293, 297, (5th Cir. 2009)

United States v. Doublin

572 F.3d 235,

LIST OF PARTIES

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

[ ] 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:

RELATED CASES

Dillon v. United States, 560 U.S. 817 130 S. Ct. 2683,

United States v. Burrell, 622 F. 3d'961, 962 (8th Cir. 2010).

Pepper v. United States, 131 S. Ct. 1229, 1241, 179 L. Ed 196 (2011).

United States v. Henderson, 636 F.3d 713; 2011 U.S. App. LEXIS 5993

United States v. Jones, 633 Fed. Appx. 259; 2016 U.S. App.LEXIS 2402

United States v. Larry, 632 F. 3d 933; 2011 U.S. App. LEXIS 2369

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

5

CONCLUSION

6

INDEX TO APPENDICES

APPENDIX A

Motion For Reduction Of Sentence Pursuant To Title 18 U.S.C. § 3582(c)(2)

APPENDIX B

order denied, Motion For Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2^

APPENDIX C

Opinion from the Fifth Circuit Court of Appeal

APPENDIX D

Petitioner Court transcripts

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

United States v. Henderson, 636 F.3d 713; 2011 U.S. App. LEXIS 2402

8

United States v. Jones, 633 Fed. Appx. 259; 2016 U.S. App. TEXTS 2402

2

United States v. Larry, 632 F.3d 933; 2011 U.S. App. LEXIS 2369........

6

Dillon v. United States, 560 U.S. 817 130 S. Ct. 2683, ......................

38

United States v. Burrell, 622 F. 3d 961, 962 (8th Cir. 2010).............

15

United States v. Pepper, 131 S. Ct. 1229, 1241, 179 L. Ed 196 (2011).

48

Alabama v. Bozeman, 533 U.S. 146, 153, (2001) ......................

12

Anderson v. Yungkau, 329 U.S. 482, 485, (1947) ....................

12

Lexecon Inc, v. Milberg Weiss Berhad Hynes & Larach,

523 U.S. 26, 35, (1998)

12

STATUTES AND RULES 18 U.S.C. § 3582(c)(2)

18 U.S.C. §3553(a)

21 U.S.C § 841(a)(1)

21 U.S.C. § 841(b)(1)(c)

21 U.S.C § 846

28 U. S.C. § 1291

Fed. R. App. P. 26(b)

Amendment 782

U.S.C.G. § 1B1.10

U.S.C.G.

U.S.C.G.

U.S.C.G.

U.S.C.G.

OTHER

§

§

§

§

1B1.10(a)

1B1.10(b)(1)

1B1.10(d)

2D1. 1(b)(1)

U.S.C.G. § 2D1.1(c)(8)

U.S.C.G. § 2D1.1(c)(9)

U.S.C.G. § 4A1.1(a)(a)-(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

[X] For cases from federal courts:

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

the petition and is

[ ] reported at Fifth Cirucuit Court Of Appeal

5 or,

Cxi 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

[XI 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

[ ] reported at

5 or,

[ ] 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

; or,

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

[ ] is unpublished.

1.

to

to

JURISDICTION

[X] For cases from federal courts:

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

was

[x] 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: ____________

, 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. § 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

Petitioner proceeding pro se, challenges the denial of his Motion

for reduction of his sentence

pursuant to 18 U.S.C. § 3582(c)(2)

Amendment 782 all drugs minus two, by denying Petitioner Motion

for reduction of his sentence Petitioner stated that both Courts

are violating his due process "Rights" because Petitioner are el­

igible to receive the two-points under Amendment 782 pursuant to

18 U.S.C. § 3582(c)(2).

see Appendix A, and Appendix 15

3.

STATEMENT OF THE CASE

On September 13, 2018 Ramirez filed an 18 U.S.C. § 3582(c)(2) Motion for

Reduction of Sentence, which sought the relief provided by Guideline Amend

ment 782 (ROA.

.) Eighteen days later, October 1, 2018, United States

District Judge Andrew S. Hanen (Hanen) summarily denied Ramirez's motion

(ROA. ' .) Unhappy with the Court's summary denial, on October 9, 2018,

Ramirez filed a timely Notice of Appeal (ROA. .) Unable to complete his

opening appellate brief within the 40-days filing deadline, on March 3,

2019, pursuant to Fed. R. App. P. 26(b). Ramirez requested a 30 day ex­

tension of time. Because Ramirez's requested on April 1, 2019, and the

Court gave him an April 26, 2019, filing deadline, this pro se appellate

brief now follows. This case is about whether the district court can ful

fill its duty, as mandated by the United States Supreme Court in Dillon

and by the United States Court of Appeals for the Fifth Circuit in Garcia

and determine the scope of reduction, if any, authorized by U.S.C.G. §

1B1.10 and reevaluate the applicable § 3553(a) factors to determine whether

a reduction is warranted, either in whole or in part, in response to Ramirez

§ 3582(c)(2) Motion for Reduction of Sentence, without retrieving the August

18, 2004, paper transcripts of Ramirez's May 25, 2004, sentencing hearing

from the archives and reviewing them prior to making both its determination

and reevaluation. On February 24, 2004, after a six day trial, a jury in

the United States District Court for the Southern District of Texas, Brown

ville Division, found Ramirez guilty on counts one and two of the December

2, 2003, criminal indictment (See Criminal Docket (Doc.) for case # 1:03CR-00903-1 at #95.) In count one, Ramirez was charged with conspiracy to

possess with intent to distribute a quantity more than 50 kilograms, that

is, approximately 82.25 kilograms (180.95 pounds), of marjuana in violation

of 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(C) (Doc. #1 at p.l.) And in

count two, Ramirez was charged with possession with intent to distribute

a quantity more than 50 kilograms, that is, approximately 82.25 kilograms

(180.95 pounds), of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C) and 18 U.S.C. § 2 (D0c. #1 at pp. 1-2.) The final Presentence

Investigation Report (PSR) was filed on April 27, 2004 (Doc. #171.)

Fourteen years later, September 13, 2018 Ramirez filed a § 3582(c)(2)

4

PART TO CF SMEMENT CF THE CASE

Motion for Reduction of Sentence, which sought the relief provided by

Guideline Amendment 782 (ROA.

.) In his motion, Ramirez provided that,

prior to the amendment, his total calculated offense level was 26 and

his criminal history category was IV. This produces a guideline senten

cing range of 92-115 months of federal imprisonment (ROA.

.) But after

the amendment, his amended calculated base offense level is now 24, but

his criminal history category remains at IV. This produces an amended

calculated guideline sentencing range of 77-96 months of federal im­

prisonment (ROA.

.) And after the district court reevaluates the appicable § 3553(a) factors, Ramirez asserts that a reduction to 77 months

would in no way jeoperdize the public's safety, would provied respect

for the law, and would punish him but not too great a manner (ROA.

.)

On October 1, 2018, without liberally construing Ramirez's §3582(c)(2)

Motion for Reduction Sentence and giving him an opportunity to explain ’

why the relevant § 3553(a) factors, and his post-sentencing conduct, sup

port a finding that sentence modification was warraqnted; without having

the United States Probation Office prepare a post-motion-for-reduction

report; without having the United States file a response; and without

reviewing the August 18, 2004, transcript of the May 25, 2004, sentenc

ing hearing, Judge Hannen denied the § 3582(c)(2) Motion For Reduction

of Sentence (ROA.

.) As a reason for his denial, Judge Hanen stated,

"[t]he Court has considered Defendant's Motin for Reduction of Sentence

Pursuant to Title 18 U.S.C. § 3582(c)(2) [Doc. No.236]. The Court finds

the motion should be and the same is hereby denied, because the sentence

was appropriate under the dictates of Title 18 U-.S.C. § 3553(a)"(Id.)

(emphasis added.) Unhappy with the district court's summary denial of

his •§ 3582(c)(2) Motion for Reduction of sentence, on October 9, 2018,

Ramirez filed a timely Notice of Appeal (ROA.

.) Ramirez's Notice of

Appeal was docketed by the district court on October 16, 2018 (ROA.

.) And because the August 18, 2004, transcript of his May 25, 2004,

sentencing heraing (Doc. #210) would be material to the perfection

of his appeal, Ramirez had his cousin, Eduardo Ramirez (Eduardo),

purchase a copy from the clerk of the United States District Court

for the Southern District of Texas, Brownville Division, and mail

it to him (See Ramirez's Affidavit (Aff.) at 1111 3-5.) On November

PART THREE (T SIKtEMENT CF THE CASE

30

2018, however, district court clerk Juanita Tabares told Eduardo that

because the

paper transcript had not been pulled from the archives by any

one and made available in electronic format, it was not available. Conseq

uently. On April 16, 2019, Cuauchtemoc Ramirez contacted twila Gona and

ordered the transcripts. Cuauchtemoc paid for the transcripts and mailed

them to Ramirez (Id. at Tf 6.) But the documents were returned by prison staff

(Id. at H8.)

After dealing with several procedural issues, on February 27, 2019,

Ramirez designated and requested the Record on Appeal from the district

court. The Record on Appeal includes: Docket No. 236, Motion to Reduce

Sentence^Pursuant to § 3582(c)(2) (ROA.

.); Docket No. 238, Notice of

Appeal re 236 Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2)

(ROA.

.); Docket No. 201, August 18, 2004, transcripts of the May 25, 20

04, Sentencing Hearing; and the relevant pages of the criminal Docket for

case #: 1:03-CR-00903-1 (ROA.

.)

Because the district court committed error when it failed to retrieve the

August 18, 2004, paper transcript of Ramirez's

May 25, 2004, sentencing

hearing from the archives prior to making the determination required by §

1B1.10 to determine the scope of reduction, if any, authorized by Guide

line Amendment 782 and the reevaluation required by § 3553(a) to determine

whether the reduction is warranted, either in whole or in part, under the

applicable factors in response to Ramirez's § 3582(c)(2) Motion for Reduc

tion of Sentence, it abused its discretion.

REASONS FOR GRANTING THE PETITION

The Petitioner asserts the grounds for this petition for Writ of Certiorari

is legally sufficient on its constitutional merits, and this Honorable

United States Supreme Court should invoke its powers to maintain the un

ifor.mity of law and facts with relevant decisions of this court.

5

CONCLUSION

& *

The petition for a writ of certiorari should be granted.

Respectfully submitted,

*4^ Date:

s /? /xo

6