Petition for Writ of Certiorari — Clinton Devone Hicks, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Clinton Devone Hicks,

Petitioner,

v.

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Christopher Curtis

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

819 Taylor Street, Room 9A10

Fort Worth, TX 76102

(817) 978-2753

Chris_Curtis@fd.org

QUESTIONS PRESENTED

I. Whether this Court should grant review to resolve a split between the

circuits courts’ determination of whether error under Rehaif v. United States,

139 S. Ct. 2191 (2019), constitutes plain error.

II. Whether this Court should grant certiorari to determine whether 18

U.S.C. § 924(a) is unconstitutional by exceeding the scope of the commerce

clause and whether the statute requires knowledge of the interstate

commerce element?

III. Whether all facts—including the fact of a prior conviction—that

increase a defendant’s statutory maximum must be pleaded in the

indictment and either admitted by the defendant or proven to a jury

beyond a reasonable doubt?

IV. Whether the definition of “delivery” in the Texas controlled substances

statute, which includes an offer to sell includes conduct that does not qualify

as a “serious drug offense”?

ii

PARTIES TO THE PROCEEDING

Petitioner is Clinton Devone Hicks, who was the Defendant-Appellant in the

court below. Respondent, the United States of America, was the Plaintiff-Appellee in

the court below.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ ii

PARTIES TO THE PROCEEDING ............................................................................. iii

INDEX TO APPENDICES ............................................................................................ v

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY AND RULES PROVISIONS .................................................................. 1

RELATED PROCEEDINGS.......................................................................................... 3

STATEMENT OF THE CASE....................................................................................... 4

REASONS FOR GRANTING THIS PETITION ........................................................... 6

I.

This Court should grant review to resolve a split among the circuit

courts deciding whether error under Rehaif v. United States, 139 S.

Ct. 2191 (2019) constitutes plain error .............................................................. 6

II.

This Court should grant certiorari to determine whether 18 U.S.C.

§ 922(g) is unconstitutional by exceeding the scope of the commerce

clause and whether the statute requires knowledge of the interstate

commerce element? ............................................................................................. 8

III. This Court should decide whether all facts that affect the statutory

maximum must be pleaded in the indictment and proven to a jury

beyond a reasonable doubt ............................................................................... 14

IV. This Court should decide whether the definition of “delivery” in the

Texas controlled substances statute, which includes an offer to sell

includes conduct that does not qualify as a “serious drug offense” ................ 19

CONCLUSION............................................................................................................. 24

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of the Fifth Circuit, CA No. 18-11352, dated

May 15, 2019. United States v. Hicks, 770 Fed. Appx. 215 (5th Cir.

2019) (unpublished).

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas, entered October 11, 2018.

Appendix C Supreme Court order granting certiorari and remanding for

reconsideration, Supreme Court No. 19-5601. Hicks v. United States,

140 S. Ct. 1259 (2020).

Appendix D Judgment and Opinion of Fifth Circuit, on remand, CA No. 18-11352,

dated May 8, 2020. United States v. Hicks, 958 F.3d 399 (5th Cir. 2020).

v

TABLE OF AUTHORITIES

Cases

Page(s)

Alleyne v. United States, 133 S. Ct. 2151 (2013) .................................... 15, 17, 18, 19

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ................................ passim

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................... 15, 16, 17, 18, 19

Blakely v. Washington, 542 U.S. 296 (2004) ............................................................. 17

Bond v. United States, 564 U.S. 211 (2011) .............................................................. 10

Bryan v. United States, 524 U.S. 184 (1998) ............................................................ 13

Cunningham v. California, 549 U.S. 270 (2007) ................................................. 18-19

District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................. 13

Dretke v. Haley, 541 U.S. 386 (2004) ......................................................................... 16

Flores-Figueroa v. United States, 556 U.S. 646 (2009) ............................................. 13

Francis v. State, 890 S.W.2d 510 (Tex. App. 1994) .................................................. 22

Gee v. Planned Parenthood of Gulf Coast, Inc.139 S. Ct. 408 (2018) ........................ 8

Hicks v. United States, 140 S. Ct. 1259 (2020) ....................................................... 3, 5

James v. United States, 550 U.S. 192 (2007) ............................................................ 16

Liparota v. United States, 471 U.S. 419 (1985) ........................................................ 14

McFadden v. United States, 135 S. Ct. 2298 2015 ................................................... 14

Morissette v. United States, 342 U.S. 246 (1952) ...................................................... 14

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ............................. 9, 10

Nijhawan v. Holder, 129 S.Ct. 2294 (2009) .............................................................. 16

Olano v. United States, 113 S. Ct. 1770 (1993) .......................................................... 7

Rangel-Reyes v. United States, 547 U.S. 1200 .......................................................... 16

Rehaif v. United States, 139 S. Ct. 2191 (2019) ................................................. passim

Shular v. United States, 140 S. Ct. 771 (2020) ................................................... 22, 23

Staples v. United States, 511 U.S. 600 (1994) ........................................................... 13

United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013) ............................................ 9

United States v. Allen, 282 F.3d 339 (5th Cir. 2002) ................................................ 21

United States v. Burghardt, 939 F.3d 397 (1st Cir. 2019) ......................................... 8

United States v. Cain, 877 F.3d 562 (5th Cir. 2017) ................................................ 22

United States v. Dancy, 861 F.2d 77 (5th Cir. 1988) .................................................. 9

United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001) ......................................... 9

vi

United States v. Descamps, 570 U.S. 254 (2013) ...................................................... 15

United States v. Freed, 401 U.S. 601 (1971) ............................................................. 14

United States v. Gary, 954 F.3d 194 (4th Cir. 2020) .......................................... 5, 6, 7

United States v. Gomez, 905 F.3d 347 (5th Cir. 2018) ........................................... 5, 6

United States v. Hicks, 958 F.3d 399 (5th Cir. 2020) ................................ 1, 3, 5, 6, 8

United States v. Hicks, 770 Fed. Appx. 215 (5th Cir. 2019) .............................. 1, 3, 9

United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) ............................................. 22

United States v. Houston, 364 F.3d 243 (5th Cir. 2004) ........................................... 21

United States v. Kevin Ray Prentice, 956 F.3d 295 (5th Cir. 2020) ......................... 23

United States v. Lockhart, 947 F.3d 187 (4th Cir. 2020) ............................................ 7

United States v. Morrison, 529 U.S. 598, 618 (2000) ................................................. 9

United States v. Shepard, 544 U.S. 13 (2005) .................................................... 16, 18

United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017) .......................................... 22

United States v. Vickers, 540 F.3d 356 (5th Cir. 2008) ...................................... 21, 22

United States v. Wallace, 889 F.2d 580 (5th Cir. 1989) ........................................... 10

United States v. Williams, 946 F.3d 968–73 (7th Cir. 2020) ...................................... 8

United States v. Winbush, 407 F.3d 703 (5th Cir. 2005) .......................................... 21

United States v. X Citement Video, 513 U.S. 64 (1994) ........................................... 14

Statutes

8 U.S.C. § 1326 ..................................................................................................... 15, 16

18 U.S.C. § 922 .................................................................................................... passim

18 U.S.C. § 924 .................................................................................................... passim

21 U.S.C. § 802 ..................................................................................................... 14, 20

21 U.S.C. § 841 ........................................................................................................... 14

28 U.S.C. § 1254 ........................................................................................................... 1

Tex. Health & Safety Code § 481.002 ....................................................................... 20

Tex. Health & Safety Code § 481.112 ....................................................................... 20

Rules

Sup. Ct. Rule 10 ........................................................................................................... 8

Miscellaneous

1 J. Bishop, Criminal Procedure § 87, p 55 (2d ed. 1872) ........................................ 17

vii

H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted in 1986 U.S. Code Cong.

and Ad.News 1327, 1351-52 ................................................................................. 14

J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) ............ 17

W. Blackstone, Commentaries on the Laws of England 343 (1769) ........................ 17

United States Constitution

Art. I, § 8, cl. 3 ............................................................................................................ 10

U. S. Constitution, Amend. V ...................................................................................... 2

U. S. Constitution, Amend. VI .................................................................................... 2

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Clinton Devone Hicks seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is located within the Federal Appendix at

United States v. Hicks, No. 18-11352, 770 Fed. Appx. 215 (5th Cir. May 15, 2019)

(unpublished). It is reprinted in Appendix A to this Petition. The district court’s

judgement and sentence is attached as Appendix B. The opinion on remand is

published in the Federal Reporter at United States v. Hicks, 958 F.3d 399 (5th Cir.

2020) and is attached as Appendix D

JURISDICTION

The panel opinion and judgment of the Fifth Circuit on remand were entered

on May 8, 2020. On March 19, 2020, the Court extended the 90-day deadline to file a

petition for certiorari to 150 days. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY AND RULES PROVISIONS

18 U.S.C. § 922(g) provides in relevant part:

It shall be unlawful for any person – (1) who has been convicted in any

court of, a crime punishable for a term of imprisonment exceeding one

year... to ship or transport in interstate or foreign commerce, or

possess in or effecting commerce, any firearm or ammunition....

18 U.S.C. § 924(a) provides in relevant part:

(2) Whoever knowingly violates subsection...(g)... of section 922 shall be

fined as provided in this title, imprisoned not more than 10 years, or

both.

1

18 U.S.C. § 924(e)(1) provides in relevant part:

In the case of a person who violates sections 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1) of

this title for a violent felony or a serious drug offense, or both, committed

on occasions different from one another, such person shall be fined under

this title and imprisoned not less than fifteen years, and, notwithstanding

any other provision of law, the court shall not suspend the sentence of, or

grant a probationary sentence to, such person with respect to the

conviction under section 922(g).

CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United States Constitution provides

in part:

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

unless on a presentment or indictment of a Grand Jury . . . nor be deprived of

life, liberty, or property, without due process of law . . .

The Sixth Amendment to the United States Constitution provides in part:

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 wherein the crime

shall have been committed . . .

2

LIST OF RELATED PROCEEDINGS

1. United States v. Clinton Devone Hicks, 3:17-CR-0570-K(01). United States

District Court, Northern District of Texas. Judgment entered October 11, 2018.

2. United States v. Clinton Devone Hicks , Fifth Circuit No. 18-11352, opinion dated

May 15, 2019. United States v. Hicks, 770 Fed. Appx. 215 (5th Cir. 2019)

(unpublished).

3. Supreme Court No. 19-5601. Oder granting certiorari, vacating the opinion and

remanding for reconsideration (GVR) entered March 2, 2020. Hicks v. United States,

140 S. Ct. 1259 (2020).

4. United States v. Hicks, 958 F.3d 399 (5th Cir. 2020).Fifth Circuit No. 18-11352,

opinion on remand dated May 8, 2020.

3

STATEMENT OF THE CASE

Petitioner Clinton Devone Hicks pleaded guilty to two counts of possession of

a firearm in interstate commerce after having sustained a felony conviction, and

received a 180 month sentence of imprisonment. In pleading guilty, however, he

admitted neither that he knew of his felon status, nor that he knew the firearm had

moved in interstate commerce. The district court nonetheless accepted the plea.

On appeal, Petitioner argued that his conviction under 18 U.S.C. § 922(g) was

unconstitutional because it did not require knowledge of the defendant’s status as a

felon and did not require knowledge of the interstate commerce element. The

Petitioner also argued that his sentencing enhancement under 18 U.S.C. 924(e) was

unconstitutional because it did not require a grand jury indictment and proof to a

jury beyond a reasonable doubt in order to raise the statutory minimum and

maximum sentence. Hicks argued that Almendarez-Torres, 523 U.S. 224, 226-27

should be over turned. Hicks also argued that his prior convictions for delivery and

possession with intent to deliver do not qualify as “serious drug offenses” for the

purposes of ACCA because the Texas definition of “delivery” includes an offer to sell.

The court of appeals rejected all of these arguments and affirmed. See [Appx.

A]. Hicks filed a Petition for certiorari, arguing: 1) Rehaif v. United States, 139 S. Ct.

2191 (2019), required remand for reconsideration on the issue of whether 18 U.S.C. §

922(g); 2) this Court should grant review to decide whether 18 U.S.C. § 922(g)

requires proof beyond a reasonable that the defendant knew the firearm had traveled

4

in interstate commerce; 3) this Court should grant review to reconsider AlmendarezTorres; and 4) this Court should grant review to determine whether prior convictions

for delivery and possession with intent to deliver under the Texas statute qualify as

“serious drug offenses” for the purposes of the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(1).

On March 2, 2020, this Court granted certiorari, vacated the Fifth Circuit

opinion and remanded for reconsideration in light of Rehaif. See Hicks v. United

States, 140 S. Ct. 1259 (2020). On remand, the court of appeals held “[g]iven that the

facts detailed in the PSR provide ample support for the inference that Hicks knew of

his felon status when he possessed the firearms, we conclude that Hicks has failed to

show that the Rehaif error affected his substantial rights. And, in any event, Hicks

has not shown that the error ‘seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.’” United States v. Hicks, 958 F.3d at 402, quoting

United States v. Gomez, 905 F.3d 347, 353 (5th Cir. 2018). In its analysis, the Fifth

Circuit expressly rejected the Fourth Circuit’s position that the failure to ensure that

a defendant understands that knowledge of felon status is an element of an offense

under 18 U.S.C. §922(g) is structural, constitutional error that may lead to reversal

even absent a showing of prejudice. See id. at 401, citing United States v. Gary, 954

F.3d 194, 207-208 (4th Cir. 2020).

5

REASONS FOR GRANTING THIS PETITION

I. This Court should grant review to resolve a split between the circuit

courts’ determination of whether error under Rehaif v. United States, 139

S.Ct. 2191 (2019), constitutes plain error.

On remand, the court of appeals held “[g]iven that the facts detailed in the PSR

provide ample support for the inference that Hicks knew of his felon status when he

possessed the firearms, we conclude that Hicks has failed to show that

the Rehaif error affected his substantial rights. And, in any event, Hicks has not

shown that the error ‘seriously affect[ed] the fairness, integrity, or public reputation

of judicial proceedings.’” United States v. Hicks, 958 F.3d at 402, quoting United

States v. Gomez, 905 F.3d 347, 353 (5th Cir. 2018). In its analysis, the Fifth Circuit

expressly rejected the Fourth Circuit’s position that the failure to ensure that a

defendant understands that knowledge of felon status is an element of an offense

under 18 U.S.C. §922(g) is structural, constitutional error that may lead to reversal

even absent a showing of prejudice. See id. at 401, citing United States v. Gary, 954

F.3d 194, 207-208 (4th Cir. 2020).

In the Fourth Circuit, post Rehaif, the court of appeals stated, “we independently

find the error is structural on the ground that fundamental unfairness results when

a defendant is convicted of a crime based on a constitutionally invalid guilty plea.

Gary waived his trial rights after he was misinformed regarding the nature of a §

922(g) offense and the elements the government needed to prove to find him guilty.

6

Indeed, under the provisions of § 922(g) ‘the defendant’s status is the “crucial

element” separating innocent from wrongful conduct.’” United States v. Gary, 954

F.3d at 206, quoting Rehaif v. United States, 139 S. Ct. at 2197.

In finding that the third prong of plain error review was satisfied in the case of

Rehaif error, the Fourth Circuit further stated, “[r]egardless of evidence in the record

that would tend to prove that Gary knew of his status as a convicted felon, it is in the

interest of justice that Gary knowingly and intelligently ‘engag[e] in the calculus

necessary to enter a plea on which this Court can rely in confidence.’” Id. at 207,

quoting United States v. Lockhart, 947 F.3d 187, 197 (4th Cir. 2020).

Regarding the fourth prong of plain error the court in Gary held, “[a]ccordingly,

the integrity of our judicial process demands that each defendant who pleads guilty

receive the process to which he is due. It is the duty of the court to ensure that each

defendant who chooses to plead guilty enters a knowing and voluntary plea.” Id.at

207-208. “We therefore hold that the district court’s erroneous acceptance of a

constitutionally invalid guilty plea ‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” Id. at 208, quoting Olano v. United States, 113 S.

Ct. 1770, 1777 (1993).

In Hicks’ case on remand for reconsideration, the Fifth Circuit joined the

Seventh Circuit in holding that “even though due process concerns are implicated

when a defendant claims that a Rehaif error rendered his guilty plea unknowing and

involuntary, the defendant satisfies plain error review only if he shows that there is

a reasonable probability that he would not have pled guilty had he known of Rehaif.”

7

United States v. Hicks, 958 F.3d at 401-402, citing United States v. Williams, 946

F.3d 968, 972–73 (7th Cir. 2020); see also United States v. Burghardt, 939 F.3d 397,

403 (1st Cir. 2019).

Accordingly, there is a strong division between the circuit courts as to what

has to be shown to satisfy the plain error standard of review as it relates to Rehaif

error. See Sup. Ct. Rule 10(a); and Gee v. Planned Parenthood of Gulf Coast, Inc.139

S. Ct. 408 (2018) (Justice Thomas dissenting from denial of certiorari). “One of this

Court's primary functions is to resolve ‘important matter[s]’ on which the courts of

appeals are ‘in conflict.’” Id. at 408 (Justice Thomas dissenting).

This Court should grant review to resolve the division between the circuit

courts.

II. This Court should grant certiorari to determine whether 18 U.S.C. §

922(g) is unconstitutional by exceeding the scope of the commerce clause

and whether the statute requires knowledge of the interstate commerce

element?

Petitioner Clinton Devone Hicks pleaded guilty to two counts of possession of

a firearm in interstate commerce after having sustained a felony conviction, and

received a 180 month sentence of imprisonment. In pleading guilty, however, he did

not admit that he knew the firearm had moved in interstate commerce, nor was he

advised that was an element of the offence. The district court nonetheless accepted

the plea.

On direct appeal, Hicks argued that his conviction under 18 U.S.C. § 922(g)

was unconstitutional because it did not require knowledge of the interstate commerce

element. Hicks also argued that § 922(g) is unconstitutional because it allows for a

8

conviction based upon the firearm in question merely traveling from one state to

another at some undisclosed point in time and without the knowledge of the

defendant. The court of appeals rejected these arguments based upon previous

precedent. “Hicks concedes that his interstate commerce argument is foreclosed

by United States v. Alcantar, 733 F.3d 143, 145-56 (5th Cir. 2013). His argument

challenging the constitutionality of § 922(g) is foreclosed by United States v.

Daugherty, 264 F.3d 513, 518 (5th Cir. 2001). Finally, his mens rea argument is

foreclosed by United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988).” United

States v. Hicks, 770 Fed. Appx. 215, 216 (5th Cir. 2019)

Does the interstate commerce element, as interpreted by the Courts

violated the Commerce Clause?

In our federal system, the National Government possesses only limited powers;

the States and the people retain the remainder.” Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566, 2577 (2012) (Roberts. C.J.) (plurality op.). Powers outside those

explicitly enumerated by the Constitution are denied to the National Government.

See id. at 2577 (“The Constitution's express conferral of some powers makes clear

that it does not grant others.”) (Roberts. C.J.) (plurality op.). There is no general

federal police power. See United States v. Morrison, 529 U.S. 598, 618 619 (2000).

Every exercise of Congressional power must be justified by reference to a particular

grant of authority. See Nat’l Fed’n of Indep. Bus., 132 S. Ct. at 2578 (Roberts. C.J.)

(plurality op.) (“The Federal Government has expanded dramatically over the past

two centuries, but it still must show that a constitutional grant of power authorizes

each of its actions.”) A limited central government promotes accountability and

9

“protects the liberty of the individual from arbitrary power.” Bond v. United States,

564 U.S. 211, 220 (2011). The Constitution grants to Congress a power to “regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes.” Art. I, ' 8, cl. 3. But this power “must be read carefully to avoid creating a

general federal authority akin to the police power.” Nat’l Fed’n of Indep. Bus., 132 S.

Ct. at 2578 (Roberts. C.J.) (plurality op.).

The phrase “in and affecting commerce” is defined by Fifth Circuit precedent

to include a situation where the firearm crossed state lines at some unspecified point

in the past unrelated to the defendant or his or her present possession, and, according

to this Circuit, the statue does not require that the defendant purchased the firearm,

or possessed it in connection with any manner of commercial transaction. See, United

States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989). As so interpreted, the Fifth

Circuit still has held that 18 U.S.C. § 922(g) does not exceed Congress’s power to

regulate interstate commerce. See id. at 583. But the opinion of five Justices in Nat’l

Fed’n of Indep. Bus. v. Sebelius casts serious doubt on that conclusion. Five Justices

in that case concluded that the power to regulate commerce does not include the

power to compel commerce. See id. at. 2586 (Roberts, C.J.) (plurality op.); id. at. 2642

(Scalia, .J., dissenting). The inescapable conclusion is that to fall within the commerce

power, federal action must not merely affect commerce, it must act directly on a

commercial activity. After all, the failure of individuals to purchase health insurance

- at issue in NFIB - surely affected interstate commerce. See id. at. 2642 (Scalia, .J.,

dissenting) (“Failure to act does result in an effect on commerce . . .”) But because

10

inaction was not a commercial act, it was beyond the power of Congress to prohibit.

Similarly, mere possession of a firearm that may have crossed state lines years ago

is not a commercial act. It does not involve the purchase or sale of any commodity.

Certainly, possession of such a firearm does not amount to an act of interstate

commerce.

The factual basis for the guilty plea in the factual résumé states only that the

“firearm was manufactured outside of the State of Texas and it traveled to Texas.”

(ROA.36,37). Thus, there is an insufficient factual basis to establish a valid federal

offense within the constitution. If this conduct violates 18 U.S.C. § 922(g), that statute

violates the commerce clause facially and as applied.

This Court should grant review to determine whether the interstate commerce

element of 18 U.S.C. § 922(g), as applied by the courts, violates the Commerce Clause.

Does §§ 922(g) and 924(a) require knowledge of the interstate

commerce element?

Section 924(a) of Title 18 provides for criminal punishment to anyone who

“knowingly violates subsection ... (g).” In Rehaif v. United States, 139 S.Ct. 2191 (June

21, 2019), this Court held:

We conclude that in a prosecution under 18 U.S.C. §922(g) and § 924(a)(2), the

Government must prove both that the defendant knew he possessed a firearm

and that he knew he belonged to the relevant category of persons barred from

possessing a firearm. We express no view, however, about what precisely the

government must prove to establish a defendant’s knowledge of status in

respect to other § 922(g) provisions not at issue here.

Id. at 2200.

11

Of course, Hicks’ case was remanded to the Fifth Circuit to address the issue

of whether Hicks conviction violated Rehaif because Hicks was not properly advised

of the elements of the offense and did not stipulate to knowledge of his status. Hicks

re-urged on remand all of his issues from his initial appeal, but those were not

revisited by the court of appeals. See Appendix D. Again, this Court in Rehaif

specifically declined to address the mens res issue as it relates to the interstate

commerce element. See Rehaif v. United States, 139 S. Ct. at 2200.

In 1986, Congress passed the Firearms Owners Protections Act [FOPA]. A

major thrust of this legislation was to alter the previous federal criminal law

governing firearms by explicitly doing away with strict liability or quasi strict liability

for offenses. Thus, Congress added the requirement in 18 U.S.C. § 924, that for a

person to be liable for punishment, the government must prove that the person either

willfully or knowing violated the relevant section of § 922(g). The explicit language of

the relevant statute in this case allows the government to punish “[w]hoever

knowingly violates subsection . . . (g) . . . of 922 . . . .” (Emphasis added.) The statute

simply does not punish whoever “knowingly possesses a firearm” if that person

happens to be a felon. Nor does the statute punish whoever “knowingly possesses a

firearm” if the firearm possession happens to be in or affect interstate commerce. It

punishes “whoever knowing violates” the statute.

Knowing possession of a weapon is obviously not by itself a crime. The statute

requires a knowing violation of § 922(g). Thus, by the plain words of the statute, the

defendant must know these three things: that he is a felon, that he possessed a

12

weapon, and that the possession of the weapon was in or affecting interstate

commerce.

This Court has held that the knowing violation requirement in 18 U.S.C. § 924

requires the government to prove that the defendant did have “knowledge of the facts

that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193 (1998) Yet

again, in Flores-Figueroa v. United States, 556 U.S. 646 (2009), following a line of

cases, the Court held that when a statute requires the government to prove the

defendant acted knowingly, it must proof he knew the facts that made his conduct a

federal offense. Id. at 650-57 1891. In Staples v. United States, 511 U.S. 600, 618-19

(1994), the Court held that, even when a statute has no explicit “knowing” element,

the government must prove that a defendant had knowledge of “the facts that make

his conduct illegal.”

In Staples, this Court noted that there is a “presumption that a defendant must

know the facts that make his conduct illegal” which “should apply” especially where

the alternative is that the statute “would require the defendant to have knowledge

only of traditionally lawful conduct. . . .” Id. Here, the knowing possession of a firearm

is not only traditionally lawful conduct, it is a fundamental right. See District of

Columbia v. Heller, 554 U.S. 570, 602 (2008). Also, the Supreme Court noted that the

“severe penalty” of a potential 10-year sentence suggested that Congress did not

intend to jettison the usual requirement that the defendant know the facts that make

his conduct illegal. See, Staples, 511 U.S. at 618. In this case, the maximum penalty

for a § 922(g) case can be up to life, if enhancements apply. See 18 U.S.C. § 924(e).

13

Further support is found in McFadden v. United States, 135 S. Ct. 2298 2015),

McFadden construed 21 U.S.C. § 841(a)(1) (the Controlled Substances Act, or “CSA”)

as incorporated by 21 U.S.C. § 802(32)(A) (the Controlled Substance Analogue

Enforcement Act of 1986, or “Analogue Act”); United States v. X Citement Video, 513

U.S. 64, 72 (1994); Liparota v. United States, 471 U.S. 419, 423 (1985); and Morissette

v. United States, 342 U.S. 246, 273 (1952).

Congress explicitly stated that the government must prove the defendant knew

the facts and circumstances that constitute the offense. “It is the Committee’s intent,

that unless otherwise specified, the knowing state of mind shall apply to

circumstances and results.” H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted

in 1986 U.S. Code Cong. and Ad.News 1327, 1351-52. As noted above, a major thrust

of the FOPA was to completely alter the gun laws to abolish or alter the perceived

“strict liability” created by the absence of any scienter requirement in the statute,

and by the Supreme Court’s decision in United States v. Freed, 401 U.S. 601, 609

(1971).

Accordingly, this Court should grant review to determine whether the

knowingly mens res applies to the interstate commerce element.

III. This Court should reconsider Almendarez-Torres v. United States.

Petitioner was subjected to an enhanced statutory maximum under 18 U.S.C. §

924(e) because the district court found that his prior controlled substances convictions

subjected Hicks to the Armed Career Offender Act (ACCA), which enhances the

statutory range of punishment from 0-to-10 years to a mandatory minimum 15 years

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to any number of years. Petitioner’s sentence thus depends on the judge’s ability to

find the existence and date of a prior conviction -- as well as whether that prior

conviction qualified as a “serious drug offense” -- and to use that conviction to increase

the statutory maximum. This power was affirmed in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), which held that the enhanced maximums of 8 U.S.C.§

1326 represent sentencing factors rather than elements of an offense, and that they

may be constitutionally determined by judges rather than juries. See AlmendarezTorres, 523 U.S. at 244. The ruling in Almendarez-Torres, has been applied to the

sentencing enhancements in 18 U.S.C. § 924(e) despite the fact that Justice Thomas

pointed out the ACCA enhancement runs afoul of Apprendi v. New Jersey, 530 U.S.

466 (2000). See United States v. Descamps, 570 U.S. 254, 280 (2013) (“The only reason

Descamp’s ACCA enhancement is before us is ‘because this Court has not yet

reconsidered Almendarez-Torres v. United States (citation omitted), which draws an

exception to the Apprendi line of cases for judicial fact finding that concerns a

defendant’s prior convictions.”).

This Court, has repeatedly limited Almendarez-Torres. See Alleyne v. United

States, 133 S. Ct. 2151, 2160 n.1 (2013) (characterizing Almendarez-Torres as a

narrow exception to the general rule that all facts that increase punishment must be

alleged in the indictment and proved to a jury beyond a reasonable doubt); Descamps

v. United States, 570 U.S. at 280 (Thomas, J., concurring) (stating that AlmendarezTorres should be overturned); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

(stressing that Almendarez-Torres represented “a narrow exception” to the

15

prohibition on judicial fact-finding to increase a defendant’s sentence); United States

v. Shepard, 544 U.S. 13 (2005) (Souter, J., controlling plurality opinion) (“While the

disputed fact here can be described as a fact about a prior conviction, it is too far

removed from the conclusive significance of a prior judicial record, and too much like

the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly

authorizes a judge to resolve the dispute.”); Dretke v. Haley, 541 U.S. 386, 395-396

(2004) (concluding that the application of Almendarez-Torres to the sequence of a

defendant’s prior convictions represented a difficult constitutional question to be

avoided if possible); Nijhawan v. Holder, 129 S.Ct. 2294, 2302 (2009) (agreeing with

the Solicitor General that the loss amount of a prior offense would represent an

element of an 8 U.S.C. §1326(b) offense, to the extent that it boosted the defendant’s

statutory maximum).

Further, any number of opinions, some authored by Justices among the

Almendarez-Torres majority, have expressed doubt about whether it was correctly

decided. See Apprendi, 530 U.S. at 490; Haley, 541 U.S. at 395-396; Shepard, 544 U.S.

at 26 & n.5 (Souter, J., controlling plurality opinion); Shepard, 544 U.S. at 26-28

(Thomas, J., concurring); Rangel-Reyes v. United States, 547 U.S. 1200, 1201

(Stevens, J., concurring in denial of certiorari); Rangel-Reyes, 547 U.S. at 1202-1203

(Thomas, J., dissenting from denial of certiorari); James v. United States, 550 U.S.

192, 231-232 (2007) (Thomas, J., dissenting). And this Court has also repeatedly cited

authorities as exemplary of the original meaning of the constitution that do not

recognize a distinction between prior convictions and facts about the instant offense.

16

See Blakely v. Washington, 542 U.S. 296, 301-302 (2004) (quoting W. Blackstone,

Commentaries on the Laws of England 343 (1769), 1 J. Bishop, Criminal Procedure §

87, p 55 (2d ed. 1872)); Apprendi, 530 U.S. at 478-479 (quoting J. Archbold, Pleading

and Evidence in Criminal Cases 44 (15th ed. 1862) , 4 Blackstone 369-370).

In Alleyne, this Court applied Apprendi’s rule to mandatory minimum

sentences, holding that any fact that produces a higher sentencing range—not just a

sentence above the mandatory maximum—must be proved to a jury beyond a

reasonable doubt. 133 S. Ct. at 2162–63. In its opinion, the Court apparently

recognized that Almendarez-Torres’s holding remains subject to Fifth and Sixth

Amendment attack. Alleyne characterized Almendarez-Torres as a “narrow exception

to the general rule” that all facts that increase punishment must be alleged in the

indictment and proved to a jury beyond a reasonable doubt. Id. at 2160 n.1. But

because the parties in Alleyne did not challenge Almendarez-Torres, this Court said

that it would “not revisit it for purposes of [its] decision today.” Id.

The Court’s reasoning nevertheless demonstrates that Almendarez-Torres’s

recidivism exception may be overturned. Alleyne traced the treatment of the

relationship between crime and punishment, beginning in the Eighteenth Century,

repeatedly noting how “[the] linkage of facts with particular sentence ranges . . .

reflects the intimate connection between crime and punishment.” Id. at 2159 (“[i]f a

fact was by law essential to the penalty, it was an element of the offense”); see id.

(historically, crimes were defined as “the whole of the wrong to which the law affixes

[ ] punishment … include[ing] any fact that annexes a higher degree of punishment”)

17

(internal quotation marks and citations omitted); id. at 2160 (“the indictment must

contain an allegation of every fact which is legally essential to the punishment to be

inflicted”) (internal quotation marks and citation omitted). This Court concluded that,

because “the whole of the” crime and its punishment cannot be separated, the

elements of a crime must include any facts that increase the penalty. The Court

recognized no limitations or exceptions to this principle.

Alleyne’s emphasis that the elements of a crime include the “whole” of the facts

for which a defendant is punished seriously undercuts the view, expressed in

Almendarez-Torres, that recidivism is different from other sentencing facts. See

Almendarez-Torres, 523 U.S. at 243–44; see also Apprendi, 530 U.S. at 490 (“Other

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”). Apprendi tried to explain this difference by pointing

out that, unlike other facts, recidivism “‘does not relate to the commission of the

offense’ itself[.]” 530 U.S. at 496 (quoting Almendarez-Torres, 523 U.S. at 230). But

this Court did not appear committed to that distinction; it acknowledged that

Almendarez-Torres might have been “incorrectly decided.” Id. at 489; see also Shepard

v. United States, 544 U.S. 13, 26 n.5 (2005) (acknowledging that Court’s holding in

that case undermined Almendarez-Torres); Cunningham v. California, 549 U.S. 270,

291 n.14 (2007) (rejecting invitation to distinguish between “facts concerning the

offense, where Apprendi would apply, and facts [like recidivism] concerning the

18

offender, where it would not,” because “Apprendi itself … leaves no room for the

bifurcated approach”).

Three concurring justices in Alleyne provide additional reason to believe that

the time is ripe to revisit Almendarez-Torres. See Alleyne, 133 S. Ct. at 2164

(Sotomayor, Ginsburg, Kagan, J.J., concurring). Those justices noted that the

viability of the Sixth Amendment principle set forth in Apprendi was initially subject

to some doubt, and some justices believed the Court “might retreat” from it. Id. at

2165. Instead, Apprendi’s rule “has become even more firmly rooted in the Court’s

Sixth Amendment jurisprudence.” Id. Reversal of precedent is warranted when “the

reasoning of [that precedent] has been thoroughly undermined by intervening

decisions.” Id. at 2166.

The validity of Almendarez-Torres is accordingly subject to reasonable doubt.

If Almendarez-Torres is overruled, the result will obviously undermine the use of

Petitioner’s prior convictions to increase his statutory maximum. His sentence of 180

months imprisonment and a three-year term of supervised release would exceed the

statutory maximum of ten years which would have applied absent the court-found

enhancement.

IV. This Court should grant review to determine whether the

definition of “delivery” on the Texas Controlled Substance statute,

which includes an offer to sell, includes conduct that does not qualify

as a “serious drug offense”

This Court should grant review to determine whether the definition of

“delivery” under the Texas controlled substance statute, by including the term “offer

to sell” is too broad to qualify as “serious drug offense.

19

ACCA provides for an enhanced penalty – a 15 year mandatory minimum and

a maximum of life imprisonment – when the defendant has committed three or more

“serious drug offenses.” 18 U.S.C. §924(e). It defines the term “serious drug offense”

as either: (1) an offense prosecuted under one of three specified federal drug statutes

or (2) “an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance (as

defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), for which

a maximum term of imprisonment of ten years or more is prescribed by law.” 18

U.S.C. §924(e)(2)(A). The Petitioner raised this issue in the district court and the

court overruled the objection. See (ROA.101).

The statute defining two of Petitioner’s prior drug offenses prohibits

“possess[ion] with intent to deliver a controlled substance.” See Tex. Health & Safety

Code §481.112(a). The same statute prohibits the “delivery” of a controlled substance

– two more of Appellant’s convictions arose from an allegation and admission of

“delivery.” See Tex. Health & Safety Code §481.002(a). The word “deliver,” however,

is further defined by §481.002(8) of the Texas Health and Safety Code to include

“offering to sell a controlled substance.” See Tex. Health & Safety Code §481.002(8).

Thus, Petitioner’s statute of conviction authorized a guilty verdict upon proof that he

merely possessed a controlled substance with intent to offer it for sale, or that he

offered a controlled substance for sale, even if he did not possess any controlled

substance. That conduct does not satisfy the definition of a “serious drug offense.”

20

On its face, ACCA identifies only four acts that will trigger its provisions:

manufacturing, distributing, possession with intent to distribute, and possession

with intent to manufacture. It does not name offers for sale, nor possession with

intent to offer a drug for sale. Because ACCA requires a “categorical approach” that

evaluates the breadth of the defendant’s statute of conviction rather than his conduct

(see United States v. Allen, 282 F.3d 339, 342 (5th Cir. 2002)), the provision may be

applied only if the statute’s “least culpable means” of commission fall within the

definition of a “serious drug offense.” United States v. Houston, 364 F.3d 243, 246 (5th

Cir. 2004).

In United States v. Vickers, 540 F.3d 356 (5th Cir. 2008), the Fifth Circuit held

that the Texas offense of delivering a controlled substance by offering it for sale

constituted a “serious drug offense” under ACCA. Citing United States v. Winbush,

407 F.3d 703 (5th Cir. 2005), the Vickers panel defined the term “involving” to mean

“related to or connected with.” See Vickers, 540 F.3d at 365–366. It reasoned that the

breadth of this term reflected a Congressional intent to reach certain acts of

trafficking that do not equate precisely to distribution, manufacture, or possession

with intent to distribute or manufacture. Id. Specifically, the Fifth Circuit understood

the provision to “reach those who intentionally enter the highly dangerous drug

distribution world.” Id. A defendant who offers drugs for sale, the panel reasoned,

enters the drug marketplace as a purported seller, even if he does not actually possess

any drugs. See id. The panel reasoned that such people show a propensity for violence

21

that makes them an appropriate target for enhanced punishment when they later

possess guns. See id.

The Fifth Circuit, for the purposes of the career offender guidelines, has clearly

recognized that the Texas definition of “delivery,” by including an offer to sell, does

not qualify as a drug trafficking crime. See United States v. Hinkle, 832 F.3d 569,576

(5th Cir. 2016); and United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017), as

supplemented, 854 F.3d 284 (5th Cir. 2017).

In fact, the court in Vickers recognized “[t]he intentional offer to sell a

controlled substance is the crime; the accused need not have any drugs to sell or even

intend ever to obtain the drugs he is purporting to sell.” United States v. Vickers, 540

F.3d at 365, citing Francis v. State, 890 S.W.2d 510, 513 (Tex. App. 1994) (statute

requires neither possession nor actual/constructive transfer of a controlled substance

at the time of an offer to sell). Nevertheless, the Fifth Circuit has continued to follow

the precedent followed in Vickers. See United States v. Cain, 877 F.3d 562 (5th Cir.

2017).

In his original Petition, filed in this Court on August 13, 2019, Hicks argued

that this Court should grant review to determine whether the Fifth Circuit has

misapplied ACCA’s definition of “serious drug offense” to include offers to sell.

On February 26, 2020, this Court decided Shular v. United States, 140 S. Ct.

771 (2020). Shular, conclusively rejects the expansive connotations of Vickers and

Cain. To count as a serious drug offense under Shular, a state offense must require

proof of conduct—its elements must include either manufacture, distribution, or

22

possession with intent to manufacture or distribute. The Texas statute includes a

definition of “deliver” that includes offers to sell even when there is no intent to sell

the drugs in question, and even when there is no possession of a controlled substance.

The Texas statute simply does not require proof of conduct that falls within the

definition “serious drug offense” under the ACCA. On February 26, 2020, Hicks filed

a supplemental petition with this Court citing Shular in support of this argument.

This is an excellent vehicle for this Court to grant review. This issue was

preserved in the district court, the court of appeals below, and was presented to this

Court in Hicks’ original petition. Hicks also raised the argument that Shuler had

overruled Vickers in his supplemental petition. Moreover, the Fifth Circuit has

already delivered an opinion in which the court misapplied Shuler to reject the

argument Hicks is now asserting. See United States v. Kevin Ray Prentice, 956 F.3d

295, 300 (5th Cir. 2020). 1 This case implicates the utmost due process concerns and

future application of ACCA in countless criminal cases.

This Court should grant review to determine whether the Fifth Circuit

has misapplied ACCA’s definition of “serious drug offense” to include offers to

sell.

1 Notably, part of the reasoning relied in Prentice was that the appellant’s two serious drug offenses

were possession with intent to distribute of a controlled substance. Two of Mr. Hicks’ predicate serious

drug offenses were for actual deliveries – offenses that can be committed by an offer to sell even when

a defendant did not even have or possess any controlled substance.

23

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 2nd day of October, 2020.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Christopher A. Curtis

Christopher Curtis

Assistant Federal Public Defender

Federal Public Defender's Office

819 Taylor Street, Room 9A10

Fort Worth, Texas 76102

Telephone: (978) 767-2746

E-mail: Chris_Curtis@fd.org

Attorney for Petitioner

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