Petition for Writ of Certiorari — Gregory C. Raymore, Petitioner v. United States

No. _______________

IN THE

SUPREME COURT OF THE UNITED STATES

GREGORY C. RAYMORE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the U.S. Court of Appeals for the Sixth Circuit

CORRECTED PETITION FOR WRIT OF CERTIORARI FOR

DEFENDANT-APPELLANT GREGORY C. RAYMORE

Matthew M. Robinson, Esq.

Robinson & Brandt, P.S.C.

629 Main Street, Suite B

Covington, Kentucky 41011

(859) 581-7777 voice

(859) 581-5777 facsimile

Attorneys for the Appellant

assistant@robinsonbrandt.com

No. ________

IN THE

SUPREME COURT OF THE UNITED STATES

GREGORY RAYMORE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner Gregory Raymore, respectfully asks leave to file his petition for writ of certiorari

without prepayment of costs and to proceed in forma pauperis. Mr. Raymore encloses his affidavit

of indigence in support of this motion.

Dated: October 23, 2020

/s/ Matthew M. Robinson

Matthew M. Robinson, Esq.

Robinson & Brandt, P.S.C.

629 Main Street, Suite B

Covington, KY 41011

(859) 581-7777 voice

(859) 581-5777 facsimile

Counsel of Record for Petitioner

I.

QUESTIONS PRESENTED FOR REVIEW

A.

Whether Petitioner’s conviction must be vacated because (1) the indictment failed

to allege an essential element of the offense–that Petitioner knew he belonged to

the relevant category of persons barred from possessing a firearm, (2) the

government failed to present evidence at trial that Petitioner knew he belonged to

the relevant category of persons barred from possessing a firearm, and (3) the jury

was instructed that it need not find Petitioner knew he belonged to the relevant

category of persons barred from possessing a firearm, all in violation of Rehaif v.

United States, 139 S. Ct. 2191 (2019).

B.

Whether Petitioner’s convictions for aggravated robbery under Ohio Rev. Code

Section 2911.01(A)(1) and assault under Ohio Rev. Code Section 2903.13(A) are

categorically not crimes of violence under U.S.S.G. § 4B1.2.

i

TABLE OF CONTENTS

I.

Questions Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

II.

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

III.

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

IV.

Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

V.

Statement of the Basis of Jurisdiction .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

VI.

Statement of Constitutional Provisions Involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

VII.

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

VIII.

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IX.

Argument Addressing Reasons for Allowing the Writ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A.

... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B.

... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

X.

Conclusion . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

XI.

Certificate of Service. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix begins thereafter.

ii

TABLE OF AUTHORITIES

Page #

Cases:

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). . . . . . . . . . . 8

Branzburg v. Hayes, 408 U.S. 665 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Hamling v. United States, 418 U.S. 87 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Henderson v. United States, 133 S. Ct. 1121 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). . . . . . . . . . . . . . . . . . . . . . 8

Rehaif v. United States, 139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019). . . . . . . . . . . . . . . . 7, 9, 10, 11

Russell v. United States, 369 U.S. 749 (1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).. . . . . . . . . . . . . 8

United States v. Burris, 912 F. 3d 386 (6th Cir. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

United States v. Evans, 699 F.3d 858 (6th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995).. . . . . . . . . . . 8

United States v. Gioiosa, No. 90-3097, 1991 U.S. App. LEXIS 2254 (6th Cir. 1991). . . . . . . . . 10

United States v. Havis, 927 F.3d 382 (6th Cir. 2019).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Kemp, 500 F.3d 257 (3d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Mathis, 136 S. Ct. 2243 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14, 15

United States v. Medley, 972 F.3d 399 (4th Cir. Aug. 21, 2020). . . . . . . . . . . . . . . . . . . . . 6, 10, 11

United States v. Olano, 507 U.S. 725 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Parisi, 365 F.2d 601 (6th Cir. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Patterson, 853 F.3d 298 (6th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Piccolo, 723 F.3d 1234 (6th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

United States v. Rankin, 870 F.2d 109 (3d Cir. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Williams v. Haviland, 467 F.3d 527 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

iv

Statutes:

U.S. Const. Amend. V.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. Amend. VI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

18 U.S.C. § 924(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

18 U.S.C. § 3742(a)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. Ct. R. 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Crim. P. 52(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ohio Rev. Code Section 2903.11(A)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Ohio Rev. Code Section 2903.11(A)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ohio Rev. Code Section 2903.13.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

Ohio Rev. Code Section 2903.13(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Ohio Rev. Code Section 2911.01(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Ohio Rev. Code Section 2911.01(A)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 14

Ohio Rev. Code Section 2911.01(A)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ohio Rev. Code Section 2913.01.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

U.S.S.G. § 2K2.1(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

U.S.S.G. § 4B1.2 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 13

v

IV.

OPINIONS BELOW

The district court entered final judgment of conviction on July 18, 2019. See Judgment,

United States v. Raymore, 19-cr-0081 (N.D. Ohio). The United States Court of Appeals for the

Sixth Circuit affirmed the judgment in a published decision entered on July 13, 2020. United States

v. Raymore, No. 19-3703 (6th Cir. 2020). Both decisions are attached.

V.

STATEMENT OF THE BASIS FOR JURISDICTION

The district court had jurisdiction, as Petitioner was charged with crimes under the United

States Code. The Sixth Circuit had jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), as the district court entered a final judgment order, and Petitioner timely filed a notice of

appeal from the final judgment. This Court has jurisdiction under 28 U.S.C. § 1254(1), as the

Sixth Circuit rendered a final decision on July 13, 2020, and Petitioner is filing this

petition within 90 days of that ruling.

VI.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

No person shall * * * be deprived of life, liberty, or property without due process of

law * * *.

U.S. Const. Amend. V.

In all criminal prosecutions, the accused shall enjoy to right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusations; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.

U.S. Const. Amend. VI.

It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by

1

imprisonment for a term exceeding one year;

***

to ship or transport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or ammunition

which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1).

(A) No person, in attempting or committing a theft offense, as defined in section

2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense,

shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it;

(2) Have a dangerous ordinance on or about the offender's person or under the

offender's control;

(3) Inflict, or attempt to inflict, serious physical harm on another.

Ohio Rev. Code Section § 2911.01(A)(1).

(A) No person shall knowingly cause or attempt to cause physical harm to another

or to another’s unborn.

(B) No person shall recklessly cause serious physical harm to another or to another’s

unborn.

(C) (1) Whoever violates this section is guilty of assault, . . .

Ohio Rev. Code Section 2903.133

VII.

STATEMENT OF THE CASE

On February 12, 2019, a grand jury sitting in the United States District Court for the Northern

District of Ohio returned an indictment against Petitioner, charging him with being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). RE 1,

Indictment; PageID#1-2.

2

Jury trial began on April 8, 2019 before the Honorable Donald C. Nugent, and concluded on

April 11, 2019. Evidence and testimony at trial revealed that a shooting occurred during an extremely

busy night at the Our Space Lounge.1 There was a large crowd of approximately 250 people “going

in and out” of the club. RE 58, Trial Trans.; PageID#300-301, 308; RE 40 PSR¶ 9-10. The firearm

Petitioner allegedly possessed was discovered under a truck in the parking lot. RE 58, Trial Trans.;

PageID#310-311.

Petitioner was in the vicinity of the truck where the weapon was found. At the time of the

shootings, there were 75 to 100 people in the vicinity of the location of where the firearm and

ammunition was recovered by the police. RE 58, Trial Trans.; PageID#310-311. However, no

eyewitness or video evidence was presented indicating that Petitioner possessed a firearm or

ammunition at anytime during the evening. Ammunition in question was found in the back of a

Nissan Rogue. However, no evidence was presented that Petitioner had been in the vehicle on the

evening in question. The government produced DNA evidence from the weapon and ammunition

clip, which expert testimony indicated belonged to Petitioner.2

Although the defense stipulated that Petitioner had previously been convicted of a felony (RE

38; PageID#133), no evidence was presented that Petitioner knew he was prohibited from possessing

a firearm on the day of the alleged possession. With respect to the elements of the offense, the jury

was instructed:

1

Petitioner was not implicated in the shooting and the weapon allegedly possessed by

Petitioner was not the weapon used in the shooting.

2

Petitioner’s counsel moved for judgment of acquittal at the close of the government’s

case, but failed to renew the motion at the close of the defense’s case. Therefore, the Sixth

Circuit found that Petitioner had waived any argument that insufficient evidence was present to

sustain the conviction.

3

Now to establish the offense of felon in possession of a firearm and/or ammunition,

it is not necessary for the Government to prove that the Defendant knew that the

firearm and/or ammunition previously traveled in interstate commerce across the

state line, nor is the Government required to prove that at the time of the possession,

the Defendant knew that he was breaking the law. It is sufficient if you find beyond

a reasonable doubt that he knowingly possessed the firearm and/or ammunition in

commerce after being convicted of a felony offense (emphasis added).

Id; PageID#861. After deliberations, the jury returned a verdict of guilty. RE 34, Verdict;

PageID#141.

At sentencing, Petitioner was assigned a base offense level of 26 based on the allegation that

he had sustained two prior convictions for either a crime of violence. PSR ¶24; PageID#177.

Petitioner objected, citing that the Ohio crimes of aggravated robbery and assault are not crimes of

violence under U.S.S.G. § 4B1.2. Id; PageID191. The district court, Id; PageID#237-241, found that

his prior convictions qualified and that the base offense level was therefore 26. RE 57 Sentencing

Trans; PageID#237-241. Petitioner was sentenced to 110 months’ imprisonment to be served

consecutively to a 24 month sentence for a probation violation. RE 48, Judgment; PageID#215

Petitioner proceeded to the Sixth Circuit Court of Appeals. United States v. Raymore, No.

19-3703 (6th Cir. 2020). On appeal the following arguments were raised:

I.

Appellant's Motion for Judgment of Acquittal should have been granted as the

government presented insufficient evidence that Appellant violated 18 U.S.C. §

922(g).

II.

The indictment failed to allege an offense and the jury was never instructed to find

that Appellant knew he was a felon at the time he possessed the firearm.

III.

Appellant’s sentence was improperly enhanced based on the erroneous finding that

he had previously been convicted of two crimes of violence.

On July 13, 2020, the Sixth Circuit affirmed Petitioner’s conviction and sentence. United States v.

Raymore, No. 19-3703 (6th Cir. 2020).

4

VIII. STATEMENT OF FACTS

On Sunday, May 27, 2018, at 2:02A.M., officers responded to the Our Space Lounge for

crowd control due to the presence of a very large crowd. RE 40 PSR; PageID#174. Upon arrival on

the scene a fight on the south side of the building along East 29th Street was taking place. Before

officers could exit the patrol car, many in the crowd began dispersing due to what officers believed

was pepper spray being discharged into the crowd. Id.

Over the next 20 minutes, officers continued to attempt to clear the crowd. At approximately

2:20 AM, a large crowd “ between 250 and 300 people, possibly more” remained outside the Our

Space Lounge. Id. At that time, officers heard five to six gunshots in the alley running east-west

between Our Space and East 28th Street and observed an avocado-colored Kia Soul flee through the

alley at a high rate of speed. Id. Officers found Andre Hines laying on the ground with terminal

damage from gunshot wounds. Id. Officers also found Eric McCollough a few feet away, lying face

down between a vehicle and a building and suffering from a gunshot wound to the leg. Id.

A black Nissan Rogue driven by Petitioner’s sister, Pansy Raymore, was parked in the alley

next to the location where Hines fell to the ground. Id. During the evening Pansy Raymore left the

doors of the vehicle open and the radio playing as she walked around the crowd. Id. Inside the

Nissan, officers found an unspent round of ammunition, a cell phone, and a large capacity magazine

containing ammunition. Id. And a .45 caliber handgun was found under a truck parked next to the

Nissan a few feet from where the victims were found. Id.

Petitioner was located in the vicinity of the shooting and near the truck where the weapon

was found. Surveillance footage showed Petitioner, and others, in the area of the shooting both

before and after the shooting. PageID#175.

5

IX.

REASONS FOR GRANTING THE WRIT

Under Supreme Court Rule 10, the Court will review a United States Court of Appeals

decision for compelling reasons. A compelling reason exists when “a United States court of

appeals has entered a decision in conflict with the decision of another United States court of

appeals on the same important matter; has decided an important federal question in a way that

conflicts with a decision by a state court of last resort; or has so far departed from the accepted

and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s supervisory power.” S.Ct.R. 10(a).

In the instant case, the conduct charged did not constitute a federal offense because it failed

to charge that Petitioner knew he belonged to the class of individuals prohibited from possessing a

weapon under § 922(g)(1). Thus, the Indictment failed to state a 922(g)(1) offense. Consequently,

the government failed to present evidence that Petitioner knew he belonged to the relevant category

of persons barred from possessing a firearm. Further compounding this error is the fact the jury was

affirmatively instructed that it need not determine if Petitioner knew he was a prohibited felon at the

time of the possession. Thus, there was no jury determination that Petitioner was guilty beyond a

reasonable doubt of every element of the crime charged. These failures violated this Court’s decision

in Rehaif requiring that his conviction be vacated. However, the Sixth Circuit refused to find

reversible error, in contravention of this Court in Rehaif and Fourth Circuit precedent in United

States v. Medley, 972 F.3d 399 (4th Cir. Aug. 21, 2020). Because the Sixth Circuit’s decision is

contrary to Supreme Court and Fourth Circuit precedent, Petitioner asks that this Honorable Court

exercise its authority under Supreme Court Rule 10 and grant certiorari with respect to Petitioner’s

claim.

6

Next, Petitioner's convictions for aggravated robbery under Ohio Rev. Code Section

2911.01(A)(1) and assault under Ohio Rev. Code Section 2903.13(A) are categorically not crimes

of violence under U.S.S.G. § 4B1.2. Applying a categorical approach outlined in Mathis, neither of

the offenses qualify as “crimes of violence” under the Guidelines because the use of violent

purposeful force is not required for a conviction and because both statutes can be violated through

an attempt. The erroneous calculation under the Guidelines resulted in a sentence of imprisonment

that was at least 39 months higher than the properly calculated guideline range. Because the Sixth

Circuit’s decision is contrary to Supreme Court precedent, Petitioner asks that this Honorable Court

exercise its authority under Supreme Court Rule 10 and grant certiorari with respect to Petitioner’s

claim.

A.

Petitioner’s conviction must be vacated because (1) the indictment failed to

allege an essential element of the offense–that Petitioner knew he belonged to

the relevant category of persons barred from possessing a firearm, (2) the

government failed to present evidence at trial that Petitioner knew he belonged

to the relevant category of persons barred from possessing a firearm, and (3) the

jury was instructed that it need not find Petitioner knew he belonged to the

relevant category of persons barred from possessing a firearm, all in violation

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

In Rehaif v. United States, 139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019), this Court held that

in a prosecution under § 922(g), “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.” Id. at 2200 (emphasis added). In order to convict under § 922(g), the following

elements must be proved beyond a reasonable doubt: (1) a status element requiring that the defendant

knows he is a member of a class subject to § 922(g); (2) a possession element requiring knowing

possession of a firearm or ammunition; (3) a jurisdictional element requiring that the possession was

7

“in or affecting commerce”; and (4) a firearm element. 139 S.Ct. at 2195-96. In reaching this

decision the Court emphasized that “[t]he term ‘knowingly’ in § 924(a)(2) modifies the verb

‘violates’ and its direct object, which in this case is § 922(g).” Id. The Court saw “no basis to

interpret ‘knowingly’ as applying to the second § 922(g) element [on possession] but not the first [on

status]. The Court found “by specifying that a defendant may be convicted only if he ‘knowingly

violates’ § 922(g), Congress intended to require the Government to establish that the defendant knew

he violated the material elements of § 922(g).” Id. at 2196.

It is undisputed that a criminal defendant is entitled by the Sixth and Fourteenth amendments

to a jury determination that he is guilty beyond a reasonable doubt of every element of the crime with

which he is charged. United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444

(1995); Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);

Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); In re Winship,

397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)). An indictment is required to allege the

essential elements of an offense. “[A]n indictment is sufficient if it, first, contains the elements of

the offense charged; second, fairly informs a defendant of the charge against which he must defend,

and, third, enables him to plead an acquittal or a conviction in bar of future prosecutions for the same

offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Rankin, 870

F.2d 109, 112 (3d Cir. 1989); United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007).

Additionally, the Fifth Amendment requires that a grand jury only return an indictment when it finds

probable cause to support all the necessary elements of a crime. See, Williams v. Haviland, 467 F.3d

527, 531-32 (6th Cir. 2006); see also Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972) (discussing

the historical powers of the grand jury when determining whether there is probable cause that a crime

8

has been committed).

Petitioner was charged with being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). RE 1 Indictment; PageID#1-2. Section 922(g)

makes possession of a firearm or ammunition unlawful when the following elements are satisfied:

(1) a status element requiring that the defendant knows he is a member of a class subject to § 922(g)

(in this case, being a felon); (2) a possession element requiring knowing possession of a firearm or

ammunition; (3) a jurisdictional element requiring that the possession was “in or affecting

commerce”; and (4) a firearm element. Rehaif, 139 S.Ct. at 2195-96.

Accordingly, an indictment was required to charge each of these elements, the was required

to provide proof with respect to each of these elements, and the jury was required to find that the

government proved beyond a reasonable doubt that each of the elements were satisfied. However,

the indictment charged that Petitioner had previously been convicted of felony crimes, that Petitioner

possessed .45 caliber semi-automatic handgun and various rounds of ammunition, and that the

firearm and ammunition had been shipped in interstate commerce. Id. The indictment did not charge

an essential element–that Petitioner know at the time of the alleged possession that he was a member

of the class prohibited from possessing a weapon under the statute. Further, compounding this error

is the fact the jury was affirmatively instructed that the Government did not need to prove scienter,

in direct violation of Rehaif. .

An indictment must allege the essential elements of an offense. See, United States v. Parisi,

365 F.2d 601, 604 (6th Cir. 1966). An indictment is required to inform the defendant of “the nature

and cause of the accusation” as required by the Sixth Amendment of the United States Constitution.

See United States v. Piccolo, 723 F.3d 1234, 1238 (6th Cir. 1983). “[A]n indictment is sufficient if

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it, first, contains the elements of the offense charged and fairly informs a defendant of the charge

against which he must defend, and, second, enables him to plead an acquittal or conviction in bar

of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see

also United States v. Gioiosa, No. 90-3097, 1991 U.S. App. LEXIS 2254, at *8 (6th Cir. 1991) (citing

Russell v. United States, 369 U.S. 749, 763-764 (1962). Additionally, the Fifth Amendment requires

that a grand jury only return an indictment when it finds probable cause to support all the necessary

elements of a crime. See, Williams v. Haviland, 467 F.3d 527, 531-32 (6th Cir. 2006); see also

Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972) (discussing the historical powers of the grand jury

when determining whether there is probable cause that a crime has been committed).

Here, the indictment does not include language charging that Petitioner, at the time he is

alleged to have possessed a firearm, did so with knowledge that he belonged to the relevant category

of persons barred from possessing a firearm. Thus, the indictment fails to state an essential element

of the offense required by Rehaif. Because Petitioner’s indictment “failed to satisfy the notice

function of an indictment through its charging language and description of overt acts, its defects

violated [Petitioner]’s substantial rights.” United States v. Medley, 972 F.3d 399 *23 (4th Cir. Aug.

21, 2020). Furthermore, Petitioner’s substantial rights were violated by the district court's failure to

instruct the jury that it had to find Petitioner knew his prohibited status under the reasonable-doubt

standard, and the Government's failure to present sufficient evidence on that point at trial. Id *24,

30-31. “Because [Petitioner] was never put on notice that the Government had to prove he knew his

prohibited status, [Petitioner]’s knowledge of his prohibited status was orthogonal to the issues

raised at trial. Thus, any time spent before the jury challenging what was irrelevant to the case at

hand would have been futile.” Id. Accordingly, to speculate how Petitioner would defend against an

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element not at issue. Id.

Here, the Sixth Circuit found that error occurred, but that Petitioner could not satisfy the plain

error standard. App. Do. 40, Opinion, p 13-15. See, United States v. Olano, 507 U.S. 725, 732–33

(1993). The Panel found that the failure to charge the scienter element in the indictment did not

affect Petitioner’s substantial rights because he stipulated to being a felon prior to trial. Id. p. 14. The

Panel also found that the failure to instruct the jury correctly did not affect Petitioner’s substantial

rights. Id. p. 14. These finding are contrary to this Court in Rehaif and directly contrary to the Fourth

Circuit in Medley.

Petitioner’s case is nearly identical to the recent decision out of the Fourth Circuit in United

States v. Medley, 972 F.3d 399 (4th Cir. Aug. 21, 2020). In that case, the defendant was convicted

at trial of being a felon in possession of a firearm under § 922(g). The Second Circuit vacated the

conviction, finding that the failure to include the knowledge-of-status element under § 922 in

defendant's indictment is a plain error affecting the defendant’s substantial rights, and the

Government's failure to present sufficient evidence on that point at trial is also plain error affecting

defendant's substantial rights. Like the instant case, the parties stipulated that the defendant had been

convicted of a felony offense. Id. *7. Like the instant case, the government did not present any

evidence that the defendant knew he was a member of the class prohibited from possessing a firearm

at the time of the alleged possession. Id. Like the instant case, the jury was instructed that the

defendant did not need to know of his prohibited status. Id. And like the instant case, the defendant

failed to object to any of these errors. Id.

In sum, the failure to charge the essential scienter element in the indictment and the erroneous

jury charge affected Petitioner’s substantial rights. The indictment failed to state an offense because

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it omitted the element that Petitioner knew of his status at the time of the offense. Therefore,

Petitioner was unable to present a potential defense that he lacked the scienter with respect his status

as a prohibited person under § 922(g). The jury was affirmatively instructed that the government did

not need to prove Petitioner knew of his status at the time of the alleged weapon possession.

Compounding these errors, the record is absent of evidence that Petitioner knew he was a convicted

felon and therefore prohibited under § 922(g) from possessing a firearm at the time of the offense.

Under these circumstances, the failure to charge the scienter element in the indictment, the absence

of proof of the scienter element in the record, and the failure to require the jury to determine the

scienter element affected Petitioner’s substantial rights and was plain and reversible error under

Federal Rule of Criminal Procedure 52(b). Henderson v. United States, 133 S. Ct. 1121, 1124

(2013)(where the question becomes unsettled in the defendant’s favor, making the trial court’s error

“plain,” but not until a later time, that being the time encompassing appellate review, the error

remains “plain” within the meaning of the Rule).

Because the Sixth Circuit’s decision to affirm Petitioner’s conviction is inapposite to Rehaif

and directly contrary to Second Circuit precedent in Medley, certiorari should be granted and

Petitioner’s conviction must be overturned.

B.

Petitioner’s convictions for aggravated robbery under Ohio Rev. Code Section

2911.01(A)(1) and assault under Ohio Rev. Code Section 2903.13(A) are

categorically not crimes of violence under U.S.S.G. § 4B1.2, and require that

Petitioner’s sentence be vacated.

Petitioner received a large increase in his sentence because the district court found that his

previous Ohio convictions for aggravated robbery under O.R.C. § 2911.01(A) and assault under

O.R.C. § 2903.13(A) were “crimes of violence” under U.S.S.G. § 4B1.2. In the absence of this

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finding Petitioner would not receive an enhancement under § 2K2.1(a)(1) and he would have

received a sentence more than three years less than imposed by the district court.

The record reflect s that Appellant was convicted of aggravated robbery under Ohio Rev.

Code Section § 2911.01(A)3, which provides:

(A)

No person, in attempting or committing a theft offense, as defined in section

2913.01 of the Revised Code, or in fleeing immediately after the attempt or

offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it;

(2) Have a dangerous ordnance on or about the offender's person or under the

offender's control;

(3) Inflict, or attempt to inflict, serious physical harm on another.

Petitioner was also convicted for assault under Ohio Rev. Code Section 2903.13, which

provides in part:

(A) No person shall knowingly cause or attempt to cause physical harm to another

or to another’s unborn.

(B) No person shall recklessly cause serious physical harm to another or to another’s

unborn.

(C) (1) Whoever violates this section is guilty of assault, . . .

Petitioner objected at sentencing to the enhancement under U.S.S.G. § 2K2.1(a)(1) and

arguing that neither offense constituted a crime of violence under § 4B1.2. RE 40; PageID#191. The

district court denied the objection.

3

Appellant was convicted under ORC 2911.01(A)(2). See RE 40 PSR ¶35; PageID#178.

13

The Sixth Circuit court relied upon United States v. Patterson, 853 F.3d 298 (6th Cir. 2017)4

in determining Petitioner’s conviction for aggravated robbery was a crime of violence. RE 40 PSR

Addendum; PageID#191. However, the Patterson decision is distinguishable and not controlling

because it was issued prior to decisions in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) and

United States v. Burris, 912 F. 3d 386 (6th Cir. 2019), which represent supervening changes in the

law. In Burris, 912 F. 3d 386 (6th Cir. 2019), the court found that a conviction for aggravated assault

under Ohio Rev. Code § 2903.11(A)(1) was categorically not a crime of violence because the statute

provides that “[n]o person shall cause physical harm to another or to another’s unborn.” The Burris

Court found that because aggravated assault under §2903.11(A)(1) could be committed without the

use of violent force, it did not qualify under the elements clause. Id at 399-400.5

Appellant was convicted of aggravated robbery under § 2911.01(A)(1), which makes it a

crime to possess or brandish a deadly weapon in connection with a theft offense. Like the statute

address in Burris, § 2911.01(A)(1) is divisible. And like the statute in Burris, aggravated robbery

under § 2911.01(A)(1) does not qualify under the elements clause because it can be accomplished

by simply possessing a deadly weapon during the course of a theft and does not require the use of

force, such as “physical harm to another or to another’s unborn.” Id. at 399-400. However, the Sixth

Circuit found that aggravated robbery was a crime of violence under the use of force clause by

erroneously relying upon Patterson, a decision decided before the Supreme Court’s decision in

Mathis and the Sixth Circuit’s decision in Burris.

4

Holding that an offense for aggravated robbery under § 2911.01(A)(1) qualified as a

crime of violence under the use of force clause. 853 F.3d at 303.

5

The Court held the statute was divisible and only § 2903.11(A)(2) qualified as a

violent-felony predicate under § 4B1.2's elements clause.

14

Additionally, the Sixth Circuit found that Petitioner’s conviction for assault under ORC §

2903.13 was a crime of violence based on the decision in United States v. Evans, 699 F.3d 858 (6th

Cir. 2012). However, the Evans decision was issued prior to the Sixth Circuit’s decision in United

States v. Burris, 912 F. 3d 386 (6th Cir. 2019), which interpreted and applied Mathis to find that a

conviction for aggravated assault under Ohio Rev. Code § 2903.11(A)(1) was categorically not a

crime of violence. Like the statute in Burris, the offense of assault under ORC § 2903.13(A) is

categorically not a crime of violence under the elements clause. Therefore, Petitioner’s conviction

for assault under § 2903.13(A) is not a crime of violence under the Guidelines.

In sum, both ORC § 2911.01(A)(1) and § 2903.13(A) are categorically not crimes of violence

Petitioner’s sentence should never have been enhanced under § 2K2.1(a)(1). Because the Sixth

Circuit’s decision is contrary to this Court’s decision in Mathis, certiorari should be granted and

Petitioner’s sentence must be overturned.

CONCLUSION

Petitioner respectfully submits that he has demonstrated compelling reasons to grant writ

of certiorari in this case. Accordingly, certiorari should be granted.

Respectfully Submitted,

Robinson & Brandt, PSC

/s/ Matthew M. Robinson

Matthew M. Robinson, Esq.

629 Main Street, Suite B

Covington, KY 41011

859-581-7777 phone

859-581-5777 fax

assistant@robinsonbrandt.com

15

s/ Jeffrey M. Brandt

Jeffrey M. Brandt

Robinson & Brandt, P.S.C.

629 Main Street, Suite B

Covington, KY 41011

859-581-7777 phone

859-581-5777 fax

assistant@robinsonbrandt.com

CERTIFICATE OF SERVICE

The undersigned certifies that a on October 12, 2020 a true and accurate copy of Mr.

Raymore’s petition for writ of certiorari was electronically filed and was sent via U.S. Mail with

sufficient postage affixed to Assistant U.S. Attorney Scott C. Zarzycki, Office of the U.S.

Attorney, 801 W. Superior Avenue, Suite 400, Cleveland, OH 44113 and Office of the Solicitor

General, Room 5614, 950 Pennsylvania Ave., NW, Washington, D.C. 20530-0001 and a PDF

copy was emailed to the Office of the Solicitor General to SupremeCtBriefs@USDOJ.gov.

The undersigned certifies that on October 23, 2020 he electronically filed this corrected

petition and served a true and accurate copy of the foregoing via U.S. Mail with sufficient

postage affixed to Assistant U.S. Attorney Scott C. Zarzycki, Office of the U.S. Attorney, 801 W.

Superior Avenue, Suite 400, Cleveland, OH 44113 and Office of the Solicitor General, Room

5614, 950 Pennsylvania Ave., NW, Washington, D.C. 20530-0001 and a PDF copy was emailed

to the Office of the Solicitor General to SupremeCtBriefs@USDOJ.gov.

/s/ Matthew M. Robinson

Matthew M. Robinson, Esq.

Attorney for the Appellant

629 Main Street, Suite B

Covington, KY 41011

859-581-7777 phone

859-581-5777 fax

assistant@robinsonbrandt.com

16

/s/ Jeffrey M. Brandt

Jeffrey M. Brandt

Robinson & Brandt, P.S.C.

629 Main Street, Suite B

Covington, KY 41011

859-581-7777 phone

859-581-5777 fax

assistant@robinsonbrandt.com

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