Petition for Writ of Certiorari — Jose Antonio Lugo-Guerrero, aka Antonio Moraima, aka Fernando Rivera-Rodriguez, aka Alex, Petitioner v. United States

No. _____

________________________________________________

In the

Supreme Court of the United States

October Term, 2020

_______________________________________________

JOSE ANTONIO LUGO-GUERRERO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

________________________________________________________

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

______________________________________________________

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX

___________________________________________________________

Karen A. Pickett

Pickett Law Offices, P.C.

Counsel of Record

125 High Street, 26th Floor

Boston, MA 02110

(617) 423-0485

Counsel for Jose Lugo-Guerrero

QUESTIONS PRESENTED

1. Whether This Court Should Grant This Petition Because The First Circuit’s Judgment

Affirming The District Court’s Judgment Violates Mr. Lugo-Guerrero’s Fifth and Sixth

Amendment Rights To Enter A Guilty Plea Only If It Is Knowing And Voluntary.

2. Whether This Court Should Grant This Petition Because The Sentence Was Violative Of

This Court’s Opinion In Dean v. United States, 137 S.Ct. 1170 (2017).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................... ii

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF AUTHORITIES ............................................................................................. iv

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

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

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ..........................2

STATEMENT OF CASE ....................................................................................................3

REASONS FOR GRANTING THE PETITION………………………………………… 9

A. This Court Should Grant The Petition Because Mr. Lugo-Guerrero’s

Plea Was Not Knowing And Voluntary And Thus His Conviction

Violates The Fifth And Sixth Amendments…………………………………..9

B. Mr. Lugo-Guerrero Asserts Pro Se That This Court Should Grant

The Petition Because The District Court Did Not Apply

Dean v. United States, 137 S.Ct. 1170 (2017) When Sentencing Him

Under Section 924(c)(1)(A)…………………………………………………14

CONCLUSION………………………………………………………………………….15

INDEX TO APPENDICES

Appendix A: Judgment of the United States Court of Appeals For The First Circuit .......A

iii

TABLE OF AUTHORITIES

Cases

Bousley v. United States, 523 U.S. 614 (1998)………………………………………….........9

Boykin v. Alabama, 395 U.S. 238 (1969)……………………………………………………..9

Dean v. United States, 113 S.Ct. 1170 (2017)…………………………………………… 9; 14

Knight v. United States, 611 F.2d 918 (1st Cir. 1979)………………………………………..12

United States v. Ackies, 919 F.3d 190 (1st Cir 2019)……………………………………… 14

United States v. Badoni, 694 Fed. Appx. 592 (9th Cir. 2017)……………………………… 14

United States v. Benford, 875 F.3d 1007 (10th Cir. 2017)……………………………………13

United States v. Brow, 2019 App. Lexis 24429 (2nd Cir. 2019)……………………………...14

United States v. Dewalt, 92 F.3d 1209 (D.C. Cir. 1996)……………………………………..13

United States v. Delgado-Hernandez, 40 F.3d 16 (1st Cir. 2005)…………………………….10

Constitutional And Statutory Provisions

Fifth Amendment to the United States Constitution………………......................................2, 9

Sixth Amendment to the United States Constitution……………………………………….2; 9

18 U.S.C. §924(c)……………………………………………………………………… .passim

iv

No. _____

________________________________________________

In the

Supreme Court of the United States

October Term, 2020

_______________________________________________

JOSE ANTONIO LUGO-GUERRERO,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

________________________________________________________

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

______________________________________________________

Jose Antonio Lugo-Guerrero (“petitioner” or “Mr. Lugo-Guerrero”) respectfully petitions

this Court for a writ of certiorari to review the judgment of the United States Court of Appeals

for the First Circuit that affirmed the judgment of the United States District Court for the District

of Massachusetts.

OPINIONS BELOW

The judgment of the United States Court of Appeals for the First Circuit is Appendix A to

this petition.

JURISDICTION

The Judgment of the United States Court of Appeals for the First Circuit was entered on

August 28, 2020. This Court has jurisdiction under 28 U.S.C. § 1254(1). The District Court had

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jurisdiction pursuant to 18 U.S.C. § 3231, and the Court of Appeals had jurisdiction pursuant to

28 U.S.C. § 1291.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment To United States Constitution:

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

presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or

in the militia, when in actual service in time of war or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public use, without just

compensation.

Sixth Amendment To The United States Constitution:

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, which

district shall have been previously ascertained by law, and to be informed of the nature and cause

of the accusation; 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 defense.

18 U.S.C. Section 924(c):

(c)

(1)

(A)Except to the extent that a greater minimum sentence is otherwise provided by this subsection

or by any other provision of law, any person who, during and in relation to any crime of violence

or drug trafficking crime (including a crime of violence or drug trafficking crime that provides

for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device)

for which the person may be prosecuted in a court of the United States, uses or carries

a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or drug trafficking crime—

(i)

be sentenced to a term of imprisonment of not less than 5 years;

(ii)

if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii)

if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(B)If the firearm possessed by a person convicted of a violation of this subsection—

(i)

is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person

shall be sentenced to a term of imprisonment of not less than 10 years; or

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(ii)

is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm

muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

(C)In the case of a violation of this subsection that occurs after a prior conviction under this

subsection has become final, the person shall—

(i)

be sentenced to a term of imprisonment of not less than 25 years; and

(ii)

if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm

silencer or firearm muffler, be sentenced to imprisonment for life.

(D)Notwithstanding any other provision of law—

(i)

a court shall not place on probation any person convicted of a violation of this subsection; and

(ii)

no term of imprisonment imposed on a person under this subsection shall run concurrently with

any other term of imprisonment imposed on the person, including any term of imprisonment

imposed for the crime of violence or drug trafficking crime during which the firearm was used,

carried, or possessed.

STATEMENT OF THE CASE

A. Procedural History1

On November 8, 2017, the grand jury returned a First Superseding

Indictment against Mr. Lugo-Guerrero charging him with Conspiracy to Distribute and Possess

with Intent to Distribute Heroin, Fentanyl, and Cocaine in Violation of 21 U.S.C. § 846 (Count

One) and Possession of a Firearm in Furtherance of a Drug

Trafficking Crime in violation of 18 U.S.C. § 924(c). (RA 12). On July 31, 2018, Mr. LugoGuerrero filed a Notice of Intent to Plead Guilty to the two counts. (RA 18).

On August 21, 2018, the district court held a Rule 11 hearing at which Mr. LugoGuerrero pleaded guilty. (RA 8; D.E. 421). On December 3, 2018, Mr. Lugo-Guerrero was

sentenced to a term of imprisonment of 16 years. (RA 9; D.E. 498). Mr. Lugo-Guerrero filed a

Matters contained in the Appendix at the First Circuit will be designated by RA-page

number.

1

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Notice of Appeal that day. (RA 26). Judgment entered on the docket on December 7, 2018.

(RA 19).

On August 28, 2020, the United States Court of Appeals granted the Government’s

motion for summary disposition and affirmed the district court’s judgment. (Appendix).

B. Facts Relevant To Resolution Of The Petition

At the Rule 11 hearing (attended by an interpreter for Mr. Lugo-Guerrero)

held on August 21, 2018, the court held a sidebar conference at which defense counsel stated that

the Government had agreed to conduct a future proffer session with Mr. Lugo-Guerrero if he

pleaded guilty “open-ended” and if the Government “concludes that it is worthy of substantial

assistance, they will ask for a reduction at the time of sentencing. (RA 10, Docket Entry 556, p.

2). Counsel expressed that Mr. Lugo-Guerrero was “adamant about not wanting to plead unless

he had this kind of agreement.” (Id., p. 2).

The district court conducted a hearing to explore the issue. Defense counsel noted that

there had been one proffer session between the defendant and the Government. (RA 10, Docket

Entry 555, p. 2). The prosecutor represented that the “only circumstances under which I would

be willing to engage in another proffer session, consider another proffer session, would be after

the defendant pleaded guilty.” (Id., p. 4).

The district court asked Mr. Lugo-Guerrero: “Does the defendant understand that the

only thing that’s being agreed to is that they would - - that the government would meet with you

and learn what your proffer would be and that, if what you have to say is similar in kind to what

you previously said, there’s no assurance at all that the government would move offering a 5K

motion? Do you understand that?” (Id., p. 5). Mr. Lugo-Guerrero responded: “Yes.” (Id.).

After discussing with defense counsel that the Government was not required to file any

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substantial assistance motion and the only “promise” was for a meeting, the court asked Mr.

Lugo Guerrero: “Is that agreeable to the defendant?” (Id., p 8). He responded” “Well, now - no, because he went - - he told me something. He went to see me and told me something.” (Id.).

When the court addressed defense counsel about the nature of the “promise,” defense counsel

responded: “The fact is, if he complies with this and if he does what he intends to do in this case

and the government is being fair about it, he’ll get something for it.” (Id., p. 10).

The district court addressed the defendant, stated that the Government may decide not to

file a substantial assistance motion and asked: “if you’re going into this because you think so

long as you are truthful you will get this motion, there’s no such agreement. Do you understand

that?” (Id., p. 11). The defendant himself did not respond. Defense counsel detailed the nature

of the information he expected Mr. Lugo-Guerrero to provide and stated: “There’s no

circumstance under which the government could say we’re not interested in that…Now, they

may, and he understands that as well. But as a practical matter, I can’t believe that would be the

position of the government.” (Id., pp. 12-13).

The Court addressed the defendant and asked: “[D]o you understand that [the

prosecutor] has agreed to meet with you and if you - - after you plead guilty and to hear you out

and, if he thinks it appropriate to make a recommendation as to whether a substantial assistance

agreement should be entered into but that’s the only agreement you have? Do you understand

that?” (Id., p. 17). Mr. Lugo-Guerrero responded: “Yes.” (Id.). The court then said: “So when I

as in the plea agreement - - I will be asking if you have any other - - any agreement with the

United States Government. And at this point you don’t have an agreement …for a substantial

assistance agreement. All you have is an agreement with the U.S. Attorney - - assistant U.S.

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attorney to sit down and meet and hear you out? (Id., pp. 17-18). Mr. Lugo-Guerrero replied:

“Yes.” (Id., p. 18).

The district court then began the Rule 11 hearing itself. The court asked: “Do you

understand that you have no agreement with the United Sates and this - - as to this sentence

here?” (Plea Hearing Tr., p. 11). The defendant responded: “Yes.” (Id.).

The court advised Mr. Lugo-Guerrero of the charges against him explaining for the

section 924(c) charge, the Government “would have to prove that you committed the conspiracy

to distribute controlled substances as described in Count 1, and that you knowingly used or

carried a firearm during and in relation to or possessed a firearm in furtherance of the

commission of the crime. Do you understand these are the elements the government would have

to prove beyond a reasonable doubt in order for you to be found guilty at trial?” (Id., p. 14).

Mr. Lugo-Guerrero responded: “Yes.” (Id.).

When asked to provide the factual basis for the plea, concerning the firearms charge, the

prosecutor stated:

On November 3, 2016, a cooperating witness, the defendant, and four

codefendants drove in three cars from Boston to New Bedford intending to rob a drug

dealer who had stolen half a kilogram of heroin from the defendant. The cooperating

witness drove alone and, at the defendant’s direction, transported two firearms to

New Bedford and transferred one to two codefendants before the attempted robbery.

Communications regarding the incident were intercepted by law enforcement this day

and revealed the plan to rob. As a result, law enforcement officers conducted

surveillance and stopped the defendant and some of his codefendants before they

attempted to enter the target house. As a result, the defendant aborted the planned

robbery, and the participants returned to Boston.

(Id., p. 17).

The prosecutor stated that the cooperating witness “would testify that there were two

guns …that she was provided by the defendant. She brought one to Tremont Street in Boston,

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provided it to the defendant gave her back that gun and another gun to transport down to New

Bedford….” When asked whether he understood the facts, Mr. Lugo-Guerrero stated: “Yes, but

there are some things that aren’t so, you understand? The cooperator is saying things that are not

true. There are some things that are true and some things that are not.” When asked whether he

disagreed with the facts as to the transporting of the guns, Mr. Lugo-Guerrero replied: “One

weapon transported only, but the weapon was not mine. The weapon belonged to ….[others]. I

did ask him for a weapon once on one day, but I gave it back to him. And then they - - I asked

him for another weapon, and they sold it to me and I purchased it. But at that time that

attempted robbery had already passed.” (Id., p. 18). Defense counsel stated: “the weapon, as I

understand it in this case, was constructively possessed by him. He was overheard in a telephone

conversation talking about its delivery to a place where another crime was going to be

committed.” (Id.).

When asked whether he had “control over the guns that were being brought to the

attempted robbery,” Mr. Lugo-Guerrero responded that “the access which I had is that I told that for her to take it to New Bedford, for her to transport it to New Bedford…It looked as if it

was a robbery, but, in fact, I just went to see if the person would pay me that money that they

owed me because I was receiving threats because I owed money to a person. So I was in danger

because of that.” (Id., p. 21).

Mr. Lugo-Guerrero began to describe the reason he was going to New Bedford. The

court stated: “What I need to know right now is just to make sure you’re pleading guilty to using

or constructively possessing a gun in furtherance of a crime, and the crime is the conspiracy to

distribute controlled substances. So I’m trying to just make sure that you understand that is what

you’re pleading guilty to and that’s what happened, that you were carrying or using or having

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access to this gun in connection with a drug distribution conspiracy.” (Id., pp. 23-24). Mr.

Lugo-Guerrero responded: “Yes, but I never used the weapon to distribute drugs, neither did I

ever touch the weapon. I gave the order so she would take the - - transport the weapon, but I

never touched it as such. In truth, the weapon isn’t mine, although I can declare myself guilty

but that wasn’t my weapon.” (Id., p. 24).

The court then stated: “you need to have possession of the weapon…I don’t need all the

details of why you went there. I need to make sure that it was part of either distributing the

drugs or getting the money for the drugs or some part of the drug conspiracy. “(Id.). Mr. LugoGuerrero replied: “No. If I have to declare myself guilty, I’ll declare myself guilty. It doesn’t

matter.” (Id.) (Emphasis added). The court stated: “the facts don’t seem to be in dispute. He

controlled the gun…I’m trying to the other part of this crime is not just having the gun, but it is

using the gun in furtherance of the drug conspiracy charge.” (Id., p. 25). Defense counsel asked:

“Did you cause a gun to be transferred to another person for the purpose of committing a crime?”

Mr. Lugo-Guerrero replied that: “It was, for example to take care of ourselves, to collect the

money, because it wasn’t like we went to steal.” The court asked whether the money was related

to the drug sale and Mr. Lugo-Guerrero replied: “Yes.” (Id.) The court stated: “That’s what I

needed to know…based on all of that, are you, in fact, guilty of the facts charged?” (Id.) Mr.

Lugo-Guerrero answered affirmatively, and the court accepted his guilty plea.

At the sentencing hearing, Mr. Lugo-Guerrero was allowed to address the court and

detailed his discussions with the Government. He stated: “The attorney told me that if I

cooperated I was going to get something in return for the exchange. I did cooperate, and I didn’t

get anything in exchange. I did confess about my life. I did confess. I brought all of these cases

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to their attention, and I didn’t get anything in return, only death threats. My family is in

danger…” (Sentencing Tr., p. 29).

REASONS FOR GRANTING THE PETITION

This Court should grant the petition because the record establishes that Mr.

Lugo-Guerrero’s plea was not knowing and voluntarily as required by the Fifth and Sixth

Amendments. This error is particularly evident in the court’s acceptance of his plea to the

section 924(c) charge where Mr. Lugo-Guerrero was not properly advised of the elements of that

charge.

Mr. Lugo-Guerrero also asserts pro se that the district court should have considered the

burden of the 924(c) consecutive sentence when fashioning his sentence pursuant to Dean v.

United States, 113 S.Ct. 1170 (2017).

A. This Court Should Grant The Petition Because Mr. Lugo-Guerrero’s Plea Was

Not Knowing And Voluntary And Thus His Conviction Violates The Fifth And

Sixth Amendments

1. The Constitutional And Rule 11 Framework

In Boykin v. Alabama, 395 U.S. 238 (1969), this Court held that, to comport with the

requirements of the Fifth and Sixth Amendments, a guilty plea must be knowing and voluntary.

See also Bousley v. United States, 523 U.S. 614, 618 (1998) (“A plea of guilty is constitutionally

valid only to the extent that it is voluntary and intelligent.”) (internal quotations and citation

omitted).

The First Circuit has explained:

A plea does not qualify as intelligent unless a criminal defendant first receives real notice

of the charges against him, the first and most universally recognized requirement of due

process. Ensuring that the defendant understands the elements of the charges that the

prosecution would have to prove at trial is also a core concern of Rule 11. Accordingly,

Rule 11 requires that a court, before accepting a guilty plea, inform the defendant of, and

9

determine that the defendant understands the nature of each charge to which the

defendant is pleading.

Furthermore, because a guilty plea is an admission of all the elements of a formal

criminal charge, it cannot be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts. Rule 11 therefore requires a factual

basis for the plea before entering judgment. This additional procedural requirement

protects a defendant who is in the position of pleading voluntarily with an understanding

of the nature of the charge but without realizing that his conduct does not actually fall

within the charge.

United States v. Delgado-Hernandez, 420 F.3d 16, 19 (1st Cir. 2005) (internal quotations and

citations omitted).

As set forth below, Mr. Lugo-Guerrero’s plea was neither voluntary or intelligent because

the record shows that: (1) he pleaded guilty believing that his extensive cooperation would result

in a reduction in his sentence; and (2) he did not understand the nature of the section 924(c)

charge against him and did not admit to sufficient facts to allow the district court to accept the

guilty plea to that charge.

2. Mr. Lugo-Guerrero’s Plea Was Not Voluntary Or Intelligent Because The Record

Reveals That He Misunderstood The Nature Of Substantial Assistance

As an initial matter, Mr. Lugo-Guerrero notes that the Government objectively did not

“promise” anything that it did not deliver. Indeed, the Government did meet with him but did

not file a substantial assistance motion.

But the issue is whether, based on statements by counsel and the court, Mr. LugoGuerrero understood that his cooperation would not result in a reduced sentence. First, the Court

in addressing Mr. Lugo-Guerrero stated that there was no “assurance” of the Government filing a

substantial assistance motion if “what you have to say is similar in kind to what you previously

said.” (RA 10, Docket Entry 555, p. 5). Such a statement would reasonably be understood by

10

the defendant to mean that a motion would be filed if the additional information was not similar

in kind.

Second, a review of the record reveals that Mr. Lugo-Guerrero’s counsel was

encouraging the guilty plea because of counsel’s expectation that a motion would be filed. After

discussing with defense counsel that the Government was not required to file any substantial

assistance motion and the only “promise” was for a meeting, the court asked Mr. Lugo Guerrero:

“Is that agreeable to the defendant?” (Id., p 8). He responded” “Well, now - - no, because he

went - - he told me something. He went to see me and told me something.” (Id.). When the

court addressed defense counsel about the nature of the “promise,” defense counsel responded:

“The fact is, if he complies with this and if he does what he intends to do in this case and the

government is being fair about it, he’ll get something for it.” (Id., p. 10) (emphasis added).

The district court then addressed the defendant, stated that the Government may decide

not to file a substantial assistance motion and asked: “if you’re going into this because you think

so long as you are truthful you will get this motion, there’s no such agreement. Do you

understand that?” (Id., p. 11). The defendant himself did not respond. Defense counsel detailed

the nature of the information he expected Mr. Lugo-Guerrero to provide and stated: “There’s no

circumstance under which the government could say we’re not interested in that…Now, they

may, and he understands that as well. But as a practical matter, I can’t believe that would be the

position of the government.” (Id., pp. 12-13) (emphasis added).

Mr. Lugo-Guerrero’s reliance on his counsel’s belief that he would receive the benefit of

a substantial assistance motion was made clear at his sentencing where he told the court: “The

attorney told me that if I cooperated I was going to get something in return for the exchange. I

did cooperate, and I didn’t get anything in exchange…” (Sentencing Tr., p. 29).

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Although “a mere prediction by counsel of the likely, though ultimately unfulfilled,

favorable consequences of a guilty plea will not taint an otherwise valid sentence,” Knight v.

United States, 611 F.2d 918, 922 (1st Cir. 1979) (internal quotations and citation omitted), in this

case, Mr. Lugo-Guerrero asserts that counsel’s representations on the record show that his plea

was motivated by counsel’s understanding that there was a likelihood a substantial assistance

motion would be filed. It was more than a “mere prediction” and was made in open court itself.

In these circumstances, Mr. Lugo-Guerrero asserts that the district court failed to make the

requisite finding that his plea was intelligent and voluntary.

3. Mr. Lugo-Guerrero’s Plea Was Not Voluntary Or Intelligent When He Was Not

Properly Advised Of The Elements Of Constructive Possession Of A Firearm And

Did Not Admit To These Elements

In order to convict Mr. Lugo-Guerrero on the section 924(c) offense, the Government

“would have to prove at trial (1) that he committed the underlying drug-trafficking crime, (2) that

he knowingly possessed a firearm, and (3) that he did so in furtherance of the specified drugtrafficking crime.” Delgado-Hernandez, 420 F.3d at 24. Here, Mr. Lugo-Guerrero asserts that

he was not properly advised of the elements of constructive possession or “in furtherance of the

specified drug-trafficking crime,” and moreover, he did not admit to either. Both due process

under the Fifth Amendment and Rule 11 itself required the Court to determine that he understood

the “nature of each charge to which the defendant is pleading guilty,” Rule 11(b)(1)(G), and to

determine “that there is a factual basis for the plea.” Rule 11(b)(3). Here, neither happened to

support the plea to Count Two.

“Constructive possession is commonly defined as the power and intention to exercise

control, or dominion and control, over an object not in one’s actual possession.” United States v.

Zalvalda-Maldonado, 23 F.3d 4, 7 (1st Cir. 1994). Failing to instruct on the intention

12

requirement of 18 U.S.C. § 924(c) (even in light of evidence showing a defendant’s knowledge

of a firearm) has been held to be “plain error.” See United States v. Benford, 875 F.3d 1007 (10th

Cir. 2017). Here, the court never informed Mr. Lugo-Guerrero of this intent requirement - - i.e.,

that he needed to intend to exercise dominion or control over a firearm. “[A] defendant's

ignorance of the mens rea element of the offense with which he is charged renders his guilty plea

involuntary as a matter of constitutional law.” United States v. Dewalt, 92 F.3d 1209, 1211

(D.C. Cir. 1996). Moreover, “intention” cannot be presumed merely by Mr. Lugo-Guerrero’s

statement that he had “control” over the weapon. (Plea Tr., p. 19).

Similarly, although the district court did discuss that the weapon had to be possessed “in

furtherance of” the charged drug conspiracy, the nature of this element was not sufficiently

explained to Mr. Lugo-Guerrero when the district court found that “collecting money was related

to the drug sale.” (Plea Tr., p. 25). But Mr. Lugo-Guerrero stated only that the gun was brought

because of threats he had received and it was “to take care of ourselves, to collect the money,

because it wasn’t like we went to steal.” (Id.) Here, even assuming the court adequately

described the nature of the “in furtherance” element, accepting Mr. Lugo-Guerrero’s plea was

plain error because he “was…in the position of pleading voluntarily with an understanding of the

charge but without realizing that his conduct did not actually fall within the charge.” DelgadoHernandez, 420 F.3d at 28 (internal quotation and citation omitted).

In this case, based on the variety of errors in the acceptance of the plea, it cannot be said

that the plea was intelligent and voluntary. The five-year consecutive sentence on the section

924(c) especially burdened Mr. Lugo-Guerrero. The appellant asserts that without these errors,

there is “a reasonable probability that…he would not have entered the [guilty] plea.” Id.

(internal quotations and citations omitted).

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B. Mr. Lugo-Guerrero Asserts Pro Se That This Court Should Grant The Petition

Because The District Court Did Not Apply Dean v. United States, 137 S.Ct. 1170

(2017) When Sentencing Him Under Section 924(c)(1)(A)

At the First Circuit, Mr. Lugo-Guerrero was allowed to raise certain issues pro se. The

Court considered these issues and rejected them. Mr. Lugo-Guerrero has asked counsel to set

forth the following pro se argument in support of this Court’s granting this petition:

“The Court should apply plain error Rule 52(b) when Petitioner has a counsel who does

not challenge the record upon what relief should be consulted. Then the facts this caselaw would

make a significant challenged when there is reason to believe a person is subject to a lesser

included charge. Therefore at this time Dean would apply to Petitioner sentence when the facts

his sentence would be under lesser charge. Now when the facts should rely on 18 U.S.C. §

3553(a) factors for relief. It’s clear Petitioner is a first time offender and should have been held

to this disparity under Dean.

The facts are addressed upon these Circuit Court of Appeals decisions. See U.S. v.

Garner, 712 Fed. Appx. 572 (7th Cir. 2017) (Garner was charge with 21 U.S.C. § § 841(a), 846

and 18 U.S.C. § 924(c)(1)(A), then he turn to Dean v. United States, for the relief and

resentencing to follow).

Petitioner further turn to another Circuit Court opinion. See United States v. Brown, 2019

U.S. App. Lexis 24429 (2nd Cir. 2019) (Remand back under Dean v. United States). See United

States v. Badoni, 694 Fed. Appx. 592 (9th Cir. 2017) (Badoni receive his count three dismiss in

light of § 924(c)(1)(iii) being drop under Dean, following § 35553(a) factors).

Furthermore Petitioner should develop encouragement to move the court when it is was a

decision out of 1st Circuit which did not go these other circuit court ways. See United States v.

Ackies, 918 F.3d 190 (1st Cir. 2019).

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CONCLUSION

For the reasons set forth above, Mr. Lugo-Guerrero respectfully requests that this Court

grant his petition for a writ of certiorari.

Respectfully submitted,

JOSE ANTONIO LUGO-GUERRERO

By his counsel,

/s/Karen A. Pickett

_____________________________

Karen A. Pickett

Pickett Law Offices, P.C.

Counsel of Record

125 High Street, 26th Floor

Boston, MA 02110

(617) 423-0485

kpickettlaw@gmail.com

Dated: November 25, 2020

15

APPENDIX

Judgment of United States Court of Appeals For The First Circuit

16

A001