Petition for Writ of Certiorari — Antwan Seawood, Petitioner v. United States

NO. _______________________

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IN THE

SUPREME COURT OF THE UNITED STATES

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ANTWAN SEAWOOD,

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

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On Petition For Writ of Certiorari

To The United States Court of Appeals for the Eighth Circuit

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PETITION FOR WRIT OF CERTIORARI

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Preston Humphrey, Jr.

Assistant Federal Public Defender

650 Missouri Ave.

East St. Louis, IL 62201

(618) 482-9050

QUESTIONS PRESENTED FOR REVIEW

Did the District Court abuse its discretion and violate Appellant’s Fifth and Sixth

Amendment rights by sentencing him to a term of 240 months based upon dismissed charges?

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TABLE OF CONTENTS

Question Presented for Review

Table of Contents

……………………………………………………… i

……………………………………………………………………… ii

Table of Authorities ………………………………………………………………………iii

Citation of Opinions Below ……………………………………………………………… 1

Jurisdiction

……………………………………………………………………………… 2

Constitutional or Statutory Provision Involved

…..……………………………………… 3

Statement of the Case ……………………………………………………………………… 4

Argument In Support of Writ ……………………………………………………………… 5

Conclusion

……………………………………………………………………………… 6

Appendix A United States v. Antwan Seawood, 18-3107 (8th Circuit, April 24, 2020)

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TABLE OF AUTHORITIES

U.S. Constitution

5th Amendment

……………………………………………………………… 3, 4, 5

6th Amendment

……………………………………………………………… 3, 4, 5, 6

Cases

Jones v. United States, 135 S. Ct. 8 (2014) ………...………………………..……….. 5

United States v. Watts, 519 U.S. 148 (1997) ………..……………………………….. 5

Blakely v. Washington, 542 U.S. 296 (2004) ……….……………………..………….. 6

Alleyne v. United States, 133 S.Ct. 2151 (2013) ……….……………………..……….. 6

Statutes

18 U.S.C. § 3661

……………………………………………………………….. 6

Sentencing Guidelines

§1B1.4

………………………………………………………….......... 6

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REFERENCE TO OPINIONS BELOW

United States v. Antwan Seawood, 18-3107 (8th Circuit, April 24, 2020)

1

JURISDICTIONAL STATEMENT

This court’s jurisdiction is invoked under Title 28 U.S.C. Section 1254(1).

The United States Court of Appeals for the Eighth Circuit denied Petitioner’s appeal on

April 24, 2020.

2

CONSTITUTIONAL OR STATUTORY

PROVISIONS INVOLVED

The Constitutional provisions involved are the 5th and 6th Amendments to the U.S.

Constitution.

3

STATEMENT OF THE CASE

Petitioner seeks review of the denial of his appeal from the District Court which abused its

discretion by using uncharged conduct as a factor to give an upward variance to Appellant, and,

therefore, violated Appellant’s Fifth and Sixth Amendment rights.

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ARGUMENT IN SUPPORT OF GRANTING WRIT

The dangers of acquitted and dismissed conduct sentencing were brought to light in United

States v. Jones, 744 F.3d 1362 (D.C. Cir. 2014). After trial, the defendants in this matter were

found guilty of small level drug trafficking counts despite being charged with conspiracy and high

level racketeering. The sentencing judge sentenced the defendants at much higher levels based

upon evidence of the conspiracy rather than the substantially lower level of sentence they would

have received based on the relevant conduct of the trafficking sales.

While the Supreme Court did not grant certiorari, Justice Scalia, joined by Justices Thomas

and Ginsberg, issued a dissenting opinion in the denial of certiorari. Jones v. United States, 135

S. Ct. 8 (2014). In the dissent, Justice Scalia argued that, based on Supreme Court precedent

interpreting the Fifth and Sixth Amendments decided since United States v. Watts, 519 U.S. 148

(1997), “any fact necessary to prevent a sentence from being substantively unreasonable—thereby

exposing the defendant to the longer sentence—is an element that must be either admitted by the

defendant or found by the jury. It may not be found by a judge.” Id. He wrote that the Supreme

Court’s silence regarding the constitutionality of acquitted conduct sentencing, interpreted by

lower courts as approval, had “gone on long enough” and that the Court “should grant certiorari to

put an end to the unbroken string of cases disregarding the Sixth Amendment.” Id.

Justice Scalia opined that Jones was the opportunity for the Supreme Court to settle the

issue because it was a nonhypothetical case where “not only did no jury convict these defendants

of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that

offense.”

Even though Watts provided courts with the discretion to consider acquitted conduct

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sentencing, Justice Stevens in his dissent stated, “The notion that a charge that cannot be sustained

by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so

proved is repugnant to that jurisprudence.” Watts at 170-171.

Courts may consider background, character, and conduct of the person who is to be

sentenced if it relevant to the appropriateness of a sentence relating to a conviction pursuant to 18

U.S.C. § 3661 and U.S.S.G. §1B1.4. The standard of proof for considering such conduct is

preponderance of the evidence as established under Watts. Id. at 157.

The Supreme Court over time has had to attempt to resolve conflicts between sentencing

and a defendant’s rights under the Sixth Amendment. See Blakely v. Washington, 542 U.S. 296

(2004); Alleyne v. United States, 133 S.Ct. 2151 (2013). While dismissed conduct is different

than acquitted conduct, it carries the same potential for deprivation of Sixth Amendment rights.

Though it must relate to convicted conduct, the dismissed conduct in the present situation is

particularly concerning as it was not established by a jury beyond a reasonable doubt.

CONCLUSION

The Court should grant the petition for a writ of certiorari.

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Respectfully submitted,

/s/ Preston Humphrey, Jr.

PRESTON HUMPHREY, Jr.

Assistant Federal Public Defender

650 Missouri Avenue, Room G10A

East St. Louis, Illinois 62201

(618) 482-9050

ATTORNEY FOR PETITIONER

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