Petition for Writ of Certiorari — Zacharias Christopher Lee, Petitioner v. United States

No.

Sn The

Supreme Court of the Anited States

ZACHARIAS CHRISTOPHER LEE

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Denzil H. Forrester

Counsel of Record

DENZIL H. FORRESTER, ATTORNEY-AT-LAW

3325 Washburn Avenue, Suite 103 RECEIVED

Charlotte, NC 28205

(704) 682-9992 — Telephone APR 2.0 2021

(704) 632-9969 — Facsimile SUPAEME COURT

denzilfesq@aol.com

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

206 East Cary Street # P.O. Box 1460 ¢ Richmond, VA 23218

804-249-7770 ¢ www.gibsonmoore.net

I.

QUESTIONS PRESENTED FOR REVIEW

THE FOURTH CIRCUIT’S DECISION FINDING

REASONABLENESS IN THE SENTENCE IMPOSED BY THE

DISTRICT COURT IS CONTRARY TO THE FIFTH AMENDMENT

DUE PROCESS CLAUSE FOR IT DEPRIVES PETITIONER OF

LIBERTY WITHOUT DUE PROCESS BY OPEN AND NOTORIOUS

MANIPULATION OF DISCOVERY INFORMATION AND USE OF A

CONFIDENTIAL SENTENCING DOCUMENT AGAINST THE

DEFENDANT.

THE FOURTH CIRCUIT’S DECISION IS CONTRARY TO THE SIXTH

AMENDMENT WHICH REQUIRES DEFENDANTS TO: HAVE

IMPARTIALITY; HAVE COMPULSORY PROCESS; BE INFORMED

OF THE NATURE AND CAUSE OF THE ACCUSATION; AND HAVE

ASSISTANCE OF COUNSEL.

PARTIES TO THE PROCEEDING

The parties to this proceeding are Petitioner Zacharias Christopher Lee and

the United States of America.

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...0......cccccccscsscessesseesceseencesceneesceseeseeneenesees 1

PARTIES TO THE PROCEEDING... cceccccsssteseseceeeeseeeeeeeeeeeeeeseaeeeeeeeeeeeeeeeseeeteeeeneeees il

TABLE OF CONTENTS... ceeceeesccesecesceesseeeeceeenecenseseesceseseeeesseecseeesaeesseeseeeessseeenes ill

TABIEE OF AUPTEO RAE ES Iecnomssesenscneonenxieascein iadsanssnnmnencennenncennceeenecenencacenssaasaceadeas Vv

OPINIONS BELOW. gssccssssvccassvcusssessnsagasnsceaessenenersnneroesnsesesesncansesessesersonnrenepsenereeatonnenynas 1

JURISDICTIONAL STATEMENT wscsissnvessvescsvscussvocssceccccrwecvsresswussusciamervassexneweninistsnsatte 1

CONSTITUTIONAL PROVISIONS... cee eeceeseeeeseeseeesseeeeeneeseneeesaesesesenseeseeeeesenseeaees 1

STATEMENT OF THE CASE.Q.u. eee eeeccsseeceeeceseceeeeeeeeeseeesececsneceseeeeseesenssscessuesseenaees 2

REASONS WHY THE WRIT SHOULD BE GRANTED... cccccessceseeseeseeseseeeneees 5

I. THE FOURTH CIRCUIT'S DECISION FINDING

REASONABLENESS IN THE SENTENCE IMPOSED BY THE

DISTRICT COURT IS CONTRARY TO THE FIFTH

AMENDMENT DUE PROCESS CLAUSE FOR IT DEPRIVES

PETITIONER OF LIBERTY WITHOUT DUE PROCESS BY

OPEN AND NOTORIOUS MANIPULATION OF DISCOVERY

INFORMATION AND USE OF A _ CONFIDENTIAL

SENTENCING DOCUMENT AGAINST THE DEFENDANT .............. 5

for All wsscssssssacaiccsosswasecensecéss casesens'y acesauaneceueseCoues Coats cGGee Wa USSa eS ECRRS SSSI SEU TRES 5

Pervasive and Subtle Presumptions Wrongly Superseded

Safeguards in this Matter ..............:cccccsesesseceeeeseeeeersesececeecesesecseeceeseeecens 7

Government’s Burden of Preponderance Was Not Carried

logically yet Legally it was Sufficient and that is an Example of

Pervasive and Subtle Presumption ..............cccccccesesesseseeeceeeesseeeeeeeesesees 8

The Process in this Matter was not what was Due to Petitioner......... 10

Appellant Should be able to Rely on Facts Supplied by the

Government sisssscessssstensasenaesseccarsseasasuwaiwauscanueadaweseuaeapeacainsg Ccuasncepuccensis 10

il

II. THE FOURTH CIRCUIT'S DECISION IS CONTRARY TO THE

SIXTH AMENDMENT WHICH REQUIRES DEFENDANTS

TO: HAVE IMPARTIALITY; HAVE COMPULSORY PROCESS;

BE INFORMED OF THE NATURE AND CAUSE OF THE

ACCUSATION; AND HAVE ASSISTANCE OF COUNSEL ............4. 11

Reliance on Discovery was Misconstrued as Refuting Acceptance

Of Responsibility .............cccceseeeesesececceceeeeceeeeeeececeseeeeessceececeeenseeceeeseeeneeees 11

Acceptance of Responsibility in Other Jurisdictions ................ss000000000+ 16

Presumption of Reasonableness should not be warped.............s:eeesee 18

The Ruling will Negatively Influence the Attorney-client

Relationship .............cccccccscsesesssnssnsnscceceececeeseeceeeeseeseseneseneuscuanangaauseneceeenees 21

CONCLUSIO Nosicsncncsanerancennnnecensienaomensnnauntavniineesentsevaienatsiieseaineanaeneeekeniaicatiiee viwKeknwnenans 24

APPENDIX:

Unpublished Opinion,

U.S. Court of Appeals for the Fourth Circuit,

entered September 22, 2020. -cisssccissscesessacsecessvsececcssstecdsctscsessessoovssetens App. A

Judgment,

U.S. Court of Appeals for the Fourth Circuit,

entered September 22, 2020. ..........cccccceceececeeeeeeeeeeeeeeeeeseenseeeseneeeeeeenes App. B

Opinion Denying Rehearing,

U.S. Court of Appeals for the Fourth Circuit,

entered November 17, 2020. ...........cccccssesseecceeceeseeseeseneeeseeeceeeeeeeeeeeeees App. C

lv

TABLE OF AUTHORITIES

Page(s):

Cases:

Brady v. Maryland,

373 U.S. 83, 83 S. Ct.1194, 10 L. Ed. 2d 215 (1968)... cece eeees 11, 17, 18

Davis v. Board of School Comms of Mobile County,

517 F.2d 1044 (5th Cir. 1975), cert. denied,

425 U.S. 944, 96S. Ct. 1685, 48 L.E d. 2d 188(1976)...........:ccccceeseeeeeneceeeeeereee 20

Flowers v Mississippi,

139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019) .......cccccccecssessssecceeecesssescsseeseseseeteeerens 20

Gall v. United States,

552 U.S. 38, 128 S. Ct. 589 (2007)... eessesceeccceesssneceeecessserssecssseeneees 8, 15, 18

Lafler v.Cooper,

566 U.S. 156, 1382 S. Ct. 13876, 182 L. Ed. 2d 398 (2012)... ce eeeeeeeeeeeeerees 8

Lamon v. Boatwright,

AGT F.3d 1097 (7th Cir, 2006) ...........ccsseseeeeesssesseeseesessssreeasececeeseeeseseseneecececeeeeeeee 23

Liteky v. United States,

510 U.S. 540, 1148S. Ct. 1147, 127 L. Ed. 2d 474 (1994)... eeeeeeeeeeeeee 20

Mickens v. Taylor,

535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)... eee 22-23

Patterson v. New York,

432 U.S. 197, 97S. Ct. 2319, 53 L. Ed. 2d 281 (1977) .....cccccccccccseceeeceecesencseeees 18

Pena-Rodriguez v. Colorado, 137 8. Ct. 855, 879, 197 L. Ed. 2d 107, 85 WSLW4071

Rita v. United States,

551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 208 (2007)...........0cccceeeeee 8, 15, 18

Rosales-Lopez v. United States,

451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981)... cece eececeeeeeeeeeeeees 19

State v. Goodwyn,

596 F.3d 233 (4th Cir. 2010)ksscsccususascsasccsssossansnssasseactoaucascsssscsiessvenceaacssccesmsceacusesundonsboves 9

United States v. Barber,

80 F.3d 964 (Ath Cir, 1996) .cccccscccscsscssecsscssessucssesseessecerssuesuesseesussucsnesavecsessaeenven 19

United States v. Caro,

597 F.3d 608 (4th Cir. 2010) oo... ceeeseesesssseceevecececceccceessceussseeseeceeeeeseeeess 11,19

United States v. Carreon,

11 F.3d 1225 (5th Cir, 1994) oc. eecsccsececeececececeeeceseseeeeessesensesesnsenensueseseseeeees 18

United States v. Castner,

5O F.3d 1267 (4th Cir, 1995) .o..cccccccessccssscesscesceessccesscesecessceeseeseeeneeecseeeeeeceaceecenseenseeeees 6

United States v. Dimas,

3 F.3d 1015 (7 Cir, 1993) ...cccccecsecsescssssscseccsessecsecsseesecsscssecsecsacsacesessecsevecaveseeees 17

United States v. Gonzalez-Lopez,

548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006).............ccceeesseeeeeeeeees 22

United States v. Graf,

610 F.3d 114 (9th Cir. 2010) scxsssssssssssssssissspsicsssnesscensisiacesssasnesveansicivasscsissvivcesesies 12

United States v. Johnson,

592 F.8d 164 (D.C. Cir. 2010) ooo. ccececeessseeeeeeeeeeeecececeeeeeeeeeeeeeeeceeseeeceeeeees 16

United States v. Nixon,

418 U.S. 683, 94S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)... ee eeccesesesereeeereees 5,7

United States v. O'Conner,

64 F.3d 855 (8th Cir, 1995)... ececccscccccccccescecssssnsenscseccseuccccseceeessssescersesseseceees 17

United States v. Sanmina Corporation,

968 F.3d 1107 (9t8 Cir, 2020) 0.0... ccceseesseseeseenceneaeececeeceneeceeeeeceeseeesessesenseeeees 12

United States v. Smith,

77 F.8d 511 (D.C. Cir, 1996) oo ecececeeeceeeeeceeecececeeeeeeeeeeeeeeeeeeeseeeeeneeeeeeeees 17

United States v. Trevino,

89 F.3d 187 (Ath Cir, 1996) ...ccccccccsssececcssecsssssssecssssecsssssuecesssuecssssusscsessecesssusssessensueeessnees 6

United States v. Wade,

388 U.S. 218, 87S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) oo... eeeeeeseeeeeeeeee 8

United States v. Wood,

57 F.3d 733 (9 Cir. 1995) .........cccccceeeseecessesseerecseensesnscnenscececeeeeeeeceeeeeseeeereeeeeeee® 18

United States Dep’t of Justice v. Julian,

486 U.S. 1, 108 S. Ct. 1606, 100 L. Ed. 2d 1 (1988)... eeeeseeseeseneeeeeeeeers 7

vi

Upjohn Company v. United States,

449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) woo eeceeeeeeeeeeeteneeeeeens 22

Wardius v. Oregon,

412 U.S. 470, 93S. Ct. 2208, 37 L. Ed. 2d 82 (1978)... ceecceeeeeeeeeeeeeees 13, 14

Williams v. Florida,

399 U.S. 78, 90S. Ct. 1893, 26 L. Ed. 2d 446 (1970) 0... eecceeeeseseseseeeeeeee 14

Constitutional Provisions:

U.S. Const. amend. Vu... cccceceesessseceesessneeeesssneeeessaceeeeseaeeeseeneeeeesessaeeeeneaeenseeeeseeteeeeeteeees 1

U.S. Const. amend. V1 wisssssssvescscascccrssecanccdassnctancstiacianecssstaciascassisstaweneeccsnencccsvsstsssauacies 1

Statutes:

18 U.S.C. § 922(2)(1) sssnsssscusssnarasarexcasvsasenncatacueusnnnaveaseavsawantenvecosowasetensastiasseteucinucsexenasaess 2

2B U.S.C. § 1254 (1) cccecceccscsceccsceccersnecccenessusssecceccuscnecsucsareeussusenecnessescucsuseneccnsenvesueecueeneees 1

Rule:

Fed. R. Crim. P. 32(€)(8)(A) ....ceceeeesseeeseseeeeeeeeceeececeeeeeeeeseseeteeseeeseeeseeeeceesnacseeeeeeeeseeeeenes 7

Sentencing Guidelines:

U.S.S.G. § 2K2.1(b)(1)(A )ssvsssascscasesnassaseynaaasconaessccsessmasveveatesvcatasssseusstecsactwadseiencsetsnescasves 5

U.S.S.G. § 2K2.1(b)(6)(B) snssssseoncasssssussansessnnicmennsassninssvonsantenssasucssonseneussenasnvensevenssssonss 2, 8

U.S.S.G. § BELL) ...eeeeceeseceeeeesceessseeeneseeeeaesenseseeeeesesnseseaueeeeasesesnaeeeersesenseeeeesereassenes 2,8

UE.S.G. § 3E1.1(d) sssccsuscnssssssavsiincuicgsssisenntisbanekswaniech saicsbacnnehssiasaapitist adeuduecseuibaneassaaasuarapeise 8

vil

OPINIONS BELOW

The Unpublished Opinion and Judgment of the United States Court of

Appeals for the Fourth Circuit in United States v. Zacharias Christopher Lee dated

September 22, 2020, affirming Petitioner’s conviction and sentence are reprinted as

Appendix A and B. The Order Denying Rehearing dated November 17, 2020 is

reprinted as Appendix C.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Fourth Circuit affirmed the

Petitioner’s conviction and sentence on September 22, 2020. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

1. The Fifth Amendment to the United States Constitution provides as

follow:

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

infamous crime, unless on a presentment of 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 public danger; nor shall

any person be subject for the same offence 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.

2. The Sixth Amendment to the United States Constitution provides as

follow:

In all criminal prosecution 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 witness against

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

and to have the assistance of counsel for his [defense].

STATEMENT OF THE CASE

Petitioner, Zacharias Christopher Lee (“Lee”) is the sole defendant named in

a one-count Bill of Indictment filed in the Western District of North Carolina,

Charlotte Division, on June 20, 2018. Lee was charged with and subsequently

convicted of Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. §

922(g)(1).

Lee expressly accepted responsibility for possession of the firearm. In the

Presentence Investigation Report (“PSR”) Lee received a three-point reduction in

offense level for acceptance of responsibility, U.S.S.G. § 3E1.1(a). See, (App.146,

147.) Lee filed objections to the PSR denying possession of the firearms in

connection with another felony, U.S.S.G. § 2K2(b)(6)(B). Lee had a resulting

criminal history category of IV; his total offense level was set at 19. See, (App. 147.)

That projected a United States Sentencing Guidelines (U.S.SG.) range for

imprisonment at a minimum of 46 months to a maximum of 57 months. (App. 153.)

The government contested the objections of Lee and his reduction for acceptance of

responsibility. The government made no mention of the third person by name. The

sentencing recital was framed as if Lee was the only one who could have assisted

Hopkins, the admitted thief, with the larceny of the “approximately four” stolen

guns. See, (brief of appellee 2, 9.) and (App. 164).

There are discrepancies between the following: the testimony of the testifying

taskforce agent; a fire department report; the law enforcement report; and discovery

images. JA 119-122. A report lists Hopkins as wearing a red hooded sweatshirt and

blue jeans. JA 119. A report lists Lowery as wearing a “grey hoodie” with blue

sleeves and hood. See, (App. 120.) And the taskforce agent’s original testimony is

congruent with Hopkins wearing a red hooded sweatshirt and blue jeans. JA 119.

The person questioning the witness on direct examination was allowed to change

said witness’ testimony, notwithstanding timely objection from Lee.

At the time of his arrest, Lee was sitting in a parked car with two other Black

males at approximately 7:00 a.m., on March 26, 2018. Minutes later uniformed

members of the Charlotte-Mecklenburg Police Department (“CMPD”), in marked

police cruisers, responded to a call for a suspicious vehicle check. They discovered

three young men in the parked car. Lee was in the driver’s seat; he was

apprehended at the scene. (App. 17, 118, 122.) The other two individuals fled on

foot to successfully elude arrest on March 26, 2018. They are Dalton Hopkins who

was seated in the back seat and Janard “Johnson” Lowery. (App. 119.) Lowery was

in the front passenger seat wearing a gray hooded sweatshirt. (App. 118.) Janard

Lowery gave a responding officer the fictitious surname of Johnson. (App. 122.) Lee,

a felon, was found to be in possession of a firearm, located under the car after he

placed it there. (App. 122.) A total of two firearms were located about the car that

day. The second gun was located in the back seat where Hopkins sat before exiting

the car. (App. 122.) The firearms were taken from fire stations throughout

Charlotte, North Carolina, during an approximately 24-hour period. Reportedly, a

total of four or approximately four firearms were stolen. However, only two were

recovered from the vehicle check when Lee was arrested. See (App. 76, 174.) Lowery

fled with a backpack. JA 122. See (App. 76.)

Lee had large visible holes, identifying marks on his blue jeans. (App. 117,

125.) At sentencing the government called one witness, Detective Riggs of CMPD to

testify concerning identification. He was not a responding officer to any of the crime

scenes. There was no direct testimony that the witness saw Lee at the fire stations.

(App. 72.) Detective Riggs’ knowledge was based on: reading his fellow officers’

reports; reviewing videos and his memory. (App. 59, 60, 66, 72-73.) Detective Riggs

was not specific as to identifying details of the personal features of the suspects or

their clothing. He testified to seeing two Black males with similar clothing. From

viewing the videos he remembers seeing two Black males; one of them wearing a

red hooded sweatshirt, blue jeans and white tennis shoes. The second Black male

was wearing a hooded sweatshirt and what appeared to be blue jeans. (App. 60.)

The Charlotte Fire Department report lists the clothing and a description: a

Nomex fire hood which was Carolina blue in color; face exposed and brown boots.

(App 121.)

The district court believed the detective made a positive identification of the

suspects based on similar clothing, the identical stolen firearms and damage to the

right front end of the motor vehicle. JA 79, 80, 84, 117.

REASONS WHY THE WRIT SHOULD BE GRANTED

I, THE FOURTH CIRCUIT'S DECISION FINDING REASONABLENESS IN

THE SENTENCE IMPOSED BY THE DISTRICT COURT IS CONTRARY

TO THE FIFTH AMENDMENT DUE PROCESS CLAUSE FOR IT

DEPRIVES PETITIONER OF LIBERTY WITHOUT DUE PROCESS BY

OPEN AND NOTORIOUS MANIPULATION OF DISCOVERY

INFORMATION AND USE OF A CONFIDENTIAL SENTENCING

DOCUMENT AGAINST THE DEFENDANT.

Faith in the System Rests on Immutable Facts

Being Consistent for All

Zacharias Christopher Lee petitions this Court for redress of the Fourth

Circuit’s decision dated November 17, 2020. The reasons are based on the following

grounds: a lack of procedural and substantive due process. The soundness of the

criminal justice system rests on the public having complete faith in the collection,

dissemination and recognition of tangible information as being genuine. “The very

integrity of the judicial system and public confidence in the system depend on full

disclosure of all the facts, within the framework of the rules of evidence. To ensure

that justice is done it is imperative to the function of courts that compulsory process

be available for the production of evidence needed either by the prosecution or by

the defense.” United States v. Nixon, 418 U.S. 683, 709, 94S. Ct. 3090, 41 L. Ed. 2d

1039 (1974). Clear identification of color of clothing is not a discretionary matter.

That particular fact relied on by the district court to render the sentence in this

matter was altered in open court. The ends of criminal justice would be defeated if

judgments were to be founded on partial or speculative presentation of facts. Id.

The district court referenced approximately four stolen firearms. See, (App.

91.) To enhance, the Guidelines requires four or more, U.S.S.G. § 2 K2.1(b)(1)(A).

See, (App. 146.) The Panel Decision focused on the fact that the district court would

render the same ruling, which is tantamount to saying identity does not matter. That is

questionable because comprehensive information was submitted to the sentencing court

on January 2, 2020, which objectively refutes the inserted testimony of the prosecutor

on December 17, 2019. See, (App. 108, 119.) On January 16, 2020, the criminal

judgment was published. There were three individuals at the arrest scene and only two

suspects are said to have been involved in the “other related felony;” exact identification

is paramount in this case. (App. 118.)

A preliminary issue is the use of a non-codefendant’s PSR. Hopkins, a defendant

in another case, admitted he was at the scene of the larcenist behavior. We know that

because the district court used Hopkins’ confidential PSR without prior notice to Lee.

Privately selected parts of Hopkins’s PSR should not have been read and used by the

sentencing court against Lee’s. As such the Fourth Circuit was without adequate

factual findings for effective appellate review. United States v. Castner, 50 F.3d 1267,

1277 (4th Cir. 1995). Specifically, Hopkins’s PSR could not have been: subpoenaed by

Lee; seen by Lee; objected to by Lee; nor accepted by Lee, due to the privilege of

confidentiality owed to Hopkins and his attorney. The principal function of the PSR is to

assist the district court in imposing an appropriate sentence on the criminal defendant

who is the subject of the report. United States v. Trevino, 89 F.3d 187, 190 (4% Cir.

1996). “In both civil and criminal cases the courts have been very reluctant to give third

parties access to the presentence report prepared for some other individual or

individuals...[a]ecordingly, the courts have typically required some showing of special

need before they will allow a third party to obtain a copy of a presentence report.”

U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 12, 108 S. Ct. 1606, 1613, 100 L. Ed. 2d 1

(1988). If the court does rely on another person’s PSR it must summarize the

information and give the defendant a reasonable opportunity to comment. Fed. R.

Crim. P. 32(c)(3)(A).. Lee was ambushed at the sentencing hearing with sparse

information about Hopkins’ PSR. He was not given a reasonable opportunity to

review the document and then respond to its content.

Apparently, the sentencing court believed Hopkins’ PSR was privileged.

When ground for asserting executive privilege as to subpoenaed materials sought

for use in criminal trial is based only on generalized interest in confidentiality, it

cannot prevail over fundamental demands of due process of law in fair

administration of criminal justice. Nixon at 718. Lee contends the sentencing

court’s adoption of the confidential document for use against him lacked the

safeguards of constitutional due process. The district court actions place Lee in a

situation wherein he was blindly contesting information, only, the sentencing court

and the government had access to before the hearing. Therefore, Lee’s sentencing

courts findings are contrary to the rudimentary practice of due process and

traditional notions of fairness.

Pervasive and Subtle Presumptions Wrongly

Superseded Safeguards in this Matter

Lee denies involvement in any larceny. Neither the district court nor the

government explained why the other suspect, Lowery, could not have been Hopkins’

partner in the larcenies. Identity is material in this matter and positive

identification is paramount for it increased Lee’s term of imprisonment, pursuant to

U.S.S.G. § 2K2.1(b)(6)(B) of the Guidelines in addition to the three-point increase

for allegedly not accepting responsibility, U.S.S.G. §§ 3E1.1(a) and U.S.S.G. §§

3E1.1(b).. A deferential abuse-of-discretion standard should have deduced error in

the approximation of the number of firearms and in the color of clothing worn.

Therefore, a failure in the affirming decision indicates a flaw in the algorithm or

calculation of the reviewing process. The optics makes it appears like the

reviewing court just reflexively treated the sentencing decision as procedurally

sound. This show of presumption is antithetical to the seminal decisions on

sentencing. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 589, 597 (2007), Rita

v. United States, 551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007).

Government’s Burden of Preponderance

Was Not Carried logically yet Legally it was Sufficient

and that is an Example of Pervasive and Subtle Presumptions

Additionally, a defendant has a right to have the government prove its case

at all critical stages in the process. United States v. Wade, 388 U.S. 218, 228, 87S.

Ct. 1926, 1983, 18 L. Ed. 2d 1149 (1967). The sentencing hearing is a critical state

of the process. Lafler v.Cooper, 566 U.S. 156, 180, 1382 S. Ct. 1876, 1394, 182 L. Ed.

2d 398 (2012). The district court should have offered Lee the ability to confront

Hopkins. That opportunity was necessary once the sentencing court intended to

impute Hopkins’ assertions in his PSR against Lee. After all, Hopkins is a felon

who was not crossed examined and had good reason to conceal the actions of a third

individual, his friend Lowery. See, (App. 67, 77.) Meaning identification should not

be left to the discretion of the Court, especially when it contradicts law enforcement’s

genuine testimony. See, (App. 63-64.) The presiding Court is never a witness in a matter

it is hearing. When appropriate the district court is allowed to supplement evidence by

judicial notice. Said fact must be common knowledge in the community, like immutable

constants in life or a past factual event.

There is error in the district court’s factual findings, because there is a primary

distinction between the color red and the color blue. The report listed Dalton Hopkins as

wearing a red hooded sweatshirt and blue jeans. See, (App. 119.) However, over objection

by the defense, the prosecutor was allowed to summarily change what was written in the

police report via live testimony. See, (App. 63-64, 119.) The arbiter’s factual and legal

findings were contrary to common knowledge and established moniker for colors. In the

district court’s ruling on the post sentencing motion, the sentencing court never

addressed the revelation of the police report. See, (App. 126.) The matter was resolved by

stating the district court was without authority to do so because of the ruling in a 2010

case, State v. Goodwyn, 596 F.3d 238, 235 (4% Cir. 2010). JA.126. Lee finds this Court’s

ruling in 2017 to be instructive. The decision highlighted that fairness in the trial process

would not take a backseat to a trier of fact reliance on predisposition. Pena-Rodriguez v.

Colorado, 137 S. Ct. 855, 879, 197 L. Ed. 2d 107, 85 WSLW4071 (2017). This Court found

the Sixth Amendment interests are more profound than the long standing noimpeachment rule. Lee likens Pena-Rodriguez to this case because Sixth Amendment

interests should take priority over the faulty evidentiary ruling of the sentencing court

and a bar the change of color by the government. JA.63. To the extent the district court

was not aware traditional notions of fairness outranks extraneous information, this Court

should take a look at the full record of this case. Lee posits the entire legal system will be

more fully informed when jurors and judges are careful in limiting deliberations to the

information from the witness stand.

The Process in this Matter was not what was Due to Petitioner

The government failed to call: law enforcement with knowledge of the situation,

the responding officers. Officer Riggs the only witness for the government left his notes.

See, (App. 66.) The government failed to give the district court a comprehensive view of

the facts. The district court failed to rule on a more comprehensive view of the fact.

Therefore, the Panel decision does not adequately address the issues in this matter. In

this matter due process under the law means reliance on a fair hearing before deprivation

of liberty. Fundamental fairness means inconsistent testimony, approximately four

firearms and blue versus red, should be weeded out by the arbiter of the facts for being

less than a preponderance of sufficient evidence.

Appellant Should be able to Rely on Facts Supplied by the Government

In this matter color difference clearly demonstrates faulty factual finding of the

district court and coercion of the police witness, yet the Fourth Circuit affirmed the

sentencing court by stating Lee continued to deny the truth. (per curiam opinion at p.65.)

However, the history of this matter indicates the truth is based on what the prosecution

deems it to be. The history of this case demonstrates the government’s truth is based on

shoddy investigation and no follow-up investigation. Even giving the government the

benefit of the doubt, that they were ignorant of the discrepancy between red and blue in

the report; they had knowledge to correct the faulty supposition when the taskforce officer

testified according to the fact in the report. Additionally, the government could have

10

acceded to the sentiments in the post sentencing motion. See, (App. 108.) The

government has failed to acknowledge the truthful revelation.

Lee relying on the police report is not tantamount to shirking responsibility.

A petitioner’s counsel may proffer good faith legal arguments. Using discovery

provided by law enforcement is not a failure to accept responsibility. If that is the

appropriate practice going forward then the practical effect is an evisceration of the

seminal ruling in Brady v. Maryland, (infra) regarding dissemination of exculpatory

information. The government should not circulate to the defense, ostensibly

favorable information for the accused, that the government believes is false. In this

matter the government should have extrapolated that the petitioner would have

been accused of contemptuous behavior when he relied on said information to object

to the Guidelines enhancements. Fundamental fairness is not allowing a tautology

wherein the government has a win-win situation to the defense’s lose-lose situation.

IJ. THE FOURTH CIRCUIT’S DECISION IS CONTRARY TO THE SIXTH

AMENDMENT WHICH REQUIRES DEFENDANTS TO: HAVE

IMPARTIALITY; HAVE COMPULSORY PROCESS; BE INFORMED OF

THE NATURE AND CAUSE OF THE ACCUSATION; AND HAVE

ASSISTANCE OF COUNSEL.

Reliance on Discovery was Misconstrued as

Refuting Acceptance of Responsibility

The government distributed information that suspect number two of three,

Dalton Hopkins, was seen wearing a red hooded sweatshirt and blue jeans about

the time of the crime. See, (App. 119.) There is no general constitutional right to

discovery in a criminal case. United States v. Caro, 597 F.3d 608 (4% Cir. 2010).

Brady v. Maryland, 373 U.S. 88, 83 S. Ct.1194, 10 L. Ed. 2d 215 (1963). However,

11

once discovery has been disseminated the recipient should be able to rely on its

accuracy. In this matter Lee relied on discovery information to his detriment. The

government changed the identifying colors listed in the police report via a testifying

taskforce agent, of what Dalton Hopkins was wearing, from red to blue. Lee relied upon

the information in the police report to contest identification and ultimately his presence

at the “other felony.” See, (App. 63-64, 119.) The district court rule against petitioner in

the face of obvious information to show Lee was not fabricating what was in the police

report. The sentencing court’s ruling is not supported by the record. “A finding is

clearly erroneous if it is illogical, implausible, or without support in the record.” United

States v. Sanmina Corporation, 968 F.3d 1107, 1116, (9% Cir. 2020) citing United States

v. Graf, 610 F.3d 114, 1157 (9% Cir. 2010). Lee believes the evidence is in his favor;

hence, the government should not have achieved the threshold of preponderance. The

ruling was against Lee and also contrary to established basic human understanding.

Therefore, additional back test or review is necessary to find the flaw in the system.

Federal indictments typically are the products of months if not years of

investigation and surveillance. It is usual for district courts to believe the government

has a deep understanding of the facts of the case being prosecuted. Hence, it may be

rational to give the government attorney the benefit of the doubt vis-a-vis a testifying

officer. So when a prosecutor corrects a witness the attorney is assumed to be accurate.

Here is a second fringe benefit for the government. The government did not

submit into evidence: affidavits; photographs; video images or even sales receipts

demonstrating four or more firearms were in fact stolen. The government’s oral

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assertion regarding tangible information was sufficient. Therefore the district court

was left to surmise that the party closest to the jury box was accurate again.

Lasting remnants of: the inertia of the presumption of reasonableness at the

appellate level is propelling this faulty ruling. It is difficult to argue no such

vestiges of presumption exist when the system failed to catch abject errors like the:

numbers of persons at a crime scene; numbers of firearms taken from multiple

crime scenes; and color discrepancies in suspects’ clothing. Subliminal impartiality

is ubiquitous in general society. However, when direct evidence of such is apparent

and egregious, in the courtroom setting, we should screen it out of our system of

jurisprudence.

Lee’s reliance on federal discovery was misconstrued as refuting acceptance

of responsibility. “It is fundamentally unfair to require a defendant to divulge the

details of his own case while at the same time subjecting him to the hazards of

surprise concerning refutation of the very pieces of evidence which he disclosed to

the State. Wardius v. Oregon, 412 U.S. 470, 476, 93 S. Ct. 2208, 2213, 37 L. Ed. 2d

82 (1973). The Oregon state due process clause of its own force does not require

state to adopt discovery procedures for the benefit of criminal defendants, but in the

absence of a strong showing of state interests to the contrary, any discovery

procedure adopted must be a two-way street. Wardius is instructive that reciprocal

discovery is required by fundamental fairness. Wardius also rebukes the abject

unfairness of subjecting a party to surprise morphing of the evidence. “The

adversary system of trial is hardly an end in itself; it is not yet a poker game in

13

which players enjoy an absolute right always to conceal their cards until played. We

find ample room in that system, at least as far as ‘due process’ is concerned, for (a

rule) which is designed to enhance the search for truth in the criminal trial by

insuring both the defendant and the State ample opportunity to investigate certain

facts crucial to the determination of guilt or innocence.” Jd. 2211- 2212, citing

Williams v. Florida, 399 U.S. 78, 82, 90 S. Ct. 18938, 26 L. Ed. 2d 446 (1970). In

Williams this Court emphasized, the constitutionality of such rules might depend

on the reciprocity to the parties. This Court in Wardius held in the absence of fair

notice, to the defense, due process could not consistently be achieved. In the matter

at hand, it was a surprise to Lee that colors diametrically opposed like red and blue

would be accepted as interchangeable at a sentencing hearing.

The action of the government at the sentencing hearing is antithetical to due

process. Color is what the prosecutor prompted or coerced the testifying witness to

alter. Hence, the government ignored the fact that the report was not formally

revised to show the true color the government believes it should be. See, (App. 64.)

Lee was ambushed by the surprising revelation from the witness stand. Regardless

of the limited application of the rules of evidence at a sentencing hearing, we should

not move the proverbial goal post i.., the fundamental tenet of notice and

opportunity to be heard, in order to appease the prosecution. Such execution would

result in an abomination of due process.

Secondly, the ruling placed Lee in the precarious position to prove a

statement or theory to be wrong or false when the government will invariably have

14

the last binding word. Thus the government may always adjust “static” facts once

the data has been relied on by a defendant, to contort them to work against the

same defendant. Lee is in a poker game wherein the prosecution has an absolute

right to always conceal their cards until played. Given the lenient application of the

rules of evidence during sentencing hearings, a defendant has a low probability of

demonstrating abuse. Subsequently, the unbalanced poker game is perpetuated,

unintentionally, at the appellate level by the presumption of reasonableness.

Sentences within the advisory guideline range are presumptively reasonable. Gall

v. United States, 552 U.S. 38, 40, 128 S. Ct. 589, 591 (2007), Rita v. United States,

551 U.S. 338, 351, 127S. Ct. 2456, 168 L. Ed. 2d 203 (2007).

By way of explanation Lee posits the appearance of partiality is vivid when

one side is allowed to be selective with the facts. Here, only two firearms were

recovered from the vehicle check. Lowery fled with a backpack. JA 122. The

government’s recital of the facts fails to mention that the two additional firearms

should have been at the scene of the vehicle check; perhaps because that

information is bad for the government. Remember, the government’s theory is no

break occurred in the over 24 hours of alleged criminal behavior. Therefore all

firearms reported stolen should have been at the scene when Lee was arrested on

March 26, 2018. However, the government is benefiting from the “one continuous

chain of event theory,” to support the claim Lee was at the fire-station larcenies. To

the extent the government is correct; it is implicit that Lowery had the two

additional firearms in the backpack he fled with. Therefore, Lowery had actual

15

possession and control over the firearms he stole for the purposes of resale. JA 122.

The opposite view is at least one break occurred in the approximately 24-hour

escapade. Hopkins and Lowery stole the firearms. They then engaged Lee in order

to make a sale to him from one of the guns in his backpack. As social beings the

three scurried-off to a neutral place to socialize, brag and boast. Lee was not

present at the scene of the crime, though he might have known the firearm he

purchased was stolen. Being a mere purchaser for value Lee did not have actual

possession of the stash of weapons, Lowery was in possession of them. Upon the

arrival of the police Lee attempted to get hid of his firearm; Lowery fled with the

backpack. In either iteration, the story is hazy and gray as to who did what. Lee

contends to deduce a viable narrative that is pure white or jet black is

demonstrating superior knowledge and perception or abject partiality. This is akin

to supplementing facts not interpreting facts on the part of the government. The

prosecution led the witness to alter his testimony. That simple act imputed malice

into an innocuous reliance on police document.

Acceptance of Responsibility in Other Jurisdictions

While the Fourth Circuit did not grant Lee the relief he requested other

appellate courts might have. The several circuits’ nonuniform application of this

policy should now be encapsulated in case law by this Court. This way Lee’s fate

would not be left to the discretion of the prosecutor. The government’s failure to

disclose the fact that the heroin found in the defendant’s bedroom was actually

owned by his cousin was error. United States v. Johnson, 592 F.3d 164 (D.C. Cir.

16

2010). Case was remanded for the court to make a determination whether the

allegation that the government’s chief witness, a DEA agent, had falsified a report

in another case should have been made known to the defendant under Brady.

United States v. Dimas, 3 F.3d 1015 (7 Cir. 1993) (per curiam). The facts are

similar to Lee’s issues; therefore the results should be the same.

In this matter the prosecution sought successfully to deny admission of the

favorable information. Thus a Brady violation is afoot. Suppression by prosecution

of evidence favorable to an accused upon request violates due process where

evidence is material either to guilt or to punishment, irrespective of good faith or

bad faith of the prosecution. A witness’s good faith does not render a Brady

violation any less material. United States v. Smith, 77 F.3d 511 (D.C. Cir. 1996).

Similar to the facts of Brady, the trial court passed upon admissibility of evidence

which figured into issue of guilt. In this matter the evidence influenced

punishment, due to Lee’s supposed involvement in the other felonies. For the

district court found Lee was present at the other felonies, before voiding Lee’s

acceptance of responsibly which had been established by the United States

Probation Officer. See, (App. 146-147.)

Again, Petitioner maintains the several circuits show contempt to such

manipulation of evidence. It was error for the government not to disclose to the

defense the fact that one of the government’s witnesses had been threatened, since

that fact would have been relevant to the credibility of the witness. United States v.

O’Conner, 64 F.3d 355 (8 Cir. 1995) (per curiam). It is the Food and Drug

17

Administration’s duty in a criminal trial to disclose the contents of Investigational

New Drug applications that bear on the safety of the drug a defendant is charged

with unlawfully dispensing. United States v. Wood, 57 F.3d 733 (9th Cir. 1995).

Case remanded to the district court to conduct an in camera inspection and make

appropriate findings as to whether the PSR of the government witness contained

any Brady or Giglio material. United States v. Carreon, 11 F.3d 1225 (5th Cir.

1994). Lee contents there is no finding of reasonableness of like sentences in other

circuits and to be consistent his sentence should be overruled.

Presumption of Reasonableness should not be Warped

The Due Process Clause requires that the prosecutor bear the burden of

persuasion beyond a reasonable doubt only if the factor at issue makes a substantial

difference in punishment and stigma Patterson v. New York, 432 U.S. 197, 227, 97

S. Ct. 2319, 2335, 53 L. Ed. 2d 281 (1977). The glaring error is that the report list

Hopkins as wearing a red hooded sweatshirt and blue jeans. See. (App. 119.) The

color is contrary to the final evidence proffered by the government at sentencing.

Additional facts came to light after the sentencing hearing. See (App. 108-133.)

The prosecution witness was allowed to change his testimony while on the witness

stand. Yet, the Fourth Circuit admonished Lee for proffering adulterated

information. (Unpublished Opinion p.5.) And according to the Fourth Circuit

because he maintains this denial, his sentence is rightfully affirmed. The

presumption of reasonableness doctrine of Gall and Rita is not a safe haven for

flawed sentences. If the empirical evidence was not blatantly apparent this case

18

would be frivolous. Because the empirical evidence is exceedingly obvious, this case

is an awakening of how a presumption may be used to obfuscate reality and stymie

due process.

The government’s position is to continue to advocate for the temporary and

selective manipulation of these colors at selected times. Those initiated in law view

the action rightfully as antithetical to due process. Fundamentally, it is unfair to be

given the privilege to: create a police report; disseminate said police report knowing

other would rely on it. Then at a future date shirk the duty to revise or supplement

said police report of any discrepancy. However, appear in court and use tenor or

tone to ask a witness the same question until said witness complies with the

questioner’s “correct” answer.

Lee agrees that “federal judges should be accorded ample discretion in

determining how best to conduct the voir dire” and in the instant situation,

sentencing hearing, and other matters closely fettered to specific facts of the case.

Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S. Ct. 1629, 68 L. Ed. 2d 22

(1981). United States v. Barber, 80 F.3d 964, 967 (4 Cir. 1996) (noting that voir

dire “must be committed to the good judgment of the trial judge whose immediate

perception determines what questions are appropriate for ferreting out relevant

prejudices” (internal quotations omitted)). Caro at 614. Lee’s contention regards the

recourse for him, because difference between the color red and the color blue is

dispositive in identifying an individual. Notwithstanding the ruling the sentencing

court made which was subsequently affirmed by the Fourth Circuit, a mistake

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regarding color of clothing is of great import. No matter a prosecutor’s outstanding

history with knowledge of the facts of their case, a judge must determine whether

the prosecutor’s proffered reasons are the actual reasons, or whether the proffered

reasons are pretextual. Flowers v Mississippi, 139 S. Ct. 2228, 2244, 204 L. Ed. 2d

638 (2019). The issue is that the difference and significance is blatantly obvious to

most observers except for the prosecutor and judge. In this matter the district court

might have been influenced by Hopkins’ PSR which he gleaned information from

before the date of the sentencing hearing. The district court could have been so

influenced by the extraneous confidential document that relevant evidentiary data

in the instant case was drowned out by the sentencing court’s prior readings. It is

well settled impartiality is demonstrated when a jury deliberates only on matters

appropriately entered into evidence. Pena-Rodriguez v. Colorado, 137 8. Ct. 855,

879. Lee contends Impartiality is demonstrated when the hearing judge make its

rulings based on a significant and determinative “extrajudicial factor.” Liteky v.

United States, 510 U.S. 540, 554-555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474

(1994). An extrajudicial source is not the only basis to demonstrate bias or

prejudice. A ruling might be so extreme as to display clear pervasive bias. Davis v.

Board of School Comm'rs of Mobile County, 517 F.2d 1044, 1051 (CA5 1975), Cert.

denied, 425 U.S. 944, 96 S. Ct. 1685, 48 L.E d. 2d 188 (1976).) In this matter the

determinative information was a PSR of a defendant named in another bill of

indictment. To keep hallowed the constitutional intent of the framers of the United

States Constitution we must be vigilant that all defendants shall receive the same

20

level of due process. In practice the theory might not always come to fruition.

However, when the discrepancies are tantamount to reversing the colors of our flag,

the blue background of the white stars are now red and the red stripes are now

blue, such a sea-change should be met with opposition from all corners of the

judicial system.

The Ruling will Negatively Influence the Attorney-client Relationship

To aid in the pursuit of impartiality an officer of the court has a duty to be

forthright with the sentencing court when presenting live testimony. Secondly,

Petitioner has a right to be silent even with his own defense attorney. The current

affirmed decision pressures Petitioner to be a witness against himself vis-a-vis with

his attorney and also the government. The result of the lower courts’ ruling

indicates the duty to be forthright was placed on Petitioner and the government was

absolved of its responsibility to be candid with the district court.

The errant ruling creates a paradigm shift and initiates a divergence in the

attorney-client relationship for it places pressure on defense counsel to be a factfinder between him and his client. This notion creates uncertainty in the

application of the privilege. “The test adopted by the court below is difficult to

apply in practice, though no abstractly formulated and unvarying “test” will

necessarily enable courts to decide questions such as this with mathematical

precision. But if the purpose of the attorney-client privilege is to be served, the

attorney and client must be able to predict with some degree of certainty whether

particular discussion will be protected. An uncertain privilege, or one which

purports to be certain but results in widely varying applications by the courts, is

21

little better than no privilege at all. Upjohn Company v. United States, 449 U.S.

383, 393, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). In this matter the Fourth Circuit’s

decision is unreasonable for it cannot withstand a constitutional critique.

During a video recorded police sting-operation a prosecutor may view an

actual crime in progress. A criminal defense attorney is never at the scene of the

crime while it is taking place. They rely on police reports, body-worn-camera video

or statements from witnesses, including defendant. Secrecy is the privilege of the

defendant. In an appointed matter there might be no time to overcome lack of trust,

so defendant may never disclose full details. The beauty of our system is, the

government has the burden of proof in a criminal trial. To that aim it places the

burden on a large national investigative conglomerate of agencies under the DOJ

banner. They are able to gather, sieve through, and decide what to disseminate into

the stream of discovery.

The crux of the matter concerns whether the accused in a criminal matter

can maintain his right of confidentiality and still enjoy the benefits of his right to

counsel. All rulings in the instant matter tend to support the idea that counsel

should not have taken a position based on the discovery evidence. It implies counsel

should have demanded disclosure of Lee’s secret on whether he was at the scene or

not, in order to lodge an argument against the guideline enhancements. “The right

to counsel “has been accorded... not for its own sake, but because of the effect it has

on the ability of the accused to receive a fair trial.” United States v. Gonzalez-Lopez,

548 U.S. 140, 145, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409 (2006). citing Mickens v.

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