Petition for Writ of Certiorari — Eric Worley, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

ERIC WORLEY,

| Petitioner

v.

UNITED STATES OF AMERICA

Respondent

On Petition for A Writ of Certiorari from the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

With Appendix

JOHN ALLEN BROOKS

Attorney for

Defendant/Appellant

Eric Worley

P.O. Box 466

Chattanooga, TN 37401

423/266-9404

BPR# 006395

QUESTION PRESENTED FOR REVIEW

The Appellant’s Appeal was denied on June 1, 2021 by the Sixth Circuit

Court of Appeals. In this case, the Appellant raised one (1) issue for determination

by the Appellate Court and this Honorable Court. The Defendant objected to the

amount of Methamphetamine estimated by the Presentence Report for sentencing

purposes. When the Appellant objected to the amount of Methamphetamine used

to determine his Base Offense Level by Relevant Conduct, the Government did not

present any evidence to support the Presentence Report’s amount.

Once an objection has been made the Government must prove the amount of

drugs for sentencing purposes by a preponderance of the evidence. The

Government must prove by a preponderance of the evidence the quantity of drugs

involved in an offense, see US v. McReynolds, 964, F.3d 555, 563 (6™ Circuit

2020). The Government presented no evidence at the sentencing hearing to support

the amount of drugs estimated in the Presentence Report, the Government did not

call the agent that had taken the statement from the Appellant. The Government

failed to provide the proof needed to determine the amount of Methamphetamine

used to determine Base Offense Level. The amount that was seized from the

Appellant was only a fraction of the amount used to determine the Base Offense

Level. A use of a witness is required by the 6" Amendment Confrontation Clause.

LIST OF PARTIES

Eric Shane Worley

Reg No: 54300-074

USP McCreary

330 Federal Way

Pine Knot, KY 42635

Samuel R. Fitzpatrick

Assistant US Attorney

Office of the US Attorney

800 Market St; Suite 211

Knoxville, TN 37902

TABLE OF CONTENTS

Question Presented for ROVICW ........ccccscsscscesscesccsseceteesceesaeeseeeeceaeeaeeaeeteseseseseasees 1

List Of Partics.......cccccccssccsscssssscsscecsnscsecsscesssseceteesseeseaceneeeaeeesecseeeeasesseeesseseeesssseeseesees 2

Table of Contents ........ccccecesssccsssscccesseecsseeesecceseneeessneeceneeeseaaeecnseecesseesnessosssecsssesenesenee 3

Table of Authorities.........cccccsscssscssscssscsssescessessecssecesecssesnecensceseseaseeseseeeascneennesseoneees 4

Opinions Below .......ccesccssesssceseecsnccescsseeeeeaesseeseeeseeessecseceeeeseessesesessseensnsesseceesesseeees 5

Jurisdictional Statement .........ccccessccesscssssssesscceeseessacesseceseeeseeceseeesseeeeseseseseseesseesseees 6

Constitutional Provisions Involved .......ccccsscsscesceseeseeeeceeeeseeceaeeasenessseesessasesesvases 7

Statement Of the Case .......cccsscssscsscssscecesseseccseesseeesseessesaeessecsseseseeeesseesesssssnessesseeses 8

ALQUMEN.... ci ceccescecetccstssseesseceseeeeceseceaeseeeeeeeausceaeesaesesessaeeesasseseseessseseceussestsesensaes 10

COMNCIUSION.......ccccsscesscsssesssessceesessseceececsceseceeensecssnenseecseeeseceaeeeseeeseeeaeeneesseesusoesearenesy 14

APPCN ix ....cceecccsscescssscsecseceeesseceeesecsaceeceacseceaeeseeeasenecessssdeesesssssusesenesssecaseassnssneesees 16

TABLE OF AUTHORITIES

Statutes and Rules

18 U.S.C. §922 (g)(1).cccccecececeseeseccececeuscevseceseeeseneeerseeeseavenseneeeveenn 8,10

21 U.S.C 8841 (a)(1).ccccccsceccccseccsccsceseesceesecesecusceaceaserecereeneenaeenneee 8,10

21 U.S.C §841 (b)(1)(C)eecccccccecscecscecscssseccseceseeesecesenseceseusreeeeenseen 8.10

Circuit Court Cases

United States v. McReynolds,

964, F.3d 555, 563 (6 Cir, 2020)...c.cccsccsscsesssssssesescsesesceesessseseessesssssesseesseees 1

United States v. Moss,

OF 3d 543, 552-53, (6" Cir, 1993). ....ccccccccccceceeseecneeeeneeneeeeeneeeeeaeas 12

United States v. Price,

2019 US App. Lexis 2562 (6" Cir., Jan. 25, 2019).........cccceeeeeeeeeeeestees 11

United States v. Thoran,

2017, US App. Lexus 21420 (6" Cir. Oct. 26, 2017)........ccceceee seen 10, 12

OPINIONS BELOW

1. Opinion, United States Court of Appeals for the Sixth Circuit, United

States of America v. Eric Shane Worley, C.A. No. 20-5924, June 1, 2021, (not

recommended for full text publication).

2. Judgment in a Criminal Case, United States District Court for the

Eastern District of Tennessee at Chattanooga, United States of America v. Eric

Shane Worley, District Court No. 1:19-CR-84, August, 11, 2020.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Sixth Circuit entered its Opinion in

this case on June 1, 2021. This Court’s jurisdiction is invoked under Title 28 U.S.

Code 1254 (1). Rule 13 of the Supreme Court allows ninety (90) days within

which to file a Petition for Writ of Certiorari after entry of the Judgment by the

Appellate Court or the denial of a Petition for Rehearing, whichever is later.

Accordingly, this Petition is timely filed.

The Petitioner, Eric Shane Worley, respectfully prays that a Writ of Certiorari

issue to review the Judgment of the District Court and the Opinion of the United

States Court of Appeals for the Sixth Circuit. In that Opinion, the Sixth Circuit

Affirmed the District Court and found no error in the sentence of the Petitioner.

CONSTITUTIONAL PROVISIONS INVOLVED

6" Amendment to the US Constitution.

STATEMENT OF THE CASE AND RELEVANT FACTS

The Appellant in this case was Indicted on May 29, 2019 with a two-count

Incident, charging the Appellant with a violation of 21 U.S.C §841 (a)(1) and 21

U.S.C §841 (b)(1)(C), Possession with the Intent to Distribute Methamphetamine.

The Appellant was also charged with being a felon in possession of firearms and

ammunition in violation of 18 U.S.C § 922 (g)(1), the date of the offense was

October 5, 2017, the Appellant entered into a Plea Agreement. The Change of Plea

Hearing was taken in front of the Honorable Magistrate Judge Christopher H.

Steger on November 4, 2019. The Presentence Investigative Report, sealed was

filed on February 6, 2020 in regards to the Appellant, Eric Shane Worley. The

Appellant filed a Notice of Objections on February 25, 2020. The Government

filed no Notice of Objections to the Presentence Report, a (Presentence

Investigative Report, Addendum, Sealed) was filed on March 6, 2020 and (Revised

Presentence Investigative Report, Sealed) was filed in regards to the Appellant on

March 6, 2020. The Sentencing Hearing took place on August 7, 2020 before the

Honorable District Judge Travis R. McDonough. The nature of the Appellant’s

objection to the Presentence Report was that they said the Appellant gave a

statement to law enforcement on March 6, 2017, memorialized by a written report,

the statement was used by the Probation Officer to determine the amount of

Methamphetamine involved for sentencing purposes. The amount was determined

to be over 4 kilograms, the Government put on no testimony as to the statement

made to law enforcement officials and with no corroborating proof for the amount

of drugs, the objection was denied. The Defendant’s Guideline Range was

determined to be one hundred and eighty-eight (188) to two hundred and thirtyfive (235) months, based on a Total Offense Level of thirty-one (31) and a

Criminal History of six (6) based on the Presentence Investigative Report. The

Appellant was sentenced to one hundred sixty-four (164) months and was given a

period of three (3) years of supervised release, the Judgement was entered in this

case in the District Court on August 11, 2020, a timely Notice of Appeal was then

filed by the Appellant, Eric Shane Worley, on August 12, 2020 and the 6 Circuit

Court of Appeals made a ruling denying the appeal of the Appellant on June 1,

2021 and the Petition for Writ of Certiorari to the US Supreme Court was filed

within the ninety (90) days allowed under Supreme Court Rule 13.

ARGUMENT

Mr. Worley entered into this plea agreement by pleading to a violation of

Possession with intent to Distribute Methamphetamine under 21 U.S.C. §841(a)(1),

21 U.S.C. §841(b)(1)(C) with a penalty of not more than twenty (20) years of

imprisonment. The second count of the Indictment charged the Defendant with a

violation of 18 U.S.C. §922(g)(1) that being a felon in possession of a firearm, this

count was dismissed as a part of the Plea Agreement. The Appellant in this case

filed a Notice of Objections to the Presentence Report. The objection dealt with the

amount of Methamphetamine drugs found in the Presentence Report. The amount

used was based on a statement given to law enforcement by the Appellant three (3)

years earlier.

Once an objection was made the Government was placed on Notice,

challenging the amount to determine the Base Offense Level.

A drug quantity need only be established by a preponderance of

evidence and an estimate will suffice so long as it errs on the side of

caution and likely underestimates the quantities of drugs, actually

attributable to a Defendant. United States v. Thoran, 2017, US App.

Lexus 21420 (6" Cir. Oct. 26, 2017).

The determination of drug quantities is based upon a preponderance of the

10

evidence. In this case there was no testimony from the officers that interviewed the

Appellant, three (3) years earlier. At the Sentencing Hearing took place and with

no witnesses the Appellant’s right to confront witnesses under the 6" Amendment

was denied.

Without any evidence a Court cannot find by a preponderance of evidence

what the amount of drugs when there is a dispute. In this case the Appellant’s

sentence was much greater than warranted.

The overall margin of reliability in a drug quantity approximation

must be adequate to afford reasonable assurance that the Defendant is

not subjected to a guideline sentence greater than warranted by the

reliable evidence, United States v. Price, 2019 US App. Lexis 2562

(6" Cir., Jan. 25, 2019).

The Presentence Report was prepared based on reports generated after the

interview of the Appellant, the failure to bring one of the interviewing officers to

testify is a waiver by the Government’s ability to prove the contested amount. The

Appellant plead to a single count for Possession of Resale. The statement

concerned information over a much longer period of time and then the amount was

estimated. The Appellant’s sentence was increased based on this estimate without

any testimony at the Sentencing Hearing.

11

The Appellant would state that original charge was that of him having

Possession of Methamphetamine for Resale, the Appellant in this case was not

charged in a conspiracy, a conspiracy would have allowed the Court to consider

drugs in quantities of drugs attributable to other members of a conspiracy and

whether those quantities of drugs were known to a Defendant of reasonable or

foreseeable to them United States v. Moss, 9F.3d 543, 552-53, (6" Cir. 1993).

In this case, there was no conspiracy charged, here the Appellant had no coconspirators and the reason for the addition of kilograms of Methamphetamine

Mixture to the amount was based on a statement given by the Appellant to Law

Enforcement eighteen months prior to him being indicted and three years before

being sentenced.

Under Sentencing Guidelines, a Defendant’s Base Offense Level is

determined by drug quantity and under Sixth Circuit Case Law the quantity need

only be established by a preponderance of evidence and an estimate will suffice so

long as it errs to the side of caution and likely underestimates the quantity of drugs

actually attributable to the Defendant United States v. Thoran, 2017 US App. Lexis

21420 (6" Cir, Oct. 26, 2017). Further, testimonial evidence from a co-conspirator

may be sufficient to determine the amount of drugs but there were no co-

conspirators here.

12

The Standard is quite high for an Appellant to challenge the drug quantity

level in a District Court’s ruling but in this matter the Assistant US Attorney

produced no evidence at the Sentencing Hearing concerning the amount, the

amount was only based on an unrecorded statement given by the Appellant while

in custody three (3) years before the Sentencing Hearing. The Assistant US

Attorney did not bring the law enforcement officer to testify to what was said by

the Appellant, the Appellant filed objections to this amount and without any

testimony or corroborating evidence the Government did not reach the ability to

prove by a preponderance to show that the amount stated in the Presentence Report

was correct,

13

CONCLUSION

In conclusion based on the following facts, the Petitioner respectfully prays

that this Court issue a Writ of Certiorari to review the substantial and important

Federal issues outlined above and to reverse the decision out of the Sixth Circuit

Court of Appeals and the Judgment of the United States District Court, Eastern

District of Tennessee in Chattanooga.

Respectfully submitted,

JOHN ALLEN BROOKS

Pll. Enos)

ttorney for Eric Shane Worley

07 Georgia Avenue, Suite 103

P.O. Box 466

Chattanooga, TN 37401

423/266-9404

BPR # 006395

14

IN THE UNITED STATES SUPREME COURT

TERM

UNITED STATES OF AMERICA,

Respondent,

V.

ERIC SHANE WORLEY

Petitioner

APPENDIX

JOHN ALLEN BROOKS

707 GEORGIA AVENUE, SUITE 103

P.O. BOX 466

Chattanooga, TN 37401

423/266-9404

Counsel for Petitioner

16

TABLE OF CONTENTS

Opinion, United States Court of Appeals for the Sixth Circuit,

United States of America v. Eric Shane Worley

C.A. No. 20-5924, June 1, 2021

(not recommended for full text publication)

Judgment in a Criminal Case, United States District Court

for the Eastern District of Tennessee at Chattanooga,

United States of America v. Eric Shane Worley

District Court No. 1:19-CR-84, August 11, 2020

17