Petition for Writ of Certiorari — Tommy Pabellon, Petitioner v. United States

Certified Mail Receipt Number

7020 3160- 0001 7338 5602

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IN THE

SUPREME COURT OF THE

UNITED STATES

Supreme Court, U.S.

FILED

OCT 1 8 2021

OFFICE OF THE CLERK

TOMMY PABELLON,.

Petitioner,

vs.

UNITED STATES OF AMERICA t

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION.. FOR A WRIT OF CERTIORARI

Mr. Tommy Pabellon

Pro se Petitioner

Reg. No. 92916-071

F.C.I. Ray Brook

Post Office Box 900

Ray Brook,i New York 12977

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

United States v. Bob Harry Fowler, 248 F.3d. 1136 (4th Cir. 200 1 \

QUESTION PRESENTED

Whether a lower court's failure to apply the

proper standard of review effects its judgment"

in reviewing a petitioner's case based on clear

intervening changes in the law when entertaining

a First Step Act motion.

TABLE OF CONTENTS

Page

Opinions Below

1

Jurisdiction

1

Constitutional and Statutory

Provisions Involved

2

Statement of the Case

3

Reasons for Granting;the Writ

5

Conclusion

10

INDEX TO APPENDICES

Appendix A — Decision of Court of Appeals

Appendix B

Decision of District Court

l

12

14

TABLE OF AUTHORITIES CITED

Cases

Page

1. Alleyne'irv. United States,

570 U.S. 99 (2013)

5, p;assim

2. Apprendi v. United States

530 U.S. 466 (2000)

5, passim

3. Cooter & Gell v. Hartmax Corp.

496 U.S. 384 (1990)

6-7

4. Crawford v. Washington

541 U.S. 36 (2004)

5, 9

5. Erickson v. Pardus,

551 U.S. 89 (2005)

10

6. Lawrence v. Chater

516 U.S. 163 (1996)

5, passim

7. Mathews v. Eldridge,

424 U.S. 319 (1976)

10

8. Pepper v. United States,

562 U.S. 476 (2011)

6

9. Setser v. United States,

566 U.S. 231 (2012)

7

10. United Statesv. Batiste,

980 F.3d. 466 (5th Cir. 2020)

6

11. United States v. Black,

999 F.3d. 1035 (7th Cir. 2021)

9'

12. United States v. Booker,

543 U.S. 220 (2005)

5

13. United States v. Kibble,

992 F.3d. 326 (4th Cir. 2021)

8

14. United States v. Maxwell,

991 F.3d. 685 (6th Cir. 2020)

8, 9

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7, 8

981 F.3d. 271 (4th Cir. 2020)

ii

TABLE OF AUTHORITIES (Con't)

Cases

Page

16 ^ United States v. McDonald,

949 F.3d. 769 (8th Cir. 2020)

6

17. United States v. McGee,

992 F.3d. 1035 (10th Cir. 2021)

9

18. United States v. Pabellon,

2021 U.S, App. Lexis 21583 (4th Cir. 2021)

6

19. United States v. Stanback,

377 F.Supp.3d. 618 (W.D.Va. 2019)

8, 9

20. United States v. Sutton,

962 F.3d. 979 (7th Cir. 2020)

6

21. United Statesw. Ware,

964 F.3d. 482 (6th Cir. 2002)

8

22. United States v. Warnock,

851 Fed; Appx. 1012 (11th Cir. 2021)

7

23. Whorton v. Bockting,

549 U.S. 406 (2007)'

9

24. Williams v. New York,

337 U.S. 241 (1949)

6

iii

IN THE

SUPREME COURT OF THE

UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment below.

OPINIONS BELOW

The opinion of the United States court of appeals for the

Fourth Circuit appears at Appendix A to the petition^and is

unpublished.

The opinion of the United States District Court for the District

of South Carolina, Greenville Division appears at Appendix B to

the petition-and is unpublished.

JURISDICTION

The date on which the United States Court of Appeals decided'

my case was July 21~ 2021.

No timely petition for rehearing was filed.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment V

}

Title 18 U.S.C. §3582(c)(1)(A)—as amended in First Step Act

2

STATEMENT OF THE CASE

Following the enactment of the First Step Act of 2019, this

petitioner sought compassionate relief from his conviction and

sentence in the United States District Court for the District of

District of South Carolina. Upon submission of petitioner's motion

under 18 U.S.C. §3582(c)(2) seeking a reduction in his sentence on

December 4, 2020.

Counsel was appointed to represent petitioner; however, counsel

did not submit any amendment or supplement to petitioner's motion

for compassionate relief. On December 23, 2020, the government filed

a response to petitioner's pro se motion, but did not completely ad­

dress the arguments raised in his compassionate release motion. The

district court denied petitioner's motion for compassionate release

based on the government's response. The district court's order then

prompted court'’appointed counsel to file a motion for reconsidera­

tion which was submitted on January 22, 2021.

The government did net file a response to counsel's motion for

reconsideration on petitioner's behalf. However, the district court

immediately issuing an opinion and order on January 22, 2021 find­

ing petitioner's health conditions failed to establish the extra­

ordinary and compelling reasons necessary to reduce his sentence.

TrThe district court additionally found that petitioner's argument that a change in law similarly was insufficient to support

extraordinary and ccmpeliing reasons to reduce his sentence. The

district, court snhsp.mipnt-.lv found that netitioner' s motion for re­

consideration should be denied based on the factorsdlisted ir. 18

a -

U.S.C. §3553(a).

Petitioner timely filed a notice of appeal, and was given an

informal briefing schedule by.the F

th Circuit court of appeals.

Petitioner's informal brief was signed and forwarded to the appel"

late court on March 9, 2021, and a three judge panel affirmed the

district court's decision in a per curiam opinion on July 21, 2021.

This Petition"for a Writ of Certiorari follows the appelate

court's decision seeking review in this Court.

•• 4

REASONS FOR GRANTING THE WRIT

'a‘This Court should graftt this petition ^ vacate the judgment and remand to the lower court to

apply the proper standard of review based on

the intervening change in law applicable to

his First Step'Act motion under §3582(c)(1)(A)

This Court has long recognized its power to order a grant of

certiorari

then vacate a lower court's judgment, and to remand

the matter to the respective court. See Lawrence v. Chafer, 516

U.S. 163 (1996). This process have been recognized as a "GVR Order1'

and allows lower courts to essentially review an earlier decision

that it may have made, without fully considering intervening deve­

lopments in law (or existing;, requirements)

which'could- have rhad

anyeffect on the decision. ^Id.at p. 167 (stating that n[w]here intervenging developments,-[which give this Court] reason to believe

the court below did not fully consider

reveal a reasonable;: proabi-

lity that the decision., below rests upon a premise that the lower

court would reject if given the opportunity for further consideration and where it appears that such a redetermination may determine

the ultimate outcome of the litgation

a GVR Order is,...potential-

ly appropriate").

In this case, petitioner sought compassionate release pursuant

to 18 U.S;C. §3582(c)(1)(A), as amended by the First Step Act of

2018. The bases of ,:petitioner ' s §3582(c) (1) (A) motion was two-fold

and based on the C0VID-19 pandemic and'the intervening changes in

by this Court announced in Apprendi v. New Jersey, 530 U.S. 466.

(2000); Crawford v. Washington, 541iU.S. 36 (2004); United States

v. Booker, 543 U.S. 220 (2005); and Alleyne:. v;. UniLed., States, 570

U.S. 99 (2013).

5

As a matter of law, courts review the denial of a motion under

^3582(c)(1)(A) for an abuse of discretion. See United States v.

Batiste, 980 F.3d. 466, 469 (5th Cir. 2020)(recognizing a court

abases its

discretion as a general

matter when a defendant's re-

questr.for a reduction of sentence under the First Step Act); United

States v. Holloway, 956 F.3d. 660, 664 (2nd Cir-. 2020); United

States v. Sutton, 962 F.3d. 979, 986 (7th Cir. 2020); United States

v. McDonald, 944 F.3d. 769, 771 (8th Cir. 2020); see also, Pepper

v. United States

562 U.S. 476 (2011)(acknowledging that this Court

has long recognized that sentencing judges exercise wide discretion

in the types of evidence they may may consider when imposing a sentence and that highly — if not essential — to the selection of an ap­

propriate sentence is the possession of the fullest information

possible concerning the defendant's life and characteristics)(in­

ternal quotations and alterations omitted)(citing Williams v. New

York, 337 U.S. 241, 246-47 (1949)).

Significantly, the appellate court reviewed petitioner's appeal

in this matter, and simply issued a per curiam affirmance, stating

in pertinent part, that:

"Tommy Pabellon appeals the district court's

orders denying his motions for compassionate

release and reconsideration. We have review­

ed the record and find no reversible error.

Accordingly, we affirm for the reasons;stat­

ed by the district court."

United States v. Pabellon

2021 U.S. App. Lexis 21583 (4th Cir.

July 21, 2021)(Appended here at Appendix A).

Clearly, the appellate court failed to review petitioner's ap­

peal under the-.proper standard—which required it to determine if

the district court abused its discretion; see Cooter & Gell v.

6 -

Hartmax Corp. f 496 U.S. 384, 405 (1990)(establishing a court abuses

its discretion if it based its ruling on an erroneous view of the

law.> or on a clearly erroneously assessment of the evidence); see

Batiste, supra p. 468 (same). Consequently, in this particu-

also

lar instance ) the appellate court failed to apply the proper stan­

dard of review, and completely "sidestepped" its juridisictional

responsibility in considering petitioner's §3582(c)(1)(A) claim pre­

senting extraordinary and compelling reasons for Compassionate Re­

lease based on his serious medical conditions and the intervening

changes in law.

It is obvious that the lower court completely ignored is judi­

cial responsibility in properly reviewing a live case and contro­

versy lawfully placed before it. See e.g., United States v. Warnock,

851 F.3d. Fed. Appx. 1012, 1013 (11th Cir. 2021)(recognizing that

courts retain jurisdiction to hear only live cases and controver­

sies under Article III of::the United States Constitution). Especial­

ly in light of the Fourth Circuit's own precedent, which involves

its clear recognition that under §3582(c)(1)(A) > "there currently

exist no

no applicable policy statement^ ] "'-..that governs a defen­

dant's motion for-Compassionate Release. United States v. McCoy,

981 FT3d; 271, 281 (4th Cir. 2020).

Because under the amended statute, a defendant can be eligible

fo relief if-the court finds that "extraordinary and compelling

■reasons" warrant such relief is a concept predated the First Step

Act; see e.g., Sester v. United States i 566 U.S. 231 - (2012).(acknow■u

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allowed for extraordinary and:compelling reasons as a principled

bases

which could warrant a reduction in sentence).

7

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More importantly, as stated previously, the lower court failed

to apply the abuse of discretion standard in reviewing petitioner's

case

which amounted to error and this Gourt should GVR the matter

so that it can properly do so. See United States v.

F.3d. 326

Kibble, 992

329 (4th Cir. 2021)(recognizing that the Fourth Circuit

has not decided in a published opinion what standard governs its

review of a grant or denial of Compassionate Release, but applying

the abuse of discretion standard).

In Kibble

the Fourth Circuit held that COVID-19 spread in the

Federal Bureau of Prisons amounted to extraordinary and compelling

circumstance which could warrant §3582(c)(1)(A) relief. Id. How­

ever, not only did petitioner set forth his extraordinary and com­

pelling reasons- he set forth were based on COVID-19—which raised

health concerns due to his verifiable serious health conditions,

l. e.

Diabetes, Asthma and Obesity increasing his chances of suf­

fering fatal complications from COVID; petitioner additionally set

forth the fact of intervening changes in law as reasons to reduce

his current sentence.

It is beyond dispute, that courts hvae relied on non-retroac­

tive changes in law to support reducing a defendant.'s sentence under §3582(c)(1)(A)

as amended by the First Step Act. See e.g.,

United States v. Stanback, 377 F-.Supp.3d. 618, 623 (W.D.Va. 20l'9)

(joining other courts in finding Apprendi and Alleyne are applica­

ble to the First Step Act in the context of §3582(c)(1)(A)); see

also, United States v. Maxwell, 991 F.3d. 685 (2021)(citing United

States v. Ware

964 F.3d. 482, 48y {bth Cir. 2UZUA in tne rust

Step Act > . Congress has provided express authority to disturb the

finality of [a defendant's judgment] and has done so without limit-

8

ing the consideration that the Court may contemplate in utilizing

this authority").

Consequently, other non retroactive laws were found to consti­

tute extraordinary and;'compelling reasons and viewed as sufficient

intervening changes in law to support.under the First Step Act*

See McCoy, supra (acknowledging that the Fourth Circuit took a view

that a disparity in sentencing which resulted from an intervening

change in law by the amendment to eliminate stacking in the con­

text of §924(c) can support an extraordinary and compelling reason

for release); see also, United States v. McGee

992 F.3d.. 1035, 1048

(10th Cir. 2021))adopting a middle ground in determining that dis­

parities in a case resulting from a non reteroactive change in law

which can serve along with other rationales for early release that

are based on extraordinary and compelling reasons); United States

v. Black, 999 F.3d. 1071 (7th Cir. 2021)(stating a primary concern

with whether a court should weight changes in law when applying the

§3553(a) factors after identifying serious medical concerns as an

independent extraordinary and compelling reason for release).

- These principles should have been recognized and weighed -in the

appellate court's review of petitioner's compassionate release claim

based on the intervening non retroactive change in law concerning

the improper testimonial evidence used to convict him; see Whorton

v. Bockting, 549 U.S. 406 (2007)(finding Crawford-v. Washington

decision held not to apply retroactively to cases that were final

on direct.review)«i in the same manner other non retroactive cases

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supra; and Maxwell, supra.

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Clearly, the lower . court' s’: failure to apply the proper abuse

of discretion standard in reviewing the district court's denial

of petitioner's First Step Act motion seeking compassionate release

should:prompt this Court to exercise its power to GVR thexmatter.

This would allow the lower court to properly review petitioner's

claim for compassionate release based on his serious health issues

and the Crawford error during his trial in the context of §3582(c).

Especially given, that without the excludable testimonial evidence

presented at his trial no reasonable juror wouldrhave convicted him.

Moreover

the failure of the appellate court to properly review

his issues sought to be reviewed on appeal under the First Step Act,

not only amounts to an abuse of discretion—but violates this pro

se petitioner's fundamental right to the due process of law which

requires that he is given an opporutnity to be heard. See Mathews

v. Eldridge, 424 U.S. 319, 333-34 (1976).

In sum

this Pro se Petitioner respectfully seeks this Court

libexallyyconstrue these pleadings under Erickson v. Pardus, 551

U.S. 89, 91 (2005), and Grant, Vacate and Remand this matter to the

Fourth Circuit so that‘it can apply the proper standard in review­

ing his case by fullyr.considering the intervening change in law

that could have effected-its decision to deny his First Step Act

motion.

CONCLUSION

This Petition for Writ of Certiorari should be granted.

Respectfully submitted,

2

•Mr^Tomnfy Pabellon

Pro se Petitioner

10