Petition for Writ of Certiorari — Christopher Patrick Lovings, Petitioner v. United States

CASE NO. ____________________

SUPREME COURT OF THE UNITED STATES

CHRISTOPHER LOVINGS

PETITIONER

V.

UNITED STATES OF AMERICA

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

THE UNITED STATES

JARROD J. BECK

LAW OFFICE OF JARROD J. BECK, PLLC

101 WEST SHORT STREET

LEXINGTON, KENTUCKY 40507

270.860.2025

JARROD.BECK@GMAIL.COM

COUNSEL FOR CHRISTOPHER LOVINGS

QUESTIONS PRESENTED FOR REVIEW

I.

Whether a sentencing court may apply an enhancement pursuant to USSG §

3C1.2 when the record fails to establish the defendant knew or had reason to

know he was fleeing from a law enforcement officer?

i

LIST OF ALL PARTIES TO THE PROCEEDINGS

Petitioner/Appellant/Defendant – Christopher Lovings

Respondent/Appellee/Plaintiff – United States of America

ii

TABLE OF CONTENTS

Questions Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

List of All Parties to the Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii

Index to Appendices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Constitutional and Statutory Provisions Involved. . . . . . . . . . . . . . . . . . . . . . . . . . .3

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Reasons for Granting the Writ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

I.

The district court erred by applying a two-level enhancement pursuant to

USSG § 3C1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

iii

INDEX TO APPENDICES

Appendix A

Judgment from the Eastern District of Kentucky in

United States v. Christopher Lovings, 20-CR-22-DCR,

filed on January 21, 2021.

Appendix B

Unpublished Opinion of the United States Court of

Appeals for the Sixth Circuit in United States v.

Christopher Lovings, No. 21-5112, filed on February 4,

2022.

iv

TABLE OF AUTHORITIES

I. Cases

Page No.

Goodman v. Simonds,

61 U.S. (20 How.) 343 (1857). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 13, 14

United States v. Cataldo,

171 F.3d 1316 (11th Cir.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 14

United States v. Catching,

796 Fed.Appx. 535 (6th Cir.2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 14

United States v. Dial,

524 F.3d 783 (6th Cir.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

United States v. Fleisher,

971 F.3d 559 (6th Cir.2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 15

United States v. Howell,

513 Fed.Appx. 533 (6th Cir.2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Hayes,

135 F.3d 435 (6th Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

United States v. Hayes,

49 F.3d 178 (6th Cir.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

United States v. Mills,

1 F.3d 414 (6th Cir.1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

United States v. Moses,

289 F.3d 847 (6th Cir.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

United States v. Mukes,

980 F.3d 526 (6th Cir.2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

United States v. Roush,

527 Fed.Appx. 349 (6th Cir.2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

v

United States v. White,

492 F.3d380 (6th Cir.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Wilson,

993 F.2d 214 (11th Cir.1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 14

United States v. Yancy,

725 F.3d 596 (6th Cir.2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 15

Statutes, Rules, and Guidelines

U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

USSG § 3C1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

USSG § 3C1.2, comment. (n.3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

vi

CASE NO. ____________________

SUPREME COURT OF THE UNITED STATES

CHRISTOPHER LOVINGS

PETITIONER

V.

UNITED STATES OF AMERICA

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF

THE UNITED STATES

Christopher Lovings, by court-appointed counsel, respectfully requests that a

Writ of Certiorari issue to review the unpublished opinion of the United States

Court of Appeals for the Sixth Circuit in the case of United States v. Christopher

Lovings, No. 21-5112, filed on February 4, 2022 and attached to this Petition as

Appendix B.

1

OPINIONS BELOW

Mr. Lovings’s appeal to the Sixth Circuit was taken from a Judgment

entered following his guilty plea to possession with intent to distribute and being a

felon in possession of a firearm. See Appendix A. On February 4, 2022, the Sixth

Circuit issued an unpublished opinion affirming Mr. Lovings’s sentence. See

Appendix B. This petition for a writ of certiorari now follows.

JURISDICTION

The Sixth Circuit issued an unpublished opinion affirming Mr. Lovings’s

sentence on February 4, 2022. See Appendix B. Mr. Lovings invokes this Court’s

jurisdiction pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. amend. V: “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 property be taken for public use,

without just compensation.”

STATEMENT OF THE CASE

Mr. Lovings was arrested on January 29, 2019 shortly after undercover

officers with the Lexington, Kentucky Police Department (LPD) observed him

driving a vehicle previously carjacked by Jody Shipman. The record does not

establish whether Mr. Lovings was aware the vehicle was stolen. A surveillance

camera at the BP gas station where the arrest occurred captured the incident.1 The

video shows an unmarked vehicle pulling in front of Mr. Lovings as he parks at a

gas pump. Seconds later, a marked LPD cruiser maneuvers behind Mr. Lovings.

The cruiser does not activate its emergency lights or siren. The driver of the

1

The surveillance video and post-arrest interview recordings are available in both the district court and Sixth Circuit

record. See [R. 45: Notice of Filing of Conventional Exhibit, Page ID # 233-34]; [R. 46: Conventional Exhibit];

[App. R. 27: Record Receipt].

3

unmarked vehicle exits with a firearm drawn, taking aim at Mr. Lovings. The

driver is wearing plainclothes—blue jeans and a baseball cap—not a police

uniform. The driver’s arms are raised in a shooting posture obstructing Mr.

Lovings’s view of any identifying markings that may have been on the driver’s

chest.

Mr. Lovings immediately attempts to back his vehicle away. In doing so,

Mr. Lovings collides with the LPD cruiser now parked behind him. Mr. Lovings’s

vehicle does not move again after the collision. An LPD officer opens the driver’s

side door of the vehicle just seconds later. Officers then struggle to remove Mr.

Lovings because he is still wearing his seat belt. Once an officer cuts the seat belt,

Mr. Lovings is taken into custody without incident. Mr. Lovings was found in

possession of narcotics and a firearm.

LPD Sergeant Daniel Burnett interviewed Mr. Lovings after his arrest. Mr.

Lovings said he had just arrived at the gas station when a “black car with tinted

windows pulled right up in front” of him and people jumped out. The car was not

marked, and Mr. Lovings “did not see” anything indicating the men who exited

were law enforcement officers. Mr. Lovings thought the driver was “trying to kill”

him.

Mr. Lovings ultimately entered a guilty plea to three counts of the

Indictment charging him with possession with intent to distribute and being a felon

4

in possession of a firearm. Paragraph 8 of Mr. Lovings’s Plea Agreement noted a

disagreement between the parties regarding application of a two-level enhancement

pursuant to USSG § 3C1.2 for recklessly creating a substantial risk of death or

serious bodily injury to another person in the course of fleeing from a law

enforcement officer. The United States Probation Office included the

enhancement in Mr. Lovings’s Pre-Sentence Investigation Report. Mr. Lovings

objected.

At sentencing, the government called two witnesses to testify in support of

the enhancement. The first was LPD Detective Steve McCown, the passenger in

the unmarked car on the night of Mr. Lovings’s arrest. McCown said he and

Detective Bill Brislin observed Mr. Lovings driving a car that had been reported

stolen five days earlier and then coordinated with other units to stop the vehicle.

They tracked Mr. Lovings to the BP gas station and pulled around the gas pumps

in front of his vehicle while LPD Detective Matthew Kaper pulled his marked

cruiser behind Mr. Lovings “virtually up next to [the] bumper.” [R. 74: Transcript,

Sentencing, Page ID # 378, Lines 19-24]. Kaper did not activate his emergency

lights or siren. Id. at Page ID # 398, Lines 15-19.

McCown and Brislin then exited the unmarked car. They were not

“wearing…police uniform[s]” and “weren’t in a police car with the police

markings.” Id. at Page ID # 384, Lines 12-13. The windows were “tinted” and

5

“dark” such that an observer “couldn’t really see” inside. Id. at Page ID # 397,

Lines 10-16. McCown said he and Brislin each drew their weapons as they “exited

the vehicle.” Id. at Page ID # 383-84, Lines 24-25, 1. After Mr. Lovings struck

Kaper’s cruiser, “the vehicle came to a rest” and officers “were able…to make

contact[.]” Id. at Page ID # 386, Lines 13-15. The encounter lasted mere

“seconds.” McCown said he and other officers could not remove Mr. Lovings

from the vehicle because he was still wearing a seat belt. Id. at Page ID # 380,

Lines 6-7. Kaper cut the seat belt, and Mr. Lovings was taken into custody. Id.

Given the circumstances, McCown agreed that Mr. Lovings’s attention

would have been focused squarely on Brislin as he took aim directly at him with

his firearm. Id. at Page ID # 399-400, Lines 20-25, 1. McCown also agreed only

three to four seconds had passed when Mr. Lovings backed away, and only six

seconds by the time Mr. Lovings’s vehicle came to a rest following the collision.

Id. at Page ID # 400, Lines 3-6; id. at Lines 14-20. McCown acknowledged a

driver in Mr. Lovings’s position would have been unlikely to recognize Kaper’s

vehicle as a marked police cruiser during the incident. Id. at Page ID # 405, Lines

3-15. McCown also said he did not make eye contact with Mr. Lovings until he

made it to the passenger door following the collision. Id. at Page ID #407, Lines

19-22.

6

The government’s second witness was LPD Sergeant Daniel Burnett.

Burnett was not present at the time of the incident, but he interviewed Mr. Lovings

following his arrest. Burnett recalled Mr. Lovings saying “he thought somebody

was trying to harm him and that he was trying to get away from them.” Id. at Page

ID # 413, Lines 13-16.

The district court overruled the objection. Id. at Page ID # 442. Despite the

video evidence and testimony, the court said there was “sufficient information to

conclude” that Mr. Lovings “was aware” that a police car was parked behind him.

Id. at Page ID # 444, Lines 1-2. The court acknowledged that “there’s a question

as to whether [Mr. Lovings] actually looked back and looked at the vehicle,” but

still held it was “clear” that “he would have recognized [it] as a marked Lexington

police vehicle” if he had. Id. at Lines 3-6.

The district court also found Mr. Lovings had “actual knowledge” that the

individuals who “pulled in front of him” were “police officers that were attempting

to make an arrest.” Id. at Lines 15-18. The court acknowledged Mr. Lovings

would not have been able to see any markings on Detective Brislin’s vest as he

aimed. Id. at Lines 20-24. But the court concluded that Detective McCown “to the

right was wearing a similar vest and would have been observed.” Id. at Lines 2425.

7

Despite the incident taking mere seconds and Brislin aiming directly at him,

the court concluded Mr. Lovings would not have been focused “solely” on Brislin

and would have heard verbal commands to show his hands. Id. at Page ID # 445.

The court also said it believed Mr. Lovings continued to attempt to avoid arrest

following the collision. Id. at Page ID # 445, Lines 15-19. The court entirely

disregarded Mr. Lovings’s post-arrest statements as “not credible or believable[.]”

Id. at Lines 20-21.

The district court emphasized that it was relying on the fact that Mr. Lovings

was driving a stolen vehicle to conclude that he was more likely to fear an

encounter with law enforcement than a robbery attempt. Id. at Page ID # 446. The

court did so even though it acknowledged Mr. Lovings may not have known the

vehicle was stolen. Id. at Page ID # 445, Lines 22-24.

On appeal, the Sixth Circuit affirmed the district court’s application of the

enhancement, holding that the court “reasonably concluded that the…information

before [Mr.] Lovings was such that he had actual knowledge that he was fleeing

from police officers.” See Appendix B, Page 4. The Sixth Circuit noted it had

reviewed the video and could not conclude the court “erred in finding that there

was sufficient time for [Mr.] Lovings to realize that he was being approached by

police officers and not drug dealers.” Id. at Pages 3-4.

8

REASONS FOR GRANTING THE WRIT

I.

The district court erred by applying a two-level enhancement

pursuant to USSG § 3C1.2.

USSG § 3C1.2 authorizes a two-level enhancement “[i]f the defendant

recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.” For the

enhancement to apply, the government must show that the defendant:

(1) recklessly, (2) created a substantial risk of death or serious bodily injury,

(3) to another person, (4) in the course of fleeing from a law enforcement

officer; (5) and that this conduct occurred during the commission of the

offense of conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that offense.

United States v. Mukes, 980 F.3d 526, 536 (6th Cir.2020) (citing United States v.

Dial, 524 F.3d 783, 786-87 (6th Cir.2008)).

This enhancement may apply based on conduct occurring “in the course of

resisting arrest.” United States v. Roush, 527 Fed.Appx. 349, 351 (6th Cir.2013)

(citing USSG § 3C1.2, comment (n.3)). But “[t]he defendant must know that the

person from whom he is fleeing is a law enforcement officer.” United States v.

Hayes, 135 F.3d 435, 438 (6th Cir.1998) (citing United States v. Mills, 1 F.3d 414,

423 (6th Cir.1993)). See also United States v. Hayes, 49 F.3d 178, 183-84 (6th

Cir.1995) (“The origins of § 3C1.2 suggest that it requires a defendant to be aware

that he is fleeing from a law enforcement officer [behavior that could be viewed as

9

obstruction of justice] versus fleeing from a person pursuing him for different

reasons.”).

“Courts must not speculate concerning the existence of a fact which would

permit a more severe sentence under the guidelines.” United States v. Cataldo,

171 F.3d 1316, 1321 (11th Cir.1999) (citing United States v. Wilson, 993 F.2d 214,

218 (11th Cir.1993)). “Mere speculative inferences are never allowable, and cannot

be regarded as evidence.” United States v. Catching, 796 Fed.Appx. 535, 539 (6th

Cir.2019) (citing Goodman v. Simonds, 61 U.S. (20 How.) 343, 360 (1857)).

This is an important case. Every day, sentencing courts across the country

are tasked with imposing terms of incarceration for criminal offenses in accordance

with 18 U.S.C. § 3553(a). This statute and other constitutional provisions protect

all citizens from penalties “greater than necessary” to satisfy the statutory

sentencing factors. Here, Mr. Lovings was sentenced in accordance with the

United States Sentencing Guidelines. Ultimately, the district court imposed a

sentence of 71 months, which was the highest possible sentence within his

applicable Guidelines range of 57-71 months. However, Mr. Lovings’s sentencing

range would have been significantly lower had the court not applied the two-level

enhancement pursuant to USSG § 3C1.2. While reviewing courts give some

deference to factual determinations made by lower courts, this case underscores

10

why appellate review of these issues is essential to protect the due process rights of

all criminal defendants.

Here, the district court abused its discretion by applying the reckless

endangerment enhancement. While there is no dispute that he attempted to flee by

backing away, the record fails to establish Mr. Lovings knew that the individual

who exited the unmarked car and immediately aimed a firearm at him was a police

officer. The video record, the testimony presented at sentencing, and his postarrest interview confirm Mr. Lovings was focused on and attempting to flee from

Detective Brislin when the collision occurred, and he was unaware Brislin was a

law enforcement officer at that time. The court’s factual findings and the Sixth

Circuit’s opinion to the contrary are clearly erroneous. Mr. Lovings respectfully

asks this Court to grant his petition for the purpose of vacating his sentence.

The district court offered two theories to explain its finding that Mr. Lovings

knew he was fleeing from law enforcement. First, the court said Mr. Lovings had

“actual knowledge” that the individuals who “pulled in front of him” were “police

officers that were attempting to make an arrest.” [R. 74: Transcript, Sentencing,

Page ID # 443, Lines 15-18]. The Sixth Circuit found no clear error in the court’s

determination on this point. See Appendix B, Pages 4-5. However, this finding is

contradicted by the record.

11

The record establishes Mr. Lovings attempted to back away from a man

wearing blue jeans and a baseball cap who had just exited an unmarked vehicle and

aimed a firearm directly at him. Mr. Lovings did so immediately. The unmarked

car was a black Toyota Camry with windows tinted so dark no one could see

inside. Id. at Page ID # 397, Lines 10-16. As such, the unmarked vehicle looked

like the kind of car that would be driven by a drug trafficker, not law enforcement.

The record also confirms Detective Brislin was in a firing position, thus Mr.

Lovings would not have been able to see any markings that may have been present

on his chest. Id. At Lines 20-24. Sergeant Burnett agreed at sentencing. Id. at

Page ID # 443, Lines 24-25.

Moreover, Detective McCown’s testimony directly contradicts the district

court’s finding. While the court reasoned Mr. Lovings could have seen McCown

as he approached the vehicle from a different direction, the record contains nothing

to establish Mr. Lovings ever looked toward McCown, much less that he

recognized McCown was a law enforcement officer. In fact, McCown himself

testified that Mr. Lovings would have focused solely on Brislin during the 3-4

seconds prior to his attempt to flee because Brislin was aiming a firearm directly at

him. Id. at Page ID # 399-400, Lines 20-25, 1.

Some deference to a lower court’s factual findings is understandable. But

the district court’s conclusion that the record in this case established Mr. Lovings’s

12

actual knowledge that he was fleeing from law enforcement officers is mere

speculation and “cannot be regarded as evidence.” Catching, 796 Fed.Appx. at

539 (citing Goodman, 61 U.S. at 369). Indeed, McCown’s testimony directly

contradicts the court’s conclusion, and the record contains no alternative proof.

The district court’s factual finding regarding Mr. Lovings’s actual knowledge was

erroneous. See United States v. Fleisher, 971 F.3d 559, 567 (6th Cir.2020) (citing

United States v. Yancy, 725 F.3d 596, 598 (6th Cir.2013)) (district court’s factual

findings may be overturned if reviewing court is left with “definite and firm

conviction that a mistake has been committed”).

The district court’s second theory was that there was “sufficient information

to conclude” Mr. Lovings “was aware” a police car was parked behind him, thus

he had reason to know he was fleeing from law enforcement. [R. 74: Transcript,

Sentencing, Page ID # 443, Lines 1-2]. The Sixth Circuit did not directly address

this issue in its opinion, but the court’s factual finding on this point was also

contradicted by the record. As Detective McCown acknowledged, Detective

Kaper did not pull his cruiser behind the target vehicle until after Detective Brislin

had swept in front of Mr. Lovings in the unmarked Camry. Id. at Page ID # 398,

Lines 10-12. While the delay was short, it explains why Mr. Lovings was paying

closer attention to the unmarked vehicle in front of him rather than Kaper behind.

More important, Kaper did not activate his emergency lights or siren, making it

13

even less likely Mr. Lovings would have noticed the cruiser or identified it as a

police vehicle before he backed up.

The district court acknowledged the record failed to establish Mr. Lovings

ever “actually looked back and looked at the vehicle[.]” Id. at Page ID # 444,

Lines 3-4. Despite this, the court said it was “clear” Mr. Lovings “would have

recognized [it] as a marked Lexington police vehicle” if he had. Id. at Lines 4-6.

A sentencing court’s factual findings cannot be based on speculation about what

might have happened if the circumstances had been different. Catching, 796

Fed.Appx. at 539 (citing Goodman, 61 U.S. at 360). The record fails to establish

that Mr. Lovings looked back, so it is irrelevant that the court believed he “would

have recognized” the vehicle behind him to be “a marked Lexington police

vehicle” if he had hypothetically done so. [R. 74: Transcript, Sentencing, Page ID

# 444, Lines 3-4]. Courts are not permitted to “speculate concerning the existence

of a fact which would permit a more severe sentence under the guidelines.”

Cataldo, 171 F.3d at 1321 (citing Wilson, 993 F.2d at 218). Yet that is precisely

what the court did in this instance. This was error.

Likewise, this factual finding was also contradicted by Detective McCown’s

testimony. McCown acknowledged that a driver in Mr. Lovings’s position was not

likely to recognize or otherwise identify Kaper’s vehicle as a police cruiser. [R.

76: Transcript, Sentencing, Page ID # 405, Lines 3-15]. Despite this testimony and

14

no proof to the contrary, the court still found that Mr. Lovings had knowledge of

this fact.

This is the reason Mr. Lovings’s case is important. Sentencing courts are

required to make factual determinations by a preponderance of the evidence. See,

e.g., United States v. Howell, 513 Fed.Appx. 533, 535-36 (6th Cir.2013) (citing

United States v. White, 492 F.3d 380, 415-16 (6th Cir.2007)). “A preponderance of

the evidence simply means that a fact is more likely than not to be true.” Id. (citing

United States v. Moses, 289 F.3d 847, 852 (6th Cir.2002)). Detective McCown was

an eyewitness to the incident, and he confirmed Mr. Lovings was “not likely” to

recognize Kaper’s car as a law enforcement vehicle. [R. 76: Transcript,

Sentencing, Page ID # 405, Lines 3-15]. Based on this proof, the record

established it was more likely than not Mr. Lovings would not have known

Kaper’s vehicle was a police cruiser. Yet the court found to the contrary, applied

the enhancement under USSG § 3C1.2, and imposed a sentence significantly

higher than would otherwise have been recommended under the Sentencing

Guidelines. This finding was clearly erroneous, and application of the

enhancement constituted an abuse of discretion. Fleisher, 971 F.3d at 567 (citing

Yancy, 725 F.3d at 598); Johnson, 844 Fed.Appx. at 841.

More troubling, however, is how often similar errors occur and deprive

defendants like Mr. Lovings of their liberty for longer than necessary in violation

15

of 18 U.S.C. § 3553 and the Fifth Amendment. Mr. Lovings asks the Court to use

his case to begin to address this issue by granting reviewing courts greater latitude

in conducting meaningful review of factual findings that increase a defendant’s

recommended sentence. Doing so is necessary to protect the due process rights of

criminal defendants everywhere.

CONCLUSION

For the foregoing reasons, Mr. Lovings respectfully asks this Court to grant

his petition for the issuance of a writ of certiorari for the purpose of vacating his

sentence.

Respectfully submitted,

____________________________

JARROD J. BECK

LAW OFFICE OF JARROD J. BECK, PLLC

101 WEST SHORT STREET

LEXINGTON, KENTUCKY 40507

COUNSEL FOR CHRISTOPHER LOVINGS

16

CERTIFICATE OF SERVICE

I, Jarrod J. Beck, counsel for Petitioner Christopher Lovings, do hereby

certify that the original and ten copies of this Petition for Writ of Certiorari were

mailed to the Office of the Clerk, Supreme Court of the United States, Washington,

DC 20543. I also certify that a true copy of the Petition was served by mail with

first-class postage prepaid upon Assistant United States Attorney John Patrick

Grant, Assistant United States Attorney, 260 West Vine Street, Suite 300,

Lexington, Kentucky 40507-1612.

This 4th day of May, 2022.

____________________________

JARROD J. BECK

COUNSEL FOR CHRISTOPHER LOVINGS

17