Petition for Writ of Certiorari — Nathaniel Ausbie, Petitioner v. United States

No. ________________

In the Supreme Court of the United States

NATHANIEL AUSBIE, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MAUREEN SCOTT F RANCO

Federal Public Defender

BRADFORD W. BOGAN

Assistant Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206-1205

(210) 472-6700

(210) 472-4454 (Fax)

Counsel of Record for Petitioner

i

QUESTION PRESENTED FOR REVIEW

When a defendant challenges the sufficiency of the evidence for

his conviction, may a court of appeals affirm based on a theory different from the one the Government presented to the jury?

No. ________________

In the Supreme Court of the United States

NATHANIEL AUSBIE, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

Petitioner Nathaniel Ausbie asks that a writ of certiorari issue to review the opinion and judgment entered by the United States Court of

Appeals for the Fifth Circuit on March 21, 2022.

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, one of Ausbie’s codefendants at trial, Francisco Sandoval, was a party to the direct appeal.

After the Fifth Circuit issued its decision in this case, Sandoval filed a

petition for panel rehearing. That petition remains pending.

RELATED PROCEEDINGS

•

United States v. Ausbie, No. 7:20-CR-245-DC-1 (W.D. Tex.) (judgment entered Mar. 5, 2021)

•

United States v. Ausbie, No. 7:16-CR-170-DC-1 (W.D. Tex. order revoking supervised release entered Mar. 5, 2021)

•

United States v. Ausbie, Nos. 21-50189 & 21-50190 (5th Cir. Mar. 21,

2022) (per curiam)

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...................................... i

PARTIES TO THE PROCEEDING ................................................ ii

RELATED PROCEEDINGS............................................................ ii

TABLE OF AUTHORITIES ........................................................... iv

OPINION BELOW ............................................................................1

JURISDICTION OF THE SUPREME COURT OF THE UNITED

STATES .............................................................................................1

CONSTITUTIONAL PROVISION INVOLVED .............................1

STATEMENT ....................................................................................1

REASONS FOR GRANTING THE WRIT .................................... 14

The Court Should Grant Certiorari to Say Whether a Court of

Appeals May Affirm a Defendant’s Conviction, over a

Sufficiency-of-the-Evidence Challenge, on a Theory Different

from the One the Government Presented to the Jury. .......... 14

CONCLUSION ............................................................................... 20

APPENDIX

iv

TABLE OF AUTHORITIES

Cases

Cole v. Arkansas,

333 U.S. 196 (1948) ........................................................ 11, 14, 19

Dunn v. United States,

442 U.S. 100 (1979) .................................................................... 14

Presnell v. Georgia,

439 U.S. 14 (1978) ...................................................................... 14

United States v. Delgado,

672 F.3d 320 (5th Cir. 2012) (en banc) ............................... 10, 11

United States v. Escajeda,

8 F.4th 423 (5th Cir. 2021) ........................................................ 12

United States v. Maseratti,

1 F.3d 330 (5th Cir. 1993) .................................................... 11, 12

United States v. Parker,

554 F.3d 230 (2d Cir. 2009) ....................................................... 10

United States v. Staggers,

961 F.3d 745 (5th Cir. 2020) ...................................................... 12

Constitutional Provisions

U.S. Const. amend. V ....................................................................... 1

Statutes

5 U.S.C. § 6103 ................................................................................. 1

18 U.S.C. § 922(g)(1) ........................................................................ 4

18 U.S.C. § 924(c) ................................................................. 3, 4, 8, 9

21 U.S.C. § 841(a)(1) ........................................................................ 3

v

21 U.S.C. § 841(b)(1)(A) ................................................................... 3

21 U.S.C. § 846 ................................................................................. 3

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

Rules

Sup. Ct. R. 13.1 ................................................................................ 1

Sup. Ct. R. 30.1 ................................................................................ 1

United States Sentencing Guidelines

U.S.S.G. §2D1.1(a)(5) ....................................................................... 8

U.S.S.G. §2D1.1(c)(4) ....................................................................... 8

U.S.S.G. §2K2.1................................................................................ 8

U.S.S.G. §3D1.2(c)............................................................................ 8

U.S.S.G. §3D1.2(d) ........................................................................... 8

U.S.S.G. Ch.5, Pt.A (Sentencing Table).......................................... 8

1

OPINION BELOW

A copy of the unpublished opinion of the court of appeals,

United States v. Ausbie, Nos. 21-50189 & 21-50190 (5th Cir. Mar.

21, 2022) (per curiam), is reproduced at Pet. App. 1a–5a.

JURISDICTION OF THE SUPREME COURT OF THE

UNITED STATES

The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on March 21, 2022. This

petition is filed within 90 days after entry of the judgment. See

Sup. Ct. R. 13.1, 30.1; 5 U.S.C. § 6103. The Court has jurisdiction

to grant certiorari under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the U.S. Constitution provides, in

pertinent part: “No person shall be … deprived of life, liberty, or

property, without due process of law ….”

STATEMENT

1. Investigation and arrest.

In July 2020, Detective Vijitta Y of the Odessa, Texas police

department learned from a confidential informant that Francisco

Sandoval was a source of methamphetamine in the area. At Detective Y’s direction, the CI made a phone call to arrange to buy a

“ball” (3.5 grams) of methamphetamine from Sandoval for $150.

2

Detective Y supplied the CI with money to make the purchase.

Odessa police, with assistance from a Texas Department of Public

Safety air unit, surveilled the deal, which took place in a parking

lot in Odessa.

Sandoval arrived to the deal with the CI in a black Cadillac.

After the sale was done, the DPS air unit and the police followed

the Cadillac around Odessa as Sandoval made “short-term contact” with “multiple different vehicles and individuals[.]” After

about three hours of this, the Cadillac parked next to a red Ford

Expedition in an apartment complex parking lot. Sandoval got out

of the Cadillac with a black bag and got into the rear driver’s side

of the Expedition, closing the vehicle’s door behind him. Carillo

was standing inside the open driver’s door of the vehicle.

About six minutes later, “believ[ing] that there was going to be

a large-level amount of narcotics that was going to be trafficked[,]”

Detective Y decided to do a “vehicle assault” on the Expedition

along with the other officers on the scene. Carillo, who had been

driving the Expedition, stepped away from the open driver’s door

of the vehicle. Sandoval was in the back passenger’s seat, directly

behind the driver. Ausbie was in the front passenger’s seat.

Officers arrested Carillo, Ausbie, and Sandoval. Odessa police

detective Sergio Spencer pulled Ausbie out of the Expedition and

3

put him on the ground, while another officer handcuffed him. Detective Spencer then searched the Expedition. He found two pistols

in the front passenger area where Ausbie had been sitting; one was

in a backpack on the floorboard, and the other was in a locked bank

bag along with a digital scale covered in drug residue. Spencer

found another pistol in a purse on the driver’s seat. In the back

seat, there was a large bag of methamphetamine on top of a separate black bag. Also, Spencer found a “substantial amount” of

cash—some on the center console of the vehicle and some on

Ausbie’s person—but apparently did not count it.

2. Indictment and superseding indictment.

Ausbie, Carillo, and Sandoval were charged in a three-count

indictment:

•

Count One: Ausbie, Carillo, and Sandoval were charged

with conspiring to distribute and to possess with intent to

distribute 50 grams or more of actual methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.

•

Count Two: Ausbie was charged with possessing firearms

in furtherance of that drug trafficking crime, in violation of

18 U.S.C. § 924(c).

4

•

Count Three: Carillo was charged with possessing a firearm in furtherance of the same drug trafficking crime, in

violation of 18 U.S.C. § 924(c).

The Government later brought a superseding indictment adding a

Count Four against Ausbie: being a felon in possession of firearms,

in violation of 18 U.S.C. § 922(g)(1).

Carillo pleaded guilty to her two charges, with a plea agreement. Ausbie and Sandoval went to trial.

3. Trial.

Carillo testified at trial, as did the officers involved in the investigation. Carillo had pleaded guilty to her charges—the conspiracy count, and a felon-in-possession count—and was testifying for

the Government in exchange for a sentencing recommendation.

Carillo testified that, although she had been selling methamphetamine for two-and-a-half to three months, she was not selling

when she was arrested along with Ausbie and Sandoval. She had

met Ausbie in mid-May 2020, about two-and-half-months before

the arrest. Carillo bought methamphetamine from Ausbie about

once a week from mid to late June up until the arrest at the end of

July, in amounts ranging from half an ounce to four ounces. Carillo

also had been buying methamphetamine from Sandoval about

once a week for three weeks during that same time frame, in

5

amounts ranging from three-and-a-half grams to one ounce (about

28 grams).

Carillo explained that she purchased the methamphetamine

“by myself,” meaning “not with any of the other two defendants

[Ausbie and Sandoval].” She had introduced the two men to each

other in mid-June 2020, about a month-and-a-half earlier. Carillo’s

role, as she described it, was making “introductions to make connections … so that [she] could stay out of everything”—she “wasn’t

a middleman.” Despite Carillo disclaiming a “middleman” role, the

prosecutor asked her how many times she had “middlemanned

deals between Ausbie and Sandoval” and if she had been “paid for

middlemanning the deals.” Carillo answered that she had arranged four deals between Ausbie and Sandoval but had not gotten

paid. Instead, she “would get a lower price … on the methamphetamine[ ] so that [she] could distribute it later.” On this occasion,

Carillo wasn’t getting any cut from the deal: no drugs, no money.

For years, Carillo had been selling drugs for herself to support

her own habit.

At that time I was selling drugs, but it was just for—it was

just for me. I wasn’t making money to support anyone or

anything. I was trying just to support my habit.

On cross-examination, Carillo maintained that she “wasn't selling

for [Sandoval]. Anything that I received from him, I purchased on

6

my own. It wasn’t for him or anyone. It was for me independently.”

She further explained:

Here’s a little, I guess, information. In the drug world,

especially within distribution, suppliers will run dry; and

whoever has the most supply is high—you know, demand

and supply. If they’re demanding it and they can supply it,

you go to that person.

At the time, within the months of mid-June till July, I

was getting most of my drugs from either Mr. Sandoval or

Mr. Ausbie. But, yes, there were other times where both of

them did not have anything and I would go through other

people.

Carillo said that she had set up the meeting between Ausbie

and Sandoval and had chosen the apartment complex (where she

used to be a manager) as the location for the sale. Before the officers’ vehicle assault, Carillo saw Sandoval with a bag of methamphetamine and got out of the Expedition “[b]ecause whatever business was going on there, that didn’t concern me.” She said didn’t

see Ausbie with any money while he was in the Expedition, “until

the marshal opened the door and then money started flying out.”

“[O]nce that door was opened,” Carillo said, “that’s when the currency flew across the parking lot.” (On this point, Carillo’s testimony doesn’t square with the officer’s body camera footage, which

shows only a single bill falling to the ground as he pulled Ausbie

out of the Expedition.)

7

That officer—Detective Sergio Spencer, of the Odessa Police

Department—testified next. He briefly recounted his search of the

Expedition and most of the items he seized, including the methamphetamine, firearms, and the scale in bank bag—all of which were

introduced as exhibits. Spencer explained that scales are “often

used … to validate the weight that’s being purchased and/or sold.”

Although Spencer testified that he seized cash from the Expedition, the Government did not introduce any of the cash as evidence.

Nor did Spencer know how much cash there was. All he could say

when the prosecutor asked him how much cash he found was: “I do

not remember off the top of my head; but it was, I would say, a

substantial amount on—some on Nathaniel Ausbie's person, and

then there was some also on the center console of the car.” Spencer’s body camera video, a portion of which the Government played

for the jury, showed two things that Spencer did not mention in his

testimony. One: in the black bag there was a large Ziploc bag of

methamphetamine with what looked like a black plastic spoon,

plus at least one smaller individual bag of the drug. Two: there was

another digital scale on the floorboard next to the black bag that

held the larger bag of methamphetamine. The net weight of all the

methamphetamine was 282.2 grams.

8

After the Government rested its case, Ausbie moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal

Procedure. The district court denied the motion. Although Ausbie

did not put on a case, he renewed his Rule 29 motion for a judgment of acquittal after the jury charge conference. The court denied the motion.

The jury found Ausbie guilty of all three counts.

4. Ausbie’s sentencing.

Ausbie’s convictions on the conspiracy and felon-in-possession

counts were grouped together to calculate his total offense level,

which was 32. See U.S.S.G. §2D1.1(a)(5), (c)(4); §2K2.1; §3D1.2(c),

(d). At criminal history category VI, his Guidelines range was 210

to 262 months’ imprisonment. See U.S.S.G. Ch.5, Pt.A (Sentencing

Table). The district court sentenced Ausbie to concurrent imprisonment terms of 262 months on the conspiracy count and 120

months on the felon-in-possession count, plus a consecutive 60

months on the § 924(c) count. The court also imposed concurrent

9

supervised release terms of five years on the conspiracy and

§ 924(c) counts and three years on the felon-in-possession count. 1

5. Appeal.

Ausbie timely appealed. He argued that the evidence was insufficient to support the jury’s verdict of guilty on the drug conspiracy count because the evidence showed, at most, a buyer-seller

relationship between him and Sandoval. At best, the evidence established that Ausbie was guilty of an offense for which he was not

charged: attempted possession of methamphetamine with intent

to distribute. For that reason, Ausbie argued, the evidence was

also insufficient to support the jury’s verdict on the § 924(c) count,

which was tied to the conspiracy count. Ausbie also argued that,

even if the evidence was sufficient to prove that he was involved in

a conspiracy with Sandoval and Carillo, it was insufficient to prove

that the conspiracy involved at least 50 grams of methamphetamine.

1 The district court also revoked Ausbie’s supervised release from a

2016 felon-in-possession conviction and sentenced him to 24 months’ imprisonment, to run consecutively to the sentences in the new case.

Ausbie raised no issue with his revocation, which was based on his conviction in the new case.

10

The Government advanced an entirely different theory of the

case than the one it presented at trial. Below, the Government argued to the jury that the thwarted July 30, 2020 drug sale was

itself a conspiracy. On appeal, the Government took a different

tack and argued that, given Carillo’s testimony about prior drug

sales, the buyer-seller “exception” to conspiracy liability did not

apply because Ausbie was involved in more than one drug transaction with Sandoval and Carillo in the preceding weeks. (citing,

inter alia, United States v. Delgado, 672 F.3d 320, 333 (5th Cir.

2012) (en banc)). 2 The Government also shifted its theory of the

2 Although Delgado refers to the buyer-seller rule as an “exception”

to conspiracy liability, it is not that. See Delgado, 672 F.3d at 333 (“The

buyer-seller exception prevents a single buy-sell agreement, which is

necessarily reached in every commercial drug transaction, from automatically becoming a conspiracy to distribute drugs.”). Instead, if there

is nothing more than a buyer-seller relationship between the two parties

to a drug sale, there is no agreement to distribute—and therefore no

conspiracy—in the first place. As Delgado explains,

The rule shields mere acquirers and street-level users, who

would otherwise be guilty of conspiracy to distribute, from the

more severe penalties reserved for distributers. See United

States v. Parker, 554 F.3d 230, 235–36 (2d Cir. 2009). Thus,

‘‘[w]hile it is true that a buyer-seller relationship, without more,

11

case on the drug amount. At trial, the Government argued to the

jury that Ausbie intended to buy all the methamphetamine in

Sandoval’s bag. On appeal, the Government argued that Carillo’s

testimony about prior sales “easily satisfied the 50-gram threshold”—even though it presented no other evidence of those sales at

trial and relied entirely on the thwarted July 30, 2020 sale in its

arguments to the jury.

Ausbie countered that the Government was asking the court of

appeals to affirm his conviction on a different theory of the case

than the one it presented to the jury. Citing this Court’s decision

in Cole v. Arkansas, 333 U.S. 196, 201–02 (1948), Ausbie urged the

court of appeals to reject the Government’s attempt to salvage a

conviction for a crime different than the one it proved, which was,

at most, attempted possession of methamphetamine with intent to

distribute.

The court of appeals affirmed Ausbie’s conviction, based on the

theory of liability that the Government advanced for the first time

will not prove a conspiracy, … [o]ne becomes a member of a drug

conspiracy if he knowingly participates in a plan to distribute

drugs, whether by buying, selling or otherwise.’’ United States v.

Maseratti, 1 F.3d 330, 336 (5th Cir. 1993) (emphasis added).

Id. at 333 (alterations in Delgado).

12

on appeal. Although the court acknowledged that a buyer-seller

relationship, without more, is not a conspiracy, the court relied on

Ausbie’s prior dealings with Carillo and Sandoval to hold that

Ausbie knowingly participated in a conspiracy and that the conspiracy involved at least 50 grams of methamphetamine:

“[A] buyer-seller relationship, without more, will not prove

a conspiracy” because such a showing fails to show that “the

participants knowingly joined an agreement to distribute

drugs in violation of the law.” United States v. Maseratti, 1

F.3d 330, 336 (5th Cir. 1993). However, we have held that

“sizeable amounts of cash, large quantities of drugs, and

the presence of weapons have all served as proof for drug

conspiracy charges.” United States v. Escajeda, 8 F.4th 423,

427 (5th Cir. 2021). All of those types of evidence were present at Ausbie’s arrest. Moreover, Carrillo testified that

Ausbie had previously sold her methamphetamine on multiple occasions, Ausbie had previously conducted four methamphetamine transactions with Sandoval using Carrillo as

a middleman, and she had engaged in methamphetamine

distribution with Ausbie. Given the deference due to the

jury’s verdict, the evidence in this case was sufficient to establish that Ausbie was a knowing participant in the drug

distribution conspiracy. Carrillo’s testimony regarding her

past transactions with Ausbie, as well as the amount of

methamphetamine present at the time of Ausbie’s arrest,

also shows that a rational jury could have found that

Ausbie knew or reasonably should have known that the

conspiracy involved at least 50 grams of methamphetamine. See United States v. Staggers, 961 F.3d 745, 762 (5th

Cir.), cert. denied, 141 S. Ct. 388 (2020). Accordingly, the

13

evidence was sufficient to support Ausbie’s conspiracy conviction. Because Ausbie's conspiracy conviction is affirmed,

his challenge to his conviction for possession of a firearm in

furtherance of a drug trafficking crime also fails.

Pet. App. 2a–3a.

14

REASONS FOR GRANTING THE WRIT

The Court Should Grant Certiorari to Say Whether a Court

of Appeals May Affirm a Defendant’s Conviction, over a

Sufficiency-of-the-Evidence Challenge, on a Theory

Different from the One the Government Presented to the

Jury.

In Cole v. Arkansas, the Court held that due process precludes

a court of appeals from affirming a defendant’s conviction on a theory different than the one presented to the jury. 333 U.S. 196, 201–

02 (1948). The Court reiterated this principle three decades later

in Dunn v. United States, noting that “appellate courts are not free

to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.” 442 U.S. 100,

107 (1979) (citing Cole, 333 U.S. at 201); see also Presnell v. Georgia, 439 U.S. 14, 16–17 (1978) (applying this principle to penalty

phase of capital trial).

The Fifth Circuit departed from this principle in affirming

Ausbie’s conviction for conspiring to possess methamphetamine

with the intent to distribute it. On appeal, Ausbie argued that the

evidence was insufficient to support the jury’s verdict on the conspiracy charge because the evidence showed, at most, a buyerseller relationship between him and Sandoval. At best, the evidence showed that Ausbie was guilty of an offense for which he was

15

not charged: attempted possession of methamphetamine with intent to distribute. Ausbie also argued that, even if the evidence

sufficed to convict him of a conspiracy, the evidence was insufficient to support a finding that the conspiracy involved at least 50

grams of methamphetamine.

The Government responded by advancing an entirely different

theory of the case than the one it presented at trial. There, the

Government argued that the thwarted July 30, 2020 drug sale was

itself a conspiracy. On appeal, the Government argued that, given

Carillo’s testimony about prior drug sales, the buyer-seller “exception” to conspiracy liability did not apply because Ausbie was involved in more than one drug transaction with Sandoval and Carillo in the preceding weeks.

The theory the Government advanced on appeal was not the

case the Government promised the jury, nor is it the case the Government proved. Instead, apart some background testimony from

Carillo about her prior relationships with Sandoval and Ausbie

and prior drug sales among them, the evidence the Government

presented pertained entirely to Sandoval’s attempted sale to

Ausbie on July 30, 2020, which Carillo arranged.

In its opening statement, the Government said nothing about

other drug sales or an ongoing distribution enterprise involving

16

Ausbie and Sandoval or Carillo. Instead, the Government told the

jury that its case rested on the one thwarted drug sale:

You will hear that on July 30, 2020, these two defendants,

Francisco Sandoval and Nathaniel Ausbie, were located in

a red SUV containing … money, drugs, and guns. And because of that, they are charged with conspiracy to possess

with intent to distribute 50 grams or more of methamphetamine.

(emphasis added). The Government also explained that Carillo,

who would testify, was “charged with her role in the drug deal.”

(emphasis added). The Government concluded its opening statement by saying that, “At the end of the trial, it will be clear that

both of the defendants participated in the drug deal that day.” (emphasis added).

In its closing argument to the jury, the Government referred to

Carillo’s testimony that Ausbie and Sandoval “knew each other before this day” and “had done at least four deals with each other

prior to July 30, 2020.” But that was all the Government said about

earlier sales. The Government went on to devote the remainder of

its argument on the conspiracy count to the thwarted drug sale on

July 30, 2020, and described nothing more than the attempted sale

by Sandoval to Ausbie. As the Government put it, “Sandoval

brought the dope and Ausbie brought the money. There’s no confusion.” Also, “We have the drugs, and we also saw the money. And

17

Ms. Carillo told us the purpose of the involvement.” That was

enough, the Government argued, to prove a conspiracy between

Ausbie and Sandoval.

In its rebuttal argument, the Government again referred to

Ausbie’s and Sandoval’s earlier sales to Carillo: “What we heard

from Ms. Carillo was that Ausbie provided her with methamphetamine. And Sandoval also provided her with methamphetamine.”

But that wasn’t the centerpiece of the Government’s rebuttal. Instead, the Government focused on the thwarted July 30, 2020 sale:

“The uncontested evidence from the testimony, from the exhibits

we saw yesterday is that both of the defendants were involved in

this drug deal.” (emphasis added). To drive its point home, the

Government then recapped the evidence of the thwarted sale in

the Expedition. That evidence, the Government argued, showed

that Sandoval “was in there conducting this deal with Ausbie.”

(emphasis added).

The Government also shifted its theory of the case on the drug

amount. In its rebuttal argument at trial, the Government argued

to the jury that “Mr. Sandoval brought the methamphetamine in

that black bag, that full bag of methamphetamine because he was

going to sell him the full thing.” (emphasis added). But on appeal,

the Government argued that Carillo’s testimony about prior sales

18

“easily satisfied the 50-gram threshold”—even though the Government presented no other evidence of those sales and relied entirely

on the thwarted July 30, 2020 sale in its arguments to the jury.

In sum, the Government argued on appeal that the evidence

was sufficient to support a theory of the case other than the one it

presented to the jury. The court of appeals affirmed Ausbie’s conviction based on this new theory. The court held that there was

evidence of more than just a buyer-seller relationship between

Ausbie and Sandoval not only because of the presence of firearms

and the amount of drugs and cash at the thwarted July 30, 2020

sale, but also because of the prior transactions Carillo testified

about at trial:

Carrillo testified that Ausbie had previously sold her methamphetamine on multiple occasions, Ausbie had previously

conducted four methamphetamine transactions with Sandoval using Carrillo as a middleman, and she had engaged

in methamphetamine distribution with Ausbie. Given the

deference due the jury’s verdict, the evidence in this case

was sufficient to establish that Ausbie was a knowing participant in the drug distribution conspiracy.

Pet. App. 3a. The court also accepted that theory of liability—an

ongoing conspiracy going back weeks, rather than a conspiracy

resting entirely on one thwarted drug transaction—to reject

Ausbie’s sufficiency challenge to the amount of drugs involved:

19

Carillo’s testimony regarding her past transactions with

Ausbie, as well as the amount of methamphetamine present at the time of Ausbie’s arrest, also shows that a rational jury could have found that Ausbie knew or reasonably should have known that the conspiracy involved at least

50 grams of methamphetamine.

Pet. App. 3a.

The court of appeals’ reasoning here transgresses the principle,

articulated in Cole and reiterated in subsequent cases, that due

process precludes affirmance of a conviction on a theory of liability

different than the one presented to the jury. This Court should

grant certiorari to clarify whether Cole remains the law.

20

CONCLUSION

FOR THESE REASONS, Ausbie asks this Honorable Court to

grant a writ of certiorari.

Respectfully submitted.

MAUREEN SCOTT FRANCO

Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206

Tel.: (210) 472-6700

Fax: (210) 472-4454

s/ Bradford W. Bogan

BRADFORD W. BOGAN

Assistant Federal Public Defender

Counsel of Record for Petitioner

DATED: June 21, 2022