Petition for Writ of Certiorari — Kendale Welborn, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

KENDALE WELBORN,

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

Kendale Welborn

P.O. Box 466

Chattanooga, TN 37401

423/266-9404

BPR# 006395

QUESTION PRESENTED FOR REVIEW

The Appellant’s Appeal was denied on April 29, 2022 by the Sixth Circuit

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

by this Honorable Court. The Defendant objected to use of Methamphetamine

Actual as the drug to determine the Guideline Offense Level and thus the potential

sentence, the Defendant here was charged in the Indictment with the distribution of

500 grams or more of Methamphetamine Mixture. In the Plea Agreement signed

by the Defendant in this case and he pled guilty to the specific count of distribution

of 500 grams or more of Methamphetamine Mixture. That only when it became

time for sentencing purposes in the Presentence Report, the Government used the

penalty provided in the United States Sentencing Guidelines for the drug

Methamphetamine Actual. Here the Appellant entered into a plea agreement based

on Methamphetamine Mixture not Methamphetamine Actual a substantially

different drug with a specific purity level which greatly increased his potential

sentence based on Guideline, however, this did not raise the mandatory minimum

or maximum sentence, but raise his Guideline Range. This fact is contrary to the

Apprendi decision and the Alleyne decision, the US Supreme Court in Apprendi v.

New Jersery, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013)

which both held that any fact that raises the defendant’s potential sentence is an

Element of the Crime and is a jury question, not a question for the Court. In

Alleyne the Court said,

As noted, the essential Sixth Amendment inquiry is whether a

fact is an element of the crime. When a finding of fact alters

the legally prescribed punishment so as to aggravate it, the fact

necessarily forms a constituent part of a new offense and must

be submitted to the jury. It is no answer to say that the

defendant could have received the same sentence with or

without that fact. It is obvious, for example, that defendant

could not be convicted and sentenced for assault, if the jury

only finds the facts for larceny, even if the punishments

prescribed for each crime are identical. One reason is that each

crime has different elements and a defendant can be convicted

only if the jury has found each element of the crime of

conviction, Alleyne v. United States, 570 U.S. 99 (2013).

This Court has made it clear that facts that increase a defendant’s statutory

maximum or minimum sentences are Elements of the Crime itself and that must be

proved to ajury, however, the Court has not applied this same standard to judicial

fact finding that results in the Guideline Range being higher while the sentence

may be above the minimum but below the maximum sentence, that should not

apply here, here the Defendant was charged with a specific crime, that of

2

Methamphetamine Mixture distribution, the punishment standard is much less

stringent than Methamphetamine Actual and is in fact a separate drug with

different penalties, further, that the type of drug should be an Element of the

Crime/Indictment itself if it increases the potential sentence, especially in this case

where he was charged with a crime involving Methamphetamine Mixture and pled

guilty to the same crime involving Methamphetamine Mixture rather than

Methamphetamine Actual that was used to compute his Guideline Range and

greatly increased his potential sentence.

LIST OF PARTIES

Kendale Welborn

Reg No: 54995-074

FCI Manchester

P.O. Box 4000

Manchester, KY 40962-4000

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 .....ccecsccsescessecsseseesseectecnscnerteesaeeeesesaseasenssssssesasesses 1

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Statement Of the Case .......ccccsssccssscsssssecssseccsessccesscsseessanesssnscceaneseaeeseneeessaasesesseaeos 10

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APPCDix ..c.ceccscccsccssscessssecteeesscenecesecsseeseceseseseessecssessseaeerssseesnsevsesssessaseeseneseateneenes 18

TABLE OF AUTHORITIES

Statutes and Rules

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Circuit Court Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000). 1, 12, 13, 14

Alleyne v. United States, 570 U.S. 99 (2013). 1,2, 13, 14

Gail v. United States, 522 U.S. 38, 49-50 (2007). 15

Kimbrough vy. United States, 522 U.S. 85, 90 (2007). 15

United States v. Booker, 543 U.S. 220, 245 (2005) 15

OPINIONS BELOW

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

States of America v. Kendale Welborn, C.A. No. 21-5425, April 29, 2022, (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. Kendale

Welborn, District Court No. 4:20-CR-00004, April 21, 2021.

JURISDICTIONAL STATEMENT

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

this case on April 29, 2022. 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, Kendale Welborn, 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

Sixth Amendment to the US Constitution.

STATEMENT OF THE CASE AND RELEVANT FACTS

The Appellant in this case was Indicted on February 19, 2020 with a fourcount Incident, charging the Appellant with a violation two counts, Count One:

Possession with the Intent to Distribute Methamphetamine, knowingly and

intentionally distribute 500 grams of a mixture and substance containing a

detectable amount of Methamphetamine, a Schedule II controlled substance, 21

USC § Sections 841(a)(1) and 841(b)(1)(A) and 846 this was a conspiracy charge.

He was also charged in a Second Count with Possession of the Intent to

Distribute Mixture of Substance containing a detectable amount of

Methamphetamine, a Schedule II controlled substance, in violation of 21 USC §

Sections 841(a)(1) and 841(b)(1)(C). The date of this offense was March 10, 2019.

The Appellant entered into a Plea Agreement with the Government to plea to

Count One, the charge of distribution of 500 or more grams of Methamphetamine

Mixture. The Change of Plea Hearing was taken in front of the Honorable

Magistrate Judge Christopher H. Steger on July 28, 2020.

The Presentence Investigative Report was filed on October 29, 2020 in

regards to the Appellant, Kendale Welborn. The Appellant filed a Notice of

Objections on November 17, 2020. The Government filed no Notice of Objections

to the Presentence Report, a (Presentence Investigative Report, Addendum, Sealed)

10

was filed on November 19, 2020.

The Sentencing Hearing took place on April 16, 2021 before the Honorable

District Judge Travis R. McDonough. The Defendant’s Guideline Range was

determined to be one hundred and sixty-eight (168) to two hundred and ten (210)

months, based on a Total Offense Level of thirty-one (31) and a Criminal History

of five (5) based on the Presentence Investigative Report. The Appellant in this

case had filed a Motion for a Variance, based on several issues, the Motion for a

Variance was granted. The Appellant was sentenced to one hundred and forty

(140) 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 April 21, 2021, a timely

Notice of Appeal was then filed by the Appellant, Kendale Welborn, on April 22,

2021 and the 6" Circuit Court of Appeals made a ruling denying the appeal of the

Appellant on April 29, 2022 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.

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ARGUMENT

Mr. Welborn entered into his Plea Agreement to Count One. In the plea he

pled to the specific charge that he was charged with in the Indictment. That was the

First Count which was a charge of Conspiracy to Distribute 500 grams or more of

Methamphetamine Mixture. The Appellant entered into a Plea Agreement with the

Government where he pled guilty to Count One which charged Conspiracy to

Distribute 500 grams or more of Methamphetamine Mixture. A Presentence Report

was then prepared, the Presentence Report computed the Sentence based on

Methamphetamine Actual rather than that of Methamphetamine Mixture that he

pled to.

Prior to the US Supreme Courtt’s decision in Apprendi v. New Jersey, 530

US 466 (2000) it was well settled that the quantity of contraband possessed was

not an essential element of the offense and pertinent only for sentencing. Since the

Apprendi decision, this Court ruled that Sixth Amendment required that the

quantity of drugs is an element of the offense itself and must be proved beyond a

reasonable doubt where the quantity possessed may determine the minimum and

maximum of penalties, further the Supreme Court has held that any fact except the

fact of a prior conviction that increases the penalty beyond the prescribed Statutory

12

Maximum is an element of the offense that must found by a jury beyond a

reasonable doubt, Apprendi v. New Jersey, 530 US 466 (2000).

The Alleyne decision, which was issued June 17, 2013, found that any fact

that by law increases the penalty for a crime is an element that must be submitted

to the jury and found beyond a reasonable doubt. The case goes on to say,

a fact that increases a sentencing floor, thus, forms an essential

ingredient of the offense,

the Court then states,

Moreover, it is impossible to dispute that facts increasing the

legally prescribed floor aggravate the punishment,

Alleyne v. United States, 370 U.S. 99 (2013).

In this case the kind of drug should also be considered as an element of the

offense when it raises the Guideline Range and that this is something that should

be proven to a jury and not determined by the Judge, the fact that the Defendant

was specifically charged with the possession of a Mixture and Substance of

Methamphetamine and pled to that same offense. The Apprendi case said that the

Sixth Amendment requires that a factual determination authorizing an increase in

13

the prison sentence for an offense must be made by a jury on the basis of proof

beyond a reasonable doubt. While Apprendi only dealt with the maximum, here the

Defendant’s sentence was increased based upon differentiation between

Methamphetamine Actual and Methamphetamine Mixture sentencing guidelines.

The Sixth Amendment, under the Apprendi decision and Alleyne decision and their

progeny should require what kind of Methamphetamine drug that a Defendant

accused of is an element of the offense. A mixture of Methamphetamine, is treated

more leniently than Methamphetamine Actual and this fact alone should be an

Element of the Crime if it increases the potential sentence under Alleyne especially

in this case where he was charged with a mixture of Methamphetamine and pled

guilty to the same crime but Methamphetamine Actual was used in sentencing.

Mr. Welborn asks this Honorable Appellant Court to declare as

unconstitutional, the United States Sentencing Guidelines applicable to

Methamphetamine offenses under the Sixth Amendment, which treat quantities of

Methamphetamine Actual and ICE more harshly than the same quantities of a

mixture containing a detectable amount of Methamphetamine. The Appellant,

Kendale Welborn, requests that the Court apply the Guidelines for

Methamphetamine Mixture in this case for his sentence and to all

Methamphetamine offenses,

14

In a seminal case of United States v. Booker, 543 US 220, 245 (2005), the

Supreme Court held that the United States Sentencing Guidelines are “effectively

advisory” and that they “serve as one factor that Courts must consider in

determining the appropriate sentence.” The US Supreme Court Case of Kimbrough

v. US, 552 US 85, 90 (2007) found that while the Guidelines are advisory, the

Guidelines remain the “starting point and the initial benchmark” for sentencing.

Gall v. United States, 552 U.S. 38, 49-50 (2007), that case held that a District

Court’s failure to calculate the Appellant’s Guideline Range correctly is a “serious

procedural error.” The Guidelines that are the issue here are those that determining

a Appellant’s Base Offense Level according to the quantity and purity of

Methamphetamine involved. See USSG § 2D1.1(c) Drug Quantity Table. Base

Offense Levels for Federal drug crimes are calculated according to the Drug

Quantity Table in the Guidelines, which uses a graduated scale based on the type

and quantity of the drugs involved. Methamphetamine is quantified based on purity

levels and is divided into three (3) categories.

The Guidelines refer to three categories of Methamphetamine according to

relative purity; Methamphetamine Mixture, Methamphetamine Actual, and ICE.

Mr. Welborn argues that this Court should find as unconstitutional under the Sixth

Amendment, the 10:1 ratio between quantities of Methamphetamine Actual and

15

Methamphetamine Mixture in the Guidelines unless appropriately charged. In this

case, the Appellant agrees that he would still be of a possession and distribution of

500 grams or more of Methamphetamine Mixture, the same crime he was charged

with in his Indictment, the same one he pled guilty to, however the Presentence

Report itself changed the drug, the effect of this action would result in this

_Appellant’s Base Offense Level increasing to thirty-four (34) Methamphetamine

Actual from thirty (30) with Methamphetamine Mixture. We would request that

the Court declare as unconstitutional under the Sixth Amendment, the Guidelines

applicable to Methamphetamine offenses and find that the Guideline Range was

incorrectly determined and that is a serious procedural error that demands this

Court grant our Writ of Certiorari and overturn the 6" Circuit ruling.

16

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

Gibb lbe [Sard

AMtorney for Kendale Welborn

P.O. Box 466

Chattanooga, TN 37401

423/266-9404

BPR # 006395

17

IN THE UNITED STATES SUPREME COURT

TERM

UNITED STATES OF AMERICA,

Respondent,

V.

KENDALE WELBORN

Petitioner

APPENDIX

JOHN ALLEN BROOKS

P.O. BOX 466

Chattanooga, TN 37401

423/266-9404

Counsel for Petitioner

18

TABLE OF CONTENTS

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

United States of America v. Kendale Welborn

C.A. No. 21-5425, April 29, 2022

(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. Kendale Welborn

District Court No. 4:20-CR-004, April 21, 2021

19