Petition for Writ of Certiorari — Timothy Martin Kendrick, Petitioner v. United States

Supreme Court briefDec 2, 2022

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No.

2 °64 97

ORIGINAL

IN THE

SUPREME COURT OF THE UNITED STATES

filed

DEC 02 2022

"In Re: Timothy Kendrick, PRO SE,

Petitioner

)

■

United States of America,

Respondent

)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Timothy M. Kendrick, #09128-029

Federal Correctional Complex - USP-2

P.0. Box 1034

Coleman, Florida

33521

QUESTIONS PRESENTED

Does the struckdown 18 U.S,G, §924

(e) (2)(B) (ii)

residual under Johnson(2015) as applied to *ACCA

equally apply to Mandatory Guideline USSG|4B1.2 (a) {ii)

Career Offender cases?

Does a Count 3_(ORS811.540) and Count 2 ("DUI") State

prior conviction qualify as a "crime of violence"

under S4B1.2 (a) (ii) "otherwise" residual for Enhance

ment purposes?

Does the Eighth Circuit application of 0,RS.§811.540

as presented herein qualify a non-violent crime as a

crime of violence?

Does the application of ORSS811.540 as applied in the

EighthiiCircuit (herein) prove the Categorical Approach

"FAULTY" if all the prior conviction counts are unaddressed

during Due Process?

TABLE OF AUTHORITIES

............. 2,3,5,6,14

2,6,7,9,11,12,13,14,16,

17, 21

4, 13,17,19,20

3.KENDRICK, 423 F.3d 803

7, 13, 20

4.430.Career Offender...

5,431. Crime of Violence......................7,13,20

6.433 .Felony Fleeing............................ 7, 13, 20

7.Leocal v Ashcroft, 2004 US LEXIS 751l(uS,Nov. 9,2004)...7

8.Begay v United States, 170 2LED2D, 128 S.Ct.1581,

170 LED 2D 490, 553 US 137 (Decided April 16, 2008)....8

9.J0H0NS0N 2015) 18 USC§924(e)(2)( B)(ii) ..

10.USSG S4B1.2 (a) (ii) ....................6, 14,16, 18

8, 13

11.28 USC §1651 (a) . . .

12.Leocal______________

v Ashcroft.

..9, 20

13.Jonathan Bradley Peterson v United States, 2009 US App.

9-10

Lexis 23869, No. 07-30465

10,11,13,17

14.Leocal

15 . Begay....................10,11,13,17

16 . Peterson................10,11

17.Case No.2:ll-cv-05798, 12/6/2011 <9th Cir.)....10, 7

18.KENDRICK,....10

19.SNYDER,*..

20.CREWS,....

21.RODRIGUEZ,

12,22

22.JOHNSON,..

23.Appellate Case No.16-2605

12,15

24.Beckles,

25.CONSTITUTION,430,431,433.........

26.0reg.Rev.Stat.§811.540 (1997)

F3d

, 2004 WL 1687924

27.United States v Martin,

6th Cir . , ( July , 29,2004")

28.United States v Howze, 343 F.3d 919,

7th Cir.(2003)....18

29.United States v James,337 F.3d 387, 4th Cir.(2003)

30. Case No. CR-02-2039-2-LRR

4,9,16

31.Appellate Case No.04-3256.

1.Oregon Rev. Statf8i'l.540

2.0RS §811.540 ......................

-3-

STATUTES AND RULES

Oregon Rev. Stat. §811.540 (l997)

(l)A person commits the crime of fleeing or attemnpting,

to elude a police officer if:

(a)

the person is operationg a motor vehicle; and

(b)

A police officer is in uniform and prominently

displaying the police officer'^ badge of office

or operating a vehicle approximately marked

showing it to be an official police vehicle

gives a visual or audible signal to bring the

vehicle to a stop, including any signal by hand,

voice, emergency light or siren, and either;

(A)

The person, while still in the vehicle, knowingly

flees or attempts to elude a pursuing police

officer; or

(B)

The person gets out of the vehicle and knowingly

flees or attempts to elude the police officer.

(Appellate Case No.16-2605, Page 15, (4/2017),

(8th Cir. Court of Appeals.)

18 USSG S4B1.2 (a) (ii)--"crime of violence";

' ♦ . . other-

wise involves conduct that presents a serious petential

risk of physical injury to another."

Appellate Case

No.04-3256, Page 30, filed 12/15/2004).

18 USC §924 (e) (2) (B) (ii)--"crime of violence";

' . . .any

felony that otherwise involves conduct that presents a

serious potential risk of physical unjury to another."

U.S. Sentencing Guidelines

(2004), USSG §4B1.2(a)--

"...the use, attempted use, or threatened use of

physical force against the person of another."

U.S.S.G. app. C supp. Amendment 798-- (eliminating

the residual clause from the crime of violence

definition at USSG §4B1. l( a) (ii )).

U.S. Constitution--

430.Career Offender; 431.Crime

of Violence; and 433.Felony Fleeing £all KENDRICK,

423 F3d 803, respectively.)

CONSTITUTIONAL PROVISIONS

Sixth Amendment-

"the likelihood of a different

result must be substantial."

Fifth Amendment-

"effects only the actions of the

federal governement."

"cruel and unusual punishment."

Eighth Amendment-

Fourteenth Amendment-

"Due Process Clause";

"protects the accused against conviction except proof

beyond a reasonable doubt of every fact necessary to

constitute the crime charged.

- s-

STATUTORY PROVISIONS

18 USSG S4B1.2(a) (ii)

18 USC §924(e)

18 USC 8924(e)(2)(B)(ii)

4. U.S. Sentencing Guideline §851

Oregon Rev. Stat. §811.540

U.S.S.G. app. C supp. Amendment 798

28 USC §2241

28 USC §2255

STATEMENT OF THE CASE

In 2004

petitioner received an enhanced sentence using

the "otherwise" residual of USSG §4B1.2 (a) (ii) and applied

the "Categorical Approach" to classify a State Prior Con}>

viction, (Or. Rev. Stat . §811.540), as a crime of violence that

was a categorical mismatch in direct definition,

The predicate

prior O.RS. §811.540 herein has an included charge of "DUI"

(Driving Under the Influence of Intoxicants, here, and through

out), factor that has gone unaddressed to date from the initial

raised ISSUE 2 of petitioner's Direct Appeal.

(Defense Counsel,

same as Trial Counsel) poorly represented this claim regarding

0RS §811.540 and the US Court of Appeals ,j^when addressing

4-Vie. U-S.

i'%*'

~ 6 "*

ORS §811.540, overlooked the ISSUE 2 of "operating while

intoxicated"

but addressed the "INTENT" factor of "level

of risk" instead,

Petitioner has filed.numerous post-

conviction motions for relief of sentence to address the

"DUI" factor as a PRO SE

applicant in his second Motion.

A 28 USC §2241 filed in the 9th Circuit, (Case No. 2:11cv-05798, 12/6/2011, 9th Circuit), the same circuit ORS

§811.540 is from [the State of Oregon) was denied.

Petitioner herein humbly and prayerfully requests

an unobstructed procedural redress by the U,S. Supreme Court

attention to ORS §811.540 as a "crime of violence" including

the "DUI" factor attatched to the ORS §811.540 State Conviction predicate prior which was a superceding indictment

added to each Count of Conviction for enhancement purposes

that did not receive a seperate hearing, post trial

conviction, or Direct Appeal address regarding Leocal v.

Ashcroft.

The US Supreme Court has applied KENDRICK, 423 F3d

803 (2005) to constitutional law under the "US CONSTIT

UTION: 430.Career Offender; 431. Crime of Violence; and

433. Felony Fleeing, (respectively,] without any address of

the

"DUI" factor.

contrast

This application of law is in conflict,

and opposition to the Direct Appeal "Issue 2",

Leocal v Ashcroft, 2004 US Lexis 7511 (u.S . , Nov. 9,

2004)(operating while under

the influence of intoxicants

is not a crime of violence'}), Begay v United States, 170

-7-

LED 2D 490, 553 US 137 (decided April 16, 2008)("DUI"

is a''strict liability*crime; removes the'culpable state

of mind^addressing "INTENT"), and numerous Ninth

Circuit "ACCA" (Armed Career Criminal Act, here and

throughout), cases regarding ORS §811.540 enhancements

which have been remanded under JOHNSON(2015), 18 USC

§924 (e)(2)(B) (ii) struckdown residual which is "interchangable" with USSG §4B1.2 (a)(ii) "otherwise"

residual unequally applied, and without any "DUI" consideration of factor, as well as no career offender

redress to date amongst more than half-dozen postconviction relief of sentence Motion( s )

Petitioner hereby humbly and prayerfully requests

the U.S. Supreme Court use its descretionary powers

of authority, with this Court of Appeals dis-approved

Certificate for Writ of Certiorari authorized under

Rule 20 by 28 USC §1651 (a) because

the Great Writ

will be in aid of the Eighth Circuit Appellate Court's

jurisdictionary review, and because adequate relief

under the U.S. Constitution Law cannot be obtained

in any other form or from any other Court.

REASONS FOR GRANTING THE WRIT

The "DUI" factor included with ORS §811.540 was not

addressed during trial by either party.

Defense Counsel, (both Trial and Direct Appeal Counsel,

Mr. Charles H. Nadler, here, and throughout), raised

* ISSUE 2Jin Appellate Case No.04-3256 "operating while

under the influence is not a crime of violence" and

failed to relate it to ORS §811.540.

«9

Issue 2 of Direct Appeal, the Leocal v Ashcroft decision

issued by the U.S. Supreme Court was issued two months

after trial and before the U.S. Court of Appeals for

the Eighth Circuit ruled on the Direct Appeal.

The US Court of Appeals for the Eighth Circuit neglected,

refused, or overlooked the address of the Issue 2

...

raised by defense counsel in petitioner's Direct Appeal

No. 04-3256.

In January of 2008 petitioner filed a 28 USC §2255

Motion to the District Court in the Eighth Circuit

including an "opinion" out of the Ninth Circuit showing

an "ACCA" case was remanded regarding ORS §811.540.

(Jonathan Bradley Peterson v United States, 2009 US

Applexis 23869, No. 07-30465)(Attempting to Elude a

Police Officer is not categorically a crime of violence).

On July 15, 2008, HONORABLE LINDA R. READE,DENIED #5

(above) ruling (l)Application to Proceed In Forma Pauperis]

-4-

(2)28 USC §2255 MOTION; and (3)Certificate of Appealability-- "DENIED".

Petitioner did not file a Certificate of Appealability

for reasoning shown in #6 (above)(See Case No. 6:08-cv02004-LRR, (Filed 7/15/08)).

On July 14, 2011, petitioner filed a

28 USC §2241

Motion in the Ninth Circuit in the Central District of

California raising Leocal, Begay. and Peterson (mentioned

herein) regarding ORS §811.540 (and other trial issues.)

ORS §811.540 is located in the State Of Oregon (9th

Circuit).

The Ninth Circuit avoided address of the 28 USC §2241

Motion denying it by "lack of jurisdiction" reasoning.

(See Case No. 2: ll-cv-05798 , 12/6/2011,

10.

(9th cir.)).

Conflict begins in the Eighth Circuit and Ninth Circuit

regarding ORS §811.540 post-conviction relief regarding

Peterson (9th Cir.) and Kendrick, (8th Cir.) (7.00S)

11.

Petitioner attempts to address the ORS §811.540 and

"DUI" convictionin 28 USC §2241 Motion in #9 (above)

using Leocal, Begay, & Peterson regarding "state of

mind" and "definition of". (20ll)

12.

At this time niether Circuit addresses the accompany

ing "DUI" inclusion or the "definition of" ORS f811.540

and its relation to federal law.

13.

In 2014, petitioner refiled a 28 USC §2255 Motion

>■

~K>-

(after transfer), No.14-1644, seeking review with the

inclusion of the §2241 Motion (above) using the Saviings

Clause" and the "Request For Reconsideration" Supplemental

Brief which was sent before the decision^as declared.

14.

Petitioner raised numerous ORS §811.540 reversals in

Begay, Snyder, Crews, and Rodriguez.

(See "Table of

Authorities") .

15.

Petitioner, to this date, filed all initial pleadings

PRO SE and was always denied except for the Appellate

Case No.16-2605. Where I was represented by appointed

counsel,

16.

Mr. James Whalen,

(2015),(here, and throughout).

In 2016, petitioner timely filed under JOHNSON(2015),

Appellate Case No. 16-2605, and was GRANTED permission

for a successive §2255 Motion and appointed Mr. James

Whalen as Appellate Counsel.

17.

Mr. Whalen addressed the "categorical mismatch" of ORS

§811.540 and the relativity of the §924[e) and §4B1.2 (a) If ii)

residual,

(and Cal.Pen. Code §459, Burglary, regarding

§851 enhancement). (Appellate Case No.16-2605)(8th Cir.).

18.

Appellate Case No.16-2605 DENIED under Beckles, and

"Advisory Guideline Case".

19.

(2017)

Today, petitioner presents facts not just overlooked, but

also facts unavailable at trial.

This Motion should

prove facts unavailable to date regarding Circuit conflict,

U.S.Supreme Court precedent(s) rulings, and a detrimental

-11-

clear error by the lower courts which prove a

faulty

categorical approach" when due process and attention to

detail are disregarded, also proving grounds of compelling

reasoning(s) to GRANT and ISSUE a Writ of Certiorari by

this Honorable Court, excorsizing its authoritative power

to correct this scenario erroneously attended due this

petitioner.

Previously, the new FACTS unavailable for consid

eration are as follows:

(A) There is a "DUI" Count (2) included in the

predicate prior ORS§811.540 Count(3) sentenced

together where the U.S. Supreme Court has issued two

Supreme Court precedents. Retroactivity is not needed

and petitioner is not "time barred" because the Leocal

issue was raised on Direct Appeal by defense counsel

which preserves this issue for collateral review.

Begay supports Leocal. Together, Leocal (operating

while intoxicated a vehicle" ) and Be^ay ( DUI has

no 'culpable state of mind'; removing intent :? and.

"DUI" is a 'strict liability' crime and not a criminal

crime), negating 0RS§811.540 with a DUI factor null

and void"for any "crime of violence" application of

law undeb federal regulations. These two Supreme Court

precedents negates ORS§811.540 as a crime of violence

by direct definition of, and negates ORS§811.540 as

a "crime of violence" for enhjancement purposes; and

(B) Under the CONSTITUTION Law, specifically:

"430. Career Offender; 431. Crime of Violence;. and

433. Felony Fleeing--as defined by KENDRICK, 423 F.3d

803", hereby constitutes a subject matter for discre

tionary review by the U.S. Supreme Court for this

request for the issueance of the'Certificate of Extra

ordinary Writ of Certiorari^ under 28 USC §1651(a)

because the case law, KENDRICK, 423 F3d 803 under the

CONSTITUTION #'s 430, 431, and 433 not only misrepresents the above mentioned facts, but misapplies this

case due to unmitigated issues regarding "DUI" and

-\l'

§924(e)(2) (B)(ii)/ §4B1.2 (a) (ii) relativity isssues

causing: judicial conflict between Circuits and

Statutes. The following presented conflicts are

presented below to verify the compelling reasons

for GRANTING of the Extraordinary Writ of Certiorari:

CONFLICT I

(A)

Definition of 0.R.S.§811.540 in comparrison to

U.S.S.G.§4B1.2(a)(ii);

(interchangability):

USSG §4B1.2(a) (ii) -- definition of a "crime of

violence is "(2) is a burglary of a swelling, arson

extortion,

involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury

to another."

( Underlined portion is used during sentencing

at trial and filed Motions.)

Oreg.Rev. Stat.§811.540 (1997) definition s tates:

"(l) A person commit(s) the crime of fleeing or

attempting to elude a police officer if: (a) the

person is operating a motor vehicle; and (b) A police

officer is in uniform and prominently displaying the

police officer's badge of office or operating a vehicle

approximately marked showing it to be an official

police vehicle gives a visual or audible signal to stop

the vehicle, including any signal by hand, voice,

emergency light or siren, and either: (a) The person,

'13-

while still in the vehicle, knowingly flees or attempts

to elude a pursuing police officer; or (B) The person

gets out of the vehicle and knowingly flees or attempts

to elude the police officer."

Oregon Rev. Stat. §811.540 (1997)

as depicted,(quoting Appellate Case No.16-2605, Page 15

4/2017)(8th Cir. Court of Appeals).

This presentation shows the First Extraordinary Cir

cumstance because the* wording of 0.R.S.§811.540 definition

is a "categorical mismatch" when compared to USSG§4B1.2 (a)(ii)

or 18 USC §924(e)(2)fB)(ii) "otherwise" residual definition;

and

CONFLICT II

A multiple count State Prior Conviction is requiring

redress after a U.S.Supreme Court ruling intervienes

petitioner's Trial and Direct Appeal Due Process pro

ceedings which are poorly represented.

During the sentencing hearing of petitioner's trial,

(Case No. CR-02-2039-2-LRR, Page 9) states "The United

States believes Mr. Kendrick qualifies as a career offender

based on that conviction for fleeing and eluding."

Further,

(on Pages 14-15,) it states "We believe that this is a case

that under the "otherwise" clause of §4B1.1 qualifies as a

"crime of.violence".

Finally, (on Page 24,) "The Court did

find that under the "otherwise" clause this qualifies as a

crime of violence", and, (on Page 14,) the Court refers to

"risk" and neglected to address any other State mitigating

factors because the priors were admitted to instead of following

proper inclusion of that predicate priors additional Counts

when there is obvious reason for address. Such as a drug

conviction accompanied by a DUI.

Unfortunately, Trial/Direct

Appeal counsel failed to make this connection, and the U.S.

Court of Appeals for the Eighth Circuit failed to address the

'issue 2/raised in that Petition which raised the "DUI" Issue

in LEOCAL r ( iuVlis

jXe&ivtei W«A»\ ~

Two months post-trial, on Nov. 9, 2004, the U.S.

Supreme Court "decided under similar language that operating

while intoxicated is hot a crime of violence", as ident

ically presented in petitioner's Direct Appeal (Appellate

Case No.04-3256, Filed on 12/15/2004.^

The U.S. Court of

Appeals for the Eighth Circuit on Direct Appeal addressed

ORS§811.540 as a "crime of violence" under the "otherwise"

clause referring to Issue 2, yet neglected to comment or

refer to the U.S.Supreme Court precedent raised on Direct

Appeal (because it was not out of the Eighth Circuit or for

other reasoning, as speculated by Defense Counsel.)

-15-

This showing that ORS§811.540 as a "crime of violence"

including thef "DUI" factor is in conflict with the two U.S.

Supreme Court precedents regarding

LEOCAL and BEGAY as

mentioned previously.

Wherefore

KENDRICK, 423 F.3d 803, (2004), should not

be a controlling case for any application of law without

addressing

the unmitigated issue of the "DUI" inclusion with

ORS §811.540 as it currently stands.

This is the SECOND Extraordinary Circumstance showing

the "DUI" factor under Leocal and Begay is in direct conflict

here when addressing the two U.S. Supreme Court precedent's)'

decision(s) in comparative relativity to KENDRICK, 423 F3d 803,

as it stands;

and

CONFLICT III

"Due Process" concerns prove that the "Categorical

Approach" could be "FAULTY" if mitigating issues are over

looked, ignored, or avoided.

The Eighth Circuit Courts supports the "crime of

violence" ruling using the "categorical approach" of the

career offender provision, (USSG §4B1.2(a) (ii)),applying

three sister circuit cases:

1) UNITED STATES V MARTIN,

F. 3d___ , 2004

WL 1687924 (6th Cir., July 29, 2004)(Michigan crime

of fleeing and eluding is a crime of violence);

2) UNITED STATES V HOWZE,343 F.3d 919,

(7th

Cir. 2003)(Wisconsin crime of fleeing from an officer

is a crime of violence under §924(e);

3) UNITED STATES V JAMES, 337 F.3d 387, (4th

Cir. 2003)(South Carolina fleeing from an officer is

a crime of violence under 18 USC §924(e)), (as shown

in Direct Appeal Exibits herein, Appellate Case No.

04-3256).

Regarding the "categorical approach", the First Issue

here is that petitioner has no gun in his case at all.

Therefore, cross applying statutes to support an enhancement

is illegal when the applied enhancement in any case has its

own definition used.

A Court cannot use a gun case enhance

ment to support an enhancement of a non-gun case, when that

applied statute has its own definition for enhancement pur

poses. Specifically referring to §924(e)(2)(B)(ii) and

§4B1.2(a) (ii) "otherwise-residual", which Courts treat as

being "interchangable" when applying increased punishment proves erroneous because, as shown here, post con

viction relief«*the "interchangability"* is segregated.

H*-

The Second Issue is that even considering a compar

ative State statute, all the additional included: (if any)

State Conviction Indicted Convictions must be considered

either during pre-conviction or post-conviction proceedings

in order to fulfill "Due Process" concerns or in honoring

U.S. Supreme Court precedent(s).

Here, KENDRICK, 4?3 F.3d 803

as the controlling example

ot& a "crime of violence" for "Felony Fleeing" or "Attempting

to Elude a Police Officer" which still has unlitigated

faPtor(s) making this case an incomplete case because of the

"DUI" factor -which involves U.S. Supreme Court precedent (s),

Circuit conflict(s), and Statute conflict(s) which must be

addressed in order to have a sound conviction for enhancement purposes and future case law referral,

Because this

case is yet to be completed, KENDRICK, 423 F.3d 803 SHOULD

NOT be used as a controlling-anything, when referring to ;

federal law application enhancing sentences.

This presentation is the THIRD Extraordinary Circum

stance because this case is showing blatant obvious con

flict^) that need to be addressed and only this U.S.

Supreme Court has the authority and jurisdiction to attend

these issues, which proves posotive for granting the Writ

of Certiorari;

and

-18-

conflict IV

The U.S. Supreme Court has now followed the Eighth

Circuit lead;(as well as almost all the Circuits in the

United States), and has/have applied KENDRICK, 423 F.3d 803

in the lawbooks as an example of a "crime of violence" as

labeled in the CONSTITUTION: 430.Career Offender; 431.

Crime of Violence; and 433. Felony Fleeing.

Petitioner,

must declare that this application of petitioner's case

is applied in error.

All the avenues are not yet closed

because petitioner has not yet

received an unobstructed,

fair, procedural hearing at attending the "DUI" inclusion

with ORS §811.540 which is in conflict with multiple

applications under federal ruling, to date, as provided in

petitioner's Direct Appeal,(multiple filed post-conviction

relief of sentence Motions-- approximately six to date),

which address Direct Appeal Issue 2 using Leocal v Ashcroft

because Due Process was interrupted by poor Court Appointed

Counsel's representation of Issue 2 coinciding with the over

sight of the Eighth Circuit U.S. Court of Appeals Direct

Appeal address that obviously avoids the "DUI" factor addressed

herein.

The representation to the United States Constitutional

Law using KENDRICK, 423 F.3d 803, while ignoring an unaddressed

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"DUI" factor already ruled upon by the U.S. Supreme Court,

which is now used to enhance sentences and cause conflict in

between Circuits and Statutes is a violation of my Constitu

tional Right of "Due Process" and risks unsound doctrine as

because of the unlitigated "DUI" factor (married, or

included) with ORS §811.540 as the representative of a "crime

of violence" which now calls for the descretionary authority

of the United States Supreme Court's descretionary author

itative powers in view and in light of JOHNSON(2015), SNYDER,

SYKES, LEOCAL, AND BEGAY, ( all'aCCa' cases), and KENDRICK,

( a

career offender case), where conflict and descrepancies

regarding Oregon Rev. Stat.§811.540 is applied with an in

clusion "DUI " factor, not

RjuUi upon OH

by any

This is the FOURTH Extraordinary Circumstance because

U.S. Supreme Court precedent (s) are now in conflict, as

well as ACCA and Career Offender Statutes, as well as

Circuit application of ORS§811.540, and CONSTITUTION Law,

which support this seeking of the granting of the Great

Writ of Certiorari due to the extraordinary compelling

reasons stated herein this petition.

Due to the conflicting issues presented above by this

PRO SE petitioner, I request this Honorable U.S. Supreme

Court issue a Certificate of an Extraordinary Writ of

Certiorari for the compelling reasons listed herein.

^£0-

CONCLUSION

For the reasons

listed herein, and because of the

U.S. Supreme Court precedent(s) as applied to this case,

petitioner hereby requests review and ruling by the U.S.

to bfi.

Supreme Court,1VACATED in part, and REMAND in part for re

sentence without the "enhancements" in accord with the

enclosed sentencing transcripts (provided herein), which

calls for the resentence of the third alternative sentence

°f 87_ months on each Count, run concurrent, as ordered by

the trial judge with credit for time served and immediate

release (b ecause the exclusion of the "crime of Violence"

also removes the "relevant conduct" drug amount

see sent-

encing transcripts), which proves the Eighth Circuit lower

courts have had ample opportunities to address this issue

and have not done so to date, and that with the application

of the U.S. Supreme Court precedent(s) applied, petitioner

is currently incarcerated illegally because of the unaddressed

"DUI" factor and the "struckdown" "otherwise" residual clause

under JOHNSON(2015), and USSG app. C Amndt. 798, LEOCAL,

and BEGAY, which are all previous rulings which need verification on, clarification on, and application of by this

U.S. Supreme Court's authoritative powers.

PRAYERFULLY, SINCERELY, AND RESPECTFULLY SUBMITTED ON

THIS _____ day of December.

-HI-

I/M Timothy! artin Kendrick

Reg. # 09128-029

PRO SE REPRESENTATION

ABBREVIATIONS

ORS, O.R.S., Or.Rev. Stat.

Oregon Revised Statute

ACCA

.......... Armed Career Criminal Act

.......... United States Sentencing Commision

USSC

"DUI"

Driving Under the Influence of Intoxicants

S. Ct.

.......... U.S. Supreme Court

USSG .

..United States Sentencing Guidelines

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