Petition for Writ of Certiorari — Ronell Watson, Petitioner v. United States

Supreme Court briefJun 14, 2023

Ask Donna

What actually matters in this document.

Text

22 - 7826

FILED

JUN 1 4 2023

No. ^

IN THE

SUPREME COURT OF THE UNITED STATES

Ronell Watson

— PETITIONER

(Your Name)

vs.

United States

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Second Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Ronell Watson, Reg. No. 83703-053

(Your Name)

FCI Butner Medium

Federal

Correctional Institution P.O. Box 1500

(Address)

Butner, NC 27509

(City, State, Zip Code)

919-575-8000

(Phone Number)

Questions Presented

Is premeditation an element of attempted murder under the

federal system, such that the Government violated Petitioner's

Fifth and Sixth Amendments rights by not instructing the jury to

find premeditation beyond a reasonable doubt?

II. Did the district court violate Petitioner's Fifth and Sixth

Amendment rights by sentencing him above the statutory maximum?

III. Did the district court violate Petitioner's Fifth and Sixth

Amendment rights by finding premeditation by a preponderance of

the evidence and raising Petitioner's base offense level by six

levels, or did the remedial holding in Booker entirely moot the

constitutional holding?

IV. Did the district court violate Petitioner's constitutional

rights and procedurally err by exceeding the statutory maximum?

In sentencing Petitioner, a first-time offender, to 382

months, the district court praised the victim's "honor,"

"heroism," and "courage under fire"—virtues unknown to

Petitioner and irrelevant to his legal culpability—then said:

"Agent Harper has our back, and this Court promises to always

have his." Do those errors necessitate summary vacatur and

resentencing?

LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

TABLE OF CONTENTS

.... . 1

OPINIONS BELOW,.....,...,.

JURISDICTION..........

SISSiSS. f

SSUt.iSSS2SSSIS

(iutauiii.

IS IS « Si. 6

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT GiF THE CASE,.,......,.

::ssi:,::s>5

rfi i. 3 ISIS l .4 64

REASONS FOR GRANTING THE WRIT...

i-4liS£ii3»S4S<B«»,.., • 4 «

CONCLUSION......

S5-CS

• 4 S3 S i 3 S mm-t-s S3 » 4 13 14 >, i S 3,3 S 5 Si,

K i. 4 i U-i 4 i +

.......32

APPENDIX A: Summary Order of the United States Court of Appeals for the

Second Circuit Affirming Conviction and Sentence (Dec. 14, 2022)

APPENDIX B: Transcript of Sentencing in the United States District Court

for the Eastern District of New York (June 15, 2021)

APPENDIX C: Sentencing Memorandum and Order of the United States

District Court for the Eastern District of New York (June 16, 2021)

APPENDIX D: Order of the United States Court of Appeals for the Second

Circuit Denying Rehearing (March 16, 2023)

APPENDIX E

APPENDIX F

iii

TABLE OF AUTHORITIES CITED

Cases

28, 29

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) .

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

9, 10, 14, 16

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...............

Bailey v. United States, 516 U.S. 137 (1995) .............

9, 10, 17, 18

Blakely v. Washington, 542 U.S. 296 (2004) .................

.............7, 26

Feola v. United States, 420 U.S. 671 (1975) ...............

Gall v. United States, 552 U.S. 38 (2007) ...................

27, 9

In re Murchison, 349 U.S. 133 (1955) .............................

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ...............

15,

Kassir v. United States, 3 F.4th 556 (2d Cir. 2021)

Liteky v. United States, 510 U.S. 540 (1994) .............

Textile Workers Union v. Amazon Cotton Mill Co.,

76 F. Supp. 159, 163 (M.D.N.C.1947)

27, 29

Turney v. Ohio, 273 U.S. 510 (1927) ..

United States v. Bermudez-Melendez, 827 F.3d 160 (1st Cir. 2016) . 8, 30

15, 22

United States v. Blount, 291 F.3d 201 (2d Cir. 2002)..

United States v. Boccagna, 450 F.3d 107 (2d Cir. 2006)

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

9, 10, 12, 16, 17, 18, 19

United States v. Brown, 518 F.2d 821 (7th Cir. 1975) .................

United States v. Catalan-Roman, 585 F.3d 453 (1st Cir. 2009) .

United States v. Cavera, 550 F.3d 180(2d Cir. 2008) (en banc)

United States v. Chandler, 2018 U.S. Dist LEXIS 14213 (E.D. Mich.).. 18

United States v. Contreras, 108 F.3d 1255 (10th Cir. 1997) .

United States v. Gardellini, 545 F.3d 1089 (D.C. Cir. 2008)

16, 18

United States v. Haymond, 139 S. Ct. 2369 (2019) .....................

United States v. Henry, 472 F.3d 910 (D.C. Cir. 2007)... 10, 11, 12, 17

United States v. Kandirakis, 441 F. Supp. 2d 282 (D. Mass. 2006).... 16

United States v. Navedo-Concepcion, 450 F.3d 54 (1st Cir. 2006)

United States v. Occhipinti, 851 F. Supp. 523 (S.D.N.Y. 1993) ..

United States v. Oliver, 397 F.3d 369 (6th Cir. 2005) ...................

24, 25

United States v. Park, 758 F.3d 193 (2d Cir. 2014) .........................

United States v. Pimental, 367 F. Supp. 2d 143 (D. Mass. 2003) .

United States v. McLean, 287 F.3d 127 (2d Cir. 2002) .....................

15, 22

United States v. Requena, 980 F.3d 29 (2d Cir. 2020) .....................

United States v. Velez, 170 F. App1x 146 (2d Cir. 2006) ...............

United States v. Workman, 80 F.3d 688 (2d Cir. 1996) .....................

Williams v. Pennsylvania, 579 U.S. 1 (2016) ........................................ 27, 29

Statutes

5, 26, 27

5, 21

18 U.S.C. § 111(a) .................

18 U.S.C. § 111 (b).................

18 U.S.C. § 924 (c) (1) (A) (i)

18 U.S.C.

28 U.S.C.

... 5, 13

5, 26, 27

. . 23, 24

§ 924 (c) (1) (A) (iii)

§ 1111 (a)...................

§ 1113.........................

§ 1114 (3)...................

§ 3553 (a)...................

§ 3553 (a) (1).............

§ 3553(a) (7).............

§ 3582(a) ...................

§ 3661 .........................

§ 3663A.......................

§ 455(b) (1)...............

Sentencing Guidelines

U.S.S.G.

5, 13

§ 2A2.1(a)(1)

§ 2A2.1(a)(2)

§ 3A1.1(a)(1)

§ 3A1.1(b)...

§ 3A1.2(a)...

§ 3A1.2(c)...

§ 3D1.2(b)...

§ 5G1.2(a)...

§ 5K2.10........

Other Authorities

Bowan, Beyond Band-Aids: A Proposal for Reconfiguring Federal

16, 17

Sentencing After Booker, 2005 U. Chi. L. Rev. 149 ...................

D'Addio, Sentencing After Booker: The Impact of Appellate Review on

Defendants Rights, 24 Yale L. and Pol'y Rev. 173 (2006)

Jud. Conf.of the U.S., Guide to Judiciary Pol'y, vol. 2A, ch.2, Code

of Conduct for U.S. Judges Canon 3(C) (1) (a) (2019)........ ........... 28, 29

McConnell, The Booker Mess, 83 Denver U. L. Rev. 665 (2006) .........

Tonry, Rethinking Unthinkable Punishment Policies in America, 46

U.C.L.A. L. Rev. 1751 ....................................................................................

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix -ft.

the petition and is

[ reported at 2022 WL 17660546

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix B, C to

the petition and is

; or,

[ *3 reported at 2021 WL 2474430

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the __

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[ ^ For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was December 14. 2022

[ ] No petition for rehearing was timely filed in my case.

[xj A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: March 16, 2023

order denying rehearing appears at Appendix _5.

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

to and including _

(date) on

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

_______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

to and including____

(date) on

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment provides:

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 private property be taken for public use, without

just compensation.

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the state

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to

be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

U.S.S.G. § 2A2.1 ("Assault with Intent to Commit Murder;

Attempted Murder") provides:

(a)

Base Offense Level:

33, if the object of the offense would have

(1)

constituted first degree murder; or

(2)

27, otherwise.

Application Notes:

Definitions.—For purposes of this guideline: 'First

degree murder' means conduct that, if committed within the

special maritime and territorial jurisdiction of the United

States, would constitute first degree murder under 18 U.S.C. §

1111.

18 U.S.C. § 1111 ("Murder") provides:

(a) Murder is the unlawful killing of a human being with malice

aforethought. Every murder perpetrated by poison, lying in wait,

or any other kind of willful, deliberate, malicious, and

premeditated killing; or committed in the perpetration of, or

attempt to perpetrate, any arson, escape, murder, kidnapping,

treason, espionage, sabotage, aggravated sexual abuse or sexual

abuse, child abuse, burglary, or robbery; or perpetrated as part

of a pattern or practice of assault or torture against a child

or children; or perpetrated from a premeditated design

unlawfully and maliciously to effect the death of any human

being other than him who is killed, is murder in the first

degree.

Any other murder is murder in the second degree.

STATEMENT OF THE CASE

Petitioner was convicted following a jury trial in the

United States District Court for the Eastern District of New

York of three offenses arising from the shooting of undercover

FBI Special Agent Christopher Harper in Brooklyn. It was

undisputed that Petitioner did not know that Harper-who was in

plainclothes and sitting in an unmarked car parked in front of

Petitioner's house—was a law enforcement officer. Petitioner was

convicted of (1) attempted murder of a federal officer, in

violation of 18 U.S.C. § 1114(3) and 1113; (2) assault of a

federal officer through the use of a weapon and the infliction

of bodily injury, in violation of 18 U.S.C. § 111(a), (b); and

(3) possession and discharge of a firearm during a crime of

violence, in violation of 18 U.S.C. § 924 (c) (1) (A) (i), (iii) .

Pet. App. 2a.

At sentencing, the defense argued that the correct base

offense level under the Guidelines was 27, pursuant to U.S.S.G.

§ 2A2.1(a)(2), for attempted second-degree murder. Instead, the

district court (Kuntz, J.) made a factual finding, not made by

the jury, that the attempted murder offense involved

premeditation, and thus calculated a base offense level of 33

for attempted first-degree murder pursuant to U.S.S.G. §

2A2.1(a)(l). Pet. App. 64a-73a, 91a-97a.

The district court asserted that malice aforethought was

"proved beyond a reasonable doubt t t >; an element of the offense.

Pet. App. 91a.

The district court asserted that "whether Defendant

committed attempted first degree murder for purposes of the

Guidelines calculation depends on" premeditation, which can be

found by the

preponderance of the evidence standard. Pet. App. 92a.

The district court found that premeditation existed by

preponderance of the evidence. See Pet. App. 65a-69a.

The district court asserted that it had the discretion to

determine the six-level increase for premeditation because it

would not "increase the statutory maximum ... term of

imprisonment." Pet. App. 92a.

The district court asserted that the Probation Department

calculated the Guideline range for Counts one and two as 210 to

262 months, adding the mandatory consecutive 120-month sentence

for Count three, producing a range of 330 to 382 months. Pet.

App. 97a.

Defense counsel, Ms. Gelernt, stated: "I would note from

the outset that using the first degree murder guideline has the

effect of increasing the guidelines range for Counts one and two

by between 8 2/3 to 10 1/2 years. And this for conduct that was,

which was unproven which the jury was asked not to consider."

Pet. App. 30a.

In explaining his sentence, the district court addressed

the victim, Special Agent Harper, at length. Drawing a baseball

analogy, Judge Kuntz praised Harper as a "five-tool" police

officer who "patrolled under our constitution," "patrolled with

honor," "strategically withdrew from ... danger to secure public

safety," "heroically return[ed] fire and prevent[ed] this

defendant from harming others [,] marking his vehicle as the one

used in his cowardly and unjustified attempted to murder you,"

and "came to this courthouse, ... looked your assailant in the

eye[,] ... and told the jury precisely what he had done." Pet.

App. 76a, 102a. Judge Kuntz contrasted Harper with Derek Chauvin

("a certain murderous former police officer" from "a Midwestern

state" who "violated his sacred oath and disgraced his badge"),

lauding Harper as "the steadfast embodiment of your fellow

police officers who day after day make our streets safer, our

homes more secure[,] and our constitution stronger." Pet. App.

76a-77a, 102a.

At the oral sentencing, the court concluded:

This court salutes your heroism and your courage under

fire. You are the real deal, the policemen who personifies

the essence of the law, the essence of those wise

restraints that make us free. You have our back and this

court promises you the law will always have your back and

that of your wife and that of your children.

For all the reasons above, this court now sentences the

defendant Ronell Watson to 382 months of incarceration.

Pet. App. 77a-78a.

In a written sentencing memorandum and order filed the next

day, the court used different language:

This Court salutes [Harper's] heroism and his courage under

fire. He is the real deal. The policeman who personifies

the essence of the law, the essence of those wise

restraints that make us free. Agent Harper has our back,

and this Court promises to always have his.

For all the above reasons, the Court now sentences

Defendant Ronell Watson to 382 months of incarceration.

Pet. App. 103a.

Watson appealed, arguing, as relevant, that Judge Kuntz's

written "promise[] to always have" Special Agent Harper's

"back"—independent of any comments made during the oral

sentencing proceeding—amounted to plain procedural error and

violated Watson's due process right to an impartial judge. C.A.

Dkt. No. 31, at 64-66; C.A. Dkt. No. 53, at 33-36.

The Second Circuit affirmed by summary order. At the

threshold, the summary order described Watson's sentencing claim

in limited terms that do not encompass his challenge to Judge

Kuntz's written statement. E.g., Pet. App. 3a (referring to "the

district court's statements at sentencing extolling Special

Agent Harper"); Pet. App. 15a ("Watson ... asserts that the

district court committed procedural error and violated due

process by relying upon Special Agent Harper's personal virtues

in determining the appropriate sentence."). Indeed, in

identifying the comments that Watson challenged, the summary

order listed only the district court's oral remarks. E.g., Pet.

App. 15a ("'the law will always have your back r >> (quoting Pet.

App. 77a-78a); Pet. App. 18a (same). Judge Kuntz's written

promise went unmentioned.

In any case, the summary order found "no basis to conclude

that the district court erred by relying upon any improper

considerations in determining Watson's sentence." Pet. App. 16a.

In the Second Circuit's view, "[t]he district court's decision

to address Special Agent Harper at sentencing as the victim of

Watson's crimes [was] consistent with the guidance of [Fed. R.

Crim. P. 32.1 (i) (4) (B)], which provides that 'the court must

address any victim of the crime who is present at sentencing and

must permit the victim to be reasonably heard' before imposing

the sentence." Pet. App. 16a. Moreover, "the mere fact that the

district court praised the courage, heroism, and dedicated

public service of the victim, and compared those virtues to the

defendant's violent conduct, does not reflect reliance on any

improper consideration at sentencing or a judicial bias." Pet.

App. 16a (citing United States v. Mangone, 652 F. App'x 15, 18

(2d Cir. 2016)) .

Likewise, the summary order said, the 18 U.S.C. § 3553(a)

factors "allow for consideration of the impact of the criminal

conduct on the victim, including 'the need for the sentence

imposed ... to reflect the seriousness of the offense ... and to

provide just punishment for the offense. I n Pet. App. 17a

(quoting 18 U.S.C. § 3553 (a) (2) (A)) . See id. ("[T]he sentencing

judge may consider the need for the sentence 'to afford adequate

deterrence to criminal conduct' and 'to protect the public from

further crimes of the defendant,' which would include protecting

law enforcement officers who are seriously injured by violent

conduct in the performance of their official duties." (quoting

18 U.S.C. § 3553 (a) (2) (B)-(C)) .

Thus, "the district court meticulously discussed each of

the Section 3553 (a) factors in explaining the reasons for its

sentence." Pet. App.17a. The Second Circuit accepted that "it

may have been unnecessary and unhelpful for the district court

to then stray from the language of Section 3553(a) in a

rhetorical way during its closing remarks after carefully

analyzing the statutory factors, such as by noting the 'the law

will always have [the victim's] back. t n Pet. App. 17a-18a

(quoting Pet. App. 103a). However, the summary order

"conclude[d] on this record that the comments do not reflect a

plain procedural error nor a judicial bias." Pet. App. 18a

(citing United States v. Bermudez-Melendez, 827 F.3d 160, 165

(1st Cir. 2016)) .

Petitioner sought panel rehearing. In a pro se submission,

he argued: (1) premeditation is an element of assault with

intent to commit murder under the federal system and the jury

should have been instructed on it; (2) the district court

violated his constitutional rights by exceeding the statutory

maximum without justifying it; and (3) the district court

violated his constitutional rights by finding premeditation by a

preponderance of the evidence. C.A. Dkt. Nos. 88, 89. In a

counseled submission, he renewed his claim, not addressed in the

Second Circuit's summary order, that the district court's

promise to "have" Harper's "back" required vacatur and

resentencing. C.A. Dkt. No. 81.

The Second Circuit denied rehearing. Pet. App. 104a.

REASONS FOR GRANTING THE PETITION

PREAMBLE

While the judges of this Honorable Court are undoubtedly

aware of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000), and its progeny, Defendant-Appellant Watson

must ask this Court to bear a partial—partial but imperative-trip down Apprendi Lane.

In Apprendi, the Supreme Court held that the Sixth Amendment

demands that any facts, other than a prior conviction, that increase

a statutory maximum must be considered elements of the offense,

and must be submitted to a jury and proved beyond a reasonable

doubt—or admitted by the defendant. Id. at U.S. 490.

Five years later, as a result of Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court

applied Apprendi to the U.S. Sentencing Guidelines in United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005),

which spawned two majority opinions. The first is termed the

"constitutional holding," which held that because the Guidelines

were mandatory, any facts found and used by a judge to enhance

a sentence essentially made each "sentencing factor" an element

of the offense; therefore, by the rule of Apprendi, those facts

had to be either found by a jury or admitted by the defendant.

Id. at U.S. 244 (Stevens, J.). In other words, any facts found

by a judge under the mandatory Guidelines violated the Sixth

Amendment.

The second majority opinion is termed the "remedial holding,"

which held that because the mandatory nature of the Guidelines

violated the Sixth Amendment, they must be deemed merely "advisory.

Id. at U.S. 245 (Beyer, j.). The majority of courts interpreted

the "remedial holding" as entirely smothering the "constitutional

holding. " Since the Guidelines were no longer mandatory, the

majority reasoned, any facts found by judqe did not run contrary

to the Fifth or Sixth Amendments as long as the facts sufficed

the preponderance of evidence standard.

Some courts. however, refused to altogether dispense with

the "constitutional holding" because the Guidelines remain central

to sentencing. See. e. g. . U. S. v. Pimental, 367 F.Supp.2d 143,

154 (D.Mass.2005) (Gertner, N.):

We cannot say that facts found by the judge are only advisory,

that as a result, few procedural protections are necessary and

also say that the Guidelines are critically important. If the

Guidelines continue to be important, if facts the Guidelines

make significant continue to be extremely relevant, then Due

Process requires procedural safeguards and a heightened

standard of proof, namely, proof beyond a reasonable doubt.

Despite the "constitutional holding," in regard to judge-found

facts at sentencing, federal courts are essentially still conducting

sentencing hearings under the pre-Booker system:

[T]he bottom line, at least as a descriptive matter , is that

the Guidelines determine the final sentence in most cases. And

notwithstanding the Booker constitutional opinion, many key

facts used to calculate the sentence are still being determined

by a judge under preponderance of the evidence standard, not

by a jury beyond a reasonable doubt [. . .—] notwithstanding

that five Justices in the Booker constitutional opinion stated

that the Constitution requires that facts used to increase a

sentence beyond what the defendant otherwise could have received

be be proved to a jury beyond a reasonable doubt. In short,

we appear to be almost where we were pre-Booker. U,S. v. Henry.

472 F.3d 910, 919-20, 374 U.S. App. D.C. 149 (D.C. Cir.200/)

(Kavanaugh. J.. concurring) (emphasis in original).

As then Circuit Court Judqe—now Supreme Court Justice—

Kavanaugh evinced in his concurring opinion in Henry, the rift

that exists in Booker. Apprendi. and Blakely y. Washington. 542

U.S. 296, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), "represents the

collision of two starkly different conceptions of how the lifth

and Sixth Amendments apply to criminal sentencing." Henry at F.3d

920. Honorable Ravanauqh terms the first interpretation as a

"deference-to-legislatures" model. Id.

Under this interpretation, the Fifth and Sixth Amendments generally

require that a jury find the elements of the crime {as defined

by the legislature) beyond a reasonable doubt. As to sentencina,

this approach gives legislatures wide discretion in crafting

a mandatory or structured sentencing system; or adopting an

unstructured system in which each sentencing judge possesses

broad authority to assess a sentence based on the individual

background, facts, and circumstances of the offense and offender;

or choosing seme approach in between, (citations emitted).

Honorable Kavanauqh terms the second interpretation as the

"real-eiements-of-the-offense" model. Id.

This approach begins with the idea that no logical distinction

exists between the elements of a crime and so-called sentencing

facts that are used to increase a sentence. Because the

Constitution requires that the Government prove the elements of a

crime to a jury beyond a reasonable doubt, the Constitution

also requires that the Government prove substantively similar

sentencing facts [. . . ] to a jury beyond a reasonable doubt. Id.

To conduct sentencing otherwise, the proponents of this model

stress, raises "form over substance" and permits the legislatures

to re-label the elements of a "crime as sentencing factors,

thereby

avoiding the constitutional mandate that the Government prove those

elements beyond a reasonable doubt to a jury. Id. at 920-21. In

other words. "courts do not defer to a legislative choice to label

a fact as a sentencing factor rather than an element of the crime.

Id. at 921

(citations omitted).

The proponents of this approach "allow purely discretionary

sentencing schemes whereby judges exercise broad discretion in

imposing a sentence within a statutory range." Id. (quotation marks

and citation omitted). These systems, however, create a bigger

concern, that is, that judges are permitted to find essential facts

that increase a sentence by a preponderance of the evidence. Id.(citation omitted).

3 11

If the "deference-to-legislatures" approach—an approach that

is undoubtedly identical "to pre-Booker practices"—is sound, "then

current federal sentencing practices' both suffice the

Constitution's safeguards and render Booker's "constitutional

holding" incorrect. And if that is so, then "the Sentencing Guidelines should apply as promulgated and made mandatory by Congress.

Id.

If the "real-elements-of-the-offense approach" is sound, then

current "sentencing practices may be in tension witn Lhe

Constitution" because the current system reflects the pre-Booker

system. Id.

4 12

ARGUMENTS

X. Premeditation is an Element of Assault with Intent

to Commit Murder Under the Federal System and the

Jury Should Have Been Instructed; on it

As can easily be adduced, "[tjhe conviction for murder with

malice aforethought require!s] findings of (i) premeditation and

(ii) a nexus between the firearm used," as defined in 18 U.S.C.

§ 1111. U.S. v. Velez, 170 Fed. Appx. 146, 148 (2d Cir.2006).

Premeditation, after all, has always been an essential element

of first degree murder. Black's Law Dictionary (Sixth Edition)

by West defines premeditation as "[Conscious consideration and

planning that precedes an act (such as committing a crime;; the

pondering of an action before carrying it out."

The "U.S. Sentencing Guidelines Manual § 2A1.1 is designed

to apply to federal first degree murder, which is defined by [.

. . §] 1111(a) to include premeditated murder." U.S. v. Workman,

80 F.3d 688, 700 (2d Cir.1996).

The attempted murder statute (§1113) does not particularly

provide elements of the crime? howver, Section 2A2.1 essentially

does: "[I]f the object of the offense would have constituted first

degree murder," the base offense level is 33. Id.- afc (a)(1).

Otherwise, the base offense level is 27. Essentially, then, the

six-level increase in the base-offense level depends on § 111i(a),

which requires premeditaion. "The touchstone for determining whether

a fact must be found by a jury beyond a reasonable doubt is whether

the fact constitutes an

element' or

ingredient' of the charged

offense." Alleyne.v.. Unite.d States, 570^'U . S . 99 (.2013^) .

Here, "the jury was asked not to consider premeditation.

Counsel at page 12 of Sentencing Transcripts.

As Ms. Gelernt pointed out at sentencing, the two cases, ,UJ.S-.

v. Brown, 518 F.2d 821 (7th Cir.1975) and U.S. v. Catalan-Roman,

585 F.3d 453 (1st Cir.2009), cited by the Government, adduce the

importance of the premeditation element. See Sen. Trans., pages

12-13. In Brown. "the indictment itself [. . .3 charged premeditated

murder." Id. In Catalan-Roman, the Government "alleged premeditated

murder but also the juries were instructed11 on premeditation. Id.

Premeditation should have been decided by the jury.

II. The District Court Violated Watson's Constitutional

Rights by Exceeding the Statutory Maximum without

Justifying it

The district court erred by imposing an enhanced statutory

maximum penalty based on a finding not listed in the indictment

nor found by the jury. See Apprendi, supra. at U.S. 490. Moreover,

it did so without clarifying why.

Again, in adding up the enhancements on Count one—Count one

is the count that ended up exceeding the statutory maximum—both

the court and the Probation Department came to "210 to 262 months.

Adding the consecutive 120 months for Count three, both che court

and the Probation Department came to a range of ‘‘330 to 3o2 months.

See MEMORANDUM & Ork>ER, supra, at PagelD 3396 and Sentencing

Transcripts, pages 54-55.

The statutory maximum for Count one is 240 months; therefore,

the calculation should have been 210 to 240 months with 120 months

added for Count three, coming to 330 to 360 months. Certainly the

§ 924(c) maximum of life cannot serve to save this, foi i_he

“statutory alternatives" within § 924(c) “carry different [maximum

or minimum] punishments’1 because of elements that must be met.

U.S. v. Reguena, 930 F.3d 29, 49 (2d Cir.2020)

("if

statutory

alternatives: carry different [maximum or minimum] punishments,

then they must be elements; see e.g., Bailey v. United States,

5:6 U.S. 7 3 7, Vi& S.Ct. 50'! , 133 L.Ed. 2d 472 0 995).

Xn Kassir v. U.S., 3 F. 4 th 556 (2d Cir.2021), the court states

that "a sentencing error is not prejudicial where, in the absence

of the error, the defendant would have received the same aggregate

term of imprisonment on multiple counts.’’ Id. at LEXlo 10. Ihe

court then cites both U.S. v. Blount, 291 F.3d 201, 214 (2d Cir.

2002) and U.S. v . McLean, 287 F.3d 127, 137 (2d Cir.2002). Both

cases, however, are pre-Booker cases. when the Guidelines were

mandatory.

As McLean adduces. "[Section] 5G1.2(d) requires the imposition

of consecutive terms on each count of conviction until the Guideline punishment is achieved." Id_. at 136 (brackets in original)

(cleaned up). The Guidelines are no longer mandatory. and any

sentence that exceeded the statutory maximum should have been

delineated as to how and why. This is not harmless error.

111. The District Court Violated Watson's Constitutional

Rights by Finding Premeditation by the Preponderance

of the Evidence

Watson elected to proceed to trial and have the facts of his

, not

case found beyond a reasonable doubt by a jury of his peers

by a judge under the civil standard of preponderance of the evidence.

Again, this judicial-findinq increased Watson's sentence by

2/3 to 10 1/2 years." This findinq was made by a judge who praised

the "heroism" of the agent who "has our back, promising "to always

have his" back—"in contrast to the cowardly and unjustified

Watson. " See Watson's Brief at paqes 3-4. This six-level enhancement

had an extremely disproportionate effect and stands in direct

contradiction to Booker and Apprendi.

"A judge's authority to issue a sentence derives from, and

is limited by, the jury’s factual findings of criminal conduct.'’

United States v. Haymond. 139 S.Ct. 2369. 2376, 204 n.Ed.2d 897

(2019). Premeditation should have been found by the jury. According

to Justice Thomas—who concurred with the 'constitutional holding

in Booker and dissented from the "remedial holding"

the Court's

holding in Booker corrected the U.S. Sentencing Commission's

''mistaken belief” that a preponderance of the evidence standard

is appropriate to meet due process requirements.

The Fifth Amendment requires proof beyond a reasonable doubt,

not by a preponderance of the evidence, of any fact that increases

the sentence beyond what could have been lawfully imposed on the

basis of facts found by the jury or admitted by the defendant.

Booker at U.S. 319 n.6 (Thomas, J., concurring in part, dissenting

in part).

the "constitutional

As explained in the PREAMBLE, supra

holding" in Booker has all been washed away, Booker should "have

been the simple, logical extension of [.

.] Apprendi

jurisprudence." U.S. v. Kandirakis, 441 F.Supp.2d 282, 286 (D.Mass

2006) (Young. W.). However.

"the court produced a fractured,

124-page decision with two majority opinions and four dissents,"

id., that "taken in tandem, do not get high marks for consistency

or coherence . .

. . The most striking feature of the Booker

decision is that the remedy bears no logical relation to the

constitutional violation." Michael W. McConnell. The Booker Mess

83 Denver U.L. Rev. 665, 677 (2006); see also Frank D. Bowman,

Beyond Band-Aids: A Proposal for Reconfiguring_Federa1 Sentencing

8 16

After Booker. 2005 U. Chi. Legal F.

149, 182 ("[One] mystery

about Booker remedial opinion is how it can possibly be squared

with either the announced black-letter rule or the underlying

theory of the Blakely opinion it purports to apply.").

Blakely says that "the

statutory maximum' for Apprendi

purposes is the maximum sentence a judge may impose solely on

the basis of the facts reflected in the jury verdict or admitted

by the defendant'! Id. at U.S. 303-04. The U.S. Guidelines were

in trouble after Blakely, and only the remedial holding in Booker

could have saved them--anci it did, even in spite of the

"constitutional holding." "How these two majority opinions fit

together remains a puzzle, in part because of an inherent contra

diction in Justice Breyer's remedial opinion." David J. D * Addio,

Sentencing After Booker: The Impact of Appellate Review.on

Defendants* rights, 24 Yale L. & Pol'y 173, 174 (2006).

Shortly after the Booker holdings, some courts were also

already showing concern about the paths district courts were

taking. See, e.g., U.S, v. Navedo-Concepcion, 450 F.3d 54, 60

(1st Cir.2006) (Turrueilo, J.. dissenting) ("I am concerned that

we are

like a glacier in the ice age, inch by slow inch,

regressing to the same sentencing posture we assumed before the

Supreme Court decided Booker .

[I do not] believe this

is what the Supreme Court had in mind when it struck down the

mandatory regime."). Honorable Kavanaugh stressed it in heirry

supra , at 920. What he presumed then is a fact now: "The lower

courts’ effort to harmonize the competing goals of the Booker

opinions has become the jurisprudential equivalent of a dog

chasing its tail .

," See also U.S. v. Chandler

*17

2018 U.S.

Dist. LEXIS 14213, at LEXIS 3 (E.D.Mich) (recognizing the fact

that courts are back to pre-Booker sentencing).

And if the courts are back to pre-Booker sentencing* where

facts like premeditation can be found by the judge and used to

enhance a sentence by 3 2/3 to 10 1/2 years, then BlakeIj^ to

name one, should again apply. '"A jury must find beyond a

reasonable doubt every fact

which the law makes essential to

fa] punishment’ that a judge might later seek to impose.

U.S.

v. Raymond at S.Ct. 2371-72 (quoting Blakley at U.S. 304).

So the question is: which approach is correct? the

"deference-to-legislatures" model or the "real-element-of-theoffense" model? Watson contends that any fact decided by a judge

by a preponderance of the evidence that increases a sentence

by 8 2/3 to 10 1/2 years should be decided by a jury beyond a

treasonable doubt or admitted to by the defendant —whether it

exceeds the statutory maximum or not. After all,

[ a ] sentencing

error that leads to a violation of the Sixth Amendment by imposing

a more severe sentence than is supported by the jury verdict

would diminish the integrity and public reputation of the judicial

system and also would diminish the fairness of the criminal

system" U.S. v. Oliver, 397 F.3d 369, 377-81 (6th Cir.2005)

(cleaned up).

As of now, once again,

a radical rejection of basic ideas of fairness’''

the federal sentencing guidelines and [•

Onited States or in any other western country.1' Michael Tonry,

Rethinking Unthinkable Punishment Policies in America, 46 b'CLA

L. Rev.

1751, 1757 n.l.

The "sentencing disparities and inequities'1 that exist -front

one courtroom to tne courtroom next door to it

are based on

nothing more "than the Identities of the sentencing judges'1 and

their approaches. U.5. v. Gardeilini, 545 F. 3d 1089, 1096 (D.C.

CIr.2008) (Kavauaugh). Yet,

n[t]he Guidelines were enacted to

U.S. v. Contreras,

eliminate unwarranted disparities nationwide."

108 F.3d 1255, 1271 (10th Cir.1997) (cleaned up); see also 18

U. S . C. § 3553(a)(6) ("the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct.").

"Unpredictability and uncertainty" has ensued since the

Booker rulings. Gardeilini at 1096. The call for Congress uo

make changes has fallen on deaf ears. See, e.g. , Booker at U.S.

552 U.S. 38, 128 S.Ct. 586, 603,

169 L.Ed.2d 445 (2007) (Scouter, J. , concurring). So after 17

265 and Gall v. United States

years of the Booker mess, many would disagree with some of the

words of Honorable Kavanaugh:

And it is not our role to fight a rear-guard action to

preserve quasi-mandatory Guidelines. To the extent the

the post-Booker federal sentencing is unwise or

inequitable—or becomes a roll of the dice that depends

too much on the sentencing judge—those concerns must be

addressed by the Congress and the President, who have the

authority to produce new legislation. .Gardglljni at 1096.

One Justice, Justice Thomas, remains on the bench since

the Booker holdings. With a conservative majority now on the

bench, one would think, pray, the time is ripe for correcting

the Booker mess and establishing some uniformity and constiuU—

tioiial safeguards to the Guidelines.

Of course, Congress has the power; but if Congress fails to

act, as it has failed in respect of the matter now under review,

and the court be called upon to decide the question, is it not

the duty of the court, if it possesses the power, to decide it

in accordance with present-day standards of wisdom and

justice rather than in accordance with some outworn

and antiquated rule of the past? Textile Workers Union

v. Amazon Cotton Mill Co., 76 F. Supp. 159, 163

(M.D.N.C.1947) (Hayes).

The District Court Violated Watson's Constitutional

Rights and Procedurally Erred by Exceeding the

Statutory Maximum

The district court erred by imposing an enhanced statutory

maximum penalty based on a finding not listed in the indictment

nor found by the jury. See Apprendi, supra, at U.S. 490. In doing

so, the district court no only violated Watson's constitutional

rights but also imposed a procedurally unreasonable sentence.

After the grouping and the applying of enhancements, both

the district court and the Probation Department used Count One,

which has a statutory maximum of 240 months. Both the district

court and the Probation Department came to "210 to 262 months."

After adding the 120 months consecutive sentence for Count Three,

they came to "330 months to 382 month®."- See MEMORANDUM & ORDER,

supra, at PagelD 3396 and Sentencing Transcripts at pages 54-55.

Watson contends that the statutory maximum was 240 months;

therefore, the calculation should have been 210 to 240 months

with 120 months consecutive for Count Three, to be applied

independently. The district court procedurally erred when

sentencing Watson.

■ Section 3Dl.l(b) states that "any count for which the statute

mandates imposition of a consecutive sentence is excluded from

the operation of §§ 3D1.2-3D1.5." "The multiple count rules set

ot under this Part do no apply to a count of conviction covered

by Subsection (b)," which lists § 924(c). See App. Note 2. Rather,

"sentences for such counts are governed by the provisions of

§ 5G1.2(a)." Section 501.2(a) mandates that a "consecutive sentence

shall be determined by that statute and imposed independently."

Excluding the § 924(c) count, the district court made no

determination as to why it exceeded the statutory maximum sentence.

JLassir v. U.S.. 3 F.4th 556 (2d Cir.2021), the court states

that "a sentencing error is not prejudicial where, in the absence

of the error, the defendant would have received the same aggregate

term of imprisonment on multiple counts.'* Id. at LEXIS 10. The

court then cites both U.S. v. Blount. 291 F.3d 201, 214 (2d Cir.

2002) and U.S. v. McLean. 287 F.3d 127, 137 (2d Cir.2002). Both

cases, however, are pre-Booker cases, when the Guidelines were

mandatory.

4s McLean adduces, "[Section] 5G1.2(d) requires the imposition

of consecutive terms on each count of conviction until the Guide

lines punishment is achieved." Id. at 136. (brackets in original)

(cleaned up). The Guidelines are no longer mandatory, and any

sentence that exceeded the statutory maximum should have been

explained. Both Blount and McLean give the impression of mandatory

Guidelines.

Watson contends that the district court procedurally erred

by both failing to calculate and improperly calculating the

Guidelines and by treating the Guidelines as mandatory. See, e.g. ,

U.S. v. Cavera. 550 F.3d 180, 190 (2d Cir.2008) (en banc).

In Sentencing Petitioner, A First-Time Offender, To 382

Months, The District Court Improperly Relied On Harper's

Personal Virtues And Inappropriately Promised "To Always Have"

Harper's "Back,"

The district court committed plain error in sentencing

Petitioner, a first-time offender, to 382 months' imprisonment,

the top of the Guideline range. First, Judge Kuntz relied on

Harper's "honor," "heroism," and "courage under fire," praising

him for "mak[ing] our streets safer" and "our homes more

secure." No § 3553(a) factor authorizes a court to consider a

crime victim's personal and professional virtues—especially not

where, as here, those virtues are unknown to the defendant and

immaterial to his legal culpability. Second, Judge Kuntz said:

"Agent Harper has our back, and this Court promises to always

have his." A judge may not "have the back" of someone who

appears before him. And a judge may not impose three decades of

incarceration to fulfill such a "promise" to a victim, let alone

a victim employed, as Harper was, by one of the litigants before

the court. These comments "reveal[ed] such a high degree of

favoritism" toward Harper "as to make fair judgment impossible."

Liteky v. United States, 510 U.S. 540, 555 (1994). This Court

should notice these flagrant departures from judicial norms by

summarily vacating and remanding for resentencing.

The district court erred in relying on Harper's personal

virtues. Section 3553(a) sets forth the factors a district court

"shall consider" "in determining the particular sentence to be

imposed." See also 18 U.S.C. § 3582(a). Courts are "reluctant"

"to expand relevant sentencing considerations beyond those

enumerated in § 3553(a), insofar as the purpose of the

'statutory mandate of § 3553' was to 'necessarily channel

district courts' sentencing discretion. I >> United States v. Park,

758 F.3d 193, 198-99 (2d Cir. 2014). By their plain terms, none

of the § 3553 (a) factors permit a sentencing judge to consider a

victim's worth. Judge Kuntz's own explanation of Petitioner's

sentence proves the point. The court addressed each of the

§ 3553(a) factors seriatim, and only then turned to Harper's

personal qualities, which he addressed under a separate heading—

"Conclusion." Pet. App. 102a-103a.

The statutory sentencing framework does direct courts to

consider some personal qualities, but only those of the

defendant. See 18 U.S.C. § 3553(a) (1)

("the history and

characteristics of the defendant"); 18 U.S.C. § 3661 ("the

background, character, and conduct of a person convicted of an

offense"). These provisions demonstrate that Congress knows how

to direct sentencing courts to consider personal attributes and

chose to do so with respect to one statutory class (defendants),

but not another (victims). "[W]here Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

exclusion." INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) .

Likewise, the Guideline provisions concerning a victim's

status confirm that attributes unknown or unknowable to the

defendant "lack significance" to the sentencing calculus. Park,

758 F.3d at 198 n.19; see id.

("The absence of cost as a

prevalent, or even occasional, justification for a departure

under the Guidelines thus reaffirms our conclusion that it is

not an appropriate sentencing factor."). U.S.S.G. ch. 3, pt. A,

entitled "Victim-Related Adjustments," contains no provision

reflecting the considerations that Judge Kuntz took into

account. Each of that Part's offense-level enhancements requires

actual or constructive knowledge of the relevant status. For

example, U.S.S.G. § 3A1.2(a) provides an enhancement if the

offense was "motivated by" the victim's government-employee

status, and U.S.S.G. § 3Al.2(c) does so if the defendant

committed an assault "knowing or having reasonable cause to

believe" that the victim was a law enforcement officer or prison

official.

(Here, the government conceded that § 3A1.2 did not

apply because "there was no evidence that [Petitioner] knew (or

should have known) that [Harper] was an FBI agent." D. Ct. Dkt.

No. 177, at 3.) See also, e.q., U.S.S.G. § 3A1.1(a)(1)

(defendant "intentionally" selected victim based on race, sex,

etc.); U.S.S.G. § 3Al.l(b)

(defendant "knew or should have

known" that victim was vulnerable). The only victim-related

departure concerns the victim's "wrongful conduct" that

"contributed•significantly to provoking the offense behavior."

U.S.S.G. § 5K2.10.

Harper's bona fides as an FBI agent had no bearing on

Petitioner's legal or moral blameworthiness. Indeed, Petitioner

did not even know that Harper was an FBI agent, and he did not

have to for purposes of §§ 111 and 1114. Feola v. United States,

420 U.S. 671, 684 (1975); see 4A.964, 966. It would not have

mitigated Petitioner's offenses if, unbeknownst to Petitioner,

Harper had been an incompetent FBI agent, or craven, or corrupt.

By the same token, Judge Kuntz erred in treating Harper's merits

as aggravating.

Judge Kuntz stepped farther over the line when he

"promise[d]" to "always have" Harper's "back" in sentencing

Petitioner to. 382 months. Having a victim's "back" is not a

valid reason for imposing a term of imprisonment. Rather, the

federal sentencing framework redresses a victim's injuries

through restitution. "[T]he primary and overarching purpose" of

the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A,

to make victims of crime whole, to fully compensate these

victims for their losses and to restore these victims to their

original state of well-being. t n United States v. Boccagna, 450

F.3d 107, 115 (2d Cir. 2006) . See also 18 U.S.C. § 3553(a) (7) .

Here, Harper asserted no compensable losses, so the district

court imposed no restitution. PSR 1 105; SPA. 49. But § 3553(a)

did not otherwise permit Judge Kuntz to recompense Harper by

jailing Petitioner.

More important, the district court's comments display bias,

in violation of the Fifth Amendment's Due Process Clause. "Due

process guarantees 'an absence of actual bias' on the part of a

judge." Williams v. Pennsylvania, 579 U.S. 1, 8 (2016)

(quoting

In re Murchison, 349 U.S. 133, 136 (1955)). Judge Kuntz was

required to "hold the balance nice, clear and true" between the

parties. Turney v. Ohio, 273 U.S. 510, 532 (1927). His promise to

"always" have Harper's "back" violated that bedrock requirement,

in particular because Harper was not just a victim, but an.

employee of the United States, one of the litigants before the

court. Indeed, Harper's status as an "employee of the United

States" was an element of two of the offenses of conviction. See

18 U.S.C. § 111(a)(1) and § 1114; C.A. App. 4A.963-64; 966.

In aligning himself with Harper, Judge Kuntz used language

that conveyed allegiance not to neutral adjudicatory principles

but to a particular individual with interests adverse to those

of the defendant being sentenced. His promise was personal—

because Harper "has our back," the court "promise[d] to always

have his." That is, Petitioner's sentence was Judge Kuntz's way

of expressing gratitude. Furthermore, "[t]he Due Process Clause

'may sometimes bar trial by judges who have no actual bias / //

because "'justice must satisfy the appearance of justice. t n

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986)

(quoting

Murchison, 349 U.S. at 136). At a minimum, the appearance of

justice necessitates resentencing before a judge who has not

picked one side to champion.

In rejecting this claim, the Second Circuit's summary order

overlooked the district court's written statement: "Agent Harper

has our back, and this Court promises to always have his." Pet.

App. 103a. The summary order did not acknowledge this statement

or address Petitioner's sentencing claim based thereon. Instead,

the summary order discussed the court's oral remark: "You have

our back and this court promises you the law will always have

your back and that of your wife and that of your children." Pet.

App. 77a-78a.

These two statements are not interchangeable. Judge Kuntz's

written promise to Harper reflects a personal investment in this

case incompatible with the judicial duty of impartiality. The

statutory and ethical rules applicable to judges draw bright

lines that require recusal when a judge has a personal stake in

a matter. See, e.q., 28 U.S.C. § 455(b) (1)

disqualify himself ...

(judge "shall

[w]here he has a personal bias or

prejudice concerning a party"); Jud. Conf. of the U.S., Guide to

Judiciary Pol'y, vol. 2A, ch. 2, Code of Conduct for U.S. Judges

Canon 3(C)(1)(a)

(2019)

(same); see also e.g., C.A. OB.66

(explaining that Harper's status as an employee of the United

States—the party that brought this federal criminal prosecution—

was an element of two of the offenses of conviction). "Recusal

is appropriate when a judge has a personal interest at stake,

such as ... some personal bias in favor of or against a party to

the action." United States v. Qcchipinti, 851 F. Supp. 523, 527

(S.D.N.Y. 1993).

It is one thing to say, as the district court did during

the oral sentencing proceeding, that "the law" has a victim's

back. The objectives of federal sentencing law include

redressing the harm done to victims and protecting the public

(including victims) from future crimes. See Pet. App. 17a. But

it is quite another thing to personalize that commitment, as

Judge Kuntz did, in the form of an express quid pro quo: because

Harper "has our back," Judge Kuntz-the judge himself, not "the

law" in the abstract—"promise[d] to always have his." SPA.51. As

between two people appearing before him, Judge Kuntz

"promise[d]" to champion the interests of one. That powerful

evidence of personal favoritism renders this sentence infirm.

See, e.g., Williams, 579 U.S. at 8; Aetna Life Ins. Co., 475

U.S. at 825; Turney, 273 U.S. at 532.

By evaluating only the district court's oral remarks, the

summary order failed to resolve Petitioner's challenge to Judge

Kuntz's written promise. For example, the summary order saw no

"judicial bias" in Judge Kuntz's decision to "praise[]" Harper's

"courage, heroism, and dedicated public service" in contrast to

Petitioner's "violent conduct." Pet. App. 16a. But the court's

written statement was not about comparing Petitioner and Harper.

It was about promising the latter, man to man, that he ’could

count on Judge Kuntz's protection going forward.

For similar reasons, the summary order's effort to justify

the district court's comments with reference to the goal of

"protecting law enforcement officers" (Pet. App. 17a) missed the

mark. True, that is a valid sentencing objective, but Judge

Kuntz's written statement was directed not to "law enforcement

officers" writ large, but to one particular law enforcement

officer—Harper. Again, what makes the statement objectionable is

the tight, one-to-one relationship invoked between the judge and

the victim. Finally, the summary order wrote off Judge Kuntz's

oral comments as \\ \ gratuitous rhetorical flourishes. r " Pet. App.

18a (quoting United States v. Bermudez-Melendez, 827 F.3d 160,

165 (1st Cir. 2016)). Extemporaneous spoken comments like those

analyzed in the summary order (and those at issue in BermudezMelendez) may merit a reviewing court's "latitude," but

deliberate written statements require closer scrutiny.

Petitioner, a first-time offender, was sentenced to three

decades in prison by a judge who "promise[d] to always have" the

"back" of a person with interests adverse to Petitioner's. This

Court cannot affirm that severe punishment without answering the

question begged by this record: If Judge Kuntz had Harper's

back, who had Petitioner's?

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Ronell Watson

Date:

June 14, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.