Petition for Writ of Certiorari — Alfred John McDonald, Petitioner v. United States

No. _________

__________________________________________________________________

In the

Supreme Court of the United States

___________

ALFRED JOHN MCDONALD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent,

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

CHERĺ THOMAS

Counsel of Record

LEWIS THOMAS LAW PC

4801 WOODWAY DRIVE, SUITE 480E

HOUSTON, TEXAS 77056

TEL.: (832) 851-0500

FAX: (713) 955-9662

CTHOMAS@LEWISTHOMASLAWPC.COM

__________________________________________________________________

QUESTIONS PRESENTED

1. Whether McDonald’s right to due process was violated when the

drug quantity attributed to McDonald was based in part on vague

ledgers, unrebutted evidence showed McDonald sold both

marijuana and hemp, and the Government introduced zero

evidence to show the amounts listed on the ledgers were marijuana

rather than hemp?

2. Whether McDonald’s right to due process was violated when the

drug quantity attributed to McDonald was based in part on a

transaction in Oregon about which the Government introduced no

evidence to show McDonald had control or involvement?

3. Whether McDonald’s right to due process was violated when his

criminal history level was drastically increased as a result of

purported relevant conduct, when the existence and relevant

nature of such conduct was not supported by the evidence?

i

PARTIES TO THE PROCEEDING

The parties to the proceeding are named in the caption. Alfred John

McDonald was the defendant in the district court, appellant in the Fifth

Circuit, and is the Petitioner here. The United States was the plaintiff

and respondent in the district court, the appellee in the court below, and

is the Respondent here.

DIRECTLY RELATED PROCEEDINGS

1. United States v. McDonald, No. 4:20-CR-242-1, U.S. District

Court for the Northern District of Texas. Judgment imposed

March 31, 2022.

2. United States v. McDonald, No. 22-10352, U.S. Court of Appeals

for the Fifth Circuit. Judgment entered June 15, 2023.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................................................................... i

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

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

TABLE OF CONTENTS ....................................................................... iii

PETITION APPENDIX ......................................................................... iv

TABLE OF AUTHORITIES ................................................................... v

PETITION FOR A WRIT OF CERTIORARI ...................................... 1

OPINIONS BELOW ................................................................................ 1

JURISDICTION ...................................................................................... 1

CONSTITUTIONAL AND STATUTORY ............................................. 1

PROVISIONS INVOLVED .................................................................... 1

STATEMENT ........................................................................................... 3

REASONS TO GRANT THE PETITION ............................................. 6

I. McDonald’s right to due process was violated when the drug

quantity attributed to McDonald was based in part on vague

ledgers, unrebutted evidence showed McDonald sold both marijuana

and hemp, and the Government introduced zero evidence to show

the amounts listed on the ledgers were marijuana rather than hemp.

…………………………………………………………………………….6

II. McDonald’s right to due process was violated when the drug

quantity attributed to McDonald was based in part on a transaction

in Oregon about which the Government introduced no evidence to

show McDonald had control or involvement. .................................... 13

III. McDonald’s right to due process was violated when his criminal

history score and level were drastically increased as a result of

purported relevant conduct, while the existence and relevant nature

of such conduct was not supported by the evidence.......................... 15

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

iii

PETITION APPENDIX

Fifth Circuit Opinion………………………………………………………….1a

Fifth Circuit Judgment…………………………………………………..…...4a

District Court Judgment……………………………………………………...5a

iv

TABLE OF AUTHORITIES

Cases

United States v. Candelaria-Silva, 714 F.3d 651 (1st Cir. 2013) ............. 7

United States v. Carnell, 972 F.3d 932 (7th Cir. 2020) .......................... 13

United States v. Gentry, 951 F.3d 767 (5th Cir. 2019) ............................. 6

United States v. Helding, 948 F.3d 864 (7th Cir. 2020) ................. 6, 7, 13

United States v. Lindsey, 969 F.3d 136 (5th Cir. 2020) .................... 18, 19

United States v. McDonald, 2023 U.S. App. LEXIS 14911, 2023 WL

4044435 (2023)........................................................................................ 1

United States v. McEntire, 153 F.3d 424 (7th Cir. 1998) ................. 13, 14

United States v. Williams, 48 F.4th 1125 (10th Cir. 2022) ...................... 8

United States v. Windless, 719 F.3d 415 (5th Cir. 2013) .......................... 6

Statutes

21 U.S.C. § 802 .......................................................................................... 5

21 U.S.C. § 841 .......................................................................................... 1

21 U.S.C. § 846 ....................................................................................... 2,3

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

7 U.S.C. § 1639o ........................................................................................ 5

Sentencing Guidelines

USSG § 6A1.3 .......................................................................................... 13

USSG § 1B1.3 .................................................................................... 16, 18

USSG § 4A1.2 .......................................................................................... 15

v

PETITION FOR A WRIT OF CERTIORARI

Petitioner Alfred John McDonald respectfully prays that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the Fifth Circuit appears at Appendix 1a-3a to the

petition and is reported at 2023 U.S. App. LEXIS 14911 and 2023 WL

4044435.

JURISDICTION

The Fifth Circuit rendered judgment on June 15, 2023. This Court

has jurisdiction to review the Fifth Circuit’s final decision under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Title 21, United States Code § 841 provides, in relevant part:

Except as authorized by this title, it shall be unlawful for any

person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance . . . .

Title 21, United States Code § 846 provides:

Any person who attempts or conspires to commit any offense

defined in this title shall be subject to the same penalties as

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those prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.

The Fifth Amendment to the United States Constitution provides in

relevant part:

No person shall . . . be deprived of life, liberty, or property,

without due process of law.

Likewise, Section One of the Fourteenth Amendment to the United

States Constitution provides in relevant part:

[N]or shall any State deprive any person of life, liberty, or

property, without due process of law.

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STATEMENT

Alfred John McDonald was charged with conspiring to possess with

intent to distribute 100 kilograms or more of mixture and substance

containing a detectable amount of marijuana, in violation of 21 U.S.C. §

846.

App., infra, at 1a; 5th Cir. R. 24-27.

The indictment alleged

McDonald committed this violation before July 2019 and continuing until

in and around August 2020. 5th Cir. R. 24.

McDonald pleaded guilty, and on April 7, 2021, as part of his plea,

McDonald signed a factual resume which stipulated that “[o]n August 18,

2020, . . . DEA agents/officers arrested McDonald and another person

with approximately 300 pounds [approximately 136 kilograms] of

marijuana.” 5th Cir. R. 72-73, 232. At sentencing, however, the district

court held McDonald responsible for the equivalent of what the

presentence investigation report (“PSR”) deemed over 2,500 pounds

(1,139.9 kilograms) of marijuana. App., infra, at 1a; 5th Cir. R. 314. This

was more than eight times the amount seized.

The PSR arrived at this amount, first, by including amounts listed

on ledgers assumed to be marijuana sales ledgers. 5th Cir. R. 498-99

(PSR ¶ 15). It is unclear from the ledgers whether the ledgers refer to

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marijuana, hemp, or something else. See 5th Cir. R. 433-63, 490-92. The

ledgers contain no references to marijuana. See 5th Cir. R. 433-63, 49092.

It is also unclear which ledgers document sales, pre-orders, or

inventory logs. See 5th Cir. R. 433-63, 490-92. Next, the PSR added

approximately 330 pounds of marijuana referenced in a document

detailing the transport of the marijuana within Oregon despite the

absence of any indication that McDonald was involved in the transaction.

5th Cir. R. 499 (PSR ¶ 15).

The PSR calculated McDonald’s criminal history score as fourteen,

placing him in criminal history category VI. 5th Cir. R. 505 (PSR ¶ 48).

The vast majority of McDonald’s criminal history score, 12 out of the 14

points, was attributed to McDonald because of four aggravated robberies

McDonald (then age 21) committed in 1995 over the course of three weeks

almost 25 years prior to McDonald’s arrest in this case. 5th Cir. R. 50305.

With a Total Offense Level of 40 and a Criminal History Category

of VI, the advisory guidelines sentencing range stated in the PSR was

360 months to life. 5th Cir. R. 517 (PSR ¶ 86). Because the statutorily

authorized maximum sentence was 40 years (480 months), the guideline

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range was reduced to 360 months to 480 months. 5th Cir. R. 517 (PSR

¶ 86).

At a hearing on a(n ultimately unsuccessful) motion to withdraw

his guilty plea, McDonald testified that he dealt and sold “[m]assive

quantities of hemp.” 5th Cir. R. 264. Hemp is not an illegal substance.1

At sentencing, and on appeal, McDonald argued that the drug

quantity attributed to him was not supported by the evidence and that

his criminal history had been improperly calculated. App., infra, at 1a2a; 5th Cir. R. 348-39, 383-87, 355, 523-29, 542-46. The district court and

the court of appeals rejected these arguments. App., infra, at 1a-2a; 5th

Cir. R. 389-92.

downward

However, the district court imposed a significant

departure,

sentencing

McDonald

to

150

months

imprisonment. 5th Cir. R. 408.

The Agriculture Improvement Act of 2018 (the “2018 Farm Bill”) modified

marijuana and tetrahydrocannbinol (THC) provisions, legalizing the possession and

cultivation of hemp. “Hemp” is exempted from the definition of marijuana. 21 U.S.C.

§ 802(16)(B). Hemp is defined as any part of the cannabis plant with a delta-9 THC

concentration of not more than 0.3% on a dry weight basis. 7 U.S.C. § 1639o.

1

5

REASONS TO GRANT THE PETITION

I.

McDonald’s right to due process was violated when the drug

quantity attributed to McDonald was based in part on vague

ledgers, unrebutted evidence showed McDonald sold both

marijuana and hemp, and the Government introduced zero

evidence to show the amounts listed on the ledgers were

marijuana rather than hemp.

The Fifth Circuit erred by upholding the plausibility of the district

court’s interpretation of the ledgers in this case.

Under their own

precedent, due process requires that sentencing facts be established by a

preponderance of the evidence. United States v. Windless, 719 F.3d 415,

420 (5th Cir. 2013).

“Sentences based upon erroneous and material

information or assumptions violate due process.” United States v. Gentry,

951 F.3d 767, 788 (5th Cir. 2019). See also United States v. Helding, 948

F.3d 864, 870 (7th Cir. 2020) (“Reliability is a central ingredient of the

due process analysis: where the district court sentences a defendant

based on the drug-quantity guidelines, it must find the government’s

information sufficiently reliable to determine drug quantity by a

preponderance of the evidence.”).

Cases across several districts demonstrate that when a district

court’s drug quantity determination is based on a hunch or intuition, that

determination cannot be upheld.

For example, in United States v.

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Candelaria-Silva, the First Circuit overturned the defendant’s sentence

after finding that drugs listed in ledgers were attributed to him without

a proper basis. 714 F.3d 651, 659 (1st Cir. 2013). In Candelaria-Silva,

drugs were attributed to the defendant by the lower court based on drug

ledgers for drug houses that were not tied to the defendant in any way.

Id. at 658. The First Circuit found that the totality of the circumstances

did not indicate the defendant had knowledge of the drugs from a

different location in the conspiracy and ruled that only the drugs related

to his part of the conspiracy could be attributed to him. Id. The First

Circuit held that the district court’s factual conclusions about the

quantity of drugs recorded in the ledgers were problematic, explaining

that such records require multiple inferences which leads to significant

uncertainty.

Id. at 658 (“The risk of error inherent in these loose

calculations is simply too high.”). The First Circuit also pointed out that

the ledgers did not mention the defendant or his family, and there was

no evidence the defendant participated in the preparation of the ledgers.

Id. at 656.

Likewise, in United States v. Helding, the Seventh Circuit upheld

the due process right of a defendant to be sentenced based on accurate

7

information. 948 F.3d 864, 870 (7th Cir. 2020). Helding involved a

defendant who was arrested with 143.7 kilograms of marijuana but was

sentenced based on multiple quantities of methamphetamine that

confidential informants had told law enforcement the defendant was

dealing. The Seventh Circuit reversed the district court’s sentence and

remanded for resentencing because the district court did not take steps

to ensure the information provided by confidential informants was

reliable although the defendant objected. Id. at 871-72. The Seventh

Circuit explained the PSR did not contain any information that the

informants’ statements were known to be reliable, and although specific

dates and quantities were provided, this did not make the information

reliable in the face of defendant’s objection. Id.

In a similar case, United States v. Williams, the Tenth Circuit

remanded for resentencing where the district court made its drug

quantity determination based on packages delivered to the defendant’s

brother’s house rather than packages delivered to the defendant’s home.

48 F.4th 1125, 1133-35 (10th Cir. 2022). The Tenth Circuit concluded it

was clear error to rely on contested allegations in the PSR for which the

government presented no evidence. Id. at 1134. The Tenth Circuit was

8

guided by its precedent that, “Although estimates are not forbidden, the

need to estimate drug quantities at times is not a license to calculate drug

quantities by guesswork.” Id. at 1133 (quotation omitted). “Moreover,

when choosing between a number of plausible estimates of drug quantity,

none of which is more likely than not the correct quantity, a court must

err on the side of caution.” Id. (quotation omitted).

In the present case, the district court reached a drug quantity

determination without addressing troublesome evidentiary gaps. The

district court’s conclusion that the ledgers in this case demonstrated

marijuana sales is purely an assumption. Although McDonald’s trial

counsel conceded that the substance seized from McDonald was

marijuana, there was no evidence that the ledgers represented

marijuana sales. The ledgers do not show that McDonald engaged in a

certain amount of marijuana sales, much less marijuana sales made as

part of the charged conspiracy. It is unclear from the ledgers whether

the entries therein refer to marijuana, hemp, or something else. See 5th

Cir. R. 432-449. There is no reference to marijuana in the ledgers, and

there is no evidence that all entries in the ledgers were part of the

charged conspiracy.

See 5th Cir. R. 432-449.

9

The PSR and the

Government simply assumed every entry in every ledger constituted

evidence relating to marijuana sales and the conspiracy.

McDonald presented rebuttal evidence showing that the ledgers

included significant hemp transactions, and the Government was unable

to counter this evidence. At his motion to withdraw hearing, McDonald

testified that he sold massive quantities of hemp. 5th Cir. R. 264. At

sentencing, McDonald presented a witness corroborating his testimony.

Elizabeth Bobek, a compliance consultant to the cannabis industry

in Oregon, testified that she met McDonald and did business with him in

2019. 5th Cir. R. 359-60. She testified that McDonald was dealing in

large amounts of hemp. 5th Cir. R. 362, 372. She also testified that with

respect to the ledgers at issue in this case, it was “impossible” to tell

whether they referenced marijuana or hemp. 5th Cir. R. 364-67.

Moreover, the Government’s own lab reports show that not all of

the substance seized was marijuana. 5th Cir. R. 417-18. Lab reports

obtained by McDonald’s trial counsel and the testimony of Ms. Bobek also

confirm that some of the substance seized was CBD. 5th Cir. R. 368-70,

419-22.

Text messages from a confidential informant show that

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McDonald previously sold him CBD. 5th Cir. R. 423. It is undisputed

that McDonald sold hemp.

With unrebutted evidence presented that McDonald sold both

marijuana and hemp, it was the Government’s burden to prove that the

ledger listed amounts of marijuana rather than hemp. The Government

introduced zero evidence proving the amounts listed on the ledgers were

marijuana. The Government did not put on a witness at sentencing to

testify that any specific product names listed on the ledgers represented

marijuana. The Government did not present any affidavit regarding the

products named in the documents.

Although Government attorneys

repeatedly asserted the products were marijuana, unsworn assertions by

the Government’s attorneys are insufficient to show by a preponderance

of evidence that the names on the ledgers represented marijuana.

The PSR’s statements that the ledgers and records supported

McDonald being held responsible for 2,513 pounds of marijuana are bald

conclusionary statements, especially considering the Government’s own

evidence that McDonald also dealt in hemp. 5th Cir. R. 423. McDonald’s

participation in a conspiracy involving nearly 300 pounds of marijuana

seized does not mean he was responsible for 2,513 pounds of marijuana.

11

Moreover, because the ledgers show “pre-orders” or “inventory

logs,” the calculation of the amounts of any product are unreliable and

duplicative. Certain records in the ledgers appear to be inventories or

wishlists, see 5th Cir. R. 5th Cir. R. 436, 455, while others show sales.

See, e.g., 5th Cir. R. 443. This means adding up all the product listed,

whether inventory or sale, probably resulted in double-counting.

The Government did not establish by a preponderance of evidence

that the records in the ledger represented marijuana, sales, or part of the

charged conspiracy.

While a district court may use reasonable

extrapolation, that is not what occurred at McDonald’s sentencing. The

district court did not extrapolate from any specific testimony that

McDonald sold X amount of marijuana for three to five months to

determine that McDonald sold 5X marijuana. Instead, the Government

and the court simply assumed that all the amounts listed on the

documents reflected marijuana sales and were relevant conduct.

Because the district court’s drug quantity determination was based on its

own hunch or intuition regarding the contents and meaning of the

ledgers, that determination violated McDonald’s right to due process.

12

II.

McDonald’s right to due process was violated when the drug

quantity attributed to McDonald was based in part on a

transaction in Oregon about which the Government

introduced no evidence to show McDonald had control or

involvement.

The district court further erred by attributing an additional 330

pounds to McDonald based on a document he possessed detailing the

transport of the marijuana within Oregon by someone else (not

McDonald). 5th Cir. R. 499 (PSR ¶ 15).

Again, a criminal defendant has a due process right to be sentenced

based on accurate information. United States v. Helding, 948 F.3d 864,

870 (7th Cir. 2020). Where the district court sentences a defendant based

on drug quantity and quality, it must find the government’s evidence

sufficiently reliable by a preponderance of the evidence. United States v.

Carnell, 972 F.3d 932, 938-39 (7th Cir. 2020); Helding, 948 F.3d at 870.

“[B]ecause the quantity of drugs is so important to sentencing in drug

cases, ‘the court must make an explicit finding as to drug quantity and

offense level and how it arrived at the sentence.’”

United States v.

McEntire, 153 F.3d 424, 435 (7th Cir. 1998) (citation omitted). Unreliable

allegations must not be considered. U.S.S.G. § 6A1.3 cmt. “[W]here there

is inconsistent evidence, the district court must conduct a sufficiently

13

searching inquiry into the government’s evidence to ensure its probable

accuracy.” McEntire, 153 F.3d at 436.

In this case, the Oregon document does not provide a sufficient

basis for additional marijuana to be attributed to McDonald.

The

Government presented no evidence whatsoever to show McDonald had

control over the transfer reflected in the document. The Government

presented no evidence whatsoever to show the transfer within Oregon

resulted in drugs being sold in Texas.

McDonald testified, “all this was[,] was a receipt showing prices for

me to have pricing and to—because I was fixing to buy an extractor.” 5th

Cir. R. 314-16.

The document itself does not show any apparent

connection to McDonald. 5th Cir. R. 556-64. In the document, the person

transporting the cannabis is identified as Andrew Galligan. 5th Cir. R.

424. The Government has made no connection between Mr. Galligan and

McDonald.

Confronted with this lack of evidence, and defendant’s objections

thereto, the district court failed to conduct a sufficiently searching

inquiry into the government’s evidence to ensure its probable accuracy.

McDonald’s sentence based on unreliable and insufficient evidence

14

cannot stand. The Fifth Circuit’s erroneous affirmance of the district

court’s reliance on the PSR should be reversed.

III. McDonald’s right to due process was violated when his

criminal history score and level were drastically increased

as a result of purported relevant conduct, while the

existence and relevant nature of such conduct was not

supported by the evidence.

Finally, the district court violated McDonald’s right to due process

by accepting the PSR’s assessment of McDonald’s criminal history score

and level despite the absence of evidence supporting the inclusion of

decades-old criminal history. The Fifth Circuit erred by concluding there

was no clear error in this regard. App., infra, at 2a.

The vast majority of McDonald’s criminal history score, 12 out of

the 14 points, was attributed to McDonald because of four aggravated

robberies McDonald committed over the course of three weeks in 1995 at

age 21, almost 25 years prior to McDonald’s arrest in this case. 5th Cir.

R. 503-05.

USSG § 4A1.2(e)(1) provides:

Any prior sentence of imprisonment exceeding one year and one

month that was imposed within fifteen years of the defendant’s

commencement of the instant offense is counted. Also count any

prior sentence of imprisonment, exceeding one year and one month,

whenever imposed, that resulted in the defendant being

incarcerated during any part of such fifteen-year period.

15

McDonald’s sentence for the robberies was not imposed within fifteen

years of the defendant’s commencement of the instant offense. 5th Cir.

R. 503-04 (sentences for the 1995 robberies were imposed in 1998 and

1999).

McDonald’s sentence for the robberies did not result in his

incarceration during the fifteen-year period prior to July 2019, the

beginning date identified in McDonald’s indictment and factual resume.

5th Cir. R. 503-04 (McDonald was released from prison in February

2004).

The PSR asserts discovery indicated there was relevant conduct on

the last day of 2017 and in December 2018. 5th Cir. R. 498-99 (PSR ¶

15), 503 (PSR ¶ 40). The implication is that McDonald’s sentence for the

robberies resulted in his incarceration during the fifteen-year period

prior to these dates of relevant conduct in 2017 and 2018. Pursuant to

§ 1B1.3(a)(1)(A), to qualify as relevant conduct, the defendant’s conduct

must have “occurred during the commission of the offense of conviction,

in preparation for that offense” or “in the course of attempting to avoid

detection or responsibility for that offense.” USSG § 1B1.3.

The PSR states that a review of McDonald’s cell phone revealed

“text or Snapchat messages that were consistent with marijuana

16

trafficking dating back to 2017.” 5th Cir. R. 498 (PSR ¶ 15). This is a

conclusory statement, and conclusory statements are not rendered

reliable by mere inclusion in the PSR. Simply because an action is

consistent with certain behavior does not mean it proves that behavior

by a preponderance of the evidence. Indeed, in the PSR, the probation

officer admitted it had very little information about these messages.

With regard to the evidence of defendant’s alleged drug trafficking

activities in 2017, the probation officer stated in its Third Addendum to

the PSR, “Due to the fact that there was no specific date given in 2017,

the probation officer conservatively used December 31, 2017, as the

defendant’s relevant conduct date.” 5th Cir. R. 577. The vague assertion

that defendant was engaged in drug trafficking activities without any

detail or even a date does not bear sufficient indicia of reliability to

support its probable accuracy.

Moreover, there is no evidence to suggest these messages bore any

connection whatsoever to the charged conspiracy, or that they occurred

during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility

for that offense.

The unspecified messages might evidence simple

17

marijuana sales rather than conspiracy or they might evidence some

other business altogether. McDonald’s trial counsel, an officer of the

court obligated to be truthful to the court, represented to the district

court that he “scoured the discovery and scoured the defendant’s phone”

but could not “find any text messages from 2017 that deal with anything

associated with this.” 5th Cir. R. 385-86. The Government provided no

evidence to the contrary.

Similarly, the PSR improperly holds McDonald responsible for

relevant conduct dating back to December 2018 because of the ledgers.

As discussed above, the ledgers do not show whether the entries

documented sales, orders, or inventory logs; whether the entries referred

to marijuana, hemp, or something else.

Even if there was evidence of McDonald engaging in marijuana

transactions in 2017 or 2018, there is no similarity between, or regularity

in, transactions from 2017 to 2020. “For the concept of the same course

of conduct, offenses must be ‘sufficiently connected or related to each

other as to warrant the conclusion that they are part of a single episode,

spree, or ongoing series of offenses.’” United States v. Lindsey, 969 F.3d

136, 141 (5th Cir. 2020) (quoting USSG § 1B1.3, cmt. n.5(b)(ii)). To

18

determine whether offenses so qualify, courts should consider “the degree

of similarity of the offenses, the regularity (repetitions) of the offenses,

and the time interval between the offenses.” Id.

Here, even assuming marijuana was involved in each offense, the

transactions were for widely different amounts, and there was no

evidence of other similarities, such as a common source, supplier, or

destination of the drugs, and there was no evidence of co-conspirators or

common co-conspirators with respect to the different transactions. This

suggests there was not sufficient similarity for any offenses to be

considered relevant conduct. See Lindsey, 969 F.3d at 142. In addition,

there is not a repeated pattern of conduct linking the purported relevant

conduct. The Oregon document does not evidence a transaction in Texas,

and there is more than one ledger involved in this case. The products

listed are not the same in each ledger. Compare 5th Cir. R. 424-432, 5th

Cir. R. 433-449, and 5th Cir. R. 450-463. The transactions were not

sufficiently similar or regular; hence, the transactions should not be

considered part of the same course of conduct. See Lindsey, 969 F.3d 136,

143.

19

Because the preponderance of evidence does not reliably show

relevant conduct in 2017 or 2018, McDonald’s prior sentence for robberies

should not have been counted in his criminal history score and level. The

district court erred by accepting the PSR’s assessment in this regard, and

the 5th Circuit erred by affirming that acceptance.

CONCLUSION

Petitioner respectfully asks that this Court grant this petition and

set the case for a decision on the merits.

Respectfully submitted,

s/ Cherí Thomas

Counsel of Record

LEWIS THOMAS LAW PC

4801 WOODWAY DRIVE, SUITE 480E

HOUSTON, TEXAS 77056

TEL.: (832) 851-0500

FAX: (713) 955-9662

CTHOMAS@LEWISTHOMASLAWPC.COM

Date: September 13, 2023

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