Petition for Writ of Certiorari — Phillip Thomas Green, Petitioner v. United States

Docket Number:

IN THE UNITED STATES SUPREME COURT

Phillip Thomas Green, Petitioner

United States of America, Respondent

On Petition for Writ of Certiorari

From the United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Joseph O. McAfee

Counsel of Record

127 South Main Street

Greeneville, TN 37743

Email: joseph@mcafeeattorneys.com

Phone: (423) 972-4391

Question for Review

With the understanding that federal sentences are accompanied by a

presumption of reasonableness if they fall within a properly calculated advisory

guidelines range, what is required of defendants to provide a genuine rebuttal of this

presumption under due process?

Table of Contents

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. Index to APPendices.......ccccccscceccenccenenstesee senses su esseeeesee see e eee een ben eeeceeenes 3

. Opinions Below............cccceccecceccenscncceceeseeeeeccscseseeeeeeseeseeeneeeeaeeeeseeeetenee 4

. Basis for JULISCiction........csccccccccccccccccccvececcecsvccvceccesceeeeeeseeseettveseecssteas 5

. Constitutional and Statutory Provisions Involved.............ccsceesseseceeseessees 6

. Statement of the Case.........ccccccsccecscccccccsvecsscucecucceeesecssscsseveneesesevveess 7

. Argument in Support of Allowance of WYit..............cccesseceeseseereeeseesesenens 9

© Conclusion.........ccccscccccccceccecevcecccccevcccseeesecteseeesesceeveeeceesessenecsesesvenees 14

Index to Appendices

. Opinion and Judgment of the United States Court of Appeals for the

Sixth Circuit (October 11, 2028) ......... cess eee cnc ceecceceeeceeeeveveees Appendix A

. Judgment of the United States District Court for the Eastern District

of Tennessee (November 22, 2022) ........ccccccsccsccnvccccssveeveeveseeceess Appendix B

. Transcript of Sentencing Hearing (November 17, 2022)............... Appendix C

. US. Const. Amend. V ...... cc ccceccseccsceeescceecscsseeeesseevenssueeeeseess Appendix D

© 18 U.S.C. § 922. ccc cecceeseneeeereceeeseseneeeceesseeseseeuceneusenecs Appendix E

© 18 U.S.C. § 924... ce ccccee sce eeescseeesscenecssetsseecsesevesesceeresence Appendix F

© 18 U.S.C. § 3558... ccc seccee sec tee ser ceucveseveesceneneceseeecvseceesseaenes Appendix G

Opinions Below

. The Judgment of the United States Court of Appeals for the Sixth Circuit appears at

Appendix A and is unpublished:

. The Judgment of the United States District Court for the Eastern District of Tennessee

appears at Appendix B and is unpublished.

Jurisdictional Statement

The Petitioner timely filed a Notice of Appeal from the final judgment of the

United States District Court pursuant to 28 U.S.C. § 1291 The Sixth Circuit Court of

Appeals heard the appeal as it has jurisdiction over cases appealed from the Easter

District of Tennessee pursuant to 28 U.S.C. § 41.

The judgment of the United States Court of Appeals for the Sixth Circuit was

entered on October 11, 2023. No petition for rehearing was filed at the Sixth Circuit.

This petition is filed on or before ninety (90) days following entry of the judgment.

The United States Supreme Court has jurisdiction to consider this matter as

conferred under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

. US. Const. Amend. V.........ccececceeeen ete eeececcsee see eeeeneeeseeeseeseeeees See Appendix D

© 18 U.S.C. § 922... ccc ccc cecccesesceceee eee senenecseseaeeeeesesecees sen eeeens See Appendix E

. 18 US.C. § D4... cece ceceeecsececeeeeecseeeteeeeeaeeeeaseceneeseseesesenseees See Appendix F

© 18 U.S.C. § 3558... ... ccc ccc sce e eee ceeeesceseaeeeceeeneseneeseesctaenenaenees See Appendix G

Statement of the Case

Petitioner was convicted by a jury of possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1) in June 2022. At sentencing, Petitioner was

classified as an Armed Career Criminal under 18 U.S.C. § 924(e) and thereafter

sentenced to 264 months in prison.

The facts at trial, as adopted by the jury, established that on August 16, 2019,

the Petitioner was arrested with a small firearm in his pocket when he attempted to

flee upon being located by an Officer of the Kingsport, TN Police Department. Upon

arrest, Officers initially performed a pat down search for weapons which yielded no

results. However, another search was performed prior to placing the Petitioner in a

patrol vehicle which led to discovery of what the officers described as a small firearm

in the pocket of Petitioner’s shorts. The Petitioner did not contest whether he knew he

was a convicted felon at the trial though he did not stipulate to this fact. On the second

day of trial, the jury found the Petitioner guilty of violation of 18 U.S.C. § 922(g) as set

forth in Count 1 of the Indictment.

Petitioner was determined to have five predicate convictions for application of

enhanced sentencing pursuant to 18 U.S.C. § 924(e). As for the United States

Sentencing Guidelines, most of the criminal history points associated with Petitioner’s

prior record involved numerous probation violations from convictions beginning in

2007. At sentencing, the Petitioner was assessed 23 total criminal history points.

Review of the Petitioner’s predicate convictions for enhanced sentencing and others

suggest that Petitioner matches the prototypical defendant that the ACCA was

intended to punish so harshly. However, the Petitioner suggests improper weight was

applied to only his long and established criminal history without adequate

determination of just how much weight should be afforded. Had the sentencing court

properly considered this and other factors together, a sentence below the advisory

guidelines sentencing range of 235 — 293 months would have been the only reasonable

option in light of what should have been Petitioner’s successful attempt to rebut the

presumption of reasonableness.

Petitioner timely appealed the judgment entered by the United States District

Court for the Eastern District of Tennessee to the Sixth Circuit Court of Appeals which

affirmed the district court.

Argument in Support of Allowance of Writ

What test, if any, may be employed to determine whether a defendant has

successfully rebutted the presumption of reasonableness afforded a sentence within

the properly calculated guidelines range? The simple answer is to determine whether

the sentence entered is below the properly calculated guidelines range or not. However,

defendants should be entitled not only to rebuttal of this presumption but to

understand what is required to rebut the presumption. The Fifth Amendment of the

United States Constitution prohibits the deprivation of “liberty” without due process

of law. U.S. Const. Amend. V. Fulfillment of this safeguard will be achieved by The

Court’s decision upon this important question of federal law that has not been, but

should be, settled by The Court.

The district court and Sixth Circuit below determined that Petitioner failed to

rebut the presumption that his within-guidelines sentence is substantively reasonable.

Petitioner, having been found guilty of violating 922 (g)(1) and classified as an Armed

Career Criminal, faced an advisory guideline sentencing range of 235 — 293 months

imprisonment. Prior to sentencing Petitioner filed a request for downward variance

along with a Sentencing Memorandum requesting the court take into consideration his

overstated criminal history and other personal history and characteristics when

determining the appropriate sentence. In the request for variance, and as set forth in

the PSR, the Petitioner demonstrated just how he had received many of his 23 criminal

history points. Petitioner suggested at sentencing that the minimum 180 months

represented a sentence sufficient but not greater than necessary.

Beginning in 2005, Petitioner was continually charged with new felony offenses

while on probation, awarded probation after a short jail term, and then placed back on

probation to start the term of his sentence once again. To illustrate, the Petitioner is

currently in the custody of the Tennessee Department of Corrections serving the

remainder of an 8 year sentence which began in 2005 and now expires in August 2029.

This particular conviction and sentence, found on pages 6 and 7 of Petitioner's

Presentence Investigation Report (“PSR”) (R. 106, PSR, Page ID # 248 — 249), illustrate

with painful clarity the foundation for Petitioner’s argument. This sentence, which

should have expired in 2015, has failed to demonstrate to the Petitioner what is

expected of him after five petitions to revoke his probation or parole have been filed

since his conviction in 2007. (d.)

Similar charges, convictions, and sentences to the above are found throughout

Petitioner’s criminal history described in the PSR. Time after time from the age of 18

to the age of 36, Petitioner was released after breaking the law, repeated the same or

similar behavior, and was treated with such repeated leniency he had no reasonable

basis to discontinue his self-destructive behavior. The courts which sentenced

Petitioner repeatedly failed to consider the need to promote respect for the law and

deter Petitioner while in effect encouraging him to continue the same behavior.

At sentencing, the district court denied the request for downward variance and

sentenced Petitioner to 264 months in prison, which constitutes an unreasonable

sentence despite its placement in the middle of the properly calculated advisory

guidelines range and the established presumption of reasonableness.

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‘Petitioner is entitled to careful consideration in determining whether a

sentence of 264 months is sufficient but not greater than necessary despite in light of

all the sentencing factors set forth in 18 U.S.C. § 3553 despite the advisory guidelines

range developed by the United States Sentencing Guidelines. The United States

Congress determined when passing into law 18 U.S.C. §§ 922 and 924, that certain

individuals convicted of 18 U.S.C. § 922 violations should be sentenced much more

harshly than others. Here, 18 U.S.C. 924(e) requires Petitioner to be sentenced to no

less than 15 years. The Petitioner’s unfortunate personal history and irresponsible

treatment by the various criminal courts he repeatedly found himself before all

contributed to the outcome in this case yet Petitioner is the party held solely

responsible. The aforementioned factors should have been afforded considerably more

weight in the exercise of the district court’s discretion at sentencing. Petitioner made

his own choices to repeatedly commit offenses but the sentencing courts, before

Petitioner's Indictment in United States District Court, did Petitioner a disservice.

Now, to hold him completely responsible for his lack of respect for the law and thereby

punishing him so does less to promote respect for the law and more to discourage

defendants like Petitioner from pursuing sufficient reforms to their conduct.

Application of the enhanced sentence applicable to Petitioner should itself be

sufficient to meet the purposes of sentencing set out in 18 U.S.C. § 3553(a)(2). Absent

some aggravating factual circumstance, absent from the record in this case, criminal

history has been taken into account sufficiently by application of the 180 mandatory

minimum and no other sentencing factor justifies a sentence above this minimum

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mandatory term of imprisonment. Together with Petitioner’s unfortunate personal

history, including witnessing the murder of his mother as a youth, the criminal history

of Petitioner is overstated to such an extent that a downward variance is not only

justified but the only avenue in reaching a reasonable sentence. Petitioner humbly

asks The Court to exercise its discretion in hearing this case on the merits for the

Petitioner and all who may be similarly situated in the future whose criminal history,

despite extensive, should be more closely examined tailoring a sentence which is

sufficient but not greater than necessary.

A federal appellate court’s application of a presumption of reasonableness to a

sentence within the properly calculated sentencing guidelines range is permissible.

Rita v. U.S., 551 U.S. 338, 347 (2007). However, federal appellate courts may not

presume that every variance outside the advisory sentencing guidelines range is

unreasonable. (Ud. at 354 - 355) In Rita, the defendant did not argue the importance of

the special circumstances of his case in the lower courts and The Court declined to

consider the issue. (Ud. at 360). Petitioner argued at sentencing and before the Sixth

Circuit that the criminal justice system had conditioned him over an extended period

to lack respect for the law and, together with his personal history, a downward variance

from the advisory guidelines range was justified. (R. 19-1. Sixth Cir. Order, Pg. 5)

The district court gave “an unreasonable amount of weight to [a] pertinent

factor.” U.S. v. Cochrane, 702 F. 3d 334, 345 (6th Cir. 2012). Here, the district court

referenced the extensive nature of the Petitioner’s criminal history as the primary

justification for the sentence. A criminal history which is the basis for the 15 year

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mandatory minimum sentence requested by Petitioner at sentencing is already a

serious consideration which restricts the available sentence. Taken together with the

manner in which Petitioner received the requisite criminal convictions and

accompanying criminal history points, many of which are predicates for Armed Career

Criminal status under 18 U.S.C. § 924(e), there exists no reasonable basis for a

sentence above the mandatory minimum.

The circumstances faced by Petitioner at sentencing are likely to repeat for

others subject to 18 U.S.C. § 924(e) sentencing enhancements in the future when not

just their predicate convictions but their criminal history points assessment enhance

their guidelines sentencing ranges beyond what would otherwise be a sufficient

sentence at the mandatory minimum of 15 years. Adoption of a test to determine

whether a defendant has rebutted the presumption of reasonableness afforded

sentences within the advisory guidelines sentencing range will, at the least, satisfy due

process concerns in determining whether a sentence is, in fact, sufficient but not

greater than necessary.

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Conclusion

Wherefore, Petitioner hereby asks the Court to grant this request for a writ of

certiorari and to place this case on the docket to be fully heard on the merits of the

question for review which should result in remand and resentencing.

Respectfully Submitted,

Joseph O. McAfee

Counsel of Record

127 South Main Street

Greeneville, TN 37743

Email: joseph@mcafeeattorneys.com

Phone: (423) 638-7000

PETN1655AP.001-001

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