Petition for Writ of Certiorari — David Andrew Diehl, Petitioner v. United States

Supreme Court briefOct 22, 2025

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IN THE

SUPREME COURT OF THE UNITED STATES

FILED

OCT 2 2 2025

DAVID A DIEHL

—

PETITIONER

RESPONDENT

VS.

UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FIFTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

David Andrew Diehl

#53^14018

PO Box 7007

Marianna, FL 32447 - 7007

supreEmTc^urtLu.sK

QUESTIONS PRESENTED

QUESTION ONE

Did the fifth Circuit have subject matter jurisdiction on

direct appeal to consider an ex post facto constitutional

argument that was never raised.

QUESTION TWO

Does the full ex post facto clause apply where the offense

occurred prior to United States v. Booker in light of

Peugh v. United States.

QUESTION THREE .

Did Diehl present facts showing fraud on the court per

Fed.R.Civ.P. Rule 60(d)(3).

ii.

LIST OF PARTIES

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:

United States Court of Appeals Fifth Circuit

F. Edward Hebert Building

600 S. Maestri Place

New Orleans, Louisianna 70130 3408

Solicitor General Of The United States

Room 5614 Dept Of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

iii.

TABLE OF CONTENTS

Questions Presented

List Of Parties

Table Of Contents

Index Of Appendix

Table Of Authorities

Opinion and Orders

Jurisdictional Statement

Statutory Provisions

Reason For Granting Certiorari

Statement Of The Case

...

v - vii

4-5

Arguments

Argument 1 - Did the Fifth Circuit have subject matter

jurisdiction on direct appeal to consider

an ex post facto constitutional argument

that was never raised.

6-7

Argument 2 - Does the full ex post facto clause apply

where the offense occurred prior to

United States v. Booker in light of

Peugh v. United States.

7-19

Argument 3 - Did Diehl present facts showing fraud on

the court per Fed.R.Civ.P. Rule 60(d)(3).

INDEX OF APPENDIX

Appendix A - Fifth Circuit Opinion

i: :

Appendix B - Fifth Circuit En Banc Opinion

Appendix C - District Court Opinion

Appendix D - 2022 Sentencing Statistics

Appendix E - Judgement and Commitment Statement of Reasons

TABLE OF AUTHORITIES

Black v. Davis, 902 f.3d 541 (5th Cir. 2018)

..6

Carr v. Yokohama Secie Bank LTD, 200 f.2d 1389 (5th c. 1975)

Castillo-Estevez v. United States, 597 f.3d 238

Gall v. United States, 552 U.S.

Gilbert v. Stellett, 509 f.2d 1389 (5th C. 1975)

Gulf King Shrimp Co. v. Writz, 107 f.508 (5th C. 1969)

Kimbrough v. United States, 552 U.S. 85 (2007)

10,12

Marbon-Calderon, 631 f.3d 210 (5th C. 2011)

Miller v. Florida, 487 U.S. 423 (1987)

Mistretta v. United States, 488 U.S. 361 (1989)

Mitchell v. United States, 2020 U.S. Dist. Lexis 152497 (9th, 2020)’ 7

Peugh v. United States, 569 U.S. 2013

Rita v. United States, 551 U.S. 330 (2007)

$JJyt2,15

Rogers v. Tennessee, 532 U.S. 451 (2001)

8,17,19

Scott v. United States, 81 f. supp. 3d (11th Cir. 2015)

United States v. Andrews, 532 f.3d 900 (D.C. 2008)

United States v. Austin, 432 f.3d 598 (5th Cir. 2005)

United States

v. Ausburn, 502 f.3d 313 (3rd cir. 2007)

United States

v. Bates, 665 Fed. Appx. 810

United States

v. Biship, 469 f.3d 896 (10th Cir. 2006)

United States

v. Bolstic, 970 f.3d 607(5th

(11th Cir. 2016)

Cir. 2020)

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

United States v. Brown, 843 f.3d 74 (2d Cir. 2016)

Vi .

t '

United States

v. Coutentos, 651 f.3d 809 (8th Cir. 2011)

United States

v. Demaree, 459 f.3d 791 (7th Cir. 2006)

United States

v. Denny, 653 f.3d 415 (6 th c. 2011)

United States

v. Diehl, 775 f.3d 714 (5th Cir. 2015)

United States

v. Diehl, 2022 U.S. App. Lexis 37201 (5th Cir.

United States

v. Duhon, 440 f.3d 711 (5th C. 2006)

United States

v. Florez-Natr, 2023 U.S. App. Lexis 6636 (1st

•

•'

f ’!1

2022) &

OAO Q \

Cir. ..

Gnited States v. Garza-Flores, 2021 U.S. Dist. Lexis 232711

(S.D.Tx 2021)

United States v. Grosenheider, 200 f.3d 321 (5th Cir. 2000)

States v. Higgs, 193 f. supp. 3d 495 (4th Cir. 2016)

United

United States

v. Hogue, 132 f.3d 1087 (5t.h Cir. 1998)

United States

v. Horohan, 294 US 103 (1935)

United States

v. Hurlburt, 835 f.3d 715 (7th cir. 2016)

United States

v. Irey, 612 f.3d 1160 (11th Cir. 2010)

United States v. Johnson,

496 f.2d 1131 (5th Cir. 1974)

United States v. Juwa, 508 f.3d 694 (2d Cir. 2007)

United States v. Kirkpatrick, 589 f.3d 414 (7th Cir. 2009)

United States v. Lively, 852 f.3d 549 (6th Cir. 2017)

United States v. Lucas, 101 f.4th 1158 (9th Cir. 2024)

United States v. McClain, 417 f.2d 48f9f (9th Cir. 1968)

United States v. Ochoa, 526 f.2d 1278 (5th Cir. 1976)

United States v. Perez-Rodriguez, 960 f.3d 748 (6th C. 2020)

United States v. Pinner, 561 f.2d 1203 (5th Cir. 1977)

United States v. Powell, 973 f.2d 885 (10th Cir. 1992)

United States Poynter, 495 f.3d 349 (6th Cir. 2007)

United States v. Pillault, 783 f.3d 282 (5th C. 2015)

vii.

United States v. Reyes-Corea 81 f.4th 1 (1st c. 2023)

United States v. Robertson, 662 f.3d 871 (7th Cir. 2011)

United States

v. Runyan, 290 f.3d 223 (5th Cir. 2002)

United States

v. Scroggins, 411 f.3d 572 (5th Cir. 2005)

United States

v. Throckmorten, 98 US 61 (1878)

United States

v. Turner, 548 f.3d 1094 (D.C. 2008)

United States

v. Urbines-Fluentes, 900 f.3d 687 (5th Cir. 2018)

United States

v. Wasetta, 647 f.3d 980 (10th Cir. 2011)

Wilson v. United

States, 250 f.2d 312 (9th Cir. 1957)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

OPINIONS

Petitioner respectfully prays that a writ for certiorari

issue to review the judgment below.

The opinion of the United States court of appeals appears

at Appendix A to the petition and is reported at

2025 u.s. app. lexis 12684

(5th.cir. 5-21-25)“

The opinion of the United States district court appears

at Appendix B to the petition and is reported at

Published

JURISDICTION

FOR CASES FROM FEDERAL COURT

The date on which the United States Court of Appeals decided

by case No. 24-50855 was May 21, 2025. Appendix A .

The date on which

that court denied my Petition for Rehearing

and seperate Rehearing en banc was July 31, 2025 Appendix B.

STATUTORY PROVISIONS

Fed. R. Civ. P. Rule 60(d)(3)

Fed. R. Civ. P. Rule 60(b)(6)

STATEMENT OF THE CASE

On 2-27-2024 Petitioner filed three separate motions for the ointr

district court to rule on . The first motion was titled "Motion

to Set Aside 2255" (Doc 330) That motion included a single fraud

on the court claim per Fed. R. Civ. P. 60(d)(3), and three Fed.R

;Giv)P^)60(b)(6) claims.

The second motion was a request for an

order to compell the government to provide an affidavit showing

the source device that produced a forensic computer examination

report (Doc 334). The final motion titled "Motion For Reconsideration

of Issue 8" (ECF No. 331) was a challenge to the constitutionality

of Petitioner's sentence, combined with a subject matter jurisdiction

challenge as described herein.

The district court ruled on all

three motions on 5-30-2024 (Doc 338), Exhibit C. The district

court denied the Motion To Set.Aside 2255 finding the Rule 60(d)

(3) fraud issue didn't rise to the applicable legal standard. The

court found the 60(b)(6) issues were subsequent 2255 issues and

that the court lacked jurisdiction to consider the issue. The

final rnetien, "Motion For Reconsideration of 2255 Issue 8" (Doc

331) the court found was a Fed.R.Cr.P. Rule 59(e) motion and

found that it was late. In the alternative the court found that to

the extent it was a Rule 60(b)(6) challenge, the court lacked

jurisdiction. Petitioner appealed and the Fifth Circuit denied

the appeal on May 21, 2025. See Exhibit A. Petitioner filed a motion

for reconsideration and reconsideration en banc (separate motions)

and the Fifth Circuit denied those on July 31, 2025. Petitioner

then filed a timely Petition for Certiorari.

QUESTION ONE AND TWO

EX POST FACTO SENTENCE

CASE FACTS

Oh 2-27-2024 Petitioner Diehl filed his Motion For Reconsideration

of 2255 Issue 8, (doc #331). The government responded, (doc #333),

and Diehl Replied (Doc #

). In the district court's consolidation

order (doc #338, p.4), the court ruled that Diehl's motion was a

Fed.R.Cr.P. Rule 59(e) motion, and ruled it was late. In the

alternate, the court said to the extent it was a rule 60(b)(6)

procedural challenge, a COA was needed from the fifth Circuit.

Diehl

filed a Motion To Alter or Amend Issue 8 which the court denied.

Diehl appealed, but the fifth Circuit dismissed the appeal without

addressing the

ex post facto sentence challenge.

1. Diehl had argued in part that new evidence existed in the form

of statements made by the fifth Circuit when deniying Diehl's

first Rule 60(b)(6). See United States v. Diehl, 2022 U.S. App.

Lexis 37201 (5th cir. 2027)" where the court" said, "We will not

consider Diehl's claim raised for the first time in his COA

motion, that his Ex Post Facto claim was erroneously construed

as a procedural argument instead of a substantive argument."

citing Black v. Davis, 902 F.3d 541, 545 (5th Cir._2018).

At the cTTsTr’ict court level, Diehl had said only "Its not clear what

the fifth Circuit did." In his latest motion at issue here Diehl

thought it relevant that the Fifth Circuit didn't try to defend

the procedural v. Susbstantive mistake. This as shown herein was

not a minor error.

1.SUBJECT MATTER JURISDICTION

For the first time in his Motion For Reconsideration of 2255

Diehl argued that the district court's 2255 procedural bar of

his ex post facto sentencing argument was an error, because

the

Fifth Circuit never had subject matter jurisdiction to review a

constitutional attack to the sentence in the first place. Diehl

plainly never raised such an argument. The 2255 court barred a

constitutional challenge saying: "The Fifth Circuit directly

addressed and rejected Petitioner's ex post facto issue."

Subject matter jurisdiction challenges can be brought at any

time. See Mitchell v. United States, 202.0 U.S. Dist. Lexis 152497

(9th Cir. 2020). Also AEDPA is not applicable to constitutional

challenges.

2 • WHA-T HAPPENED ON DIRECT APPEAL

What the Fifth Circuit actually did on direct appeal was to

say "[Diehl] appears to argue that the ex post principle required

the district court to impose a sentence within the guideline range."

Diehl, 775 f.3d 714, 724 (5th Cir. 2015). The court then dismissed

the claim citing United States v. Austin, 432 f.3d 598, 599 (5th

Cir. 2005). The finding as already shown, was in the. procedural

section of the court's

opinion, but Diehl raised the issue, as a

substantive issue under the title "The Trial Court Imposed a

Substantially Unreasonable Sentence." Diehl argued the abuse of

discretion

U.S. 38

standard applied citing Gall v. United States, 552

(2007).

3 • DIEHI- SHOWED CAUSE

Diehl did not challenge the constitutionality of United States

Yj:„B„o_oker 543 U.S. 220 (2005) or Austin (supra) because the Fifth

Circuit refused to stay Diehl's appeal pending the Supreme Court’s

resolution of Peugh v. United States, 569 U.S. 2013.. Also denied

post Peugh were Diehl's request for counsel, and a request to file

a supplemental brief on Peugh. Diehl filed his stay motion on 2-262013, and it was denied on 3-5-2013.

For a stay to succeed, per Fed.R.App.P. rule 8(a) Diehl had

to prove

1) be would likely succeed on the merits and 2) he would

be irreperably harmed. As for the second prong, Diehl was given a

30 year upward variance, on pre-Rooker charges, were variances

wern’t an option. As for the first prong, Peugh had been granted

certiorari, and he was effectivlychallenging the same precident that

Austin(supra) relies on i.e. Rogers v. Tennesee, 532 U.S. 451,

462 (2001), As it turns out the Supreme Court did affect Rogers v.

Tennessee. See United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016)

(Demaree - 7th Circuit precident was reversed); United. States v.

Wasetta, 647 f.3d 980,

Peugh cross circuit.

(10th Cir. 2011) citing the effect of

4•MISINTERPRETING DIEHL'S

SUBSTANTIVE ARGUMENT

A side effect of the Fifth Circuit's misinterpretation of

Diehl's ex post facto statements, was that his substantive

argument wasn't evaluated fully. Diehl citing United States v.

Robertson, 662 F.3d 871, 880 (7th Cir. 2011) argued that "Robertson

gives practical consideration to the ex post facto, due process

concerns." Sent. Trans, p. 56.

In Diehl's argument there is no mention of Booker being

unconstitutional or wrong, and Peugh could not be briefed since

it had not been decided.

5• PROCEDURAL errors at sentencing

At sentencing the court spent considerable time calculating

the correct guidline range, which when complete was accepted by all

parties. The range accounted for l)number of victims (3)^’ 2) number

of counts (10)

3) age of victims

4) Conduct.

Diehl's criminal

history was i$ , These factors led to a sentencing range of 240 260.

During sentencing the court said that calculating the Guideline

range

is largely non-productive when I look at a statute

that gives me as broad of a. range as I have* Sent Trans. 51

. The

court continued "... 2 points here and 2 points there....'St .110 .

The court said that it felt the technical necessity of calculating

the guideline range was of little importance given the statutory range

St.110 • The court said, "The sentence I will impose today is the

Guideline N1 of 2g2.1 recomends a departure past 10 victims

Diehl received plus 3 enhancement per grouping rules

Diehl received plus 4 for under 12

Diehl got plus 2 for care and custody.

The correct number is criminal history of 0.

sentence that I would impose had we not ever had a dicussion of the

guidelines, and if we did not have guidelines at all." S.t. 113.

The court said, "The strongest factor ... is the seriousness ...

what it has done ... and what it will continue to do ..." St. 113.

Here however no victim appeared at sentencing, nor did any bother

to fill out the victim impact statement, No icivil. sui t was; brought

for damages. There was effectively no indication of present harm

and atleast one victim had no memory of the event at all.

Judge Yeakel made abundantly clear the statutory range alone

would constrain the sentence, and calculating the guideline range

was nothing more than a formality.2

There are serious procedural errors associated with the court’s

rational and remarks.

In United States v. Duhon., 440 f.3d 711,

(5th Cir. 2006) the court said " The [District) court cannot

reasonably impose the same sentence regardless of the correct

advisory range anymore than it could reasonably impose the same

sentence regardess of the seriousness of the offense...."

Duhon the court said "The guidelines clearly reflect consideration

whether

and degree to which harm to minors is or has been

involved." See United States v. Perez-Rodriguez, 960 f.3d 748,

(6th Cir. 2020) citing United States v. Poynter, 495 f.3d 349,

355 (6th Cir. 2007) "In the ordinary case, the commission

recomendation of a sentence range 'will reflect a rough approximation

of sentences that achieve

§3553(a) objectives." citing Kimbrough

IT-k'ith regard-to future harm see United States v. Brown, 843

7 f.3d 74, 91 (2d cir. 2016^ citing United States v. Juwa, 508 f.3d

694, 700 (2d Cir. 2007) < sentence should be based on accurate

information)

2 in^^eulh°n ^USt the statut°ry range mimics the decent opinion

11.

-ynited Sta^es; 552 U.S. 85, 109 (2OO7) quoUng Rita

■StateS’ 551 U-S- 338 (2007)-

Courts have also made clear that

overreliance on the statutory range causes disparity in the

of similarly situated offenders. See Perez-Rodriguez citing

sentence

(6).

6•

HEARTLAND ANALYSIS

To determine if Diehl's case fell withing the hearUand

18 U.S.C. §2251(a) cases the court referred to three

-lerrea to three government cases

all of which were post Booker

P sl oooker, the defendant had guideline life,

the conduct was Ion?

long t.rm, end tn at .least one extreme violence was

case, m effect had nothing in common with Diehl's case

The court's only comment concerning the cases was that they had only

one victim. Again, the Guidelines recommend an upward departure over

10 victims. The court also considered three defense cases where

those offenders had similar

guideline.ranges to Diehl, One had

three victims like Diehl,

and his offense like Diehl's

occured many

years prior to arrest. See United_States v, Coutentos.

651 f.3d 809

(Sth Cir. 2011) (Two grand daught

ers filmed in lesbian scene).

The only comparative

analysis done by the court was to compare

production offenses to

possession offenses, which does nothing to

determine if a case

—e iis mine-run and per the Fifth Circuit is an

error. See lZnited_States_v. Grosenheider, 200 f.3d 321, 333 (5th

Cir. 2000) (•It is clear that congress established a series of

separate offenses respecting child pornography, with

higher sentences for offenses involving conduct more likely to

De, or more directly harmful to minors than the mere posession

offense.").

12.

7. HEARTLAND REVIEW ON APPEAL,

On direct appeal the Fifth Circuit misrepresented what happened

at Diehl’s sentence hearing, alleging that the district judge said

the case wasn’t ’’merely ordinary,” and was "expecially grave." The

district court however said no such thing.

The Fifth Circuit also alleged that the variance was based on

factors which were fully accounted for in the guideline calculation.

The district court stated no disagreement with the guidelines, or

the way enhancements were factored. Importantly, the Fifth Circuit

ignorred the fact that the Judgment and Committment per 13 U.S.C.

§3553(c)(2) said exactly what the variance was based on. Section

§3553(c)(2) requires "specificity.”

8; STATED VARIANCE BASIS

Per the Judgment and Committment the variance was based entirely

on circulation of the charged visual depictions. This factor however

does not distinguish the case in any way, nor did the court say it

did. Diehl can find no case where circulation drove a variance. The

Guidelines award a two point enhancement if the offender himself

distributes. Diehl was not charged with distributing, the variance

concerns the actions of others. The Fifth Circuit acknowleged this

in its opinion. Diehl, 775 f.3d 714, Lex24, (5th Cir. 2015).

In Kimbrough, 128 S. Ct. at 574-75 quoting Rita 127 S. Ct.

at. 2465, the court said, a district court's decision to vary from

the advisory range may attract greatest respect when the sentencing

judge finds a particular case outside the. hearland

to which the

commission intends individual guidelines to apply." For a truely

exceptional case consider United States v. Irey, 612 F.3d 1160

13.

(11th Cir. 2010) (en banc) (50 victims, sadomasicist, rape, torture

, widely distributed, 30 year sentence, no variance, charged with one

count. The case was just prior to Diehls;.

9. NC MEC STATS WERE NOT EVIDENCE

Furthermore the National Center For Missing Centers provided

statistics were not entered as evidence in Diehl’s case. However

at sentencing the court said "I find based on evidence...” that the

visual depictions were in wide circulation. The statistics were

essentially hearsay. See United States v. Bates, 665 Fed. Appx.

81.0, 815(llth Cir. 2016). This evidence issue is affected by the

ex post facto clause because the clear and convincing standard was

replaced by the preponderance of evidence standard even when a

sentencing factor has an extremely disapportionate effect on the

sentence relative to the conviction. See United States v. Lucas,

101 F.4th 1158 (9th Cir. 2024) (en banc).

10; SENTENCE EXPLAINATION

The sentence variance justification in the Judgment and committment

controls. See §§3553(c)(2), 3742(e)(3), and U.S.S.G. 5k2.0 (6). See

United

States v. Bolstic, 970 f.3d 607, 611 (5th Cir. 2020) (3553

(c)(2) allows for meaningful appellant review and perception of

fair sentencing citing Gall, 552 U.S. at 56). See United States v.

Ausburn, 502 f.3d 313, lex 46 (’’The reason for imposing a non-guideline

range sentence 'must be stated with specificity in the written order

of the Judgement and Committment"' (3rd Cir. 2007); Also

United

States v. Pillault, 783 f.3d 282, Lex 24 (5th Cir. 2015) (The

14.

government cites no cases that apply the oral-trumps-vzritten rule

to a statement of reason ing."); United States v. Denny, 653 f.3d

415, 462 (6th Cir. 2011) (Court explained in detail why the guidelines

failed to reflect the seriousness of the offense); United States v.

Flores-Natr, 2023 U.S. App. Lexis 6636 (1st Cir. 2023) (Court failed

to provide a plausible sentencing rationale); Uni ted States v.

Reyes-Corea, 81 F.4th l.(lst Cir. 2023) (Reversed for failing to

say how the defendants offense differed from the heartland.)

The Fifth Circuit only addressed the Judgment and Commitment’s

reason for the variance in a single statement, "Tt was not improper

for the district court to consider the continuing impact of the

victims" quoting the district court: "The videos have developed a

life of their own." The J&C however doesn't show the court "considered"

the alleged distribution, but rather it drove the entire variance.

That alleged harm is traceable to the government sentencing memorandum

citing Ashcroft v. Free Speach, Osborn v. Ohio, and New York v. Ferber

Note however that

2251(a) was enacted for commercial exploitation

in 1977, and interstate commerce is a predicate of the offense. To

the best of Diehl's research, no variance has been based on this factor,

which explains why the Fifth Circuit altered the J&C reason to

include factors taken into account by the guidelines.

The district court itself failed to sufficiently explain the

sentencing rational and this is a procedural error. See United States

v„ Bishop, ^69 f.3d 896, 908 (10th Cir. 2006)( "How compelling [

sentence justification] must be is proportional to the extent of

the difference between the advisory range, and the sentence imposed"

citing cases.)

15.

11. FAILURE TO CONSIDER DEFEND/^T^S POLICY DISPUTE ARGUMENT

At his sentencing hearing Diehl objected to the 2G2.1 guidelines

on the basis that they were promulgated by Congress not the guideline

commission, and as statistics show, the enhancements apply in nearly

every case. The district court failed to respond to the argument and

although raised on appeal, the Fifth Circuit found that there were

no procedural errors. See Rita v. United States, 127 S. Ct. 245o,

246S (2007), ”[t]he sentencing judge should set forth enough to

satisfy the appellant court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”

SENTENCING SUMMARY

The district court’s failure to treat the guidelines as a

meaningful framework, its failure to determine what constitutes a

minerun case, its failure to adequately explain how.visual depiction

circulation justifies a thirty year upward variance, and its failure

to address Diehl's 2g2.1 argument represented reversable errors.

The Fifth Circuit reacted by both ignoring these raised issues

and by misrepresenting the district court's statements concerning

what may make the case unusual. The district court said it felt the

case "rises to the top," but failed to explain in any way how the

case differed from the thousands of other exploitation cases.

Statistics that are novz available (Exhibit D ) show that the case

is not unusual. The closest sentencing statistics to Diehl's 1999

conduct show average 2g2.1 sentences at 267 months. With the correct

guidelines range 151-180., Diehl's conduct was well below the average.

1. Note also that in 1999 the offense level was 27

2. The probation officer said the menacing charge would not apply

for criminal history.

16.

1. EX POST FACTO CLAUSE AS APPLIED

As the Seventh Circuit explained in Hurlburt (supra), Booker

made clear that the guidelines remain a meaningful benchmark, and

this anchoring effect is enough to implicate the concerns underlying

the ex post fact clause per Peugh. Similarly the procedural rules

and appellate-review standards post Booker, provide a degree of

binding legal effect and are sufficient to raise ex post facto concerns.

"The guidelines post Booker are not merely a volume that the district

court reads with acedemic interest .. . they have real world

consequences." id 723. One of the consequences is that reviewing

courts can presume a within guideline range sentence is reasonable.

As the Supreme Court observed in Peugh, when the guideline

range moves up or down the offender sentences respond to it. The

Guidelines are the loadstone. In Peugh the Supreme Court also observed

post Booker sentences had not changed substantially. The reason for

that is because district courts conventionally treat the Guidelines

with a great deal of respect. Here however, by the courts own words,

post Booker the Guideline calculation process is "non productive,"

and the sentence would stand "had we not ever had a discussion of

the guidelines, and if we did not have guidelines at all." Sent Trans

113. These statements are irreconcilable with the post Booker

sentencing regime.

■ 2>

POST PEUGH CIRCUIT PRECIDENT ON*EX POST FACTO IS IN DISARRAY

In the fifth Circuit’s ex post facto ruling on direct appeal

the court cited United States v. Austin (supra) as their ex post

facto precident. This is actually not so clear cut as it first may

appear. See United States v. Urbines-Fluentes, 900 F.3d 687 (5th

Circuit 2018) (Explaining a more onerous guideline can’t be applied .)

Also see Marbon-Calderon v. United States, 631 f.3d 210 (5th Cir.

2011) identifying Castillo-Estevez v. United States, 597 f.3d 238

as precident. See United States v. Andrews, 532 f.3d 900 (D.C. 2008)

identifying an entirely different Austin as precident.

In any case, Austin like United States v. Demaree, 459 F.3d

791 (7th Cir. 2006) can’t survive Peugh. Austin like Demaree relies

on R°%ers v« Tennessee, 532 U.S. 451 (2001) to find the retroactive

application of a new judical interpretation of a criminal statute

does not implicate the ex post facto clause. Austin argues that since

Booker was a judicial decision, only due process, and notice concerns

apply to protect a defendant. Peugh however said that Miller v.

Florida, 487 U.S. 423, 433 (1987) which honored the ex post facto

clause was the closest analogy to the federal sentencing paradigm.

The guidelines themselves state:

”if the court determines that the use of the guidelines

manual in effect on the date that the defendant is sentenced

would violate the ex post facto clause of the United

States constitution the court shall use the guideline

manual in effect on the date the offense of conviction was

committed.”

See 1B1.11(b)(1), (2)

Note the instruction is ’’shall use,” not consult.

Austin also relies on United States v. Scroggins, 411 f.3d

572, 576 (5th Cir. 2005) which concerns Sixth amendment issues, not

18.

the ex post facto clause. In Peugh however the Supreme Court clearly

sought to distinguish the two. Finally, since Austin got the low

end of the Guideline range, she wasn’t prejudiced which explains

the two page opinion.

3. 0THER E* POST FACTO CONSIDERATIONS

Other Ex

Post Facto considerations include that Congress

promulgated the 2g2.1 guideline - it was legislative. Also Booker

did not alter 3553(c)(2), the sex offense guidelines. These facts

complicate any conclusion that Booker should not trigger ex post facto

concerns.

Booker certainly greatly reduced the ’’burden” of increasing

the measure of punishment a defendant may be subject to due to the

passing of time. Here Diebl was arrested a decade after the offenses,

and the only reason that was permitted was because allegedly the

statute of limitations at 18 U.S.C. §3283 applies to sexual exploitation

offenses.

In United States v. Turner, 548 f.3d 1094 (D.C. 2008) the

court found the ex post facto clause applies when ’’the defendant has

been substantially prejudiced, regardless if it was possible the

defendant might have received the same sentence under the old

guidelines. The test is whether there is a substantial risk that the

defendant's sentence was more severe.”

1. However 3283 says nothing of sexual exploitation, the term was

removed from the plain language. The Fifth Circuit adds it back

via a non-referenced definition of sexual abuse that Congress

refused to reference. This violates the seperation of powers

clause of the constitution.. Also where is physical abuse defined?

Section 3283 is a belated enactment of the 1986 sexual abuse act,

its terms are not defined because congress meant to assimilate

state offenses on Indian land. 18 U.S.C. 1153(b). Only §3299

applies to 18 U.S.C. §2251(a)„

19.

BOOKER WAS UNEXPECTED AND INDEFENSIBLE

The final ex post facto consideration is whether or not

Booker was "unexpected and indefensible by reference to the law

which had been expressed

[by congress] to the conduct at issue."

Booker concerned the Six Amendment, and whether Judges alone could

rule on sentencing enhancements in certain circumstances. Booker

did not directly concern the ex post facto clause. It

also was

unexpected because the Supreme Court could have let congress amend

the Sentencing Reform Act of 1984. If this had happened then it’s

doubtful Rogers v. Tennessee would ever have been mentioned. Rogers

concerns the evolution of "common law."

The Sentencing Reform Act of 1984

was enacted into law to

"curb ‘variable sentencing caused by different judges’ perceptions

of the same criminal conduct." See United States v. Kirkpatrick, 589

F.3d 414, 416 (7th Cir. 2009). Its goal was to "channel sentencers'

discretion and reduce sentencing disparities - a technical phrase

describing the indefensibly wide range of punishments different judges

had imposed on similarly situated defendants." See Mistretta v.

United States, 488 U.S. 361, 367-68 (1989).

At sentencing here, the government cited three cases in their

sentencing memorandum that had guideline life, not 151-180 (criminal

history zero) as Diehl had. The cases were all post Booker, not like

Diehl that pre-dated Booker by six

years. The conduct in those

cases included long term abuse and extreme violence. Diehl's conduct

lasted one hour, followed by a decade of clear conduct prior to arrest.

Sentencing statistics in Exhibit O

show that average sentences

are far below Diehl's sentence, and most importantly variances are

nearly always closely correlated to the guideline range, and they

are rarely imposed.

20.

QUESTION THREE

STATEMENT OF THE CASE

Plaintiff seeks certiorari concerning the Fifth Circuit’s

denial of three seperate motions which the court consolidated.

See District court order, Appendix one (Order 39-2).

The first

defendant motion was titled "Motion to Set Aside 2255" (doc 330).

That motion included a single Fraud on the Court claim per Fed.

R.Civ;P. 60(d)(3). Also included were three seperate Rule 60(b)

(6) claims. The second motion was a request for an order to compel'

the government to provide an affidavit showing the source device

that produced a forensic computer examination report. (ECF No. 334).

The final motion titled "Motion For Reconsideration of Issue 8

(ECF No. 331) was a challenge to the legality of Diehl’s sentence.

The district court treated the Rule 60(d)(3) claim as a

proper 60(d)(3) issue, but denied it on the merits. The court treated

the three Rule 60(b)(6^ claims as second or successive filings and

dismissed for lack of jurisdiction. The court treated the sentence

challenge in the same manner.

QUESTION THREE

FRAUD OVERVIEW

Rule 60(d)(3) is reserved for the worst kinds of fraud where

the judicial machinary is improperly influenced. That level of

fraud occurred in Diehl’s case. Through machinations Diehl was

denied his constitutional right to bring forth his primary defense.

The defense had been won in every circuit to consider it.

21.

The fabrication of evidence will also trigger Rule 60(d)(3)

and herein Diehl shows that evidence was fabricated in two

independant ways. Diehl also presents fact which show that the

government interfeared with Diehl's attorney-client privileges in

an effort to have evidence of fraud on the court destroyed.

Included in that evidence are indications that Diehl's trial attorney

may have comprimized himself.

The district court dismissed the fraud claim without holding

an evidence hearing, and refused to compel

the government to produce

an affidavit showing what device produced the forensic.

STATEMENT OF FACTS

Over the years (in Diehl's initial 2255, in his

first fraud

on the court filing, and in a motion for an original 2241 writ to

the Supreme Court (24-7234)) Diehl has argued that the Fifth Circuit

errored when on direct appeal it based its interstate nexus finding

on government recommended inferences. Those inferences relied on

statements made by government cooperating witness Ken Courtney,

who alleged 1) he saw a charged visual depiction on Diehl's

computer one night, and 2) Diehl told him that Diehl used the internet

to trade child pornography. Based on these statements the conviction

was upheld.

2- FED.R.CR.P. RULE 23(c)

The inferences on appeal were legally impermissable per

Federal Rule Criminal procedure 23(c), because the trial judge

1. These statements were added to Courtneys statements to the FBI

after being writed out of state jail and flown to Austin Texas.

22.

at the bench trial orally.entered a specific finding of fact and

law. See United States v. Hogue, 132 f.3d 1087, 1090-91 (Lex 11)

(5th Cir. 1998) (Oral findings of fact are acceptable) citing

Charles and Wright §374 at 311-12 & N.5, 2d Ed. 1982 "Purpose of

special findings of fact is to afford a reviewing court a clear

understanding of the basis of a trial court's decision" citing

cases. See United States v. Garza-Flores, 2021 U.S. Dist. Lexis

232711 (S.D. Tx, 2021) (Court can make special finding despite

no request, citing Moores "535.05"); United States v. Johnson,

496 f.2d 1131, 1138 (5th Cir. 1974) ("Oral findings are sufficient

depending on circumstances. The ultimate test as to the adequacy

will be if they are sufficiently comprehensive and pertinent to

the issue to provide a basis for the decision."); Gilbert v.

Sterrett, 509 f.2d 1389, 1398 (5th Cir. 1975 (same). "The findings

should not be discursive, they should state the evidence or any

reasoning upon the evidence; they should be categorical, and

confined to those propositions of fact which fit upon the relevant

propositions of law." Carr v. yokohama Specie Bank LTD, 200 f.2d

1389, 1398 (5th Cir. 1975) itself citing Gulf King Shrimp Co.

v. Wirtz, 107 f.2d 508, 515 (5th Cir. 1969).

Courts have found the trial court can and should explain

credibility determinations, expecially if it concerns a legal

defence citing United States v. Pinner, 561 f.2d 1203, 1207 (5th

Cir. 1977).

Importantly, if a specific finding of fact and law was made,

then findings based on inferences CAN NOT BE IMPLIED. See United

States v. Ochoa, 526 f.2d 1278, FN6 (5th Cir. 1976) citing United

States v. McClain, 417 f.2d 489, 492 (9th cir. 1968) citing

Moores Federal Practice 623.05 (corrected) and cases. See United

States v. Powell, 973 f.2d 885, 889 (10 Cir. 1992) (Special findings

are helpful, but in their abscence, appellate court will imply

finding supporting the judgment.) ’’Not considering the [specific]

findings would perpetuate an injustice to deprive appellant of the

consituent elements of the offense." Wilson v. United States, 250

f.2d 312,

(9th Cir. 1957).

Findings of fact were not "absent" at Diehl’s bench trial ,

and they were "sufficiently comprehensive and pertinent to the

to provide a basis for the decision."

issue

The finding was not

based on Diehl transporting visual depictions either physically or

by the internet to which Diehl was not charged. The hard drives

the government built their inference on also was not evidence, and

at pre-trial the government promissed not to use in their case in

chief.

3- TRIAL COURTS FINDING

The stipulation, the exhibits, and in fact the way Diehl was

charged all relied on §2251(a)'s "such visual depiction" term

applying to encorpdreal images, or scenes per se.

The court did

not realize that §2251(a)*s third nexus clause only applies to

what was produced when the minor was used, not subsequent reproductions.

24.

The transcripts show a narrow and specific finding of fact

and law that relies exclusively on the video’s being available

through the internet and nothing more. The government assured the

court this fact was sufficient.

Government : ”... just having these video exhibits^ on the

internet is sufficient to show interstate of

foreign commerce ... And as Mr. Courtney

testified . ..." Trial Tr. 155:17.

The government assured the court that United States v. Runyan,

290 f.3d 223 (5th Cir. 2002) directly applied. Trial Tr. 154:18.

The court then

found, Court, ”...! find based on Runyan ... and

the testimony of Mr. Courtney, who I find credible as to that part

...." The credibility was clearly qualified. Additionally Diehl

stipulated the depictions were on the internet. Given this fact,

Courtney-isn’t mentioned again.

The court before making its final finding asked the government to

reafirm their stance. Again the government assured the court that

the producer need not be associated with distribution of the

charged visual depiction. Trial Trans 175:11. Rased on this

the

court said Court: it "defied common sense" to say charged counts

were not involved in interstate commerce. Day 2 TT 7:4.

Counsel was ineffective for not challenging the plain language

of 2251(a)’s "such visual depiction," and when he said Runyan was

a bad decision, instead of inapplicable to Diehl’s facts. See

Trial Tr. 153:3.

and

Runyan involves 2251(a)'s first nexus clause

does concern mens-rea. And, Runyan was going to use the

internet to transport his visual depictions. Counsel was also

ineffective in that he failed to object when the court found

25.

Court: "The exhibits ... clearly satisfy the videotape or digital

video component." Trail Tr. Day2 4:9. Everyone involved in the

proceeding knew that Diehl did not produce the exhibits. In

fact the United States produced the exhibits from depictions they?

obtained from unrelated third parties.

4,. FIFTH CIRCUIT APPEAL FINDINGS.

Diehl on appeal challenged the district court’s finding in

his "Ground Two For Dismissal" were he challenged the meaning of

visual depiction in §2251(a)'s third nexus clause. For whatever

reason the Fifth Circuit overlooked this argument, and without

cause instead evaluated Coundel's mens-rea argument - which by the

way never had any chance of winning..Diehl’s argument was fundamentally

an ineffective counsel argument, which according to Fifth Circuit

president can’t be considered on direct appeal.

The court went out of its way

to blur the distinction between

what Diehl produced, and the evidence. It refered "the videos." The

court when citing Runyan exclipsed out that it was he who was

going to transport his videos. The court did not evaluate Diehl’s

constructive amendment claim, knowing it would only be relevant if

Diehl-himself transported visual depictions, which Diehl was not

charged with for lack of any evidence.

5. CURRENT FRAUD CLAIMS

1) The government in their 2255 response argued Diehl’s Nexus

argument was ruled on by the Fifth Circuit on direct appeal.

26.

See the government’s 2255 response Doc 218, Page 12 "This issue

'was addressed by the Fifth Circuit in movant's appeal, and was

resolved against movant." citing Diehl 775 f.3d 714, 721-22.

As a result of this fraud the district court procedurally

barred Diehl's ineffective assistance of counsel argument, and

plainly Diehl has been prevented from ever raising the one

defense that could have won; a defense the stipulation was based

on; an argument that refusing a plea deal was based on. See

See United States v. Lively, 852 f.3d 549 (6th Cir. 2017).

On 2255 the government continued to argue that witness Ken

Courtney was found credible and a part of the trial courts

factual finding. In other words the government was again arguing

their appeal inferences were in good faith. During the bench

trial when ruling on a Rule 29 motion, the court found Courtney ,

credible to "that part," which was that visual depictions were

available on the internet. This qualified finding had no

impact because being on the internet was stipulated to.

Importantly, third party reproductions were on the internet,

and there was no accusation that Diehl produced them, otherwise

the stipulation was a guilty plea.

3) During 2255 Diehl learned of a FBI 302 interview summary with

witness Ken Courtney where he said he saw visual depictions at

Diehl's house on an external, unencrypted drive. On appeal

however the government led that court to believe that Courtney

saw the images on the seized internal encrypted drives. This

fraud represents evidence fabrication, and falls under Rule

60(d)(3).

4) Highly related to number 3 above is the fact during 2255 the

27.

government got evidence of the fraud destroyed by effectively

getting the 2255 court to force Diehl's sentencing attorney to

destroy his clients records J Also in the file was a forensic

computer exam which was apparently made from the external non

encrypted device and was esculpatory. This report was reffered

to as Item-0 in an inventory list the government was ordered to

produce during 2255. These actions also relate to the government’s

fabrication of evidence as described.

5) Related to the mystery device that created the forensic, is the

fact during sentencing the government moved to seize "other media

devices" which were not in the warrant. The court not realizing

what was happening at sentencing, sua sponte seized this device.

This new evidence spells fraud on the sentencing court.

6) The device may have come from Diehl’s sentencing attorney, and

if it did this would represent a profound ethics violation

cognizable

under Rule 60(d)(3).

7) Finally, the government on 2255 again fabricated evidence by

telling that court the evidence was digital copies made from

analog masters. This would eliminate the impact of Diehl’s

entire defense as explained.

See government 2255 reply Doc 218, p.7

1. This formed ,the basis of Diehl’s contemporous Rule 60(b)(6) filing.

Diehlargued that a Magistrate can’t make a final ruling on such

an injunction (#202), and the judge conflated an in camera motion

witn an unrelated in-camera motion (labeled #208). Finally the

district court failed to rule on a discovery motion following Diehl's

amendment to his 2255. The court did not rule on these 60(b)(6)

issues, and instead ruled on an unrelated Rule 41(g) argument.

2. Its not clear where the government obtained the depictions from.

28.

RULE 60(d)(3) LEGAL STANDARD

In United States v. Horohan, 294 US 103, 112 (1935) the

Supreme court said, ”... deliberate deception on a court by the

presentation of false evidence is incompatible

with

rudimentary

demands of justice.” In United States v. Higgs, 193 f. supp. 3d 495

, 507 (4th Cir. 2016) the court observed that it is fraud on the •_

court to fabricate evidence where it was planned, carefully

executed, and intended to defraud the court.”. In Scott v. United

States, 81 f. supp. 3d 1326-37 (11th Cir. 2015) the court granted

an evidence hearing where the government deceived the 2255 court.

Finally, in United States v. Throckmorten, 98 US 61 (1878) the

Supreme Court found that it was fraud on the court for a litigants

own attorney to ’’connive

at his defeat” or ’’sells out his client’s

interest ...." id 66.

LAW APPLIED

Di^hl has demonstrated that the government fabricated evidence

on direct appeal and 2255. On appeal the government built their hard

drive inference (Despite Rule 23(c)) on a hard drive that wasn't the

one described by their witness Ken Courtney. They also witheld from

the Fifth Circuit that they had an esculpatory forensic examination

from an undesclosed device. The forensic should have been disclosed

per Brady v. Maryland, but Diehl's attorney's report never seeing it.

The Fifth Circuit built their inference on the assumption the hard

drive couldn't be decrypted.

29.

During the 2255 proceedings the government again fabricated

evidence when they told the district court that the visual depiction

evidence were digital copies of Diehl’s analog masters. Keep in

mind, as shown they also argued on 2255 that Diehl’s challenge to

the plain language was considered on direct appeal. Clearly the

2255 court fully bought into this fraud. The deception was carefully

planned, and executed and was designed to frustrate Diehl’s 2255

Ground 5 argument. That argument showed "such visual depiction" as

used in 18 U.S.C. §2251(a)'s third nexus clause applies only to what

was produced while a minor was used. See Lively (supra).

Rule 60(d)(3) is triggered by fabrication of evidence.

Withholding the esculpatory forensic report simply adds to the fraud.

There is a question of what device produced the forensic. Was it

seized by the cryptic language in the government sponsored

sua-

sponte seizure. Did the device come from Diehl's attorney. If either

of these questions are true then Rule 60(d)(3) requirements are also

met. The first has serious Fourth Amendment implications, and the

second falls under Throckmorten.

Along with Diehl's Motion to Set Aside 2255, he also moved the

court to order the government to provide an affidavit stating what

device produced the forensic report described by an inventory list

of discovery turned over to the defence as Item-0.The court denied it.

Wherefore, this case should be remanded back to the district

court and an evidence hearing should be granted. Diehl prays for

any other relief this court may find appropriate, including the

dismissal of the case for the government's fraud which resulted in

the denial of Diehl's primary argument, the bench trial was based on.

REASON FOR GRANTING PETITION FOR GROUND ONEAND TWO

GROUND ONE

This court should grant certiorari for Ground One, because

its a question of national importance whether or not courts

while evaluating pro-se appeals, after denying an attorney and

a relevant stay based on a pending Supreme Court case , can also

plainly misinterpret whether or not a constitutional argument,

was raised. This is fundamental^ a subject matter jurisdiction

question.

GROUND TWO

Certiorari dnuld be granted because whether or not the

ex post facto clause fully applies to pre-Booker offenses is a

question of national importance. Circuit courts are split, and

intra circuit decisions are varied on this important question.

Peugh v. United States, 569 U.S. 2013 never resolved this specific

question because the issue did not arise.

Diehl’s case shows how far removed just being required to

calculate the sentence range with the correct guidelines is from

th® full protection of the ex post facto clause which encompases

fundamental justice concerns. Diehl's correct sentence range was 151180, and because of United States v. Booker, 543 U.S. 220 (2005),

he received 600 months.-Diehl-s is an ideal case to consider the

issue as the case facts show.

REASON FOR GRANTING PETITION FOR GROUND THREE

Congress enacted Fed.R.Civ.P. Rule 60(d)(3) with no statute

of limitations to protect the judicial systems integrity. Diehl’s

case facts indicate just how far fraud on the court can be

stretched. It is imperative that Rule 60(d)(3) have real teeth,

so that litigants are well reminded to play within the rules.,

Diehl’s case facts show fabrication of evidence, machinations

that led to Diehl never being able to bring his primary defense,

witholding of exculpatory evidence, and the likely comprimise of

his trial attorney.

The District court’s ruling is one sentence long and failed

to address any of the stated claims. The Fifth Circuit also gave

little to no consideration to the serious issues presented. Rule

60(d)(3) serves an important purpose, and the Supreme Court should

use this case to send such a message.

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.