Petition — Garner v. United States

: =e 6 ie —_—_—_——_

RECEIVED

, 8675884 | Kt168 6

OFFICE OF THE CLERK

PATME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

GEORGE F. GARNER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A “RIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

POR THE SIXTH CIRCUIT

‘ GEORGE P. GARNER, Pro se.

of P.O. Box 1000

Marion, Illinols 62959

BY:

LARRY E. STEAD, Director

Prisoners Legal Assistance Project

P.O. Box 1000 #93699-131

Marion, Illinois 62959

—

TABLE OP CONTENTS

Page Nunber

OPINIONS | FF rTrrTTTrrTrirrrTirirreerrrrrei iririiitt To

TURISDE SEI ON cccccccccccccccccceccccsccccccceece eer wrri?Tit

QUESTIONS PRISENTED. *eeeeeeeeeeeeeveeeeeeeeeeeeeeeeeeeeeeeeee effe3

CONSTITUTIONAL PROVISIONS AND

STATUTES |b PT TTTTTTrTTiIsrresrerrrresriririiriririiy |.

STATEMENT OF THE TTT TT ITiTTrirrrryr+ er rere

REAS ONS POR GRANTING THE WRIPs wcccccces

I. “REVIES SHOULD BE GRANTED TO LNTERPRET

THE CONGRESSIONAL INTE!T OF, AND

REQUIREWENTS POR SENTENCING UNDER, THE

VARIOUS PU.ISHENT PROVISIONS OF THE

"GUN SONTROL ACT’ GF 1968, TITLE 16,

U.S. CODE, BBW ccocccccccccecccccccccccccccees@ Phy

"PACTS rrr TTrTrreereeerirrefryYyfyeyess_,

“SUFFICIENCY OF INDICTIENTST .ccccceesessvece sd

“INTENT OF STATUTES INVOLVED? .cccccccccccscee9lO

"ESSENTIAL ELEMENTS OF

STATUTES pc ft Ay rT TTTTTITTITTTTyT i?

“INDEFINITE AND UNAS SERTAINABLE

PZNALTY PROVISIONS USED BELOWS . ccccccccccccestsels

CONCLUSION. ccccccccccccccccceccceccccccccsccccccccsceseseseols

PROOP OF SERVI SE<AFPIDAVIT cc cccccccccccccccccesscscescscess lt

CASES CITED

Burton v. United States, 202 U.S. Bb (1906) s.cccceeseecevese 259

Burgette v. Texas, 389 U.S. 109 (1967 )seccecceessceeeseceeees 12

Harris v. United States, 382 U.S. 162 (1965) sececeeeeeeeeeees 12

Huddleston v. United States, 415 U.S. 314 (197%) seeeeeseecese 10

Mauney v. United States, 454 P.2d 273 (6th Cir. 1973)s.-++++- 8,10

Morissette v. United States, 342 U.S. 246 (1952) seceeseeeeeee Ll

Russell v. United States, 369.U.S. 749 (196L)sececceeeeeseeee 269

Townsend v. Burke, 334 U.S. 736 (1LOUS)seceeeeeeeeeevseneeeves J,12

United States v. Bass, 404 U.S. 336 (197 lL) seeeeeeeeeceeceeees Sell

United States v. Daugherty, 269 U.S. 360 (1926) jecssceseeeses 3,12

~i-

Pare No.

United States Ve Debrow, 346 U.S. 374 COs ncncsaceusenonase 9

United States v. Garner, 451 F.2d 167 (6th Cir. 197lL)seceeeeee §

United States v. Ramirez, 482 F.2d 807 (2 Cir. 1973);...eeee+5 10

United States v. Sudduth, 457 F.2d 1198 (lOth Cir. 1972);..... 10

United States v. Tucker, 40% U.S. 443 (1972) s.ccscccccccecsees 5,12

United States v. Vigil, 458 F.2d 385 (lOth Cir. 1972);........ 10

Williams v. New York, 337 U.S. 261 (1989) s ccccccccccccccccces 2,12

Yates v. United States, 356 U.S. 363 (1958). sscccccccccsseees 2,12

Q OVISIO

FIFTH Amendment , United States Constitution;....ccccsesesesee 3,12

SIXTH Amendment, United States Constitutions weccccccccssceses 399

STATUTES CITED

Pitle 16 U.S. Code, § SP2pccccccccccccccccccccccccccccccccesce &

Title 16 U.S. Code, B GBlsccccccccccccccccccvsccccccccccsccccccs &

Pitle 18 U.S. Cede, B GABE) scccccccccccccccccccccccccccccccce 2p%_S_h2

CO SD Bilis Din B Giinccncacccnsccccocsccnccccccceveasence BA

Title 18 U.S. Code, Appendix, § 1202(a)s.cccccsccccccccccsccese &

Title 26 U.S. Code, °° §861(d) and a , LUPPOTTTTITTTTTTTTrTTT ee 4

Title 28 U.S. Code, § BOGE) sg cccccececoecoecesoeeseosesoocese 2

Title 28 U.S. sode, 2 25S ccc cc ccccceccecceececcecceccecceeces 5,6

OTHER

GUN CONTROL ACT of 1968, Pub. L. GRO ccvcccescoceseoeeecees 2.9

LEGISLATIVE HISTORY, House Report 1577, 3 U.S. Cong. & Adm.

News, page BR2J cccccccccccceeeeeeeccecesececceeeceeeececeoecoes 2,10,11

ii

——

eee

»._°9~5884

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

GEORGE F. GAANER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION POR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

POR THE SIXTH CIRCUIT

Petitioner prays that a writ of certiorari will issue to

review the judgment and final decision of the United States Court

of Appeals for the Sixth Circuit entered in the above-entitled

_case on October 20, 1976.

OPINIONS BELOW

The Orders of the District Court are unreported and are set

forth in the Appendix attached hereto at pages A-1 (Civil No. 8486,

dated May 10th, 1974); A-2 through A-4% (Sivil No. 8438, dated June

28, 1974); A-5 (Civil No. 8488, dated July 17, 1974); A-9 through

A-11 ( Civil No. 3-74-337, dated viarch 25, 1975); A=-12 through A-14

(Civil No. 8488, dated March 25, 1975): A-15 through A-16 ( Civil

No. 8488, dated March 25, 1975); and, A=17 ( Civil No. 8438, dated

April 18, 1975). The Opinion and Orders of the United States Court

of Appeals for the Sixth Circuit are unreported and are set forth in

the Appendix attached hereto at pages A-6 through A-7 (Appeal NO.

74-1953, dated January 8, 1975); A=-8 (Appeal No. 74-1953, dated

January 24, 1975); and, A-18 through A-24 ( Appeal No's 75-1813 and

75-1614, dated July 23, 1976). The Order of the Sixth Circuit denyinr

a rehearing and rehearing en banc is not reported and is set forth

herein at page A-25 ( Appeal No's 74-1953; 75-1813; and 75-1814,

dated October 20, 1976) of the Appendix attached hereto.

TURISDICTION

The Opinion and Decision of the Sixth Circuit Court of Appeals

affirming the District Court's “summary dismissals” of petitioner's

motions to vacate was entered on July 23, 1976. A timely motion for

rehearing and rehearing en banc was filed and denied by the Court

below on October 20, 1976. Jurisdiction of this Honorable Court is

presently invoked pursuant to 28 U.S. Code, § 1254(1).

QUESTIONS PRESENTED

I Whether or not an indictment must contain every essential

elemert necessary to constitute guilt of the crime charged before

either a conviction or sentence can be had or imposed thereunder ?

ve ted States, 369 U.S. 749 (1961)

On v. Unites Scates, 202 U.S. 344% (1906)

I. Whether Title 18 U.S. Code, §§ 924 (b) and (c)(2), create

specific “crimes”, requiring the essential elements of proof of each

to be alleged in the indictment and decided by a jury, or merely

provides for “summary enhancement" of punishment for the commission

of other crimes ?

C t ° 8, Pub. Le 90-018

v sory, House Report No. 1577

lil. Whether a defendant who is indicted, tried, and convicted

of “transporting” firearms and ammunition in interstate only, in

violation of 18 U.S. Code, §8 922(g) and 924(a), can be punished

in excess of the statutory maximum provided for such illegal trans-

portation upon mere allegations of additional criminal acts not

charged in the indictsent—?

Williams v. New York, 337 U.S. 241 (1949)

aro V. United states, 356 U.S. 363 (1958)

(2) S a firearn unlovfully durine the

Ss = an elony which may be prosecuted

a court of the United States,

shall be sentenced to a term of imprisonment for not

less than one year nor more than 10 years.”

( Emphasis Added )

STATEMENT OF THE CASE

On March 19, 1970, petitioner was indicted by the federal Grand

Jury in Greenville, Tennessee, in three separate indictments. Count I

of indictment No. 17, 725 charged an ex-convicts possession of a

firearm, a violation of 18 U.S. Code, Appendix, g 1202(a). Count II

of the same indictment charged petitioner with knowingly “transportin-

and shipping certain firearms and ammunition in interstate from the

state of Florida to the state of Tennessee, a violation of 18 U.S.

Code, $$ 922(g) and 924(a).

The second indictment, No. 17,726, charged petitioner in a singl«

Count with possessing firearms and other destructive cevices that had

not been registered as required by law, a violation of 26 U.S. Code,

$8 5861(d) and 5871.

Count I of the third indictment, No. 17,727, charged petitioner

-with possessing certain stolen postal money orders with intent to

convert the same to his use, a violation of 18 U.S. code, § 641. Cow

II of that same indictment charged possession of the same postal mone,

orders with intent to defraud, knowing the same to have been falsely

made, forged, counterfieted or altered, a violation of 18 U.S. Code,

§ 472.

Petitioner was afforded a single trial on all charges before a

jury on December 23, 1970, and a verdict of guilty was remdered by

said jury on all Counts of each indictment.

On January 29, 1971 petitioner appeared before the Honorable

Robert L. Taylor, Judge, for sentencing. He was sentenced tothe custoc

of the Attorney General for a peroid of two (2) years under Count I ar

ten (10) years under Sount II of indictment No. 17, 725, said terms

to be served consecutively. An eight (8) year term was imposed under

indictment No. 17,726, and ordered to be served consecutively to

the term imposed in No. 17, 725. Petitioner was thereafter ordered

to serve two concurrent ten (10) year terms under Counts I and II

of indictment No. 17,727, and the said terms were ordered to be

served concurrently with the sentences previously imposed, for an

aggregated term of twenty (20) years. :

A direct apoeal was taken to the Sixth Circuit Court of

Appeals and each conviction was affirmed. United States v. Garner,

451 P2d 167 (6th Cir 1971).

Petitioner filed a motion to vacate the convictions and

sentences imposed under counts I and II of indictment No. 17,725

on December 26, 1973, pursuant to 28 U.S. Sode, §2255. This motion

was assigned Civil No. 8488 in the District court, and raised two

issues for relief, i.e., the first contending that Count I of

indictment No. 17,725, charging an ex-felon’s possession of a

firearm, was void upon its face for the reasons set forth by this

Honorable Court in United States v. Bass, 404 U.S. 336 (1971); the

second contending that the Govermment failed to prove an essential

element, i.e., interstate transportation,of the crire charged in

Count II of indictment No. 17,725.

On Aay 10, 1974 the District Court issued an order (see

Appendix p. A-l) granting relief as to Count I and vacating the

conviction and sentence had thereunder, but denying all relief as

to Count II.

Petitioner thereafter submitted a motion to anend and

supplement his original motion on May 28, 1974, wherein he contenied

that, in addition to the conviction, the sentence imposed under ‘count

II of indictment No. 17, 725 was obtained in violation of this Court's

mandate in United States v. Tucker, 404 U.S. 443 (1972). (Use of an

invalid prior conviction to enhance punishment).

The District Court, in a Memorandum Opinicn filed June 28, 197%

(see Appendix pgs. A-2 through A-+) “summarily denied" petitioner's

amended motion (which was treated as a new 62255 motion). A motion

vo

for reconsideration as to the Tucker issue was filed by Petitioner,

and on July 17, 1974, all relief was denied (see Appendix p. A-5).

Petitioner appealed the District Court's orders of !iay 10, 1974,

June 28, 1974, and July 17, 1974, to the Sixth Circuit Sourt of

Apoeals, and the same were docketed under appeal No. 74-1953.

Prior to submitting his brief on appeal, petitioner's “next of

friend" discovered an additional error in the sentencing under Count

II of indictment No. 17,725, and submitted a new §2255 motion ta the

District Court. Said new motion was filed on November 20, 1974 and

assigned civil Action No. 3-74-337 in the District Court.

Petitioner filed a motion with the Sixth Circuit court of

Apveals seeking a “stay” of his appeal, pending a decision by the

Distfict court on his new §2255 motion. However, rather than stay

the said appeal, the court below issued its order dated January 3,

1975, remanding the District Court's summary dismissal of petitioner's

first §2255 motion (NO. 3438), and ordered the District ‘court to

reconsider its prior decision along with issues raised in the new

$2255 motion (No. 3-74-337). (See Appendix pgs. A-6 through A-7). On

January 24, 1975, the court below amended its remand order of

January 8, 1975, confining reconsideration to the Tucker issue only.

(See Appendiz p. A-8).

Petitioner's new §2255 motion (No. 3-74-337) presented only one

contention, i.e., that his ten (10) year sentence was in excess of the

statutory maximum penalty allowed by 18 U.S. code, $924 (a). The

Government filed a response conceding that petitioner's ten (19) year

sentence imposed under Count II of indictment No. 17,725 was in excess

of the five (5) year maximum authorized by 18 U.S. Code, $924 (a);

however, argued that sentence could have been imposed under eitner

subsections (bd) or (c) of 18 U.5. code, 8924, which allowed an

"enhanced" maximum term of ten (10) years. The District court issued

its order on March 25, 1975 denying relief (see Appendix pgs. A-)

through A-l1). Although the District Court could not say with

certainty which penalty provisions petitioner presently stands

sentenced under, the court held that the ten (10) year sentence

gould have been imposed under either $924 (b) or (c) of Title 18,

U.S. Code.

Prior to the District Court denying relief in Civil Action No.

3-74-337, your petitioner filed a motion to disqualify The Honorable

Judge Taylor in Civil Action No. 8488. However, rather than reconsider

the Tucker issue, as mandated by the Sixth Circuit, the District

Court filed a “carbon copy” of its order entered in Civil Action No.

3-74-3357, under Civil Action No. 8488 (adressing issues not raised

in No. 8488) on March 25, 1975 (see Appendix pgs. A-12 through A-14),

and summarily dismissed petitioner's motion to disqualify on that

same date (see Appendiz pgs. A-15 and A-15). Because of the odvious

confusion, your petitioner filed a motion for relief from the

judgment and orders entered in civil Action No, 8488 on March 25,

1975, and the same was denied (see Appendiz p. A-17).

Your petitioner took independent appeals from the District Court's

final decisions in Civil Action Nos. 8488 and 3-74~337, to the Sixth

Circuit court of Appeals. The said appeals were assigned appellate

numbers 75-1513 and 75-1814 and were consolidated on appeal upon

petitioner's request.

The Sixth Circuit affirmed the District Court's dismissals on

July 23, 1976 (see Appendix pgs. A-18 through A-24). However, due to

certain mistatements of the facts, petitioner filed a motion for a

rehearing and rehearing en banc. By order dated October 20, 1974, the

court below denied a rehearing (see Appendix po. A-25).

REASONS POR GRANTING RELIEP

XZ. REVIEW SHOULD BE GRANTED TO INTERPRET

THE CONGRESSIONAL INTENT OF, AND

REQUIREMENTS POR SENTENCING UNDER, THE

VARIOUS PUNISH.ENT PROVISIONS OF THE

“GUN CONTROL ACT" OF 1968, TITLE 18,

U.S. CODE, $924.

.

°- -

There presently exists a serious departure from historically

oe

established principles of constitutional law by the courts below which

Pe

requires this court's attention. In a case of first impression the

Sixth Circuit Court of Appeals interpreted the congressional intent

of 18 U.S. Code, $924 (b) and (c) to provide for “summary enhancement*

of punishments, over and above established statutory maximuns, witnout

requiring the essential elements of said subsections to be charged in

the indictment or otherwise considered by the jury. For this reason

and due to the lack of prior judicial clarification and interpretation

of the punishment provisions of 18 U.S. Sode, §924, it is suzzested

that a writ of certiorari should issue.

acts Ows

The principle issue raised in the court below was that your

petitioner, who was indicted and convicted of “transporting” firearzs

and ammunitions in interstate only Y (see Appendix pgs. A-26_

through A-27__); in violation of 18 U.S. Code, $922 (g), wes sentenced

An excess of the statutory five (5) years maximum authorized by

18 U.S. Code, §924 (a). Cf: auney v. United States, 454% F2d 273

(6th Cir 1972)(Government concedement to 8924 (a) as the proper

punishment statute). The District court summarily denied relief

reasoning that petitioner “could have been” sentenced under the

“enhanced” punishment provisions of either subsection (bd) or (c)(2)

of 8924, 18 U.S. Sode; even though he was not charged in his

indictment or tried for the additional crimes contained in subsections

(b) and (c)(2).

+ Count II of indictment No. 17, 725 reads in pertinent part as

Ollows:

“The Grand Jury further charges that on or about

the 5th day of February, 1970, in the Eastern

District of Tennessee, .iorthern Division, GEORGE

PINIS GARNER did willfully and knowingly transport

and ship in interstate commerce from the State of

Florida to Blount county, Tennessee, firearms and

ammunitions, to wits . . . The said GEURGE FINIS

GARNER at that time having previously been convicted

in a court of a crime punishable by imprisonment

for a term exceeding one year. (Title 18, sections

922 (g) and 924, United States Code.)?

The court below affirmed the District Court's dismissal, holding

that 8924 (b) and (c) merely creates provisions for “enhancement”

of punishment and that the essential elements necessary for a finding

of guilt thereunder do not need to be included in the indictment or

considered by the jury. 2/.

SUPPICTENCY OF INDICTMENTS :

In a number of cases decided by this Honorable court through

the years, it was made abundently clear that a defendant has a

constitutionally protected right “to be informed of the nature and

cause of the accusation" made against him. See U.5. Zonstitution,

WeAmendment. To insure such protection, this court established two

criteria by which the sufficiency of an indictment is to be measured;

one of which is that the indictment contain each and every essentiai

glenent of the offense intended to be charged, and sufficiently

apprise the defendant of what he must be prepared to meet. See

Russell v. United States, 369 U.S. 749; United States v. Debdrow,

346 U.S. 374 (1953); Burton v. United States, 202 U.S. 344% (1905).

Por this reason it can hardly be argued that a defendant can be

_either convicted or sentenced for crimes of which he is neither

indicted for nor convicted of.

INTENT OF STATUTES INVOLVED:

After reviewing the Legislative History of the “Gun Control Act”

of 1968, Pub. L. 90-618, and available case iaw intrepreting certain

2/. “This supposes that such sentence was in conflict with

18 U.S.C.A. 69246 (a). However, the Grand Jury did not

charge him with violation of 6924 (a) but rather charged

him with violation of 922 (g) and 924. Section 924 has

four subsections, namely: (a)(b)(c) and (d). Appelions

me prues under 6924 (b), or (c), either of which tne

rial court held were equally apolicable to tne case.

Each of these sections authorized sentences up to ten

years 3 imprisonment.? (See opinion below: Appendix

P. A-23 .

eee see

I

criminal sections, see Huddleston v. United States, 415 U.3. 314

(1974), and various subsections of the penalty provisions at issue,

See United States v. Ramirez, 482 P24 807 (2nd cir 1973); United

States v. Vigil, 458 P2d 385 (10th Cir 1972), it is made clear that

subsection (a) of $924 was intenaed to prescribe punishment “for

violations, including false statements, of any provision of this

Chapter. Cfs Huddleston v. United States, Supra. Also, see

Mauney v. United States, 454 P2d 273 (6th cir 1972).

Subsections (b) and (c) of §924 create separate and distinct

"crimes" involving specific elements to be char 4 in the indictrent

and proven before any conviction or sentence may be had or imposed

thereunder. Thus, it has been held that said subsections prohibit

certain “aggregated crimes", rather than merely providing summary

“enhancement” of punishments over and above that prescribed by

subsection (a) of 8924. See United States v. Sudduth, 457 F2d 1193

(10th Cir 1972); United States v. Ramirez, 482 F2d 807 (2nd tir 1973).

ESSENTIAL ELEMENTS OP STATUTES INVOLVED:

The statutory language of 8924 (a), (b), and (c), as well as

the “Section Analysis" of the House Report (Judiciary Committee),

H.R. No. 1577, at page 4423, 3 U.S. Cong. & Adm. News, specifically

reflects the “essential elements" necessary for conviction and

punishment thereunder.

Section 924 (a) y provides for 2 maximum five (5) year penalty

for violation of “any” provision contained in Chapter 44, Title 18,

U.S. Code. Because subsection (a) does not involve criminal acts, but

provides for punishment only, the single prerequsite to sentencing

thereunder is a violation of any offense set forth in Chapter 44,

Section 924 (b) 4/ provides for an enhanced punishment of ten

(10) years for any crime, not necessarily one contained in Chapter 44,

%: The pertinent parts of §924 are set forth in the "Statutes

nvolvec" section herein at paces 24.

4/. See f.n. 3, supra.

e Me

involving the shipving, transportation, or receiving of a firearm

or ammunition in interstate or foreign commerce “with intent to

commit a felony, or with knowledge or reason to believe that such

crime will be committed, with the weavon” or ammunition involved.

See H.R. No. 1577, at page 4423, 3 U.S. Cong.& Adm. News. However,

for the reasons set forth herein and above, such intent is an

essential elevent of this aggregated crime which necessarily must

be charged in the indictment and submitted to the jury before any

“enhanced” punishment may be imposed. E,g., see ssette v._

United States, 342 U.S. 246 (1952).

Section 924 (c), (1) and (2) i, as amended, specifically

creates additional “crimes” , United States v. Ramirez, supra, and

analogous to Subsection (b), are not confined solely to crimes

contained ‘n Chapter 44 of Title 18, U.S. Code. In order for a

convictior. and enhanced punishment to be had under subsection (c)(1),

the “essential element” of “using” a firearm to commit a felony must

be alleged in the indictment. For such to be had and imposed under

subsection (c)(2), the “essential element” of “carring” a firearn

“unlawfully during the commission of any felony” must be charged and

proven. Cf: United States v. Bass, 404 U.S. 336 (1971). Moreover, any

punishment imposed under §924 (c) must be imposed “in addition to

the punishment provided for the commission of such felony?

NDE! ND_U!

NITE A! NAS CERTAT

PENALTY PROVISIONS US=D BELO

As stated above, your petitioner was sentenced in excess of the

statutory maximum provided for the crime charged, i.e., illegal

transportation only, 18 U.S. Code, 9922 (g). The indictment does not

contain the essential elements necessary for conviction or sentencing

under the enhanced penalty provisions of 9924 (b) or (c)(2). However,

both the District Court and the Sixth Circuit Court of Appeals held

that, in light of the evidence, it was believed that the ten (19) year

term imposed “could have" been imposed under either subsection (b) or

(c)(2) of $924.

5/. See f.n. 3, supra.

Notwithstanding a sentencing court's duty to consider all facts

relevent to sentencing, the sentence imposed must be within the

statutory maximum prescribed for the acts charged. See W iams ve.

New York, 337 U.S. 241 (1949). The court cannot lawfully sentence a

defendant in excess of the statutory maximum for crimes of which he

is not convicted of committing; e.g., Burgette v. Texas, 389 U.S.

109 (1967); United States v. Tucker, 404 U.S. 443 (1972). And where

it is clear that a District Court Judge has refused to correct such

obvious error, this court has ordered the sentence vacated. See

Yates vy. United States, 356 U.S. 363 (1958).

While it is true that a sentence imposed in excess of the

statutory maximum authorized by law he: been held “correctable” with-

out vacation of the same, and by merely reducing the sentence to withi:

the limits of the prescribed punishment provisions, it is submitted

that your petitioner's entire sentencing proceedings is lacking in

due process of law and is totally void.

Neither the sentencing Judge, the United States Attorney, nor

the Sixth Circuit Court of Appeals could say, with certainty, which,

if any, of the penalty provisions contained in §924 your petitioner

presently stands sentenced under. The courts below coyly reason that

the excessive sentence could have been imposed under this or that,

but this court has long ago held that a sentence must be free from

ambiguity and must clearly reflect the court's intent and purpose. See

United States v. Daugherty, 269 U.S. 360 (1925). Only then can it be

clear that the sentence was not the product of misapprehension or

imposed by mistake. See Harris v. United States, 382 U.S. 162 (1965).

As this Court held in Townsend v. Burk, 334 U.S. 736 (1948):

"We are not at liberty to assume that items

given such emphasis by the sentencing court

did not influnce the sentence. . .”

". . « it is the careless or design pronouncement

of sentence on a foundation so extensively and

materially false .. . that renders the oro-

ceedings lackinz in due process?

In the instant case the sentencing Judge erroneously sentenced

petitioner to ten (10) years in prison for a crime which merely

allows for a maximum of five (5) years. For the reasons stated above

it is clear that the court could not lawfully sentence petitioner

under 18 U.S. Code, $924 (b) or (c) because he was not charged with

the criminal acts necessary to support such an enhanced punishment.

The court cannot say which penalty provision your petitioner was

punished under, and it is most obvious that the aggregated crimes

unlawfully considered by the sentencing court seriously and factually

influenced the punishment imposed. In light of petitioner's sentence

being imposed under such a materially untrue and prejudicial foundatio

it is submitted that the sentence must be vacated in its entirety and

reimposed “in the interest of justice?

ONCLUSION

Por the reasons stated above, and to insure a proper interpretati

and application of the congressional intent of 18 U.S. Code, 8924 (Gun

Control Act of 1968), a writ of certiorari should issue to review the

judgnents and orders below.

e Respectfully submitted,

Marion, Illinois 62959

By “Next Of Friend":

~ S Me sl a

7LARKY =. STEAD, Director

Prisoners Legal Assistance Project.

P.O. Box 1000 #93699-131

Marion, Illinois 62959