Petition for Writ of Certiorari — Parrish v. United States (No. 07-391)

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\y 7” 07-391 SEP 18 2007

GERIGE-OF -FAHE6L DR

In The

Supreme Court of the Gnited States

o

RICHARD LEE CARLISLE and

RONALD ADAIR PARRISH,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

>

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

%

PETITION FOR WRIT OF CERTIORARI

© ——

RICARDO NICOL, ESQ. ROGER S. HANSON, ESQ.*

400 West Fourth Street 1517 East Fourth Street

Second Floor Santa Ana, CA 92701

Santa Ana, CA 92701 (714) 953-0638

(714) 550-6644 Member of the Bar

Member of the Bar Supreme Court of the

Supreme Court of the United States

United States

*Counsel of Record

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a Federal Grand Jury empanelled

in the Central District of California can return an

indictment against prospective federal defendants for

crimes that were never committed within the Central

District of California, within the meaning of the Fifth

Amendment to the United States Constitution?

2. Whether, under the 6th Amendment to the

United States Constitution, can venue for a federal

prosecution ever be predicated in the Central District

of California where no element of any federal crime

occurred, and where if any crime occurred, it occurred

in the Republic of Korea via communications into a

District of Virginia?

3. Whether it was, and is, plain error for this

prosecution to have been set in California following a

federal indictment that failed to allege any crime

occurring in the Central District of California?

4. Whether a United States Circuit Court can

ignore a defense raising of the plain error rule under

F.R. Crim. P. 52 in its second opinion in this case?

5. Whether, within the meaning and provisions

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

United States v. Booker, 543 U.S. 220 (2005) (5 Jus-

tice opinion of the Hon. John Paul Stevens), can a

United States District Court adhere to an 8-level

increase in a federal sentence based upon a failure to

indict upon, and require a federal jury to find, beyond

li

QUESTIONS PRESENTED - Continued

a reasonable doubt, that “Colonel Moran was involved

in the defense within the meaning of U.S.S.G.

2C1.7(b)(1)(B) (2003)” “because Moran was an official

holding a high-level decision-making or sensitive

position”?

6. Whether the decision of the United States

Supreme Court in Cunningham v. California, 549

U.S. ___ (2007) reinforces and requires that the rule

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

United States v. Booker, 543 U.S. 220 (2005) (5 Jus-

tice Opinion of the Hon. John Paul Stevens) requiring

Blakely be applied to the federal U.S.S.G.?

ill

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES ...........cccoscscscesescseeees vi

ENTRODUCTION iceciescccscevsccescessrecsevevonesesvovesssees 1

OPENION BELOW ...cscccsevesevsrrscceccnsesccesvesesenseveees 1

JURISDICTIONAL GROUNDG. ........c.ccccseeneeeneee 1

UNITED STATES CONSTITUTIONAL PRO-

VISIONS AND STATUTES INVOLVED.......... 2

STATEMENT OF THE CASE............::cccceseeeeenees 3

REASONS FOR GRANTING PETITION FOR

CRT EAS ci cnccievetctvsenesesetisinssetinececvesssanpecnere 10

SUMMARY OF THE ARGUMENT. ..............c0cee0 12

ARGUMENT I

WITHIN THE REQUIREMENTS OF THE

SIXTH AMENDMENT TO THE U.S. CON-

STITUTION, PETITIONERS MUST BE

TRIED BY A JURY SELECTED FROM

WHERE THE CRIME OCCURRED; NOTH-

ING IN THIS CASE OCCURRED IN THE

CENTRAL DISTRICT OF CALIFORNIA,

AND THE INDICTMENT FAILED TO

CHARGE OR AVER...........cccccoccovsesseessessonesecees 14

iV

TABLE OF CONTENTS - Continued

Page

ARGUMENT II

UNDER NEITHER OF THE SUBSECTIONS

OF U.S.S.G. 2C1.7 COULD THE DISTRICT

COURT AUGMENT THE SENTENCE OF

EITHER PETITIONER BY 8 LEVELS; RE-

DUCTION MUST BE ORDERED BY THIS

UGB. BUPA CORE ccccsessevsescenvocessecesveesere

ARGUMENT III

WITHIN THE MEANING OF BLAKELY V.

WASHINGTON, 542 U.S. 296, 124 S.CT. 2531,

159 L.ED.2D 403 (JUNE 24, 2004) THE

8-LEVEL ENHANCEMENT CAN NOT BE

ASSESSED AGAINST EITHER PETITIONER

SINCE IN THIS DEMANDED TRIAL BY

JURY THE JURY DID NOT DETERMINE

WHETHER THIS “OFFENSE” INVOLVED AN

“ELECTED OFFICIAL OR ANY OFFICIAL

HOLDING A HIGH-LEVEL DECISION MAK-

ING OR SENSITIVE POSITION.”...........-0e0s+00

ARGUMENT IV

PETITIONER CARLISLE MUST BE RE-

VERSED AS TO HIS CONVICTION OF

COUNT 11 (COUNT 2) OF THE REDACTED

INDICTMENT, FOR HE WAS NEVER “AT

THE TIME THAT THE OFFENSE WAS

COMMITTED A PRESENT OR FORMER

OFFICIAL OF THE UNITED STATES” IN

ELEMENT 1 OF THE ELEMENTS OF THE

SECOND COUNT. IN RE WINSHIP, 397

TLS, FBG, FOGG) cscvscnvsicccssscsccnsvecterseternesens

18

22

TABLE OF CONTENTS - Continued

Page

IIT occa ccvikesanisedarsncevtessensynereshecetanentens 26

APPENDIX

(A) Redacted Indictment. .............cesccesseeseteeeees App. 1

(B) Court Ruling, First Appeal, U.S. 9th

Circuit (June 14, 2005) ........cccccssccccccssersesees App. 6

(C) Court Ruling, Second Appeal, U.S. 9th

Circuit (May 1 2007).......c0crccccccrrcecssssseses App. 9

(D) Denial of En Banc Review by U.S. 9th

Circuit (JUN) ZZ, ZOOT) ..cccsvccsveresoccecsceneeees App. 12

=a

vi

TABLE OF AUTHORITIES

CASES Page

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

In Re Winship, 397 U.S. 358 (1970)............... 14, 24, 25

United States v. Ameline, 376 F.3d 967 (9th Cir.

SS | EN AR IN LEE ee I 11, 23

United States v. Ameline, 400 F.3d 646 (9th Cir.

Se IND TD cis icesssavnniinienticideisacsaamenedeored 12, 23

United States v. Ameline, 409 F.3d 1073 (9th

FN re Ae Ric ceiisictecevesictnccsseccevccnsoneantinl 11, 12

United States v. Antico, 275 F.3d 245 (3rd Cir.

- SSE ERR RA ae SPP ORC PON NNO Paper omen mee 20

United States v. Booker, 543 U.S. 220

IIE visiiorcistdescesanchitbideisietitdeantantadenicanindbiiamiudtia 11, 12, 13, 23

United States v. Hayes, 242 F.3d 114 (3rd Cir.

ITI. ict hid sssnsinch satdetclioensnsnibsioiiaiadaubibiadsniahaiiaidisbieaiasananeas 20

United States v. Johnson, 297 F.3d 845 (9th

+ R__ R a Seenreteenat Dace Ube caves atic Med AED 17

United States v. Maurello, 76 F.3d 1304 (3rd

8 ESE PSE TARA cee nen MeO MRE AIR BOE A) ME 20

U.S. CONSTITUTIONAL PROVISIONS

SS EFOLLETT SET 2, 17

EEL 2,10, 12, 14, 15

STATUTES AND RULES

SE een ene mre re tenee ae) 4

8 a een EEE eee 4

Vii

TABLE OF AUTHORITIES ~ Continued

Page

OE IF E:.. ccnsstcorsemnsniedsiphaioieicaentnenmaignainanans 3,4

DUO, BB iovvicccccccessesesesrvecoieeoccnueeriewvasnnsenyhievuiacoonns 4

SB TIGC. TOGO) cncsivrerccesesecccnscccssessesnascsssneececsenreesseonts 4

BT BE, BIE viv sicscccicersvccsnccnsnscssesniniassotmboonncentabomennvets 2

BE TB BB ivvkccitnictisiiieniininnndnumpnnutiniee 4

BO BEE, Chet, Phivccccriniccccccressvessesnecescnvncsnssceeiesonves passim

U.S.S.G. 2C1.7(b 1B) (2003).......-eceeseerreneees passim

1

PETITION FO. :VRIT OF CERTIORARI

To the Honorable John Roberts, Chief Justice of

the United States, and to the Honorable Associate

Justices of the United States Supreme Court:

Richard Lee Carlisle and Ronald Adair Par-

rish, petitioners, seek a Writ of Certiorari to

the United States Court of Appeals for the

Ninth Circuit from the ruling/opinion en-

tered May 1, 2007, rehearing/suggestion for

rehearing En Banc denied June 22, 2007.

+

OPINION BELOW

The United States Court of Appeals for the Ninth

Circuit entered its unpublished opinion, United

States v. Carlisle & Parrish, on May 1, 2007. A timely

petition for rehearing/suggestion for hearing En Banc

was denied on June 22, 2007. Copies of these opinions

and orders appear in the Appendix, Exhibit “C” and

“—[y".

4

JURISDICTIONAL GROUNDS

(i) The United States Court of Appeals affirmed the

conviction by an unpublished opinion entered

May 1, 2007. A copy of that opinion appears at

Appendix “C”.

(ii) The United States Court of Appeals entered an

order denying rehearing/suggestion for hearing

2

En Banc on June 22, 2007. A copy of that ap-

pears at Appendix “D”.

(iii) Jurisdiction to review by certiorari a decision of

a United States Circuit Court in a criminal case

is provided under 28 U.S.C. 1254.

¢

UNITED STATES CONSTITUTIONAL

PROVISIONS AND STATUTES INVOLVED

FIFTH AMENDMENT, U.S. CONSTITUTION:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just com-

pensation.

SIXTH AMENDMENT, U.S. CONSTITUTION:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to

3

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defense.

FEDERAL RULE OF CRIMINAL PROCEDURE

52:

(a) Harmless Error. Any error, defect, irregu-

larity or variance which does not affect substantial

rights shall be disregarded.

(b) Plain Error. Plain errors or defects affect-

ing substantial rights may be noticed although they

were not brought to the attention of the Court.

¢

STATEMENT OF THE CASE

Petitioners Parrish and Carlisle assert several

deprivations of due process of law in this Petition for

Writ of Certiorari to the United States Court of

Appeals for the 9th Circuit.

A. Nature of the case, course of proceedings,

and disposition in the District Court

Petitioners Ronald Adair Parrish (“petitioner

Parrish”) and Richard Lee Carlisle (“petitioner Car-

lisle”) seek certiorari concerning convictions for

conspiring to disclose and obtain contractor bid or

proposal information, in violation of 18 U.S.C. § 371,

and for aiding and abetting the disclosure of contrac-

tor bid and proposal information, in violation of 41

4

U.S.C. § 423 and 18 U.S.C. § 2(a), following a jury

trial before the Honorable Alicemarie H. Stotler,

United States District Judge.

On July 3, 2002, a federal grand jury in the

Central District of California returned an eleven-

count indictment against petitioners Parrish and

Carlisle, and then co-defendants Richard J. Moran,

Gina Cha Moran, and Joseph K. Hur, charging them

with violations of 18 U.S.C. § 371 (conspiracy; counts

one and ten), 41 U.S.C. § 423 (disclosure of procure-

ment information; count eleven), 18 U.S.C. § 201

(bribery; counts two through five), 18 U.S.C. § 1956(h)

(money laundering conspiracy; count six), 18 U.S.C.

§ 1957 (engaging in monetary transactions in prop-

erty derived from unlawful activity; counts eleven

and eight), 18 U.S.C. § 1512 (obstruction of justice;

count nine), and 18 U.S.C. § 2(a) (aiding and abet-

ting). Petitioners Parrish and Carlisle were only

named in counts ten and eleven, which charged

conspiracy to disclose and obtain contractor bid or

proposal information, in violation of 18 U.S.C. § 371

(count ten), and with disclosing procurement informa-

tion, and aiding and abetting that disclosure, in

violation of 41 U.S.C. $423 and 18 U.S.C. § 2(a)

(count eleven). Counts 10 and 11 become counts 1 and

2 in a redacted indictment. The redacted indictment

is set forth as Exhibit “A” to this petition.

On July 3, 2002, co-defendant Joseph K. Hur was

arrested, and made his initial appearance on the

charges. On July 4, 2002, co-defendant Richard J.

Moran was arrested in Los Angeles, California on the

5

charges alleged in the indictment, and made his

initial appearance the following day.

Also on July 4, 2002, petitioner Parrish was

likewise arrested in Los Angeles, and made his initial

appearance the following day. On July 8, 2002, peti-

tioner Richard L. Carlisle was arrested in Indiana on

the charges alleged in the indictment. No criminal

action charged in this Indictment, Appendix “A’,

occurred in the Central District of California.

Prior to trial, co-defendants Richard J. Moran,

Gina Cha Moran, and Joseph K. Hur all pleaded

suilty pursuant to agreements with the government.

On March 25, 2003, the government provided the

district court and petitioner’s counsel a redacted

indictment renumbering counts ten and eleven as

counts one and two. See Appendix A.

The case against petitioners Parrish and Carlisle

proceeded to trial on March 25, 2003. On March 27,

2003, the government rested. Petitioners moved for

an acquittal on March 27, 2003, which the district

court denied. On March 28, 2003, the jury began

deliberations. On that same day, the jury returned

guilty verdicts against Petitioners Parrish and Car-

lisle on both counts in the indictment.

On August 11, 2003, the district court sentenced

petitioner Parrish to 18 months imprisonment, su-

pervised release for three years, and a special as-

sessment of $200, and petitioner Carlisle to 24

6

months imprisonment, supervised release for three

years, and a special assessment of $200.

At no point in the district court proceedings did

petitioners claim that venue was improper in the

Central District of California. At issue is the Plain

Error Rule of Federal Rule of Criminal Procedure 52.

B. Statement of Facts

1. The Offense Conduct

The United States Army has a command located

in the Republic of Korea whose job it is to acquire

goods and services to support the Army’s mission in

Korea. That unit, called the United States Army

Contract Command Korea (“USA-CCK’), is staffed by

military personnel and civilians. The lead military

officer at USA-CCK between 2000-2001 was then co-

defendant Richard J. Moran, a colonel in the U.S.

Army. Petitioner Ronald Parrish served as Chief of

the Contract Support Division during that same time.

During his tenure working for the Army, peti-

tioner Parrish received training regarding how the

Army handles procurements. As part of that training,

Parrish learned that proposals submitted by contrac-

tors interested in performing work for the Army must

be kept confidential. This training included instruc-

tion on the Procurement Integrity Act.

One contractor performing work at USA-CCK

was AMS located in Virginia. AMS authored a soft-

ware program for the Army which provided the Army

7

with a standardized method for conducting its pro-

curements. From 2000-2001, AMS had a contract

with USA-CCK to provide support for running that

software package in Korea. Petitioner Richard Car-

lisle was the AMS employee on-site in Korea perform-

ing that contract for AMS. He was paic from AMS,

located in the United States in Virginia. The contract

was due to expire in September 2001.

Before AMS’s contract expired, USA-CCK deter-

mined that it would solicit other interested parties to

bid on a new contract for computer support services.

Petitioner Parrish served as USA-CCK’s point of

contact concerning bids for the new contract in his

capacity as chief of the Contract Support Division.

AMS expressed interest in receiving the next

year’s contract. Toward the end, Kim Stewart of AMS

engaged, from Virginia, in discussions and e-mails

with petitioner Parrish in May or June 2001 to un-

derstand USA-CCK’s requirements for the following

year. Ultimately, on July 11, 2001, Stewart forwarded

to petitioner Parrish and then co-defendant Moran an

e-mail with a draft bid and proposal that included

AMS’s confidential technical information and cost and

pricing data. AMS marked this draft bid and proposal

with a legend that restricted disclosure of the infor-

mation to anyone outside the government.

After forwarding this e-mail, Stewart partici-

pated in a conference call from Virginia, U.S.A. with

Colonel Moran and others at USA-CCK regarding

the AMS proposal. After these negotiations, AMS

8

modified its proposal, and sent the revised bid via e-

mail from Virginia to petitioner Parrish and co-

defendant Colonel Moran on July 27, 2001. The bid

and proposal submitted by AMS from the State of

Virginia included its cost and pricing data for the

contract. AMS also placed a restrictive legend on its

bid and proposal, stating that the document should

not be disclosed outside the government. This restric-

tive legend is designed to thwart others from utilizing

AMSQ’s proprietary information. AMS also requires its

employees to sign agreements that they will not use

AMS’s proprietary information to compete against

AMS. Petitioner Carlisle had executed such an

agreement during his employment at AMS, a Virginia

entity.

AMS did not include petitioner Carlisle as a

recipient of the July 27, 2001 e-mail sent from Vir-

ginia containing the bid and proposal and cost and

pricing data, nor did it include him in negotiations

concerning the contract, as these were not part of his

job requirements for AMS.

According to an analysis of e-mails taken from

petitioner Carlisle's computer, Parrish forwarded

AMS’s bid and proposal and cost and pricing data to

petitioner Carlisle on August 21, 2001.

After receiving AMS’s bid and proposal and cost

and pricing data sent from Virginia, Carlisle then

used the information to create his own bid and pro-

posal, which he submitted to USA-CCK on September

12, 2001. Carlisle’s bid was cut and pasted from the

9

AMS proposal Carlisle had received from petitioner

Parrish. Carlisle’s bid showed that the document was

originally created by AMS. Petitioner Carlisle’s use of

the AMS bid and proposal and cost and pricing data

sent into Korea from Virginia violated his employ-

ment agreement with AMS, wherein he promised not

to use such information for his personal gain.

Another company, ICT, submitted a bid and

proposal with cost and pricing data to be considered

for the award of the contract. ICT did not receive

assistance from anyone at USA-CCK in preparing its

bid. Access to AMS’s bid and proposal and cost and

pricing data when it prepared its bid would have

given ICT a competitive advantage.

After the competing bids were received by USA-

CCK, petitioner Parrish conducted the evaluation of

the bids to make a recommendation concerning who

should receive the contract. Based on his review, he

recommended that the contract be awarded to peti-

tioner Carlisle. On or about September 19, 2001,

based on petitioner Parrish’s recommendation, USA-

CCK awarded contract DAJB03-01-C-0274, valued at

$217,000 to petitioner Carlisle. Once again, whatever

criminal violations of the United States Code oc-

curred only between Korea and the State of Virginia,

which under the Sixth Amendment, fixes federal

venue in a District of Virginia. The Central District of

California had zero criminal conduct occurring and a

federal grand jury of the Central District of California

10

improperly returned the Indictment redacted as

counts 1 and 2 of Appendix Exhibit “A”.

+

REASONS FOR GRANTING PETITION

FOR CERTIORARI TO RESOLVE:

1. Whether any jurisdiction in the subject indict-

ment, Appendix “A”, under the Sixth Amendment

to the U.S. Constitution, is shown in the Central

District of California to jury selection and em-

panelment for alleged crimes occurring in Asia in

the Country of Korea between a District in Vir-

ginia?

2. Whether it is plain error in view of the Sixth

Amendment to indict, try, and select a jury from

the Central District of California for alleged

crimes occurring between Asia, in the Country of

Korea, and in a District of Virginia?

3. Whether the original panel of the Ninth Circuit

failed to consider, and rule, on the plain error of

trial in the Central District of California?

4. Whether, where the initial panel of the Ninth

Circuit has found that Colonel Moran was “in-

volved” in the offense within the meaning of

U.S.S.G. 2C1.7(b)(1(B) (2003) and where the ini-

tial panel found that Colonel Moran was an “offi-

cial holding a high level decision-making or

sensitive position,” does this establish that the

wrong-trier of fact has found a key fact that must

have been submitted to the jury and found true

beyond a reasonable doubt in order to apply an

“eight level sentence enhancement”? See United

11

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

Paul Stevens opinion).

Was ineffective assistance of counsel demon-

strated by trial counsel’s failure to object under

the 6th Amendment to the eight-level enhance-

ment imposed when the judge, not the jury, de-

termined that Colonel Moran was an “official

holding a high-level decision making or sensitive

position,” per item 3, initial opinion?

In view of the 5-Justice opinion of Hon. John

Paul Stevens in United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), ho!d-

ing that Blakely v. Washington, 542 U.S. 296, 124

S.Ct. 2531, 159 L.Ed.2d 403 (2004) applies to the

U.S.S.G., does the 5-Justice opinion of the Hon.

Stephen Breyer in Booker, supra, which holds

that the U.S.S.G. are now only “advisory,” and

not mandatory, allow a U.S. District Judge to ig-

nore a clear 6th Amendment issue and thus re-

fuse to change a sentence elevation of 8 years

imposed initially due to this 6th Amendment er-

ror and deprivation?

Does the En Banc ruling in United States v.

Ameline, 409 F.3d 1073 (9th Cir. 2005 En Banc)

permit the allowing of a U.S. District Court to

obviate and circumvent the 5-Justice ruling of

the Hon. John Paul Stevens in United States v.

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

621 (2005) under a theory that the U.S.S.G. are

no longer mandatory but are now only “advi-

sory”?

Unlike United States v. Ameline, 376 F.3d 967

(9th Cir. 2004) (Ameline I) and United States v.

12

Ameline, 400 F.3d 646 (9th Cir. 2005) (Ameline

II), of both of which clearly speak to the rule of

Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), does the failure of

United States v. Ameline, 409 F.3d 1073 (9th Cir.

2005 En Banc) to address the 6th Amendment

command of Blakely, supra, allow U.S. Courts to

ignore and fail to rule on a clear 6th Amendment

issue under a theory that the U.S.S.G. are now

only “advisory” and not mandatory?

Do the U.S.S.G. contain any area which expli-

cated the 6th Amendment issue of Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159

L.Ed.2d 403 (2004) to allow any court to now ig-

nore under the, “advisory” canopy, something

which was mandated before United States uv.

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

621 (2005)?

¢

SUMMARY OF THE ARGUMENT

The indictment, and the redacted indictment of

Appendix “A”, both failed to charge any crime

within the Central District of California; there-

fore juries from the Central District of California

could not be impaneled to try these claimed

crimes, and the Sixth Amendment rights of both

petitioners were violated. All convictions must be

reversed.

The “plain error rule” in view of the clear lan-

guage of the 6th Amendment to the U.S. Consti-

tution overcomes any failure to object to venue by

failing to raise it below, and thus the initial panel

13

decision of Appendix “B” at paragraph 1, page 2

erroneously refused and failed to apply the “plain

error” rule; reversal is here required.

Under U.S.S.G. 2C1.7(b)(1)(B), that provision did

not apply to either petitioner since it must be

shown that either petitioner occupied a “high-

level decision-making position” and neither did;

they obeyed instructions of Colonel Richard

Moran rather than either petitioner initiating ac-

tivity that solicited illegal activity; i.e., the re-

quirement to apply 2C1.7 must follow from

“bottom to top” in the echelon of command which

did not here occur.

Colonel Moran was the only and appropriate

“official holding a high-level decision-making or

sensitive position,” and only he could have been

subjected to an eight-level sentence enhancement;

neither of the petitioners should have been so sub-

jected. The initial panel errs at Appendix “B”

paragraph 2, page 2, and since this issue of fact

was not submitted to the jury and found to be true

beyond a reasonable doubt, each petitioner’s

eight-level enhancement must be nullified.

Under Blakely v. Washington, 542 U.S. 296, 159

L.Ed.2d 403, 124 S. Ct. 2531 (June 24, 2004), the

2C1.7(bXaXB) issue was not submitted to the

jury in this demanded trial by jury, and the jury

failed to find true beyond a reasonable doubt this

fact; the District Court can not so find de novo af-

ter conclusion of the trial. See Appendix “C”.

The 5-Justice opinion authored by the Hon. John

Paul Stevens in United States v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)

14

commands that the decision Blakely v. Washing-

ton, 542 U.S. 296, 159 L.Ed.2d 403, 124 S. Ct.

2531 (2004) be applied here, requiring that the

jury, not the previous panel of the U.S. Court of

Appeals determine beyond a reasonable doubt

that U.S.S.G. 2C1.7(b)1)(B)\(2003) was met, and

since that did not occur, the 8-level enhancement

for both petitioners must be nullified.

Under In Re Winship, 397 U.S. 358, 364 (1970),

petitioner Carlisle can not be convicted of the

charges of count 11, original indictment which

became count 2 of the redacted indictment; this

conviction must be reversed.

The original panel errs at paragraph 4, page 3, of

the slip opinion (Appendix “B”) since Carlisle

personally had to be a “present or former official

of the United States,” and Carlisle’s conviction

must be reversed as to this count.

4

ARGUMENT I

WITHIN THE REQUIREMENTS OF THE SIXTH

AMENDMENT TO THE U.S. CONSTITUTION,

PETITIONERS MUST BE TRIED BY A JURY

SELECTED FROM WHERE THE CRIME OC-

CURRED; NOTHING IN THIS CASE OC-

CURRED IN THE CENTRAL DISTRICT OF

CALIFORNIA, AND THE INDICTMENT FAILED

TO CHARGE OR AVER.

The Sixth Amendment provides:

“In all criminal prosecutions, the accused

shall enjoy the right to speedy and public

15

trial by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law and to be in-

formed of the nature and cause of the accu-

sation; to be confronted with the witnesses

against him to have compulsory process for

obtaining witnesses in his favor; and to have

the Assistance of Counsel for his defense.”

The indictment in this case, counts 10 and 11 and

the redacted indictment wherein counts 10 and 11 are

transmogrified into counts 1 and 2 (Appendix “A”)

clearly alleges criminal activity other than in the

Central District of California, to wit, The Republic of

Korea; yet it well appears that a jury from the Cen-

tral District of California was impaneled to try this

crime which was asserted to have occurred within the

Republic of Korea.

The superseding indictment (Appendix “A”)

provides, inter alia that, in count one, “3. Defendant

Richard L. Carlisle, RESIDING IN THE REPUBLIC

OF KOREA, submitted a bid on the computer service

contract under the name of Carlisle Consulting

Company.”

The “Objects of the Conspiracy” alleged that:

“4. Beginning in or about July 2001 and

continuing to or on or about September 25,

2001, IN THE REPUBLIC OF KOREA, de-

fendants Richard J. Moran, Ronald A. Par-

rish, Richard L. Carlisle and others ...

conspired ... to commit an offense against

16

the United States ... in violation of 41

U.S.C. 423.”

Under “Overt Acts,” it is asserted that:

“9. In furtherance of the conspiracy and to

accomplish the object of the conspiracy, de-

fendants Richard J. Moran, Ronald A. Par-

rish, and Richard Carlisle committed various

overt acts IN THE REPUBLIC OF KOREA

9a. alleges:

“in or about July 2001, IN THE REPUBLIC

OF KOREA defendant Moran solicited AMS

COUNT TWO reasserts paragraphs 1-8, and then

paragraph 11 continues with:

“11. On or about Auguest 21, 2001, IN THE

REPUBLIC OF KOREA...”

and 12 avers that:

“12. Atthe ABOVE TIME AND PLACE...”

Initially, a severe question arises whether this

grand jury indictment returned by a California Fed-

eral Grand Jury is valid, for surely the indictment

fails to allege criminal acts occurring within the

Central District of California to allow a California

federal trial jury to be impaneled to try this criminal

case.

17

This conviction, of both petitioners, being in

violation of the guarantees of the Sixth Amendment

must, therefore, be reversed.

In parallel, it appears that the Fifth Amendment

is also in violation insofar as the “indictment of the

Grand Jury” clause is affected; neither petitioner was

here in actual service in time of War or public danger,

nor did this case arise under such auspices.

Any criminal defendant is entitled te rely on the

indictment, which here fails to allege criminal acts

within the Central District of California.

As such, these convictions and sentences to 18

months and 24 months, respectively, must be re-

versed.

On appeal, the initial panel of this circuit, ruling

on June 14, 2005 (Appendix “B”) at paragraph 1, page

2, stated:

“Defendant waived their objection to venue by

failing to raise it below. See United States v.

Johnson, 297 F.3d 845, 861 (9th Cir. 2002).”

However, in view of the clear language of the 6th

Amendment, which held that the “public trial must

be before an impartial jury of the state and district

wherein the crime shall have been committed... ,” it

is plain that venue could not be in California, and

since this is plain error, a failure to raise the objection

does not sound a death knell to petitioner’s attack on

the venue issue. See Rule 52 of F.R. Criminal Proce-

dure.

18

Petitioners thus assert that their convictions

must be reversed for error in venue.

s

7

ARGUMENT II

UNDER NEITHER OF THE SUBSECTIONS OF

U.S.S.G. 2C1.7 COULD THE DISTRICT COURT

AUGMENT THE SENTENCE OF EITHER PETI-

TIONER BY 8 LEVELS; REDUCTION MUST BE

ORDERED BY THIS U.S. SUPREME COURT.

U.S.S.G. 2C1.7 provides, in relevant areas:

2C1.7(b) SPECIFIC OFFENSE CHARACTERISTIC

(1) (If more than one applies, use the greater):

(A) If the loss to the government, or the

value of anything obtained or to be obtained

by a public official or others acting with a

public official, whichever is greater, exceeded

$2,000.00, increase by the corresponding

number of levels from the table in Section

2F 1.1 (Fraud and Deceit) or

(B) Ifthe offense involved an elected official

or any official holding a high level decision

making or sensitive position, increase by 8

levels.

Section 2F.1 would place the figure of

$217,000.00, the contract planned to be awarded to

petitioner Carlisle, in level (I) more than $200,000.00

(but less than (J) more than $350,000.00) at an

increase of 8 levels. Thus whether the (A) and (B)

19

provisions were utilized, an 8 level increase would

apply to petitioners.

The (A) provision is simply not applicable and in

fact was not utilized by the District Court, who used

only the (B) provision.

However, authority drawn from the relatively few

U.S. Circuit Court cases that have applied the (A)

provision illustrates why that provision does not here

apply, i.e., it does not apply where, as here, Colonel

Moran, in the position of power, merely directed

petitioner Parrish to aid petitioner Carlisle in filling

out an application to be considered for the contract.

When the directive occurred, Colonel Moran

knew that AMS wanted $365,000.00 to perform the

renewed one-year contract, and the Colonel believed

the bid excessive; secondly, petitioner Carlisle had a

track record of satisfactory performance on the com-

puting work in Korea; thirdly, a chance for AMS to re-

bid resulted in a decision of AMS to not further bid;

and fourthly, the award of the contract need not be

made to the lowest bidder, for expertise of a higher

bidder can be, and here was, taken into account in

the final award; i.e., low-bid alone is not, and was not,

the sole criteria in making the award.

In truth, and in fact, the United States of Amer-

ica not only did not lose on the some $217,000.00

contract awarded to appellant Carlisle, but in fact,

had it blossomed to fruition, the U.S. would have

SAVED over $100,000.00 from the figure quoted by

20

AMS for its renewal, and, of course, further recogniz-

ing that AMS declined to re-bid.

While another bid was acquired, full recognition

could ke given to the superb track record of petitioner

Carlisle who had performed well in his past year of

service over a lesser bid or a company deemed not as

qualified.

In any event, the government failed to introduce

evidence that would allow a conclusion that Carlisle

was awarded that contract other than for his

demonstrated ability, and a substantial lowering

($365,000.00 - $217,000.00 = $148,000.00) below that

of the AMS bid. In fact, the government failed to show

great expertise in the unknown bidder, ICT, and its

lower bid of $134,852.52 the first year, increasing to

$142,100.68 the third year, could be rejected under a

theory that a very low bid could portend a low per-

formance.

Admittedly, U.S. Ninth Circuit law in this 2C1.7

guideline issue is sparse, but instruction and guid-

ance is available from other circuits for the (A) cate-

gory of 2C1.7.

For example, in United States v. Antico, 275 F.3d

245, 270-271 (3rd Cir. 2001), the Third Circuit con-

tinued its reasoning previously expounded in United

States v. Maurello, 76 F.3d 1304 (3rd Cir. 1999) and

United States v. Hayes, 242 F.3d 114 (3rd Cir. 2001).

The Third Circuit ruled that “actual loss or actual

harm, as opposed to the defendant gain, was the

21

appropriate basis for measuring the loss” (275 F.3d

245, 271).

As shown above, the United States can show no

ACTUAL LOSS OR ACTUAL HARM since the award

to Carlisle saved the government $148,000.00. Since

the above authority eschews an examination on what

Carlisle would receive, but instead focuses only on

“actual loss or actual harm” to the United States, it is

clear that neither petitioner could have been en-

hanced 8 levels under the (A) section of 2C1.7, even

though the District Court DID NOT utilize the (A)

section.

In fact, of course, the District Court used the (B)

section and petitioners assert it to be likewise inap-

plicable since it would appear to govern if and only if

either petitioner had initiated some sort of bribe

directed toward Colonel Moran in an endeavor to

convince this “official holding a high-level decision

making position” to award the contract to Carlisle

and thus deprive the government of savings it could

have had had the bidding been open to all comers.

Indeed, this “bottom to top” influence was not

present, but the efforts went from “top to bottom,”

j.e., Colonel Moran directing petitioner Parrish to aid

petitioner Carlisle in filling out a bid for the comput-

ing contract. No “bribes” or other undue influence or

corruptive persuasions were ever shown in this case.

22

Therefore, the 8 level enhancement does not

apply in this case, and must be stricken, and each

petitioner remanded for resentence.

4

ARGUMENT III

WITHIN THE MEANING OF BLAKELY V.

WASHINGTON, 542 U.S. 296, 159 L.ED.2D 403,

124 S. CT. 2531 (JUNE 24, 2004) THE 8-LEVEL

ENHANCEMENT CAN NOT BE ASSESSED

AGAINST EITHER PETITIONER SINCE IN

THIS DEMANDED TRIAL BY JURY, THE

JURY DID NOT DETERMINE WHETHER THIS

“OFFENSE” INVOLVED AN “ELECTED OFFI-

CIAL OR ANY OFFICIAL HOLDING A HIGH-

LEVEL DECISION MAKING OR SENSITIVE

POSITION.”

On June 24, 2004 the U.S. Supreme Court acted

in Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d

403, 124 S.Ct. 2531 (2004). This decision determined

that sentencing enhancements could not be imposed

by a judge absent the basis for the enhancement

being submitted to the jury, and the jury so finding

that fact that supported the enhancement.

Clearly, no defendant in this case, including

Colonel Moran, were “elected officials” and it appears

that whether U.S.S.G. 2C1.7(b)(1)B) applied or not

was a factual issue for resolution by SOMEONE.

Here that decision was made by the District Judge

23

and no submission was made to the jury for jury

resolution in this demanded trial by jury.

Pursuant to United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the

5-Justice opinion of Justice John Paul Stevens, the

Blakely rule applies to the U.S.S.G. The 5-Justice

Breyer opinion does not negate the command that

Blakely applies.

Of course, the key fact which had to be resolved

was whether the act of petitioner Parrish in merely

aiding petitioner Carlisle in filling out an application

for the computing contract, made at the request/order

of Colonel Moran, and petitioner Carlisle making that

application, in any way establish that this “offense”

involved them as “high level decision-making” indi-

viduals; to punish under 2C1.7(bX1\B) clearly in-

volved this factual determination, and here that

factual determination was made by the wrong trier of

fact, the U.S. District Judge.

The initial panel ruled, in place of the jury, in

paragraph 3, page 2, (Appendix “B”) that Colonel

Moran was an “official holding a high level decision-

making or sensitive position,” thus requiring a jury-

determination; while the original panel ruled the

“objection was waived,” Blakely was not the law when

this case was tried, and one can not “waive” a right

that was not then clearly explicated. United States v.

Ameline, 376 F.3d 967 (9th Cir. 2004) (Ameline I) and

United States v. Ameline, 400 F.3d 646 (9th Cir. 2005)

(Ameline I).

24

Based on this new authority, the sentence en-

hancement under U.S.S.G. 2C1.7(b\1B) cannot

stand, and it must be set aside for this independent

reason. See, of course, Argument II supra.

¢

ARGUMENT IV

PETITIONER CARLISLE MUST BE _ RE-

VERSED AS TO HIS CONVICTION OF COUNT

11 (COUNT 2) OF THE REDACTED INDICT-

MENT, FOR HE WAS NEVER “AT THE TIME

THAT THE OFFENSE WAS COMMITTED A

PRESENT OR FORMER OFFICIAL OF THE

UNITED STATES” IN ELEMENT 1 OF THE

ELEMENTS OF THE SECOND COUNT. IN RE

WINSHIP, 397 U.S. 358, 364 (1970).

In Count 11 = Count 2 of the redacted indictment

(see Appendix “A”), the government carried the bur-

den of proving beyond a reasonable doubt the element

of the charge that “at the time of commission of the

offense petitioner Carlisle was a present or former

official of the United States.”

In fact, it surely is undisputed that Carlisle was

never an employee or a present or former official of

the United States, but was at the time these charged

crimes occurred a civilian employee of AMS.

25

Under In Re Winship, 397 U.S. 358, 364 (1970),

the government carries the burden of proving beyond

a reasonable doubt each and every element of the

charged crime and therefore the conviction of peti-

tioner Carlisle on the second count must be reversed.

At paragraph 4, page 3, Appendix “B”, the initial

panel asserts guilt in Carlisle as an “aider and abet-

tor,” but under the charge here, he had to have per-

sonally been “a present or former official of the

United States,” which he was not. Thus the conviction

on petitioner Carlisle on the second count must be

reversed.

26

CONCLUSION

For any one of the key and de novo issues of this

Petition, all raising important questions of federal

law that has not been, but should be, settled by this

court, Certiorari should be granted to the United

States Court of Appeals for the Ninth Circuit.

Dated: September 10, 2007

Respectfully submitted,

RICARDO NICOL, Esq.

400 West Fourth Street

Second Floor

Santa Ana, CA 92701

(714) 550-6644

Member of the Bar

Supreme Court of the

United States

ROGER S. HANSON, ESQ.*

1517 East Fourth Street

Santa Ana, CA 92701

(714) 953-0638

Member of the Bar

Supreme Court of the

United States

*Counsel of Record

Attorneys for Petitioner

App. 1

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

October 2001 Grand Jury

UNITED STATES ) NO. SA CR 02-174-AHS

OF AMERICA, REDACTED

Plaintiff, INDICTMENT

V. ) (18 U.S.C. § 371: Con-

RICHARD JAMES MORAN. ? spiracy; 41 U.S.C. § 423:

RONALD ADAIR P ARRISH. ) Disclosure of Procure-

and ’ ) ment Information;

y 18 U.S.C. § 2(a):

RICHARD LEE CARLISLE ) Aiding and Abetting!

Defendants. )

The Grand Jury charges:

COUNT ONE

[18 U.S.C. § 3711)

A. INTRODUCTION

1. As Commander of the USA-CCK, defendant

RICHARD J. MORAN was responsible for oversight,

approval, and execution of contracts that included

contract DAJB03-01-C-0274 for computer services at

the USA-CCK (“Computer Services Contract”).

2. Defendant RONALD A. PARRISH was the

Chief of the Contract Support Division at the USA-

CCK, and had access to the bids received on the

Computer Services Contract.

App. 2

3. Defendant RICHARD L. CARLISLE, residing

in the Republic of Korea, submitted a bid on the

Computer Services Contract under the name of

Carlisle Consulting Company.

B. OBJECTS OF THE CONSPIRACY

4, Beginning in or about July 2001 and continu-

ing to on or about September 25, 2001, in the Repub-

lic of Korea, defendants RICHARD J. MORAN,

RONALD A. PARRISH, RICHARD L. CARLISLE,

and others known and unknown to the grand jury

willfully conspired and agreed with each other to

commit an offense against the United States, namely,

to disclose and obtain contractor bid or proposal

information prior to the award of the contract, in

violation of Title 41 United States Code, Section 423.

5. The plan and purpose of this conspiracy was

for defendants RICHARD J. MORAN and RONALD

A. PARRISH to provide a competitive advantage to

defendant RICHARD L. CARLISLE by disclosing to

defendant RICHARD L. CARLISLE a competitor's

bid or proposal information for the Computer Services

Contract.

C. MEANS BY WHICH THE OBJECTS OF THE

CONSPIRACY WAS TO BE, ACCOMPLISHED

The objects of the conspiracy were to be accom-

plished in substance as follows:

App. 3

6. Defendant RICHARD J. MORAN would

solicit bid or proposal information from a competing

company seeking the Computer Services Contract.

7. Defendant RICHARD J. MORAN would

direct defendant RONALD A. PARRISH to disclose

the bid or proposal information of the competing

company to defendant RICHARD L. CARLISLE.

8. Defendant RICHARD L. CARLISLE would

receive the bid or proposal information of the compet-

ing company and use it in the preparation of his bid

for the Computer Services Contract.

D. OVERT ACTS

9. In furtherance of the conspiracy and to

accomplish the object of the conspiracy, defendants

RICHARD J. MORAN, RONALD A. PARRISH and

RICHARD L. CARLISLE committed various overt

acts in the Republic of Korea, including but not

limited to the following:

a. In or about July 2001, in the Republic of

Korea, defendant RICHARD J. MORAN solicited

American Management Systems, Inc., the incumbent

contractor, to bid on the next year’s Computer Ser-

vices Contract.

b. In or about August 2001, defendant

RICHARD J. MORAN directed defendant RONALD

A. PARRISH to disclose the bid and proposal informa-

tion received from American Management Systems,

Inc. to defendant RICHARD L. CARLISLE.

App. 4

c. On or about August 21, 2001, defendant

RONALD A. PARRISH sent an electronic message to

defendant RICHARD L. CARLISLE, to which defen-

dant PARRISH attached the bid and proposal infor-

mation received from American Management

Systems, Inc.

d. On or about August 21, 2001, defendant

RICHARD L. CARLISLE received the bid and pro-

posal information of American Management Systems,

Inc.

e. On or about September 12, 2001, defen-

dant RICHARD L. CARLISLE submitted his bid for

the Computer Services Contract.

COUNT TWO

[41 U.S.C. § 423(a); 18 U.S.C. § 2(a)]

A. INTRODUCTION

10. Paragraphs 1 through 8 of this Indictment

are re-alleged and incorporated by reference as

though set forth in full.

B. PROCUREMENT INTEGRITY ACT VIOLATI ON

11. On or about August 21, 2001, in the Repub-

lic of Korea, defendants RICHARD J. MORAN and

RONALD A. PARRISH, officials of the United States,

assisting with the award of a Federal agency pro-

curement, aiding and abetting each other, knowingly

disclosed contractor bid or proposal information prior

App. 5

to the award of the contract, namely, the bid and

proposal information of American Management

Systems, Inc.

12. At the above time and place, defendant

RICHARD L. CARLISLE aided, abetted, counseled,

induced and procured the [illegible] of the offense

alleged above.

A TRUE BILL

Foreperson

DEBRA W. YANG

United States Attorney

JOHN S. GORDON

Assistant United States Attorney

Chief, Criminal Division

JOHN C. HUESTON

Assistant United States Attorney

Chief, Santa Ana Branch Office

App. 6

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES

OF AMERICA, No. 03-50408

; — Choe 001TH AHS.

RONALD ADAIR PARRISH, ncgesuapunpeenl

(Filed Jun. 14, 2005)

Defendant-Appellant.

UNITED STATES

OF AMERICA,

Plaintiff-Appellee,

v. No. 03-50410

RICHARD LEE CARLISLE, {D.C. No.

JR., a/k/a Richard Lee Carlisle; CR-02-00174-AHS-4

Ricard Carlisle; Richard

Carlisle; “Rick”; and “Ricky”,

Defendant-Appellant.

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

App. 7

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Submitted January 11, 2005**

Submission vacated January 14, 2005

Resubmitted June 14, 2005

Pasadena, California

Before: REINHARDT, KOZINSKI and CLIFTON,

Circuit Judges.

1. Defendants waived their objection to venue

by failing to raise it below. See United States v. John-

son, 297 F.3d 845, 861 (9th Cir. 2002).

2. Col. Moran was “involved” in the offense

within the meaning of U.S.S.G. § 2C1.7(b)(1)(B)

(2003). Because Moran was an “official holding a

high-level decision-making or sensitive position,” id.,

defendants’ eight-level sentence enhancement was

proper. See United States v. Edwards, 188 F.3d 230,

238 (4th Cir. 1999).

8. The judge, not the jury, determined that Col.

Moran was an “official holding a high-level decision-

making or sensitive position.” However, defendants

did not raise a Sixth Amendment objection, see

United States v. Booker, 125 S.Ct. 738 (2005), below.

Consistent with our recent en banc opinion in United

States v. Ameline, No. 02-30326, slip op. at 14-15 (9th

** This panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P. 34(aX2).

App. 8

Cir. June 1, 2005), we hold that a “limited remand to

the district court is appropriate for the purpose of

ascertaining whether the sentence imposed would

have been materially different had the district court

known that the sentencing guidelines were advisory.”

Id. at 3.

4, The jury was properly instructed and had

sufficient evidence to convict defendant Carlisle of

aiding and abetting a violation of 41 U.S.C. § 423. See

United States v. Cordova Barajas, 360 F.3d 1037,

1041 (9th Cir. 2004); United States v. Smith, 891 F.2d

703, 710-11 (9th Cir. 1989).

AFFIRMED IN PART; REMANDED IN PART.

App. 9

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD ADAIR PARRISH,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

RICHARD LEE CARLISLE,

Defendant-Appellant.

No. 06-50060

D.C. No.

CR-02-00174-AHS-3

MEMORANDUM*

(Filed May 1, 2007)

No. 06-50063

D.C. No.

CR-02-00174-AHS-4

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Submitted February 15, 2007**

Pasadena, California

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

** This panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

App. 10

Before: CANBY and THOMAS, Circuit Judges, and

CONLON,*** District Judge.

In a previous appeal, this court affirmed the

convictions of Ronald Adair Parrish and Richard Lee

Carlisle Jr., and remanded pursuant to United States

v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).

United States v. Parrish, 134 Fed. Appx. 183 (9th Cir.

2005). In this appeal, Parrish and Carlisle raise the

same issues presented in their first appeal. With the

exception of their sentences, which are reviewed for

reasonableness under Ameline, 409 F.3d at 1079, this

court declines to reconsider issues decided in the

prior appeal. United States v. Scrivner, 189 F.3d 825,

827 (9th Cir. 1999) (under the law of the case doc-

trine, one appellate panel generally will not recon-

sider questions decided by another panel on a prior

appeal in the same case). This court also declines to

consider their ineffective assistance of counsel claim

because it is not supported by any argument. Fed. R.

App. P. 28(a)(9); United States v. Williamson, 439 F.3d

1125, 1138 (9th Cir. 2006).

On limited remand, the district judge considered

the sentencing guidelines and the 18 U.S.C. § 3553(a)

factors; she concluded the previously imposed sen-

tences would not have differed materially had the

guidelines been advisory at the time of the original

*** The Honorable Suzanne B. Conlon, Senior United

States District Judge for the Northern District of Illinois, sitting

by designation.

App. 11

sentencing. Ameline, 409 F.3d at 1079. The record

clearly shows the district judge properly took into

account the non-mandatory nature of the guidelines

and understood the full scope of her discretion.

United States v. Combs, 470 F.3d 1294, 1297 (9th Cir.

2006). We reject the contention that the Sixth

Amendment barred the district court from determin-

ing facts supporting a sentencing enhancement.

United States v. Booker, 543 U.S. 220, 259 (2005);

Ameline, 409 F.3d at 1077-78. We conclude the sen-

tences are reasonable. See Combs, 470 F.3d at 1297 (a

sentence is reasonable if “the district judge properly

understood the full scope of his discretion in a post-

Booker world”).

AFFIRMED.

App. 12

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, |\°: 97°00

ae D.C. No.

Plaintiff-Appellee, CR-02-00174-AHS-3

v. Central District of

RONALD ADAIR PARRISH, _|*lifomnia, Santa Ana

Defendant-Appellant. ORDER

(Filed Jun. 22, 2007)

UNITED STATES OF AMERICA,

Plaintiff-Appell apenas

— D.C. No.

_ CR-02-00174-AHS-4

RICHARD LEE CARLISLE, ae ag see i

Defendant-Appellant. aan, See ee

Before: CANBY and THOMAS, Circuit Judges, and

CONLON,* District Judge.

The panel has voted to deny the petition for

rehearing. Judge Thomas voted to reject the sugges-

tion for rehearing en banc and Judges Canby and

Conlon so recommended.

* The Honorable Suzanne B. Conlon, Senior United States

District Judge for the Northern District of Illinois, sitting by

designation.

App. 13

The full court has been advised of the suggestion

for rehearing en banc, and no judge of the court has

requested a vote on the suggestion for rehearing en

banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.