Petition for Writ of Certiorari — Guerra v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ELUID GONZALES GUERRA,

Petitioner

VS.

THE UNITED STATES OF AMERICA

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KENT A. SCHAFFER DAVID R. BIRES

Counsel of Record 600 Travis, #3000

600 Travis, #3000 Houston, TX 77002

Houston, TX 77002 (713)228-8500

(723)228-8500

II.

QUESTION PRESENTED

Whether the ex post facto clause

is violated when a criminal

offense, which occurred prior to

the effective date of the United

States Sentencing Guidelines and

is sentenced as such along with

a separate and distinct criminal

offense occurring after the

effective date of the

Guidelines, is considered as

relevant conduct in enhancing

the sentence rendered for the

Guidelines offense.

Whether the Fifth Circuit Court

of Appeals in utilizing the

"without foundation" standard of

review in determining whether~a

defendant has accepted

responsibility under the United

Iitt.

States Guidelines:

a) Is in conflict

with other Circuit

Courts of Appeals

which utilize the

"clearly erroneous"

standard of review;

and

b) Where such a

standard review has no

historical basis, and

thus offends due

process.

Whether "acceptance of

responsibility" under the United

States Sentencing Guidelines

requires a defendant to accept

responsibility for uncharged

conduct.

ii

LIST OF PARTIES

IN APPELLATE COURT

Eluid Gonzales Guerra,

Appellant,

United States of America,

Appellee

iii

TABLE OF CONTENTS

QUESTION PRESENTED. ....ccccccccce i

LIST OF PARTIES IN

APPELLATE COURT... cccccsccccccsece 124

TABLE OF CONTENTS ......ccccccecccs iv

TABLE OF AUTHORITIES............-. vi

TABLE OF CONTENTS OF

APPENDIX TO THE PETITION......... x

REFERENCE TO OPINIONS OF

LOWER COURTS....... weececccccncecs

t

JURISDICTION... ccc ccccccccccccecs 1

CONSTITUTIONAL PROVISION

AT ISSUE... cc cccccccccscccccccccecs 2

STATEMENT OF THE CASE...........--. 3

I. THE USE OF A PRE-

GUIDELINE OFFENSE TO

ENHANCE THE SENTENCE FOR

AN UNRELATED POST-

GUIDELINE OFFENSE, BY

FINDING THE DEFENDANT

PLAYED AN AGGRAVATING

ROLE, VIOLATES THE

EX POST FACTO CLAUSE........ 7

II. THE FIFTH CIRCUIT'S

USE OF THE "WITHOUT

FOUNDATION" STANDARD OF

iv

ee

REVIEW IN REGARDS TO THE

"ACCEPTANCE OF RESPON-

SIBILITY" PROVISION OF THE >

SENTENCING GUIDELINES

es ere

III. A REDUCTION IN SENTENCE

FOR "ACCEPTANCE OF RESPON-

SIBILITY" DOES NOT REQUIRE

ACKNOWLEDGEMENT OF ALL

CRIMINAL CONDUCT, IN LIGHT

OF THE FIFTH AMENDMENT

PRIVILEDGE AGAINST SELF-

THCRIMINATION.. cccccccccceccs

COMCIUIS LON sc ccc cece eseceececccces

16

20

25

27

TABLE OF AUTHORITIES

Cases Page

Lefkowitz v. Cunninghan,

S34 Ueba GGG ESOT T) co ccccecece 22

Lindsey v. Washington, 301

se Se ere eee 15

Miller v. Florida, 482 U.S.

423, 107 S.Ct.2446,

96 L.Ed.2d 351 (1987)......... 8,10,11

Minnesota v. Murphy,

468 G.8. 438 (1963) ......2%. nee 23

Rubino v. Lynaugh, 8:45

F.2d 1266

a ee ee re 15

Weaver v. Graham, 450 U.S.

24, 101 S.Ct. 960,

G67 be BG.24 17 (1961) oc cccvcces 8,9,10

United States v. Antzoulatos,

962 F.2d 720

CT Cais SR 6k iou ce haeuee es 18

United States v. Coleman,

947 F.2d 1424

(10th Cir.. 1991),

cert. denied,

--- U.S. ---,

112 S.Ct. 1590,

118 L.B@.24 307 (1992) ..cccawes 19

United states v. Harotunian,

920 F.2d 1040

(is -ia FROG icc eens diane 13

vi

—— ee

United States v. Kopp,

95] F.2d 521

eB Se 13

United States v. Lam Kwong-Wah,

924 F.2d 298

CAs RS MO th Es ie ie 14

United States v. Marquardt,

949 F.2d 283

COee Wed BUPA ok deed eeaeecuccs 18

United States v. Morrow, 925

F.2d 779

ee ee CS a a 13

United States v. Nagi, 947

F.2d 211

(6th Cir. 1991),

cert. denied, --- U.S. ---,

1l2 $.Ct. 2309,

119 te Bate 210 (1992) .cccccer ye PR

United States v. Ochoa-Fabian,

935 F.2d 1139

(10th Cir. 1991),

cert. denied,

Ree Wetees BOs 6S he Ree eee ee 18

United States v. Oliveras,

905 F.2d 623

po ne 23.33

United States v. Payne, 962 :

F.2d 1228

Gs SO ou ie canewowe 18

vil

United States v. Perez-Franco,

873 F.2d 455

CAE Cae. JOSS) ec vcccesececnss 21

United States v. Restrepo,

936 F.2d 661

i Oe, SOR owes ews cscs 17

United States v. Riviere,

924 F.2d 1289

eB eh ee eee 17

United states v. Santiago,

906 F.2d 867

Ce ee 24

United States v. Smith, 930

F.2d 1450

(10th Cir.), cert. denied,

ooe 0.5. ---, 112 &.Ct.

225, 116 4.36.24

Be CRP hl wa 668 000s 646606 6 8 0 wes 14

United States v. Suarez, 911

F.2d 1016

fe ae) oe nee 13

United States v. Swanger, 919

F.2d 94

(8th Cir. 1990)

ee ee eee ee 14.

United States v. Sweeten, 933

F.2d 765

4a: R- Ses . \ h errr 14

United States v. Young, 932

F.2d 1035

Fe es I oka waived eke 13

United States v. Worthy, 915

F.2d 1514

(ARG CAE. SRG) cv caccenssnence 14

TaCA@ 16 0.8.6. § FISD. cv cicccvcs 1

TITLE 16 G.8.6. § BIARIOC) os ccvas 19

Titio 26 U.8.C. § L2SE(L) cc ccses 1

Tame BO Uubshs § B0Ghecccv stews 1

U.S. Supreme Court Rule 10...... 1

U.S. Supreme Court Rule

ot rec ever cree Te ee eee ee ee 9, 47

U.S. Supreme Court Rule

DUS ACOT S408 ON CS 6 ROO e OA dO oO 8,20

Ga: Supreme Court Rule 13...... 1

ee ree SA rer ree eae Se ee ro Pe ee

19,20

Article I, § 9, 1.3,

Pate COME CIOs <b os ne ose ae 8

Article I, § 10, cl.1l

Dems Gees « cece bscccer 3

ix

TABLE OF CONTENTS OF THE

APPENDIX TO THE PETITION

Page

oo) i ee ee ee A-1

Table of Contents........csoe- A-2

Opinion of The Fifth Circuit

Court Of ADPGALS. .cccccccces A-3

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ELUID GONZALES GUERRA,

Petitioner

VS.

THE UNITED STATES OF AMERICA

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KENT A. SCHAFFER DAVID R. BIRES

Counsel of Record 600 Travis, #3000

600 Travis, #3000 Houston, TX 77002

Houston, TX 77002 (713) 228-8500

(713) 228-8500

REFERENCE TO OPINIONS OF LOWER COURT

The opinion of the Fifth Circuit

Court of Appeals is reproduced in the

appendix.

JURISDICTION

The Court ,of Appeals had appellate

jurisdiction over the district court's

final judgment in this criminal case,

pursuant to 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291. The panel's order was entered on

March 31, 1993. See A-3. Consistent with

this Honorable Court's Rule 13, this

Petition is timely filed. This Court's

jurisdiction in the instant case is based

on 28 U.S.C. § 1254(1), and United States

Supreme Court Rule 10.

CONSTITUTIONAL PROVISIONS AT ISSUE

1. The ex post facto clause contained

within Article I of the United States

Constitution provides that neither

Congress nor any State shall pass any "ex

post facto law."

2. The Fifth Amendment to the United

States Constitution states:

"No person . . . shall be

compelled in any criminal case

to be a witness against himself.

STATEMENT OF THE CASE

The jurisdiction of the district

court was invoked pursuant to the

indictment filed in the United States

District Court for the Southern District

of Texas, Houston Division. References

herein shall be made to the Pre-Sentence

Investigation Report, by the designation

"Far .

On November 9, 1990, the Petitioner

was indicted, along with three other co-

defendants, by a federal grand jury,

charging him with conspiracy to possess

with intent to distribute marijuana,

distribution of marijuana, use of a

communication facility which facilitated

the commission of a felony under the

Controlled Substances Act, the filing of

false tax returns for the years 1985 and

1986; and unlawful entry by a previously

deported alien.

The Petitioner entered a plea of

guilty to all charges. The filing of a

false tax return and the unlawful entry

were the only crimes sentenced under the

United States Sentencing Guidelines.

The Pre-Sentence Investigation Report

reveals that on February Zi. 1986,

following the execution of a search

warrant, six notebooks were seized from

the residence of co-defendants Efraim and

Elma Guerra. (PSR:q 21). Analysis of the

notebooks found them consistent with

records used to make narcotics

transactions (PSR: 23).

The notebooks seized documented that

from early 1984 through 1985 the

Petitioner along with others were involved

in narcotics trafficking. Customers of

the organization corroborated the

transactions found in the notebooks.

(PSR: 24).

From 1982 through December 1987, the

Petitioner was a self-employed truck

driver while being in the marijuana

business. The Petitioner allegedly failed

to report any gross receipts, as recorded

in the narcotic notebooks, as income on

his Form 1040 income tax xeturn for the

years 1984 through 1987. (PSR: 28). The

only income reported by the Petitioner was

for his trucking and farming business.

4G

Case investigative material reflected

that the amount of marijuana connected

with the drug conspiracy was 6,211 pounds

and the gross narcotics receipts were in

excess of Two Million Dollars. (PSR:q¢ 35-

36).

The Petitioner received a total of

ninety-six (96) months for the three

counts that were sentenced under the

Sentencing Guidelines.

THE USE OF A PRE-GUIDELINE

OFFENSE TO ENHANCE THE SENTENCE

FOR AN UNRELATED POST-GUIDELINE

OFFENSE, BY FINDING THAT DEFENDANT

PLAYED AN AGGRAVATING ROLE,

VIOLATES THE EX POST FACTO

CLAUSE

To find that a defendant plays an

aggravating role under the United States

Sentencing Guidelines due to a pre-

guideline crime, for which a plea of

guilty has been entered, amounts to a

"backdoor" usage of pre-guideline

activity. If criminal activity occurs

prior to the effective date of the

sentencing guidelines, it is Clearly an ex

post facto application of the guidelines

to count this pre-guideline crime as

relevant conduct to subsequent distinct

post-guideline criminal activity. In

holding that an adjudicated pre-guideline

offense can be considered relevant conduct

for criminal activity occurring after the

effective date of the sentencing

guidelines, the Fifth Circuit rendered a

decision in conflict with this Honorable

Court's holding in Miller v. Florida, 482

U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351;

and Weaver _v. Graham, 450 U.S. 24, 101

S.Ct. 960, 67 L.Ed.2d 17 (1981). See U.S.

Supreme Court Rule 10.1(c).

Article I of the United States

Constitution provides that neither

Congress nor any State shall pass any "ex

post facto law". See Art. I, § 9, ¢Cl.3?

Ase. I, @ 120, 2.1. The ex post facto

prohibition forbids the enactment of any

law "which imposes a punishment for an act

which was not punishable at the time it

was committed; or imposes’ additional

punishment to that then prescribed."

Weaver _v. Graham, 450 U.S. at 28. In

order for a criminal law to be ex post facto

law, it must not apply to events occurring

before its enactment and it must not

disadvantage the offender. Id.

The Fifth Circuit's holding is also

in conflict with other Fifth Circuit

decisions and other federal circuit courts

of appeals, on the issue of whether the

guidelines were applied in a manner that

violated the Ex Post Facto clause. See

U.S. Supreme Court Rule 10.1(a).

This Honorable Court in Weaver

expressly stated that the prohibition

forbids the imposition of punishment more

severe than the punishment assigned by law

when the act to be punished occurred. The

critical question being "whether the law

changes the legal consequences of acts

completed before its effective date." 450

teil

U.S. at 31.

In Miller v. Florida, 482 U.S. 423

(1987), this Honorable Court addressed the

ex post facto application of the

sentencing guidelines for the State of

Florida. Specifically, the Court

concentrated on the-occurrence of crimes

before the effective date of the law.

The central issue in Miller vv.

Florida was which version of the

sentencing guidelines would the defendant

be sentenced under, the guidelines in

effect at the time the crime was committed

or the amended version which was in effect

at the time of sentencing. The central

concern to the Court was whether the

legislature had increased punishment

beyond what was prescribed when the crime

was consummated. The Court held that

using the guidelines in effect at the time

10

of sentencing made more “onerous the

punishment for [the crime] committed

before its enactment", and therefore

violated the (ex post facto) clause. 482 U.S.

at 435.

In the case at bar, the Petitioner

Simultaneously pled guilty to the pre-

guidelines offense of conspiracy to

possess with intent to distribute

marijuana, and the post-guidelines offense

of filing a false tax return. The Fifth

Circuit upheld the finding that since the

Petitioner had a "leadership" role in the

marijuana conspiracy, this could be used

to enhance his sentence under the

guidelines for playing an aggravating role

in relation to the crime of filing a false

tax return.

The activities of the charged

conspiracy ceased to exist before the

11

initial application of the United States

Sentencing Guidelines became effective.

Therefore, for that offense the Petitioner

was sentenced according to the laws in

effect prior to the implications of the

sentencing guidelines. However, in

calculating a sentence under the

guidelines for the offense of filing a

false tax return, the court used the

conduct involved with the pre-guidelines

crime of conspiracy, to increase the

sentence of the post-guidelines crime of

filing a false tax return. It is apparent

that the four (4) level increase, received

due to his alleged leadership role in the

marijuana conspiracy, amounted to a

sentence received under the guidelines for

criminal activity that occurred prior to

its enactment. This clearly was a

retrospective use of the sentencing

12

guidelines which resulted in a more

onerous punishment, and thus violated the

(ex post facto) clause.

The Circuit Courts of Appeals,

including the Fifth Circuit, have

recognized that an increased sentence

based on an amendment to the guidelines

effective after the offense was committed

is an obvious violation of the (ex post facto)

clause in Article I of the United States

Constitution. See United States vv.

Harotunian, 920 F.2d 1040, 1042 (lst Cir.

1990) ; ited States v. ung, 932 F.2d

1035, 1038 n. 3 (2nd Cir. 1991); United

States v. Kopp, 951 F.2d 521, 526 (3rd

Cir. 1991); United States v. Morrow, 925

F.2d 779, 782-83 (4th Cir. 1991): United

States v. Suarez, 911 F.2d 1016, 1021-22

(Sth Cir. 1990); Lted Vv. -

947 F.2d 211, 213 n. 1 (6th Cir. 1991),

13

cert. denied, --- U.S. ---, 112 S.Ct.

2309, 119 L.Ed.2d 230 (1992); United

States v. Swanger, 919 F.2d 94, 95 (8th

Cir. 1990) (per curiam); United States v.

Sweeten, 933 F.2d 765, 772 (9th Cir.

1991); United States v. Smith, 930 F.2d

1450, 1452 n. 3 (10th Cir.), cert. denied,

“-- U.S. ---, 112 S.Ct. 225, 116 L.Ed.2d

182 (1991); United States v. Worthy, 915

F.2d 1514, 1516 n. 7 (llth Cir. 1990); and

Unite tes v. Ww -Wah, 924 F.2d

298, 304-05 (D.C. Cir. 1991).

Although the instant case is not

analogous with that exact scenario

involving amendments to the guidelines,

the same logic should apply in the

collateral use of pre-guidelines conduct

to calculate an offense level for post-

guidelines conduct. This simply amounts

to an unconstitutional use of the

14

sentencing guidelines by circumventing the

prohibition against (ex post facto) laws.

Simply put, the Petitioner received a

greater sentence due to criminal conduct

occurring prior to the effective date of

the sentencing guidelines. A "lawmaker

cannot retroactively foreclose even the

possibility that a criminal defendant would

receive a lesser sentence than was

potentially available at the time the

crime was committed." j Vv. augh,

845 F.2d 1266 (Sth Cir. 1988); citing

Lindsey v. Washington, 301 U.S. 397

(1937). As the Court is aware, sentences

received under the sentencing guidelines

are without the benefit of parole. So the

practical effect on the Petitioner was

that he received a lengthier sentence

without parole due to his piea of guilty

to a pre-guideline crime for which he

15

received a separate sentence.

The panel has rendered an opinion

affirming an unconstitutional application

of the United States Sentencing

Guidelines, which is in conflict with the

decisions of this Honorable Court, and

other Circuit Courts of Appeals, including

the Fifth Circuit. Therefore, a

compelling bases exists for this Court to

grant the instant Petition for Writ of

Certiorari.

ii.

THE FIFTH CIRCUIT'S USE OF THE

"WITHOUT FOUNDATION" STANDARD

OF REVIEW IN REGARDS TO THE

"ACCEPTANCE OF RESPONSIBILITY"

PROVISION OF THE SENTENCING

GUIDELINES IS ERRONEOUS

In reviewing the failure to find

"acceptance of responsibility" under

Section 3E1.1 of the United States

Sentencing Guidelines, the Fifth Circuit

held that the district court's findings

16

are entitled to "greater deference" on

review than that conferred under the

"clearly erroneous" Standard, and thus the

district court's conclusion will stand

unless the defendant proves the

determination was "without foundation".

The use of this standard of review by the

Fifth Circuit is in conflict with other

Federal Circuit Courts of Appeals. See

U.S. Supreme Court Rule 10.1(a).

In reviewing a district court's

finding under Section 3E1.1 U.S.S.G., the

Second, Third, Sixth, Seventh, Ninth and

Tenth Circuits have held that

determination of “acceptance of

responsibility" is a finding of fact that

is reviewed under the Clearly erroneous

Standard. See United States v. Restrepo,

936 F.2d 661 (2nd Cir. 1991); United

States v. Riviere, 924 F.2q 1289 (3rd Cir.

1991); United States v. Payne, 962 F.2d

1228 (6th Cir. 1992); United States v.

Antzoulatos, 962 F.2d 720 (7th Cir. 1992);

United States v. Marquardt, 949 F.2d 283

(9th Cir. 1991); and United States v.

Ochoa-Fabian, 935 F.2d 1139 (10th Cir.

1991), cert. denied, 112 S.Ct. 1565.

Furthermore, Petitioner would argue

that the “without foundation" standard

utilized by the Fifth Circuit has no

historical basis. Additionally such a

standard denies a defendant a fair

determination on the issue of whether a

defendant has “accepted responsibility".

The ultimate effect is, that despite the

entry of a plea of guilty to the charged

conduct, there appears to exist a

presumption that there is no acceptance of

responsibility. On the other hand, since

the inception of the Federal Sentencing

' 18

Guidelines, all circuits have reviewed

findings of fact for "clear error". 18

U.S.C. § 3742(e); see also United States

v. Coleman, 947 F.2d 1424 (10th Cir.

1991), cert. denied, --- U.S. ---, 112

S.Ct. 1590, 118 L.Ed.2d 307 (1992).

Therefore, this Honorable Court needs

to lend guidance to the Circuit Courts of

Appeals as to the appropriate standard of

review for a finding of “acceptance of

responsibility", or the lack thereof under

Section 3E1.1 U.S.S.G.. For that reason a

compelling basis exists for this Court to

grant the instant Petition for Writ of

Certiorari.

19

Radé

A REDUCTION IN SENTENCE FOR

"ACCEPTANCE OF RESPONSIBILITY"

DOES NOT REQUIRE ACKNOWLEDGEMENT

OF ALL CRIMINAL CONDUCT,

ESPECIALLY IN LIGHT OF THE

FIFTH AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION

The Fifth Circuit upheld the district

court's finding that the Petitioner was

not entitled to the appropriate sentence

reduction under Section 3E1.1 U.S.S.G.,

partially because he did not acknowledge

his participation in two uncharged murders

in Mexico. The panel's decision is in

conflict with the decisions of other

Circuit Courts of Appeals, which have held

that credit for "acceptance of

responsibility" does not include uncharged

conduct. See U.S. Supreme Court Rule

10.1(c).

The instant indictment charged the

Petitioner with committing various federal

20

crimes within the jurisdiction of the

United States. Not only did the alleged

murders occur outside the jurisdiction of

the United States, but simply no reliable

factual basis was established to connect

those acts with the instant indictment. In

United States v. Perez-Franco, 873 F.2d

455 (lst Cir. 1989); the First Circuit

concluded that "acceptance of personal

responsibility for . . . criminal conduct

means the criminal conduct to which the

defendant pleads guilty." In particular,

the Guidelines require acceptance of

responsibility for the criminal conduct

which formed the basis of the specific

counts of the indictment. Furthermore,

the First Circuit ruled that by requiring

a defendant to make inculpatory statements

as to uncharged conduct, in order to

receive credit for "acceptance of

21

responsibility", would penalize the

exercise of the Fifth Amendment privilege

against self-incrimination. 873 F.2d at

463, citing Lefkowitz v. Cunningham, 431

U.S. 801 (1977). Accordingly, this

holding is in conflict with the panel's

decision in the instant case.

In United States v. Oliveras, 905

F.2d 623 (2nd Cir. 1990), the Second

Circuit held that the district court could

not properly deny the defendant credit for

acceptance of responsibility on the basis

of his denial of prior narcotics

transactions. In QOliveras, the district

court did not credit the defendant for

acceptance of responsibility because he

did not acknowledge his participation in

criminal activity other than for which he

pled guilty.

22

The First Circuit expressed its

concern that requiring the assumption of

responsibility for crimes not pled or

charged violates the Fifth Amendment

privilege against self-incrimination. 905

F.2d at 626. The Court reasoned that as

long as the statements are not immunized

against use in subsequent criminal

prosecution, to accept responsibility for

crimes other than those to which he pled

guilty would penalize him for refusing to

incriminate himself. Id.

Furthermore, the Court in Oliveras

cited this Honorable Court in Minnesota v.

Murphy, 465 U.S. 420 (1983), for the

proposition that the government cannot

penalize a person because that person

elects to assert their constitutional

right not to make incriminating

statements. To require a defendant to

23

accept responsibility for crimes other

than those to which he has pled guilty

forces defendants to choose between

incriminating themselves as to conduct for

which they have not been immunized or

forfeiting substantial reductions in their

sentence.

Likewise, the panel in the instant

case has rendered a decision in conflict

with United States v. Santiago, 906 F.2d

867 (2nd Cir. 1990). In Santiago, the

Second Circuit ruled that the Guidelines

do not require a defendant to accept

responsibility for crimes other than those

to which he had pleaded guilty in order to

earn the credit for acceptance of

responsibility. The Court noted that to

impose such a requirement would violate

the Fifth Amendment privilege against

self-incrimination. 906 F.2d at 873.

24

To require the Petitioner to

acknowledge his involvement in uncharged

and unsubstantiated criminal activity

would be a clear violation of his Fifth

Amendment right, and effectively make him

a witness against himself in the event of

a future criminal prosecution. The

district court and the panel hearing this

case have rendered decisions which are

directly in conflict with the decisions of

those Circuit Courts cited above.

CONCLUSION

For all of the foregoing reasons, the

Petitioner respectfully submits that this

Honorable Court should grant this Petition

for Writ of Certiorari, reverse the

judgment of the Fifth Circuit court of

Appeals and vacate the sentence and remand

for re-sentencing.

25

Respectfully submitted,

Kost A bo} }--—

KENT A. SCHAFFER ™

600 Travis, Suite 3000

Houston, Texas 77002

(713) 228-8500

ATTORNEY FOR PETITIONER

26

CERTIFICATE OF SERVICE

I hereby certify that an original and

forty (40) copies of the foregoing

Petition for Writ of Certiorari and its

Appendix were mailed by the undersigned to

the United States Supreme Court on the A”

day of June, 1993. I also certify that

true copies of the foregoing Petition of

Writ of Certiorari were mailed to the

following parties, via United States mail:

Jeffery A. Babcock Solicitor General

Assistant U.S. Attorney Dept. of Justice

Southern District of 10th St. &

Texas Constitution Ave.

515 Rusk Washington, D.C.

Suite 3300 20530

Houston, TX 77002

(One copy] (Three copies]

Eluid Gonzales Guerra

[One copy] CNT I \

Po

KENT A. SCHAFFER

27