# Petition for Writ of Certiorari — Guerra v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 913

## Text

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

---

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