REASONS FOR SEEKING CLEMENCY 1

REASONS FOR SEEKING CLEMENCY 1 In 1998, a Waverly, Virginia police officer, Allen Gibson, was murdered during a drug deal gone wrong. After some urging by his defense attorney and the State s threats to seek the death penalty, FERRONE CLAIBORNE, ( Petitioner ), pled guilty to Accessory To Manslaughter After The Fact. In 2000, the federal government indicted him for Conspiracy to Distribute Crack Cocaine and murder. After a week long trial in June 2001, a jury convicted Petitioner and codefendant, Terrence Richardson for Conspiracy, but acquitted them both of murder. On September 27, 2001, they were sentenced for CONSPIRACY TO DISTRIBUTE CRACK COCAINE (50 GRAMS OR MORE OVER 7 YEARS), to serve life in prison despite the probation office s recommendation of a total offense level of 34. The probation office s report assessed three points for the state conviction of Accessory After the Fact, for a criminal history category of II. Thus his guideline range of imprisonment was determined to be 168 to 210 months. However, upon the government s objection to the recommendation, the judge used the ghost drug amount of 274 grams which would have fallen into the 32 offense level. Additionally, despite the jury s acquittal of the murder of Waverly Police Officer Allen Gibson, the court used the murder cross-reference under U.S.S.G. 2A1.1 and imposed a life sentence. This was clearly erroneous considering, Petitioner was never convicted of murder, only Accessory After the Fact. This increased his sentence to a life of imprisonment with no chance of parole, since parole was abolished for crimes committed after 1994.. The conviction carried a base offense level computed under U.S.S.G. 2D1.1(d)(1) for a crack cocaine quantity of 274 grams under the guidelines in effect at the time of 32, with a sentencing range of 135-168 months. Murder Enhancement Petitioner s previous involuntary manslaughter conviction in state court was for the same murder in which he was acquitted in federal court. Petitioner pled guilty to the involuntary manslaughter because he was facing the death penalty, if convicted and did not want to leave his fate to the hands of an unjust system, although that thought process ultimately backfired. However, as experienced in his federal trial, there was not sufficient evidence to support a guilty verdict. This would have likely been the same verdict had Petitioner gone to trial in state court. However, all things considered, at the very least, the judge erred in departing upward to a life sentence, because there was no evidence to support a murder conviction, as supported by the decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Petitioner was repeatedly penalized for the same action. The judge enhanced the sentence to include the acquitted

REASONS FOR SEEKING CLEMENCY 2 murder, which had already been taken into account by listing him in a Criminal History category II. The relatively recent U.S. Supreme Court decision in Alleyne, clearly provides that any sentencing scheme that permits facts found by a judge, not a jury, to increase the penalty for a crime unconstitutionally infringes upon the Petitioner s Sixth Amendment right to jury trial. After ten years of reflection since Harris v. United States, 536 U.S. 545 (2002), the Supreme Court enunciated a simple rule of law: Any fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155. A decision that explicitly overrules an earlier holding breaks new ground or imposes a new obligation and thus is deemed a new rule. Butler v. McKellar, 494 U.S. 407, 412 (1990) (citing Penry v. Lynaugh, 492 U.S. 302 (1989)). When a decision of the Supreme Court of the United States results in a new rule, that rule applies to final convictions in limited circumstances. Id. New substantive rules generally apply retroactively. Id. A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. Id. at 353. These include decisions narrowing the scope of a criminal statute by interpretation of its terms, and constitutional determinations that place particular conduct or persons covered by a statute beyond the State s power to punish. Such rules apply retroactively because they necessarily carry a significant risk that a Petitioner stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him. Id. at 352 (emphasis added) (citing Bousley v. United States, 523 U.S. 614 (1998)). In the present case, Petitioner was punished for a murder in which a jury had already acquitted him. By permitting a judge to sentence a person for acquitted charges is essentially encouraging convictions of necessarily innocent people. The law cannot constitutionally impose a life sentence for the drug charge in which Petitioner was convicted. Further, a sentence enhancement which includes a murder charge changes the elements of the convicted drug charge, thus requiring a jury trial. Petitioner was not afforded this right. He is serving a life sentence for a crime in which he maintains his innocence. That fact alone should encourage careful review of this petition. In 2014, the district court declined to entertain these issues upon motion of Petitioner; however, Alleyne announces a watershed rule of criminal procedure and the judicial fact finding

REASONS FOR SEEKING CLEMENCY 3 in the present case seriously diminished accuracy, because the jury had already explicitly acquitted Petitioner of the very elements the judge used to enhance his sentence, thereby further giving credence to the necessity to REDUCE Petitioner s sentence. New Crack Cocaine Sentencing Guidelines Subsequent to Petitioner s sentencing on November 1, 2011 an amendment to 1B1.10 of the guidelines took effect, which, generally, increases the quantities of crack cocaine that trigger the five and ten-year federal statutory mandatory minimums penalties by two levels and, specifically, reduces the base offense level for the 274 gram quantity of crack cocaine in this case by two levels, to 30. See U.S.S.G. 2D1.1. This amendment was adopted in response to studies which raise grave doubts about the fairness and rationale of the 100-to-1 crack/ powder ratio incorporated into the sentencing guidelines. See generally United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (May 2007) (hereinafter 2007 Sentencing Commission Report ); United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (May 2002); United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (April 1997); United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (Feb. 1995). See also Kimbrough v. United States, 128 S. Ct. 558, 568-69 (2007) (discussing history of crack cocaine guideline and various Sentencing Commission reports). Yet the amendment is only a partial response, as the Sentencing Commission itself recognized. The Commission explained: The Commission, however, views the amendment only as a partial remedy to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to these problems. Any comprehensive solution requires appropriate legislative action by Congress. It is the Commission s firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 drug quantity ratio. 2007 Sentencing Commission Report, supra, at 10. Prior to the effective date of this amendment to 2D1.1, the Sentencing Commission considered whether to make the amendment retroactive under the authority created by 18 U.S.C. 3582(c)(2). It took that action on November 1, 2011, by including this amendment in the list of retroactive amendments in 1B1.10 of the guidelines. See 73 Fed. Reg. 217-01

REASONS FOR SEEKING CLEMENCY 4 (2008). Based on this retroactivity, the statutory authority underlying it, and the Supreme Court s intervening decisions in United States v. Booker, 543 U.S. 220 (2005); Rita v. United States, 127 S. Ct. 2456 (2007); Gall v. United States, 128 S. Ct. 586 (2007); and Kimbrough v. United States, supra, in 2009, Petitioner brought a motion to reduce his sentence under 18 U.S.C. 3582(c)(2). The court denied the motion, because Petitioner was not sentenced under U.S.S.G. 2D1.1(d)(1), but rather the murder cross-reference under U.S.S.G. 2A1.1. In 2014, Petitioner filed for reconsideration in light of Alleyne v. United States, 133 S.Ct. 2151 (2013); however, the Fourth Circuit affirmed, explaining that the district court lacked authority to entertain the reconsideration motions. Application of this amendment to the crack cocaine guideline in the present case would result in a decrease of the base offense level from 32 to 30. It follows from the discussion in the preceding section that the amendment alone would have justified a reduction in sentencing range to 108-135 months. Since then, the Supreme Court has held the guidelines in their mandatory form are unconstitutional and through severing 18 U.S.C. 3553(b) made them effectively advisory. Booker, 543 U.S. at 245. Booker and subsequent Supreme Court cases clarifying it namely, Rita v. United States, supra; Gall v. United States, supra; and Kimbrough v. United States, supra have created a brave new world, in which the guidelines are but one of several factors to be considered under 3553(a). What the Supreme Court has described as the overarching provision in 3553(a) is the requirement that courts impose a sentence sufficient, but not greater than necessary to accomplish the goals of sentencing. Kimbrough, 128 S. Ct. at 570. Booker and its progeny apply to the imposition of a new sentence under 18 U.S.C. 3582(c)(2), moreover. The Ninth Circuit considered this question in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) and held, put most succinctly, that Booker applies to 3582(c)(2) proceedings. Hicks, 472 F.3d at 1169. As the court explained in more depth: Booker explicitly stated that, as by now should be clear, [a] mandatory system is no longer an open choice. Although the Court acknowledged that Congress had intended to create a mandatory guideline system, Booker stressed that this was not an option: [W]e repeat, given today s constitutional holding, [a mandatory Guideline regime] is not a choice that remains open.... [W]e have concluded that today s holding is fundamentally inconsistent with the judgebased sentencing system that Congress enacted into law. The Court never

REASONS FOR SEEKING CLEMENCY 5 qualified this statement, and never suggested, explicitly or implicitly, that the mandatory Guideline regime survived in any context. In fact, the Court emphasized that the guidelines could not be construed as mandatory in one context and advisory in another. When the government suggested, in Booker, that the Guidelines be considered advisory in certain, constitutionally-compelled cases, but mandatory in others, the Court quickly dismissed this notion, stating, we do not see how it is possible to leave the Guidelines as binding in other cases.... [W]e believe that Congress would not have authorized a mandatory system in some cases and a non-mandatory system in others, given the administrative complexities that such a system would create. In short, Booker expressly rejected the idea that the Guidelines might be advisory in certain contexts, but not in others, and Congress has done nothing to undermine this conclusion. Because the mandatory system is no longer an open choice, district courts are necessarily endowed with the discretion to depart from the Guidelines when issuing new sentences under 3582(c)(2). Hicks, 472 F.3d at 1170 (citations omitted). Here, there are a number of non-guidelines factors that justify a sentence below even the new guideline range. 18 U.S.C. 3553(a) provides factors that should be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider - (1) the nature and circumstances of the offense and the history and characteristics of the Petitioner; (2) the need for the sentence imposed - (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the Petitioner; and (D) to provide the Petitioner with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner... To further support the notion that juries intend their verdicts to remain in effect, we are in touch with several jurors from the original 2001 trial who are still outraged that the Petitioner was sentenced to life on acquitted charges. They continue to show their support to Petitioner in many ways. The local news media is investigating the case as well. WRIC, Channel 8 New

REASONS FOR SEEKING CLEMENCY 6 investigator, Kerri O Brien has interviewed several witnesses from the case, including the former police chief, Warren Sturrup. Maj. Sturrup (ret.) is on record as saying that he never believed the Petitioner and his codefendant were involved in the murder of Officer Gibson. Additionally, there was a wealth of evidence to discredit the Waverly police department s investigation, while other evidence was clearly suppressed and/or altered to benefit the government in this case. Most significant is a handwritten statement from a, then minor child, that describe the men involved in a very different manner than the typed statement of the investigating police officer who reworded significant distinguishing characteristics of the assailants. A third codefendant, Shawn Wooden provided conflicting testimony and even reportedly complained to the, then police chief that the investigating officer was threatening him to lie and testify against Petitioner and codefendant, Terrence Richardson. While another suspect, mentioned in the minor s written statement was also identified by a separate witness, the police failed to seriously pursue him. Additionally, there have been investigations and news articles (Suffolk News Herald) written to shed light on the misconduct of the Waverly police department. Although this case was riddled with government inconsistencies, the jury was able to see through them and acquit Petitioner of murder. Unfortunately, that was not enough to save him from the unjust sentencing burdened upon him. We ask that the Office of the Pardon Attorney, and the President of the United States restore justice to a case that is long overdue for relief. In an attempt to eliminate the racial disparity amongst drug offenders, establish fairer sentencing laws, and to reduce overcrowding in penal institutions, Petitioner s sentencing guideline range should be departed downward to at least 135 months, the far end of what would have been the sentencing commission s initial recommendation to the district court, under the new sentencing guidelines. Respectfully submitted, DATED: April 30, 2016 LaQuetta S. Ruston, Esq., MO67865 907 Bannon Circle Court Lake St. Louis, MO 63367 Prepared on behalf of Petitioner, while seeking Pro Hac Vice admission to the Eastern District of VA)