Whether a defendant's sentence for fraud offenses that applied 21 U.S.C. § 802(32), USSG § 2B1.1(b)(1), and USSG §2D1.1 and treated Bays as a 'controlled substance case,' violates his Fifth and Sixth amendment rights

QUESTIONS PRESENTED In the 2017 Bays unpublished opinion, the Fifth Circuit disagreed with the Government's argument that at trial the proof of Bays knowledge that he was handling controlled substance analogues was "overwhelming." Applying McFadden, the 2017 Bays court reversed and remanded holding that "the focus at trial was proving that Bays understood the substances with which he was dealing, and that the substances were in fact analogues, but not that Bays knew the substances were [controlled substance] analogues." (Emphasis supplied). United States v. Bays, 680 Fed. Appx. 303309 (5" Cir. 2017) (2017 opinion). Even after remand, the government never proved that: (1) Bays knew that the substances with which he was dealing were "controlled substance" analogues, and (2) the analogues were in fact controlled. Indeed, the district court dismissed drug counts 4, and 5, and most particularly, Count 3 — conspiracy to distribute a controlled substance analogue in violation of 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1) and (b)(1)(.C). ROA.5520. Nonetheless, at the August 8, 2017 re-sentencing for counts | and 2 (Conspiracy to Defraud the United States and Conspiracy to Commit Mail Fraud) (“fraud offenses”), the judge adopted the PSR, which applied 21 U.S.C. § 802(32), USSG § 2B1.1(b)(1), and USSG §2D1.1 and characterized Bays as a “controlled substance case.” PSR 3" Addendum paras. 61-64. The PSR 4" Addendum wrote: “21 U.S.C. § 802(32), a controlled substance analogue is defined as a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in Schedule I and I, . [and] USSG §2D1.1, the guideline that deals with Offense Involving Drugs, states a controlled substance includes ... any analogue of that controlled substance." ROA.5643. The judge ruled: "This is sentencing. I don't think the Fifth Circuit opinion affects that." ROA.5394-95. As a result, the base offense level of Mr. Bays was increased by 20 points for loss, together with other enhancements, and worse, jettisoned Mr. Bays out of Criminal History category I into a category III. Although the Fifth Circuit‘s 2019 unpublished opinion reversed for fact findings on actual loss, the reversal was “[o]n this basis alone.” United States v. Bays, 765 Fed. Appx. 945, 956 (5" Cir. 2019) (2019 opinion). The Fifth Circuit agreed the McFadden's scienter requirement did not apply to sentencing, and affirmed there was "more than ample evidence to support the position that these were [controlled substance] analogues." /d. at 951, n.12. This Court should grant certiorari to answer the important questions: 1. Whether a defendant's sentence for fraud offenses that applied 21 U.S.C. § 802(32), USSG § 2B1.1(b)(1), and USSG §2D1.1 and treated Bays as a “controlled substance case,” violates his Fifth and Sixth amendment rights, when the government failed to prove and the jury did not find that: (1) the synthetic cannabinoids were for the designated time period, and (2) the defendant knew the analogues were controlled. IL. Whether a defendant's sentence for fraud offenses that applied 21 U.S.C. § 802(32), USSG § 2B1.1(b)(1), USSG §2D1.1 and treated Bays as a "controlled substance case," is an ex post facto violation, U.S. Const., Art. I, § 9, cl. 3, because it punished him for lawful conduct, and deprived him of a lawful defense. ii