Whether a district court's fact-finding at sentencing that lacks explicit reasoning for selecting among competing inferences violates a defendant's Sixth Amendment right to a jury trial when applying sentencing enhancements

No question identified. : TO: The Honorable Brett M. Kavanaugh, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Sixth Circuit Court of Appeals: In accordance with this Court’s Rules 13.5, 21, 22, 30, and 33.2, Applicant Eric Minter respectfully requests that the time to file his petition for a writ of certiorari be extended by 45 days, until February 9, 2024. The jurisdiction of this Court is based on 28 U.S.C. § 1254(1). The Sixth Circuit Court of Appeals issued its opinion on August 31, 2023 (Exhibit A), and denied rehearing on September 26, 2023, (Exhibit B). Absent an extension of time, the petition is due on December 26, 2023. Background This case is a strong candidate for certiorari review because it presents an important question about the bounds of a trial court’s discretion in fact finding at sentencing in the aftermath of Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L.Ed.2d 517 (2009) (5-4): Where a district court applies a federal sentencing enhancement based on findings of fact at sentencing—and neglects to explain how it selected among competing plausible inferences—does a generic abuse-of-discretion standard of review adequately protect the defendant’s Sixth Amendment right to a jury? The petition will also seek to resolve two circuit splits impacting thousands of individual defendants: (1) whether control over another by the defendant is a prerequisite to applying the managerial-role enhancement of United States Sentencing Commission, Guidelines Manual § 3B1.1 (2028) “(USSG § 3B1.1”); and (2) who bears the burden of persuasion in assessing constructive possession of a firearm under United States Sentencing Guidelines Manual § 2D1.1(b)(1) (2023)! “USSG § 2D1.1(b)(1)’). In September 2018, Mr. Minter pled guilty to Conspiracy to Distribute a Mixture or Substance Containing a Detectable Amount of Heroin, in violation of 21 U.S.C. §§ 841(b)(1), 851, 846. At the original sentencing hearing, the district court applied two sentencing enhancements: a two-level enhancement for his alleged gun possession under and a three-level enhancement for Mr. Minter’s alleged managerial role under U.S.S.G. § 3B1(b). After two successful appeals,? the district court again applied the same firearm enhancement and a twopoint managerial-role enhancement under U.S.S.G. § 3B1(c): e The firearm enhancement was based exclusively on vague statements Mr. Minter made in recorded jail conversations (in which he never mentioned a gun) and on the location of a gun under the stairs of a back porch that all residents of Mr. Minter’s multi-unit apartment building 1The 2023 Amendment to the United States Sentencing Guidelines became effective on November 1, 2023. The U.S. Sentencing Commission last amended the managerial-role enhancement in 1993 and last amended the firearm enhancement in 1991. So any amendments to the Sentencing Guidelines that occurred between Mr. Minter’s 2018 sentencing and the present appeal are not relevant. 2 The previous appeals are not relevant here. In the first, the Sixth Circuit reversed the district court’s finding that Mr.Minter was a career offender under U.S.S.G. § 4B1.2(b), following the Sixth Circuit’s decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc). In the second, the Sixth Circuit reversed the district court’s application of the three-level enhancement under U.S.S.G. § 3B1.1(b) because there were only four (not five) known participants in the conspiracy. shared. The evidentiary support for the district court’s findings was thin, circumstantial, and easily susceptible to alternative explanations. e To support the managerial-role enhancement, the district court also made two factual findings. First, it found that Mr. Minter handled administrative arrangements (time and place) with two West Virginia co-conspirators who transported money to the ringleader in Michigan and returned with drugs they then delivered to Mr. Minter. Second, it found that