Whether the Due Process Clause requires a heightened standard of proof for sentencing enhancements that substantially increase a defendant's sentence based on tenuous factual findings

No question identified. : APPLICATION To the Honorable John G. Roberts, Jr., Chief Justice of the United States and Circuit Justice for the District of Columbia Circuit: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(c), Applicant Khan Mohammed respectfully requests a 32-day extension of time, to and including April 22, 2024, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. 1. The D.C. Circuit entered judgment on December 22, 2023. See Mohammed v. United States, 89 F.4th 158 (D.C. Cir. 2023), App. 1a-13a. Unless extended, the time to file a petition for a writ of certiorari will expire on March 21, 2024. This application is being filed more than ten days before a petition is currently due. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 2. This case raises an important question about the standard of proof for the Sentencing Guidelines in criminal cases that has long divided the circuits. Courtappointed counsel for Applicant Khan Mohammed seek this extension to ensure that the forthcoming certiorari petition fully presents that issue for this Court’s review. 3. Applicant Khan Mohammed was initially convicted of drug trafficking under 21 U.S.C. § 959(a)(1)-(2) and narcoterrorism under 21 U.S.C. § 960a. See App. 2a-3a. The convictions stemmed from an undercover Drug Enforcement Agency operation in Afghanistan in 2006. Mohammed was sentenced to life in prison. Pet. App. 4a. 4. The D.C. Circuit subsequently held that the narcoterrorism count was infirm because Mohammed’s trial counsel was “constitutionally deficient.” United States v. Mohammed, 863 F.3d 885, 890 (D.C. Cir. 2017). Specifically, trial counsel “complete[ly] failled] to investigate potential impeachment” evidence against the Government’s star witness. Id. 5. The District Court then concluded that Mohammed was prejudiced by his counsel’s failure, and vacated the narcoterrorism conviction. App. 3a. The Government elected not to retry Mohammed on that count. Id. 6 At resentencing, the Government nevertheless sought to reimpose the life sentence by applying the terrorism enhancement. The Government relied on the factual basis for the now-vacated narcoterrorism conviction. See App. 26a. The enhancement had an extraordinary effect on Mohammed’s Sentencing Guidelines range because it raised the offense level by 12 points and required the court to treat Mohammed as having the highest criminal history category, even though he had no criminal record apart from this case. See U.S.S.G. § 3A1.4(b). All told, the terrorism enhancement raised the floor of Mohammed’s Guidelines range from 97 months to 360 months, and raised the ceiling from 121 months to life. 7. Mohammed argued that, given the terrorism enhancement’s draconian impact compared to his offense of conviction and his trial counsel’s ineffectiveness, the District Court could apply the enhancement only if it found the factual basis to exist by clear and convincing evidence. See App. 22a. 8. In the Ninth Circuit, Mohammed’s argument would likely have prevailed. The Ninth Circuit has long recognized that where “the facts found” at sentencing “actually are determinative of the sentence given’—imposing “an extremely disproportionate effect on the sentence relative to the offense of conviction”—the Due Process Clause requires courts to make factual findings at sentencing by clear and convincing evidence. United States v. Staten, 466 F.3d 708, 719 (9th Cir. 2006) (citation omitted). Indeed, in another terrorism enhancement case, the Government recently conceded that the Ninth Circuit’s law required applying the standard. See United States v. Alhaggagi, 978 F.3d 693, 700-701 (9th Cir. 2020). 9. In the decision below, however, the D.C. Circuit refused to follow the Ninth Circuit’s lead, instead siding with a number of other circuits that ha