7. Four Seasons Transport Jose Francisco Serna owned Four Seasons Transport, a trucking company based in McAllen, Texas. On January 13, 2010, Serna was charged with conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846, and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). Case No.

See Stirone v. United States, 361 U.S. 212, 217-219 (1960) (amendment of the indictment violates the Fifth Amendment’s Grand Jury Clause). Russell’s requirement that the indictment be based on evidence presented to the indicting grand jury is particularly important where the conspiracy charged, such as the conspiracy that is charged here – namely 21 U.S.C. §846, does not require that any overt acts be pleaded. The fact that no overt acts are required does not mean that the government is free to violate the Fifth Amendment.

Ramos seems to be an outlier in this respect. Significantly, the actual holding of that U.S. Supreme Court case was that § 846 did not have an overt act requirement—in fact, the Court expressly stated that it had granted certiorari to resolve a circuit split over this issue, explaining that the Ninth Circuit had held that indictments under § 846 did not need to allege an overt act, but had also held that proof of an overt act was required at trial, and the other 11 Circuits had held that § 846 did not require proof of an overt act at all. U.S. v. Shabani, 513 U.S. 10, 12 (1994).

32 Motion to Dismiss No. CR 14-380 (CRB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. FedEx Cannot Be Liable for Conspiring to Distribute Controlled Substances in Violation of 21 U.S.C. § 846 Counts One and Thirteen charge FedEx with conspiring to distribute controlled substances in violation of 21 U.S.C. § 846. Again, § 822(c)(2) exempts FedEx from liability.

The CSA conspiracy charges (Counts 1 & 13) properly state offenses under the CSA. Counts 1 and 13 charge the defendants with violating 21 U.S.C. § 846, which makes it unlawful to conspire to distribute and to possess with intent to distribute controlled substances in violation of, inter alia, 21 U.S.C. § 841(a)(1). Super. Ind. ¶¶ 22-40, 70-87.

28, passim. Counts One and Thirteen charge FedEx with conspiring with the Chhabra- Smoley Organization and the Superior Drugs networks, respectively, to violate 21 U.S.C. § 846. Dkt.

As set forth below, this Court lacks jurisdiction to consider King’s petition, in which he attempts to use section 2241 to challenge his federal narcotics sentences. STATEMENT OF THE CASE On September 16, 2008, a federal grand jury in the District of Arizona returned a six count second superseding indictment charging King1, along with two co-defendants, with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846 and 841(b)(1)(A)(ii) (Count One), four counts of possession with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846 and 841(b)(1)(A)(ii) (Counts Two through Five), and conspiracy to commit money laundering in violation of 18 1 King was charged as “William Wallace Keegan a.k.a. Richard King.” Case 5:15-cv-00280-WTH-PRL Document 4 Filed 08/20/15 Page 1 of 7 PageID 23 2 U.S.C. §§ 1956(h) and 1956(a)(1)(A) (Count Six).

01 10 2007 COUNSEL X WITH COUNSEL Mark Windsor, CJA, Appointed (Name of Counsel) PLEA X GUILTY, and the court being satisfied that there is a factual basis for the plea. NOLO CONTENDERE NOT GUILTY FINDING There being a finding/verdict of X GUILTY, defendant has been convicted as charged of the offense(s) of: Conspiracy to Distribute Cocaine in violation of 21 USC 846, 841(a)(1), 841(b)(1)(A), as charged in Count 1 of the First Superseding Indictment JUDGMENT AND PROB/ COMM ORDER The Court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that: Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby committed on Count 1 of the First Superseding Indictment to the custody of the Bureau of Prisons to be imprisoned for a term of: Seventy (70) Months.

As we show below, his petition must be denied. PROCEDURAL HISTORY Petitioner was convicted in 1990 after a jury trial in the United States District Court for the Eastern District of New York of conspiracy to import, distribute, and possess with intent to distribute more than one kilogram of heroin, in violation of 21 U.S.C. 846 and 963, importation of more than one kilogram of Case 1:09-cv-00225-ARR-LB Document 10 Filed 04/13/09 Page 3 of 19 PageID #: 42 2 heroin, in violation of 21 U.S.C. 952(a), and distribution of and possession with intent to distribute more than one kilogram of heroin, in violation of 21 U.S.C. 841(a)(1). Specifically, Petitioner was convicted for his role in a scheme to import more than one kilogram of heroin from Nigeria into the United States.

The events giving rise to this lawsuit occurred while plaintiff was incarcerated at the Federal Correctional Complex in Petersburg, VA (“FCC Petersburg”). On May 22, 2007 plaintiff was sentenced by the U.S. District Court for the Eastern District of Pennsylvania to a 360-month term of imprisonment followed by a 3- year term of supervised for offenses to include Conspiracy to Possess with Intent to Distribute 5 Kilograms or More of Cocaine in violation of 21 U.S.C. §846, as well as Possession with Intent to Distribute 5 Kilograms or More of Cocaine in violation of 21 U.S.C. §841 (A) (1) and (B)(1)(A). On November 1, 2014 his term of imprisonment was reduced to 287 months.