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Samaritan Newsletter 12-18-2023

the Law Office of Tom Norrid


P.O. Box 9244

Springfield, MO 65801-9244


SAMARITAN NEWSLETTER – December 18, 2023


The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions under the direction of Attorney Tom Norrid. The Samaritan-Projects’ newsletter reports every winning case for the week in review. These cases will not be on the BOP LEXIS computer for 4 to 6 weeks. The Project charges reasonable rates to retrieve cases, documents, docket sheets, transcripts, etc., from PACER. If you want to order documents, call Lexandria at 417-771-0736. Have your friends place the Project on Corrlinks so they can receive the Newsletter. Have your family check our website – SAMARITANPROJECTS.COM. This newsletter is published on our WEBSITE and is available for review by your family and friends.


CERTIORARI GRANTED. The Supreme Court granted certiorari in the case of James Snyder v. United States, No. 23-108, with the issue being: 18 USC 666(a)(1)(B) makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] … or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” government business “involving anything of value of $5,000 or more.” The question presented, on which the circuits are divided, is: Whether 18 USC 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions.


In Joseph Fischer v. United States, No. 23-5572, the court granted certiorari with the question being: Did the D.C. Circuit err in construing 18 USC 1512(c)

(“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?


In Jascha Chiaverini v. City of Napoleon, No. 23-50, the court granted certiorari with the question being: To make out a Fourth Amendment malicious prosecution claim under 42 USC 1983, a plaintiff must show that legal process was instituted without probable cause. Thompson v. Clark, 142 S. Ct. 1332, 1338 (2022). Under the charge-specific rule, a malicious prosecution claim can proceed as to a baseless criminal charge, even if other charges brought alongside the baseless charge are supported by probable cause. Under the “any-crime” rule, probable cause for even one charge defeats a plaintiff’s malicious prosecution claims as to every other charge, including those lacking probable cause. The question presented is: Whether Fourth Amendment malicious prosecution claims are governed by the charge-specific rule, as the Second, Third, and Eleventh circuits hold, or by the “any-crime” rule, as the Sixth Circuit holds.


In Ryan Thornell v. Danny Jones, No. 22-982, the court granted certiorari with the question being: Over thirty years ago, Respondent Danny Lee Jones beat Robert Weaver to death and also beat and strangled Weaver’s 7-year-old daughter, Tisha, to death, for which he was convicted and sentenced to death. The district court denied habeas relief following an evidentiary hearing on Jones’s ineffective-assistance-of-sentencing-counsel claims. But a Ninth Circuit panel reversed the district court, giving no deference to the district court’s detailed factual findings. Judge Mark Bennett authored a nine-judge dissent from the denial of en banc

rehearing. The Question Presented is: Did the Ninth Circuit violate this Court’s

precedents by employing a flawed methodology for assessing Strickland prejudice when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the State’s rebuttal when it reversed the district court and granted habeas relief?


CR.RIS/MEDICAL. The District of Nebraska granted a CR.RIS motion in the case of United States v. Alicia Elliott, 2023 U.S. Dist. LEXIS 222490 (D. Neb. Dec. 14, 2023). On June 22, 2022, Elliott was sentenced to a term of imprisonment of 60 months with 4 years of supervised release for distribution of 5 grams or more of actual methamphetamine in violation of 21 USC 841(a)(1) and 841(b)(1)(B). Elliott self-surrendered to Carswell Federal Medical Center on Aug. 24, 2022. She is projected to be released on Nov. 19, 2026. Elliott has been diagnosed with the following: cardiac murmur, chronic kidney disease-stage 5, dependence on renal dialysis, disorder of arteries and arterioles, end stage renal failure, essential primary hypertension, known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement. Elliott is currently on or has been prescribed multiple medications to treat her ongoing health needs. In addition, she receives renal dialysis three times per week. The Court determined Elliott's health issues are compelling and extraordinary reasons to grant her a reduction of sentence. Second, the Court noted the probation officer recommended this motion be granted. Elliott participated in numerous adult education classes while incarcerated. According to BOP records, Elliott has completed education courses and programs within the BOP that include Interviewing Skills, Civics and Government, and Drug Education Class. Elliott received no incident reports while confined. Sentence reduced to time served. THIS IS A PROJECT WIN IN THAT THE PROJECT PREPARED THE MOTION.


CR.RIS/UNUSUALLY LONG SENTENCE. The Eastern District of Louisiana granted a CR.RIS motion in the case of United Stats v. Denair Riley, 2023 U.S. Dist. LEXIS 220634 (E.D. La. Dec. 11, 2023). Riley filed a motion for compassionate release pursuant to 18 USC 3582(c)(1)(A) and a motion for leave to supplement the motion for compassionate release. Riley contended his "unusually long sentence" constituted sufficient grounds for a sentence reduction under 3582(c)(1)(A). The Court found that extraordinary and compelling reasons warranted a reduction of Riley's sentence. Riley does not pose a danger to any other person or the community, and the 3553(a) factors support a reduction. The reduction is consistent with the applicable U.S. Sentencing Commission policy statement. Accordingly, the Court granted the motions and reduced Riley's term of imprisonment from 240 months to time-served. Riley is a 50-year-old man that suffers from a variety of health problems such as high cholesterol, high blood pressure, and kidney problems. Finally, Riley asserted he has "demonstrated exceptional rehabilitation" while incarcerated. USSG 1B1.13(b)(6) provides: Unusually Long Sentence.-If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances. Riley's sentence appeared to be exactly the kind of "unusually long sentence" as is envisioned by the amendment to the Sentencing Guidelines as a basis for compassionate relief. Riley’s sentence was reduced to time served.


CR.RIS/MEDICAL. The District of Maryland granted a CR.RIS motion in part in United States v. Daniel Taylor, 2023 U.S. Dist. LEXIS 222428 (D. Md. Dec. 14, 2023). Taylor entered a plea of guilty on Aug. 19, 2013, to the charge of possession of a firearm by a felon in violation of 18 USC 922(g)(1). The plea was tendered pursuant to a Plea Agreement. In the Plea Agreement the parties agreed that defendant qualified as an Armed Career Criminal and in accordance with Fed.R.Crim.P. 11(c)(1)(C), the parties agreed to a sentence of 180 months imprisonment which corresponded to the mandatory minimum sentence. Taylor moved for compassionate release on the ground he suffers from several serious health conditions. Records show Taylor has hypertension, anemia, type 2 diabetes mellitus, chronic apical periodontitis, and he has experienced a "TIA," which is an abbreviation for transient ischemic attack. In addition, defendant is "insulin dependent," and takes several medications. These include low dose aspirin (daily), atorvastatin (nightly), ferrous sulfate (every other day), glucose (daily, as needed), insulin NPH (two units, twice daily), insulin reg (four times daily, as needed), and lisinopril (daily). Taylor uses medical devices, including medical shoes, a glucose meter, and eyeglasses. The defendant's medical records indicate that as of April 6, 2022, he had a body mass index ("BMI") of 33. A person with a BMI over 30 is considered obese, and a person with a BMI over 40 is considered "severe[ly]" obese. The court granted the motion in part and reduced Taylor's sentence from 180 months to 165 months imprisonment.


CR.RIS/REHABILITATION/FAMILY CIRCUMSTANCES. The District of Connecticut granted a CR.RIS motion in the case of United States v. Alejandro Velez, 2023 U.S. Dist. LEXIS 222569 (D. Conn. Dec. 13, 2020). Velez's motion for Compassionate Release sought release from his mandatory minimum 60-month sentence imposed on July 21, 2021. Having served 28 months of his sentence,  he is scheduled for release in November 2024. Velez moved the court to reduce his sentence pursuant to section 603 of the First Step Act of 2018 on the grounds that a combination of factors support a finding of extraordinary and compelling reasons for a sentence reduction: (a) Velez's role as the sole available caregiver for his elderly, ailing mother; (b) the risks of continued incarceration during the COVID-19 pandemic to Velez's health due to his documented severe obesity, asthma, depression, and prediabetes; (c) the extraordinarily harsh conditions of confinement that Velez has experienced for his entire sentence to date due to the pandemic, and (d) his extraordinary rehabilitation, including his conduct while out on bond for 16 months prior to sentencing. Velez has had an excellent record while incarcerated. He has been discipline-free, except for a recent minor disciplinary report. Further, he has taken many classes and he is employment in the BOP. All of this positive behavior supported a finding of extraordinary and compelling circumstances. The defendant’s sentence was reduced to time served.


CR.RIS/MEDICAL. The District of Maryland granted a CR.RIS motion in part in United States v. Edward Samuel, 2023 U.S. Dist. LEXIS 222429 (D. Md. Dec. 14, 2023). This motion is for compassionate release filed by and on behalf of Edward Samuel. Samuel entered a plea of guilty on Jan. 9, 2017, to the offenses of possession with intent to distribute 100 grams or more of mixtures containing heroin and cocaine in violation of 21 USC 841, and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 USC 924(c). The plea was tendered pursuant to Fed.R.Crim.P. 11(c)(1)(C), by which the parties agreed to a sentence ranging from 156 months to 192 months of imprisonment. At the sentencing on March 16, 2017, the court imposed a term of 156 months. The Court applies the law in effect at the time of its decision, not the law in effect at the time the motion was filed. Samuel argued his medical conditions which include chronic kidney disease, type two diabetes, hypertension, and dependence on a wheelchair, provide an extraordinary and compelling reason for compassionate release. The defendant asserts that, as "long as the pandemic continues," these "chronic conditions, on their own," are sufficient to justify relief. The court granted the motion in part and reduced defendant's sentence to 120 months of imprisonment.


CR.RIS/MEDICAL. The District of Nebraska granted a CR.RIS motion in United States v. Christopher Hatcher, 2023 U.S. Dist. LEXIS 223424 (D. Neb. Dec. 15, 2023). This matter was before the Court on defendant Christopher A. Hatcher's pro se emergency motion to reduce his sentence based on his diagnosis of terminal cancer. The Court reduced Hatcher's prison sentence to time-served and imposed modified conditions of supervised release. On Aug. 26, 2022, Hatcher plead guilty to Count I of the Indictment charging him with violating 21 USC 841(a)(1) and (b)(1) by intentionally distributing 50 grams or more of methamphetamine (actual). Hatcher was previously identified as likely qualifying for relief under USSG Amendment 821, Part B. On Jan. 20, 2023, Hatcher was sentenced to 48 months imprisonment followed by 4 years of supervised release, a downward variance under the Guidelines. According to BOP records, Hatcher has been diagnosed with esophageal cancer and has a realistic life expectancy of 12 to 18 months. USSG 1B1.13 and its application notes have recently been amended and apply in this circumstance. In defining "extraordinary and compelling reasons" the Guidelines clearly point to circumstances where a "defendant is suffering from a terminal illness." USSG 1B1.13(b)(1)(A). Sentence reduced to time served. Hatcher served nine months on his 41-month sentence.


CR.RIS/DISPARITY/REHABILITATION/FAMILY CIRCUMSTANCES. The District of Maryland granted in part a CR.RIS motion in United States v. Elliott Brown, 2023 U.S. Dist. LEXIS 223262 (D. Md. Dec. 14, 2023). In June 2009, Brown pled guilty to one count of conspiracy to distribute and possession with intent to distribute heroin in violation of 21 USC 846. Brown later moved to withdraw his guilty plea but the Court denied this request. In July 2010, Judge Quarles sentenced Brown to 360 months (30 years) imprisonment. This sentence was within then-applicable Guidelines range of 324 to 405 months. In June 2017, Judge Garbis granted Brown's motion to reduce his sentence, and amended his sentence to 292 months. The Court granted this reduction because a subsequent amendment to the Sentencing Guidelines reduced Brown's offense level from 36 to 35. In 2020 and 2021, Brown filed renewed motions for compassionate release and sentence reduction. In Aug. 2021, the Court granted in part. Brown's motions and reduced his sentence again this time from 292 months to 262 months of incarceration. In granting this request the Court found that Brown's "excessively long sentence, which is out of step with the lesser sentence received by his more culpable co-defendant," constituted an extraordinary and compelling reason for reduction in sentence. The Court then weighed the 3553(a) factors and determined that a sentence of 262 months was appropriate. The newly-applicable Sentencing Guidelines provide that an unusually long sentence may constitute an extraordinary and compelling reason for release when (1) the defendant has already served at least 10 years in prison, (2) a change in the law (other than a non-retroactive Sentencing Guidelines amendment) "would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed," and (3) the Court has given "full consideration [to] the defendant's individualized circumstances." USSG 1B 1.13 (b) (6). Here, the court held  a sentence of 262 months for Brown's nonviolent drug offense remains too long especially in light of changes in the law and in sentencing practices. The excessive length of the sentence constitutes an extraordinary and compelling reason for release. Brown referenced his "parents' declining health" and his desire to spend time with them. An inmate's wish to help care for an ill parent can, in certain circumstances, constitute an extraordinary and compelling reason for release. The Court considered Brown's family circumstances, career plans and rehabilitation. The court reduced Brown’s sentence to 235 months imprisonment.


2255/DOCUMENTS. The Southern District of Illinois granted United States v. Jason Rodriguez, 2023 U.S. Dist. LEXIS 222100 (S.D. Ill. Dec. 13, 2023). Before the Court was Rodriguez's pro se motions to obtain copies. Rodriguez requested copies of the following: the indictment or information and the prosecutor's statement of probable cause; jury instructions (both proposed and those considered by the jury); judgment and sentence with warrant of commitment; police reports; agent reports; forensic phone analysis report by Bill O'Sullivan; any other investigative reports; video and audio recording (including interview reports, crime scene recording or evidence provided by private citizens or business); warrants; and, the court appearance docket. Defendants have no constitutional right to a complimentary copy of any document in their court files. Rodriguez, who has previously been found to be indigent asserted he has made efforts to obtain the requested documents from his trial and appellate counsel. He further asserted he needs the requested documents in order to prepare and file a 28 USC 2255 habeas action. Many of the materials requested by Rodriguez are not contained in the Court's files and therefore, cannot be provided as requested (i.e., proposed jury instructions, police reports, agent reports, forensic phone analysis report by Bill O'Sullivan, investigative report, and video and audio recordings). Once Rodriguez files his 2255 petition, he may petition the Court for discovery under Rule 6 of the Rules Governing 2255 Procedures. There are various other documents requested by Rodriguez that do exist in the Court's docket. Accordingly, the Court will provid him with the following: A Copy of the Court Docket; Jury Instructions Given; Redacted Indictment; Superseding Indictment; Judgment and Sentence; and the Arrest Warrant.


2255/HOBBS ACT/TAYLOR. The Eastern District of California granted a 2255 motion in the case of United States v. Kevin Reid, 2023 U.S. Dist. LEXIS 222833 (E.D. Calif. Dec. 14, 2023). Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 USC 2255. This matter was on remand from the Ninth Circuit for further proceedings consistent with United States v. Taylor, 142 S. Ct. 2015 (2022). On Aug. 26, 1999, movant and a co-defendant were charged by indictment with attempted Hobbs Act robbery in violation of 18 USC 1951(b) (Count One); and with use of a firearm during and in relation to the attempted robbery in violation of 18 USC 924(c)(1) (Count Two). The parties agreed that movant's convictions under 924(c)(1) must be vacated after the United States Supreme Court's decision in United States v. Taylor, 142 S. Ct. 2015 (2022). In United States v. Davis, the Supreme Court announced that the residual clause of 924(c) is unconstitutionally vague. 139 S. Ct. 2319, 2336 (2019). More recently in United States v. Taylor, the Court held that attempted Hobbs Act robbery does not qualify as a "crime of violence" under the elements clause of 924(c). 142 S. Ct. 2015, 2020 (2022). Because attempted Hobbs Act robbery—which served as the predicate offense for movant's conviction—does not qualify as a crime of violence under either the residual clause or the elements clause, movant's 924(c) conviction cannot stand.


APPEAL/2255/EVIDENTIARY HEARING/DISCOVERY. The Fourth Circuit remanded a 2255 appeal for an evidentiary hearing in United States v. Keyon Paylor, 2023 U.S. App. LEXIS 33243 (4th Cir. Dec. 15, 2023). Paylor filed a petition pursuant to 18 USC 2255 seeking to vacate his conviction for being a felon in possession of a firearm and asserting that his guilty plea was not knowing and voluntary. Specifically, Paylor contended the law enforcement officers involved in his arrest planted the firearm and stole thousands of dollars from him and his plea was induced as a result of egregious law enforcement misconduct. Paylor asserted had he known about the rampant widespread misconduct of now-disgraced Detective Daniel Hersl, he would not have pled guilty. The district court denied Paylor’s petition without providing discovery or an evidentiary hearing. Ironically, the district court held that he did not produce enough evidence to establish that information regarding former Detective Hersl’s misconduct materially influenced his decision to plead guilty. The court could not conclude at this juncture that Paylor had produced evidence sufficient to establish his guilty plea was not knowing and voluntary, the court concluded that he is entitled to discovery and an evidentiary hearing in order to attempt to gather such evidence. Accordingly, the court vacated the district court’s order and remanded for discovery and an evidentiary hearing on his 2255 petition.


APPEAL/SENTENCE. The First Circuit vacated and remanded United States v. Angel Menendez-Montalvo. 2023 U.S. App. LEXIS 32813 (1st Cir. Dec. 12, 2023). In this case Menéndez-Montalvo who was serving a term of supervised release arising from his conviction for a federal firearm offense violated the conditions of his release by breaching Article 3.1 of Puerto Rico's Domestic Violence Law. The First Circuit had to determine whether a violation of Article 3.1 is a "crime of violence" as used in section 7B1.1(a)(1) of the United States Sentencing Guidelines. The court found that it is not because Puerto Rico courts have applied the law to encompass less-than-violent force. As such, the court vacated Menéndez's sentence because the district court had held to the contrary in calculating a sentencing range that was higher than it should have been. The court further clarified its decision does not prevent the district court from considering Menéndez's conduct while on supervised release as it bears on the factors specified in 18 USC 3583(e). The case was remanded to the district court for further proceedings consistent with the opinion.


APPEAL/2255/COA. The Eleventh Circuit granted a COA in Tarresse Leonard v. United States, 2023 U.S. App. LEXIS 33239 (11th Cir. Dec. 14, 2023). Tarresse Leonard is serving a 240-month sentence for being a felon in possession of a firearm in violation of 18 USC 922(g)(1), 924(e)(1). He filed a pro se 28 U.S.C. 2255 motion, alleging that: (1) he did not qualify for a 924(e) enhancement because his prior cocaine offenses were not "serious drug offense[s]"; (2) trial counsel failed to object to the 924(e) enhancement; (3) appellate counsel failed to challenge the enhancement; (4) his 924(e) enhancement is invalid under Wooden v. United States, 595 U.S. 360 (2022); (5) the occasions clause of 924(e) is unconstitutionally vague;

(6) appellate counsel failed to supplement his petition for a writ of certiorari based on Wooden; (7) trial counsel failed "to hire a DNA expert to properly research, investigate, and []prepare [his] case for trial"; (8) the district court violated his due process rights by erroneously applying the 924(e) enhancement; and (9) his 922(g)(1) conviction is invalid under N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022). The court granted a COA on the following issue: Whether the district court erred by not ordering an evidentiary hearing on Leonard's claim that counsel failed to introduce conflicting lab reports to challenge the government's DNA evidence showing that he possessed a gun?


APPEAL/2254/COA. The Sixth Circuit reopen the case of Da’rell Winters v. Kristopher Taskila, 2023 U.S. App. LEXIS 33250 (6th Cir. Dec. 15, 2023). In this case Winters sought to appeal the district court's denial of his habeas relief application. However, due to the delayed receipt of the district court's decision he did not file his appeal in time. When he finally filed the appeal notice he explained his delay but did not formally request to reopen the appeal period. The Sixth Circuit ruled that his explanation was sufficient for the district court to consider his appeal notice as a motion to reopen, thus deeming his appeal timely. The case's facts reveal that in 2014 Winters was convicted of armed robbery. After exhausting his appeals in Michigan state courts he applied for habeas relief in a federal court in 2018. He represented himself and raised various claims including insufficiency of evidence and errors in jury instructions and sentencing. The federal district court denied Winters's habeas application and a certificate of appealability on March 10, 2021. Due to a mailing error Winters received the court's decision only on May 18, 2021. He filed a notice of appeal on June 1, 2021, which was after the 30-day deadline for filing an appeal. The Sixth Circuit dismissed his appeal as untimely. Winters later moved the district court to reopen the appeal period which the court granted. It retroactively construed his June 1 notice of appeal as a motion to reopen making his appeal timely. The Sixth Circuit agreed with this interpretation concluding that Winters's appeal was timely and directing the Clerk's Office to set a briefing schedule for considering whether to grant a certificate of appealability in this appeal.


APPEAL/SENTENCE. The Fourth Circuit remanded for resentencing United States v. Eric Henderson, 2023 U.S. App. LEXIS 32929 (4th Cir. Dec. 13, 2023). In this case, Henderson who is a convicted felon was charged with one count of possession of a firearm in violation of 18 USC 922(g)(1). Henderson plead guilty to the charge but objected to the sentencing enhancements applied by the district court. The Fourth Circuit reversed the district court's decision and remanded the case for re-sentencing. The court held the district court erred in applying a four-level sentencing enhancement under 2K2.1(b)(6)(B) of the United States Sentencing Guidelines. This enhancement was based on Henderson's possession of a firearm "in connection with another felony offense," namely, possession of a firearm while under a domestic violence protective order. The court noted a person cannot be punished more severely for violating multiple provisions of 922(g) with the same act of possession. The court also ruled that the district court made a mistake in applying a two-level enhancement under 3C1.2 of the Sentencing Guidelines for reckless endangerment during flight. The court found Henderson's conduct did not meet the definition of recklessness as established by prior court decisions which require "flight-plus-something more" for the enhancement to apply. In Henderson's case there was insufficient evidence to demonstrate reckless behavior or substantial risk of death or serious bodily injury during flight.



APPEAL/SENTENCE. The Third Circuit remanded for resentencing United States v. Shiheem Amos, 2023 U.S. App. LEXIS 33058 (3d Cir. Dec. 14, 2023). Amos appealed the denial of his motion to suppress a firearm which was found after he was stopped by police officers who suspected him of being involved in a disturbance reported at a nearby location. Amos argued he was seized without reasonable suspicion and therefore the firearm should not have been admissible in court. The Third Circuit held Amos was not seized until after he attempted to flee from the police officers and at that point the officers had reasonable suspicion to seize him based on his attempt to flee. Thus, the firearm was admissible and the motion to suppress was correctly denied. Amos also challenged his 62-month sentence which included an enhancement for a previous state court conviction that was classified as a crime of violence under the United States Sentencing Guidelines. The court records do not specify which subsection of the Pennsylvania aggravated assault statute Amos had been convicted under but the Government argued that all possible subsections qualified as a crime of violence. However, the Third Circuit held that one of the subsections which can be violated by a failure to act does not meet the definition of a crime of violence because it does not require the use of violent force. Therefore, the court vacated Amos's sentence and remanded for resentencing without the crime of violence enhancement.


APPEAL/SENTENCE. The Fourth Circuit vacated and remanded for resentencing in the case of United States v. William Hinton, 2023 U.S. App. LEXIS 33242 (4th Cir. Dec. 15, 2023). Hinton appealed the 180-month sentence imposed following his guilty plea to conspiracy to distribute and possess with the intent to distribute cocaine base, cocaine hydrochloride, methamphetamine, and heroin, in violation of 21 USC 841(b)(1)(C), 846; and distribution of cocaine base in violation of 21 USC 841(a)(1), (b)(1)(C). On appeal, Hinton contended the district court procedurally erred by, among other things, basing its sentencing decision on unsupported factual findings. The court vacated Hinton’s sentence and remanded for resentencing. The district court’s sentencing decision rested primarily on Hinton’s criminal history and his tendency to recidivate. Notably, the court also accorded some weight to the fact that Hinton’s coconspirators “would talk [to law enforcement] about everybody else” involved in the conspiracy, yet “nobody would talk about Mr. Hinton.” From this the court inferred that Hinton’s coconspirators “were afraid of [him].” On appeal Hinton contended that the record does not support the district court’s finding that the coconspirators refused to talk about him. As a result, Hinton claimed the inference drawn from this finding is a baseless speculation. The court vacated Hinton’s sentence and remanded for resentencing.


APPEAL/SENTENCE. The Fourth Circuit remanded for resentencing in the case of United States v. Daniel Kemp, 2023 U.S. App. LEXIS 32930 (4th Cir. Dec. 13, 2023). Kemp was charged with nine counts of sexually abusing his adopted children. Kemp pleaded guilty to one count of aggravated sexual abuse under a plea agreement and the remaining charges were dismissed. The Eastern District of North Carolina sentenced Kemp to life imprisonment and lifetime supervised release. Kemp appealed his conviction and sentence. On appeal, the Fourth Circuit affirmed Kemp's conviction. The court found the district court's plea colloquy did not comply with Rule 11 of the Federal Rules of Criminal Procedure in multiple respects, but Kemp failed to demonstrate a reasonable probability that, but for the error, he would not have entered the plea. As for Kemp's sentence, the Court of Appeals found the district court improperly failed to orally pronounce multiple discretionary conditions of supervised release that it subsequently imposed in Kemp's written judgment. This constituted error and violated Kemp's right to be present at sentencing. Therefore, the Court of Appeals vacated Kemp's sentence and remanded for the district court to re-sentence the defendant.


APPEAL/SEARCH. The Tenth Circuit vacated and remanded the case of United States v. Isaac Ramos, 2023 U.S. App. LEXIS 33173 (10th Cir. Dec. 15, 2023). The Tenth Circuit ruled that impounding a vehicle from private property without a reasonable, non-pretextual community-caretaking rationale violates the Fourth Amendment. The defendant, Isaac Ramos, was arrested after an altercation at a convenience store. His truck was impounded from the store's parking lot, and a subsequent inventory search revealed a machine gun and ammunition. Ramos was charged with unlawful possession of a machine gun and being a felon illegally in possession of ammunition. He moved to suppress the evidence arguing the impoundment of his truck violated the Fourth Amendment. The district court denied his motion, and he appealed. The Tenth Circuit reversed the district court's decision finding that the impoundment was not supported by a reasonable, non-pretextual community-caretaking rationale. The court considered five factors: whether the vehicle was on public or private property; if on private property, whether the property owner had been consulted; whether an alternative to impoundment existed; whether the vehicle was implicated in a crime; and whether the vehicle’s owner and/or driver had consented to the impoundment. The court found that all of these factors weighed against the reasonableness of the impoundment, and thus, it violated the Fourth Amendment. The court remanded the case to the district court with instructions to grant Ramos’s suppression motion and conduct any further necessary proceedings.


APPEAL/SEARCH/SUPPRESSION. The Eighth Circuit vacated and remanded United States v. John Ralston, 2023 U.S. App. LEXIS 33027 (8th Cir. Dec. 14, 2023). The Eighth Circuit examined an appeal by John Lee Ralston who was charged with being a prohibited person in possession of a firearm after a search of his residence. The search was conducted under a warrant that was primarily issued based on criminal activity suspected of another person, Colton Varty, who was believed to be residing on the same piece of property but in a different residence. Ralston argued the warrant did not establish probable cause that evidence would be located inside his house. The district court denied Ralston’s motion to suppress the evidence obtained from the search of his residence ruling that even though the warrant lacked probable cause the officers acted in good faith, relying on the Leon good-faith exception. On appeal the Eighth Circuit disagreed and reversed the district court's decision. The Court of Appeals held the Leon good-faith exception did not apply in this case. The court found that the affidavit supporting the warrant was so lacking in evidence connecting Ralston and his residence to the suspected criminal activity of Varty that no reasonable officer would have relied upon a warrant that was issued based on it. The Court of Appeals concluded that without evidence that Varty had access to Ralston’s residence or facts pointing to a fair probability that Ralston’s residence contained stolen property or was being used to fence stolen property the Leon good-faith exception could not apply. The Court of Appeals remanded the case to the district court with directions to vacate Ralston’s guilty plea and grant his motion to suppress.


APPEAL/BIVENS/EIGHTH AMENDMENT. The Ninth Circuit reversed in part Robert Stanard v. Maria Dy, 2023 U.S. App. LEXIS 32646 (9th Cir. Dec. 11, 2023). In the case before the Ninth Circuit Stanard sued several prison officials claiming they violated his Eighth Amendment rights by denying him treatment for Hepatitis C, and his Fifth Amendment rights by discriminating against him due to his pretrial status. Stanard sought damages under Bivens, a precedent that allows individuals to sue federal officers for constitutional rights violations. The district court dismissed Stanard’s complaint, and he appealed. The Ninth Circuit partly affirmed and partly reversed the district court’s decision. First, the court reversed the dismissal of Stanard’s Eighth Amendment claim. The court found that his claim was not a new context for a Bivens action because it was similar to a previous case, Carlson v. Green, where the Supreme Court recognized a Bivens remedy for prison officials who were deliberately indifferent to an inmate's medical needs. The court rejected the defendants' argument that the prison officials in this case denied him care due to a Bureau of Prisons policy, while the officials in Carlson acted so inappropriately as to evidence intentional maltreatment causing death holding that the difference in degree was not a meaningful difference that would create a new context. However, the Ninth Circuit affirmed the dismissal of Stanard’s Fifth Amendment claim. The court found that this claim did present a new Bivens context because it involved disparate treatment of pre-sentencing and post-sentencing inmates, a situation not previously addressed in Bivens cases. Given that this was a new context the court then determined that special factors counseled against extending a Bivens remedy. Specifically, the existence of alternative remedial structures, such as the Bureau of Prisons administrative remedy process indicated that Congress rather than the courts should decide whether to create a new damages remedy.


APPEAL/SUPPRESS STATEMENTS. The First Circuit vacated and remanded United States v. Amanda Cowette, 2023 U.S. App. LEXIS 32812 (1st Cir. Dec. 12, 2023). In a drug trafficking case, Cowette appealed the district court's denial of her motion to suppress statements she made to law enforcement officers on July 16 and 17, 2018. Cowette argued she unequivocally invoked her Fifth Amendment right to counsel and any subsequent questioning by law enforcement officers was in violation of that right. She contended the district court's ruling to the contrary was in error. The First Circuit agreed with Cowette and held she properly invoked her Fifth Amendment right to counsel. The court found that the phrase "I guess" used by Cowette did not create any ambiguity in her clear invocation of her right to counsel. The court vacated the decision in part, affirmed in part, and remanded for proceedings consistent with the opinion.


APPEAL/1983/TIMELY. The Fourth Circuit remanded Michael Johnson v. Marian Fogan, 2023 U.S. App. LEXIS 32766 (4th Cir. Dec. 12, 2023). Johnson appealed the district court’s order granting defendants motion to dismiss his 42 USC 1983 complaint for failure to state a claim. The district court received the notice of appeal shortly after expiration of the appeal period, although the notice was dated within the appeal period. Because Johnson is serving a criminal sentence while confined to a state institution, the notice of appeal is considered filed as of the date it was properly delivered to facility officials for mailing to the court. Fed.R.App.P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). However, “[i]f an institution has a

system designed for legal mail, the inmate must use that system to receive the benefit of this rule.” Fed.R.App.P. 4(c)(1). The record does not conclusively establish whether the institution where Johnson is housed has such a system, whether he used that system, or when he delivered the notice of appeal to the institution’s officials for mailing. Accordingly, the court remanded this case for the limited purpose of allowing the district court to ascertain those facts and determine whether the notice of appeal was timely filed under Rule 4(c)(1) and Houston. The record, as supplemented, will then be returned to the court for further consideration. The court deferred ruling on Johnson’s motion for a new trial until that time.


APPEAL/RLUIPA. The Sixth Circuit reversed and remanded Lyle Heyward v. Heather Cooper, 2023 U.S. App. LEXIS 32937 (6th Cir. Dec. 13, 2023). A prisoner named Lyle Heyward filed a complaint alleging prison officials frustrated his attempts to celebrate Ramadan, a holy month for Muslims, in violation of the First and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). He alleged the officials retaliated against him for filing grievances in violation of the First Amendment. The Sixth Circuit affirmed the dismissal of Heyward’s Religious Land Use and Institutionalized Persons Act (RLUIPA) claim, as RLUIPA does not permit money damages claims against state prison officials in their individual capacities, and his requests for injunctive relief were mooted by his transfer to a different prison facility. However, the court reversed the dismissal of Heyward’s First Amendment retaliation claim against defendant Guise, finding that Heyward had adequately plead a retaliation claim. Specifically, Heyward alleged that after he filed a grievance against Guise, she threatened members of the Cultural Awareness Inmate Group to kick Heyward out of the organization or else the organization would be shut down. The court found these allegations sufficient to suggest that Guise's action was motivated at least in part by Heyward’s grievance-filing. The court also reversed the dismissal of Heyward’s Equal Protection Clause claim against defendants Cooper, Smith, Davis, and Factor. Heyward alleged these officials treated members of other faith traditions differently than they treated Muslims. The court found that Heyward’s allegations of a facially discriminatory distinction between different religious groups sufficiently alleged an equal-protection violation. The case was remanded for further proceedings.


APPEAL/1983/RLUIPA. The Fourth Circuit vacated and remanded Cory Greene v. Kenneth Lassiter, 2023 U.S. App. LEXIS 32932 (4th Cir. Dec. 13, 2023). Greene appealed the district court’s orders in this 42 USC 1983 action granting summary judgment to defendants on his claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000, 42 USC 2000cc to 2000cc-5 (“RLUIPA”) and denying his Fed.R.Civ.P. 59(e) motion to alter or amend the judgment. The court vacated and remanded. Greene is a North Carolina state prisoner who adheres to a belief system called Nation of Gods and Earths (“NGE”). In the district court, Greene amended his pro se complaint to specify that NGE “is a God centered culture” that must not be “misconstrued as religion. This is a central tenet to the culture.” The district court interpreted this statement as a binding judicial admission that foreclosed relief under RLUIPA and the First Amendment, entering summary judgment for Defendants on different grounds than they asserted in their motion. The court held the district court erred in construing Greene’s pro se statement as a relief-foreclosing judicial admission. Greene’s statement wasn’t an “intentional and unambiguous waiver[] that release[d] the opposing party from its burden to prove the facts necessary to establish the waived conclusion of law.” To the contrary, Greene has consistently maintained that he asserts rights under RLUIPA and the First Amendment for being denied the ability to practice his faith or belief system, even if NGE eschews the label of “religion.” And in RLUIPA, Congress “defined ‘religious exercise’ capaciously” and “mandated that this concept ‘shall be construed in favor of a broad protection of religious exercise.’”

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