top of page

Samaritan Newsletter 12-25-2023

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-771-0736

 

The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with appeals under the direction of Attorney Tom Norrid. The Samaritan-Projects’ newsletter reports every winning district court and court of appeals 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.

 

The “SAMARITAN PROJECTS COMPASSIONATE RELEASE ISSUES AND CITATIONS MANUAL” is available. The Manual contains all the winning issues and supporting cases on compassionate release. To keep it simple, the book is approximately 190 pages and sent priority legal mail. The cost is $75.00. To order, have your outside contact call Eddie at 417 818 1938 or Rusty at 417 901 3000, or BP-199 the Project.

 

CR.RIS/MEDICAL. The Western District of North Carolina granted a CR.RIS motion in United States v. Sniffen, 2023 U.S. Dist. LEXIS 224106 (W.D. N.C. Dec.15. 2023). In Jan. 2020, the Court sentenced the Sniffen to 114 months following his guilty pleas to conspiracy to commit wire and mail fraud, wire fraud, mail fraud, conspiracy to commit international money laundering, and international money laundering. The defendant sought compassionate release due to his diagnosis of Stage IV non-small cell lung cancer with metastasis to his bones and brain. BOP medical records reflect the defendant has a life expectancy of 12 months or less. Defendant has not incurred a disciplinary record, and he has served around 90% of his sentence. The warden of FMC Butler has recommended consideration of defendant's request for reduction in sentence, which remains under consideration by the BOP Central Office. The Government agreed that "Defendant has established an "extraordinary and compelling reason" for a sentence reduction under Section 3582(c)." Sniffen’s sentence was reduced to time served.

 

CR.RIS/MEDICAL. The Western District of North Carolina granted a CR.RIS motion in United States v. Jeremy Lewis, 2023 U.S. Dist. LEXIS 224094 (W.D. N.C. Dec. 15, 2023). Lewis was convicted in 2013 of knowing and unlawfully use, carry or possess a firearm during and in relation to a crime of violence or drug trafficking crime and unlawful possession or transport of a firearm and/or ammunition by a convicted felon. The Court sentenced Lewis to 60 months and 30 months on the counts, respectively, for a total sentence of 90 months. Defendant's sentence was reduced to 84 months in 2015. The defendant began his original term of supervised released after his release from the BOP. The Court revoked that original term of supervised release on Jan. 24, 2020, due to new law violations. The defendant returned to supervision on Nov. 13, 2020. However, in Sept. 2021, the Probation Office submitted a petition alleging various new law violations incurred by defendant. The Government and the defendant entered into an agreed order in which Defendant did not contest his new law violations (Trafficking in Cocaine, Resisting Public Officer, Assault by Strangulation, Assault on a Female, and Assault on a Female). The agreed order called for the revocation of Lewis's supervision, the imposition of a sentence of 37 months on the 924(c) count, followed by an additional 10-month term of supervised release, the imposition of a concurrent sentence of 24 months imprisonment on the 922(g) count, and no further supervision on that count. The Court entered the order on June 14, 2022. Lewis moved under 18 USC 3582(c)(1)(A)(i) for a sentence reduction relying in large part on his medical history and his current medical condition - namely, that he suffered multiple strokes between 2016 and 2019, and he had a stroke-like event in July of this year, along with the fact he needs to be moved to a higher care facility. The Court found defendant's serious medical diagnosis and prognosis constituted the kind of "extraordinary and compelling" reasons that allow the Court to sentence him to time served and grant his release.

 

CR.RIS/REHABILITATION/SAFETY-VALVE/DISPARITY. The Southern District of California granted a CR.RIS motion in United States v. Karissa Courtway, 2023 U.S. Dist. LEXIS 226081 (S.D. Calif. Dec. 19, 2023). On Oct. 4, 2018, Courtway along with co-defendant Jaime Bautista Marquez attempted to enter the United States at the Andrade Port of Entry in Imperial County, California. Customs and Border Protection officers found 45.16 kilograms of methamphetamine, 5.2 kilograms of cocaine, and 703 grams of heroin in their car. The defendant was charged with three counts of importing methamphetamine, cocaine, and heroin, respectively, in violation of 21 USC 952, 960. On Feb. 7, 2019, defendant pled guilty to all three counts pursuant to a plea agreement. At the sentencing hearing on July 25, 2019, the Court reluctantly found defendant ineligible for safety-valve relief under 18 USC 3553(f). The Court agreed with both parties and operated under the understanding that the statute meant defendant would be eligible for safety-valve relief only if there was an absence of all three criminal history factors (A)-(C). Thus, the Court found defendant ineligible because it was uncontested that the defendant had a prior 3-point offense. See 18 USC 3553(f)(1)(B). The Court sentenced defendant to the mandatory minimum sentence of 120 months. The Court found defendant satisfied the exhaustion requirement and has demonstrated extraordinary and compelling reasons consistent with the applicable Sentencing Commission policy statement, and the Section 3553(a) factors support a sentence reduction. Defendant argued if she were sentenced today, she would be safety-valve eligible and the 120-month mandatory minimum sentence would not have been imposed. As a result, she argued the sentence she received is unusually long. The Court first concludes that it may properly consider sentencing disparities in analyzing defendant's extraordinary and compelling reasons. The Court then concluded that in combination with other factors, defendant's disparately long sentence is an extraordinary and compelling reason warranting sentence reduction.

 

CR.RIS/MEDICAL. The Southern District of New York granted a CR.RIS motion in the case of United States v. Charles Sayegh, 2023 U.S. Dist. LEXIS 226253 (S.D. N.Y. Dec. 20, 2023). Sayegh pled guilty to conspiracy to commit wire fraud in violation of 18 USC 1349 and was sentenced to twelve months and one day. On Sept. 14, 2023, Sayegh filed a motion for a sentence reduction under 18 USC 3582. Sayegh requested the Court permit him to serve the remainder of his sentence under home confinement because of excruciating back pain and related medical issues which have worsened during his term of imprisonment. After consideration of the written submissions, the Court granted the motion for a sentence reduction and modification. The Court ordered Sayegh be released to home confinement where he should remain until March 1, 2024. The Court was aware Sayegh had spinal fusion surgery in 2009 and suffered from chronic back pain. The Court was made aware that Sayegh overcame an opioid addiction and thus only takes ibuprofen to manage his back pain.  The Court learned that within a few days of beginning his prison term Sayegh's back pain significantly worsened in part because of the thin mattress he must sleep on in prison. In addition to his excruciating back pain Sayegh is experiencing worsening sciatica which has rendered his left leg entirely numb. The Court found there are extraordinary and compelling circumstances warranting a sentence modification to permit home confinement where Sayegh has access to a broader array of treatment options.

 

CR.RIS/MEDICAL. The District of Kansas granted a CR.RIS motion in the case of United States v. Clarence Bradley, 2023 U.S. Dist. LEXIS 226591 (D. Kan. Dec. 20, 2023). On March 13, 2017, Bradley pled guilty to Count 1 of the Indictment for conspiracy to distribute and possess with intent to distribute more than 50 grams of

methamphetamine. At the time of sentencing, the Sentencing Guidelines as applied to defendant provided for a total offense level of 39, a criminal history category of V, and a resulting advisory Guidelines range of 360 months to life imprisonment. On Dec. 17, 2018, the Court imposed a downward departure and variance and sentenced defendant to 150 months followed by 10-years of supervised release. Defendant has been diagnosed with Coronary Artery Disease and Peripheral Artery Disease. Based on defendant's health condition in April 2023 the BOP released defendant to serve the rest of his term in home confinement with required weekly check-ins at the Grossman Halfway House in Leavenworth, Kansas. The defendant requires immediate coronary care including but not limited to vascular surgery, but he is ineligible for Medicaid or Medicare while in BOP custody. Instead, the BOP is charged with providing his medical care and/or medical insurance. Defendant's medical providers have had a difficult time in coordinating health care coverage for his medical needs through the BOP and the BOP has denied him coverage for the procedures he requires. The defendant contended the BOP recently coordinated an appointment for medical care, but the BOP's designated physician referred him back to his previous physician due to his advanced medical condition and needs. He is 68 years old and asked the Court to grant him compassionate release so he can obtain the medical care he needs from his own medical providers negating the need to coordinate and seek approval for care from the BOP, and so he can become eligible for Medicare and/or Medicaid coverage. The court reduced his sentence to time served.

 

USSG AMENDMENT 821. The Southern District of Illinois granted a 821 Amendment case in United States v. Lucille Ippolito, 2023 U.S. Dist. LEXIS 227927 (S.D. Ill. Dec 21, 2023). Ippolito's filed a motion for a reduction of her sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10, making Amendment 821 retroactive. The parties agreed the defendant is eligible for a reduction under Part B of Amendment 821 which added USSG 4C1.1 (2023) to alter offense level calculations for some offenders with no criminal history points. Under Amendment 821 her offense level is reduced from 29 to 27. The result is her guideline sentencing range is lowered. Considering the lowered range the parties agreed a sentence reduction from 87 months to 70 months on each count was appropriate. Accordingly, the Court granted the motion and reduced her sentence from 87 months to 70 months or "time served," whichever was longer effective Feb. 1, 2024.

 

 

 

 

 

CR.RIS/REHABILITATION/DROPOUT. The District of Montana granted a CR/RIS motion in the case of United States v. Chad Beres, 2023 U.S. Dist. LEXIS 226895 (D. Mont. Dec. 20, 2023). On Sept. 6, 2022, Beres filed a motion to reduce his 181-month federal sentence for Conspiracy to Possess with Intent to Distribute Methamphetamine, Possession with Intent to Distribute Methamphetamine, and Possession of a Firearm in Furtherance of a Drug Trafficking Crime under 18 USC 3582(c)(1)(A). His projected release date is February 17, 2031. Beres argued his acquisition of a "drop tag" designation within the Bureau of Prisons and his risk of being reinfection with COVID-19 warrants a reduction in sentence. Ultimately, because Beres's participation in the "drop out" program is an extraordinary and compelling reason and 3553(a) factors weigh in favor of a sentence reduction his motion was granted. Beres argued his successful participation in the "drop out" program rises to the level of extraordinary and compelling under USSG 1B1.13(b)(5). Section 1B1.13(b)(5) states extraordinary and compelling reasons can exist for "[o]ther reasons" when "[t]he defendant presents any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those described in paragraphs (1) through (4)." This catch-all provision allows the Court discretion over what may qualify as extraordinary and compelling. Additionally, 1B1.13(d) allows the Court to consider "rehabilitation of the defendant while serving the sentence . . . in combination with other circumstances in determining whether and to what extent a reduction in the defendant's term of imprisonment is warranted." The Court acknowledged the "drop out" program is a lengthy process that requires the defendant to be fully vetted and debriefed by the relevant federal agencies. Beres's participation and commitment to this program is highly commendable and shows a genuine desire for rehabilitation. The defendant's sentence was reduced by 60 months resulting in a total sentence of 121 months imprisonment.

 

CR.RIS/F.R.CRIM.P. 37. The Southern District of California granted a CR.RIS motion in the case of United States v, Karissa Courtway, 2023 U.S. Dist. LEXIS 228655 (S.D. Calif. Dec. 22, 2023). Pending before the Court was Courtway's motion to reduce sentence pursuant to 18 USC 3582(c)(1)(A). The Court lacked jurisdiction to grant the motion due to defendant's pending appeal, see Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct. 400, 74 L. Ed. 2d 225 (1982) ("The filing of a notice of appeal . . . confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."), but on Dec. 19, 2023, the Court entered an indicative ruling stating that it will grant defendant's motion if the Ninth Circuit remanded for such purpose. See Fed. R. Crim. P. 37(a) ("If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may . . . state . . . that it would grant the motion if the court of appeals remands for that purpose . . . ."). United States v. Courtway, 2023 U.S. Dist. LEXIS 226801 (S.D. Calif. Dec. 19, 2023). On Dec. 21, 2023, the Ninth Circuit entered and served an order on the Court dismissing defendant's appeal, which stated: "This order served on the district court acts as the mandate of this court." Accordingly, jurisdiction is revested in this Court. Defendant has filed an unopposed motion to effect the indicative ruling. In its indicative ruling, the Court stated: [I]f the Ninth Circuit remands . . . for the purpose of considering Defendant's motion, the Court will grant [the] motion to reduce sentence and modify and reduce the length of Defendant's custodial sentence to time served as of the date this Court resumes jurisdiction . . . . All other terms of the original judgment . . ., including the term of supervised release, will remain unchanged. . . . Defendant may move to effect this indicative ruling following the Ninth Circuit's remand to this Court. See Fed. R. Crim. P. 37(c) . . . . Accordingly, for the reasons stated in the Court's Indicative Ruling, the Court granted defendant's motion to reduce sentence and ordered: Defendant's custodial sentence is modified and reduced to time served as of the date this Order.

 

2255/IAC. The Northern District of Georgia granted in part a 2255 motion in Timothy Barnes v. United States, 2023 U.S. Dist. LEXIS 227154 (N.D. Ga. Dec. 21, 2023). Barnes filed a 28 USC 2255 motion to vacate his 2020 guilty plea conviction and sentence for possession with intent to distribute methamphetamine in violation of 21 USC 841(a)(1), and filed a construed motion for leave to reopen his appeal and a motion to submit objections. The Magistrate Judge has issued his Report and Recommendation (R&R) recommending the 2255 motion be granted in part—such that Movant be granted an out-of-time appeal with respect to his Ground 3—but that the motion be otherwise denied. Movant raised three grounds for relief. In Ground 1, he argued this Court erred in sentencing him as a "career offender" under USSG 4B1.1 because his prior state convictions do not qualify as crimes of violence under the guideline. In Ground 2, he contended his trial counsel was ineffective for failing to object to the application of the career offender enhancement. In Ground 3 he contended his counsel was ineffective for failing to advise him of his appeal rights and for abandoning his appeal. The Magistrate Judge determined that Movant's Ground 3 raised a colorable claim his counsel improperly abandoned his appeal and noted the Government acknowledged that in the interests of judicial efficiency the Court should grant Movant an out-of-time appeal. The Magistrate Judge recommended Movant be granted relief with respect to Ground 3. The Magistrate Judge further recommended Grounds 1 and 2 be held in abeyance pending the resolution of his appeal. For the reasons stated in the R&R, the Court granted the 28 USC 2255 motion in part as to Ground 3 and denied in part as to Grounds 1 and 2 without prejudice to Movant raising those claims (or any other claims) in a 2255 motion filed after Movant's direct appeal is complete.

 

2255/IAC. The District of Delaware the granted a 2255 motion in the case of Joseph Thomas v. United States, 2023 U.S. Dist. LEXIS 227400 (D. Del. Dec. 21, 2023). Thomas filed a Motion pursuant to 28 USC 2255. The United States filed an Answer asserting the Court should deny Claims Two and Three but grant relief on Claim One and issue an order for Movant to be resentenced without using an expunged state conviction when calculating his criminal history score. Movant filed a reply arguing the Court should also grant relief on Claims Two and Three. The Court granted relief on Claim One and entered an Order for Movant to be resentenced after a proper recalculation of his criminal history score. The Court denied the Motion in all other respects without holding an evidentiary hearing. Claims One through Three assert the following ineffective assistance of counsel arguments: (1) defense counsel should have objected to the use of Movant's 2016 New Jersey conviction for possession of marijuana in the PSR's calculation of his criminal history score because a New Jersey law enacted in 2021 decriminalized marijuana possession and automatically expunged his 2016 conviction; (2) defense counsel should have objected to the PSR's two-point enhancement under USSG 201.1(b)(1) for possessing a dangerous weapon (relating to Count One) on the basis that the drugs and weapons were not located in the same place; and (3) defense counsel should have objected to the PSR's four-point enhancement under USSG 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony (relating to Count Two) on the basis that the drugs and weapons were not located in the same place. On Oct. 3, 2016, Movant pled guilty in the Superior Court of New Jersey to possessing more than 50 grams of marijuana in violation of N.J.S.A. 2C:35-10(a)(3). Thereafter, in 2021, the [State of New Jersey] Legislature adopted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) [...], a sweeping law that largely decriminalizes the simple possession of cannabis in New Jersey and redresses many lingering adverse consequences of certain previous marijuana offenses. Among other things, CREAMMA signifies that such prior marijuana offenses must be deemed not to have occurred and directs, by operation of law, their automatic expungement from an offender's criminal record. State v. Gomes, 288 A.3d 825, 827 (N.J. 2023). The Government confirmed Movant's 2016 New Jersey marijuana conviction was automatically expunged under CREAMMA prior to his Feb. 22, 2022, sentencing.

 

APPEAL/2255/SENTENCE. The Fourth Circuit remanded for resentencing United States v. Melchor Calderon, 2023 U.S. App. LEXIS 33452 (4th Cir. Dec. 18, 2023). In 2014, Calderon was convicted of conspiracy to commit Hobbs Act robbery in violation of 18 USC 1951; possessing a firearm during a crime of violence in violation of 18 USC 2, 924(c)(1)(B)(i); conspiracy to distribute cocaine in violation

of 21 USC 846; and kidnapping in violation of 18 USC 2, 1201(a). Calderon filed

a 28 USC 2255 motion to vacate his 924(c) conviction and the district court granted

the motion, vacated Calderon’s conviction and sentence for the 924(c) offense, and

scheduled a resentencing hearing. Calderon appealed the 242-month sentence that the court imposed on resentencing. He challenged the procedural and substantive reasonableness of the sentence and argued that Government committed prosecutorial misconduct in advocating for a particular sentence, and contended that vacatur of the sentence is warranted pursuant to the doctrine of cumulative error. The court vacated and remanded for resentencing. The district court imposed a sentence over 70 months above the high end of the advisory Guidelines range, citing only the egregious nature of Calderon’s offense conduct. While Calderon’s conduct was abhorrent the court failed to explain how that conduct justified the extent of the variance or otherwise offer a basis for the degree of the deviation. Additionally, the court briefly stated it had considered Calderon’s mitigating arguments and the 3553(a) factors, but did not discuss whether or how those arguments and factors influenced its sentencing calculus. The court concluded that the district court procedurally erred by failing to adequately explain the sentence.

 

APPEAL/BRADY/GIGLIO. The Fifth Circuit reversed and remanded United States v. Robert Brumfield, 2023 U.S. App. LEXIS Case No. 22-30238 (5th Cir. Dec. 23, 2023). In an appeal before the Fifth Circuit, two defendants, Robert Brumfield and Jeremy Esteves, were convicted for their roles in a 2013 armed truck robbery in New Orleans. They challenged the district court's denial of their motion for a new trial. The motion was based on their claim the Government suppressed evidence related to the credibility of two witnesses which they argued violated the rules established in Brady v. Maryland and Giglio v. United States. Brumfield separately claimed the Government failed to correct false testimony and appealed his sentence. The Court found the new evidence was not material in Brumfield's case and his claim of false testimony was without merit, and his sentence was both procedurally and substantively reasonable. However, the Court concluded the new evidence was material as to Esteves and his Brady claim required further consideration by the district court. Consequently, the Court affirmed in part, reversed in part, and remanded to the district court for further consideration of Esteves’s Brady claim.

 

USSG AMENDMENT 821. The Southern District of New York granted a USSG 821 Amendment case in United States v. Seferino Mendoza, 2023 U.S. Dist. LEXIS 227818 (S.D. N.Y. Dec. 21, 2023). On Jan. 13, 2010, the defendant was sentenced principally to a term of 135 months on Counts 1 and 2, and 84 consecutive months on Count 3, for a total of 219 months. Defendant filed two motions for a sentence reduction (compassionate release) pursuant to 18 USC 3582(c)(1)(A)(ii). The Court denied these motions for reasons stated in its Orders. On Oct. 10, 2023, Mendoza moved for a sentence reduction under Amendment 821 to the Sentencing Guidelines. The Court directed the Government to respond to the motion by Dec. 4, 2023, giving the defendant the opportunity to reply by Dec. 18, 2023. A Supplemental PSR prepared by Probation reports that under Amendment 821 the defendant is eligible for a reduction in his Criminal History Category ("CHC") from CHC III to CHC II, with a revised guideline range of 121 to 151 months plus 84 consecutive months. At the bottom of the revised guideline range his term of imprisonment is 205 months. The Supplemental PSR noted that Mendoza's projected release premised upon his unreduced sentence would be Feb. 3, 2024. Amendment 825 to the Guidelines amends Amendment 821, effective Nov. 1, 2023, to include in the "Instructions" to Amendment 821 that "(2) The court shall not order a reduced term of imprisonment based on Part A or Part B, Subpart 1 of Amendment 821 unless the effective date of the court's order is Feb. 1, 2024, or later." Because of the effective date provision, the application of a reduction pursuant to Amendment 821, the Court adjusted defendant's Guideline's calculation to TOL 31, CHC II and his Guideline's range to 205 to 235 months and effective Feb. 1, 2024, granted the reduction to 205 months imprisonment.

 

USSG AMENDMENT 821. The Southern District of Florida granted a 821 Amendment case in United States v. Zuluaga, 2023 U.S. Dist. LEXIS 214955 (S.D. Fla. Dec. 21, 2023). On April 23, 2019, a federal grand jury indicted Zuluaga and his codefendants with conspiracy to possess with intent to distribute a controlled substance. On March 14, 2022, pursuant to a plea agreement and factual proffer, Zuluaga pled guilty to Count One—specifically, to conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 46 USC 70506(a) and 21 USC 960(b)(1)(B). The Probation Office prepared a pretrial services report which determined that Zuluaga had a total offense level of 27, a criminal history category of I, and an advisory guideline range of 70-87 months. On May 25, 2022, the Court sentenced Zuluaga to 60 months in prison followed by two years of supervised release. Since Zuluaga was sentenced the Sentencing Commission issued a sentencing adjustment for certain zero-point offenders, which provides, in relevant part, for "a decrease of two levels from the offense level . . . for offenders who did not receive any criminal history points . . . and whose instant offense did not involve specified aggravating factors". Zuluaga sought retroactive application of Amendment 821 to the Court's judgment sentencing him to 60 months and two years of supervised release. Zuluaga's was eligible for a sentence reduction pursuant to Amendment 821. He qualified for the adjustment for zero-point offenders because he meets all the criteria. In addition, a reduction in his sentence is consistent with the applicable policy statements. The Court initially imposed a sentence of 60 months, and the bottom of the amended guideline range is 57 months so the Court was able to reduce his sentence, but only to 57 months.

 

USSG AMENDMENT 821. The Southern District of West Virginia granted a 821 Amendment motion in United States v. Gregory Kincaid, 2023 U.S. Dist. LEXIS 226707 (S.D. W.Va. Dec. 20, 2023). On Nov. 1, 2023, a multi-part criminal history amendment designated as Amendment 821 in Appendix C to the Guidelines Manual became effective. Part A of the amendment addresses status points decreasing them by one point for individuals with seven or more criminal history points and eliminating status points for those with six or fewer criminal history points. Subpart 1 of Part B creates a new USSG 4C1.1 guideline that provides a decrease of two offense levels for "Zero-Point Offenders" (those with no criminal history points) whose offense did not involve specified aggravating factors. Parts A and B, subpart 1 of the criminal history amendment both have retroactive effect. Recognizing that the courts, probation officers, and the Bureau of Prisons would need time to process motions and prepare release plans, the Commission decided to require that any reduction based on retroactive application of Amendment 821 not be effective until Feb. 1, 2024, or later. (See Amendment 825 to USSG1B1.10, effective Nov. 1, 2023). Accordingly, an order reducing a term of imprisonment based upon retroactive application of Amendment 821 must have an effective date of Feb. 1, 2024, or later. By previous Order entered on Nov. 27, 2023, this case was designated for Expedited consideration pursuant to the Court's standing Order Adopting Procedures for Petitions Seeking Retroactive Application of the 2023 Criminal History Amendments. The Court received and considered the original Presentence Investigation Report (PSR), original Judgment and Commitment Order and Statement of Reasons and addendum to the PSR from the Probation Office, and received materials submitted by the parties on the issue. The Court considered the applicable factors under 18 USC 3553(a), consistent with 3582(c)(2), and public safety. The United States did not object to the reduction. The Court ordered Kincaid's Criminal History Category be reduced from Category VI to Category V for a new advisory guideline range of 30 months to 37 months. It further ordered Kincaid's previous sentence be reduced to 30 months with credit for time served to date effective Feb. 1, 2024.

 

USSG AMENDMENT 821. The Southern District of Illinois granted a 821 Amendment motion in United States v. Vincente Jackson, 2023 U.S. Dist. LEXIS 226993 (S.D. Ill. Dec. 20, 2023). Jackson filed a Motion pursuant to 18 USC 3582(c) and USSG 1B1.10 [hereinafter Guidelines], making Amendment 821 retroactive. The Government agreed to the Motion. The parties agree the defendant is eligible for a reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023) and concerns criminal history points ("status points") awarded because a defendant was under a criminal sentence when he committed his offense of conviction. Jackson's total offense level at sentencing was 19 and his criminal history category was II, which provided for a sentencing range of between 33 and 41 months. The Court imposed a sentence of 33 months at the lower end of the Guidelines range. Pursuant to Amendment 821 Jackson's 2 status points are reduced to 1 and his criminal history category is reduced from II to I. The result is his guideline sentencing range is lowered to 30 to 37 months. Considering the lowered range the parties agreed that a sentence reduction from 33 months to 30 months on all counts of conviction was appropriate.

 

APPEAL/SENTENCE/SAFETY VALVE. The Seventh Circuit remanded for resentencing United States v. Senque Bingham, 2023 U.S. App. LEXIS 33542 (7th Cir. Dec. 19, 2023). The Seventh Circuit reviewed the sentencing of Bingham, who plead guilty to drug offenses. Bingham requested "safety-valve" relief under 18 USC 3553(f) at sentencing, meaning he sought a sentence below the statutory minimum because he met certain criteria, including not having possessed a firearm in connection with his offense. However, the district court found Bingham ineligible for safety-valve relief because he fulfilled the criteria for a firearms enhancement under USSG 2D1.1(b)(1) which applies if a dangerous weapon was possessed in connection with the offense. The appellate court found the district court had erroneously conflated the scope of the safety-valve no-firearms condition with the broader scope of the Sentencing Guidelines firearms enhancement. The court clarified the safety-valve no-firearms condition is narrower than the firearms enhancement as the latter may apply even if a co-conspirator's possession of a firearm was reasonably foreseeable to the defendant, but not induced by them. The court held eligibility for a firearms enhancement does not automatically disqualify a defendant from safety-valve relief. Because the district court's error in conflating these two provisions could have affected its sentencing decision, the Court could not determine whether the error was harmless. Thus, the court vacated Bingham's sentence and remanded to the district court for resentencing.

 

APPEAL/SENTENCE/GUIDELINE RANGE. The Seventh Circuit vacated and remanded for resentencing United States v. Rickey Claybron, 2023 U.S. App. LEXIS 33625 (7th Cir. Dec. 19, 2023). Claybron was convicted on counts of Hobbs Act robbery and firearm-related offenses. He appealed his sentence arguing that Hobbs Act robbery did not qualify as a predicate crime of violence under 18 USC 924(c) and a retroactive amendment in the Sentencing Guidelines should have been applied to lower his criminal history category and consequently his sentencing range. The Seventh Circuit upheld Claybron's firearm-related convictions, ruling that Hobbs Act robbery does qualify as a crime of violence under 924(c). The court agreed with his argument about the retroactive amendment to the Sentencing Guidelines. It ruled the amendment would reduce his Guidelines range and it was retroactive, Claybron's sentence on the robbery counts should be reconsidered. The court found remand for resentencing was proper under 28 USC 2106 given the lower Guidelines range he would have had if the amendment had been in effect at sentencing. Consequently, while Claybron's convictions and sentences under 18 USC 924(c) were affirmed the sentence imposed on his convictions for the Hobbs Act robbery counts was vacated and remanded for resentencing in light of the Sentencing Guidelines amendments.

 

APPEAL/SENTENCE. The Fifth Circuit remanded United States v. Adam Schultz, 2023 U.S. App. LEXIS 33802 (5th Cir. Dec. 20, 2023). Between Nov. 2020 and Feb. 2021, Schultz and his co-conspirators engaged in a scheme to fraudulently obtain vehicles using stolen login credentials from car dealerships. They purchased and paid for these vehicles with the dealerships' money and then used the purchase documents to pick up the vehicles. Schultz plead guilty to one count of conspiracy to commit wire fraud. He was sentenced to 120 months. Schultz's appeal was based on two claims: first, that his April 2021 offense of being stopped while driving a stolen vehicle should have been classified as relevant conduct rather than criminal history, and second, he should have received a reduction for a partially completed offense under the United States Sentencing Guidelines. He argued the April 2021 offense shared similarities with the offense he was convicted for and that the partially completed offense reduction should apply because he intended a larger offense for which he was not charged. The court rejected both of Schultz's arguments. The court reasoned the April 2021 offense was not similar enough to the offense of conviction to be classified as relevant conduct, and the partially completed offense reduction did not apply because Schultz had completed all elements of the charged crime. The court remanded the case to the district court to clarify a discrepancy between the oral pronouncement and written judgment whether the sentence would run concurrently or consecutively with any sentences imposed in his state cases.

 

APPEAL/SENTENCE/MITIGATION. The First Circuit vacated and remanded for resentencing United State v. Shaun Walker, 2023 U.S. App. LEXIS 33641 (1st Cir. Dec. 19, 2023). Walker appealed his 36-month sentence for participating in a failed Hobbs Act conspiracy to rob a home business. Walker raised four objections to his sentence including challenges to enhancements for economic loss and possession of dangerous weapons and denials of reductions for incomplete conspiracy and mitigating role. The First Circuit found no error in the enhancements for economic loss and dangerous weapon possession as well as the denial of incomplete conspiracy reduction. However, the Court vacated and remanded for resentencing on the issue of the mitigating role reduction. The Court was unable to affirm the district court's denial of the reduction due to a lack of its explanation, and was unable to conclude any error in the district court's application was harmless. The case was remanded to reevaluate Walker's role in the conspiracy.

25 views0 comments

Recent Posts

See All

SAMARITAN NEWSLETTER – 05-20-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with a

SAMARITAN NEWSLETTER – 05-14-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-117 The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with ap

Comments


bottom of page