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SAMARITAN NEWSLETTER – 01- 22- 2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS II LLC

P.O. Box 9244

Springfield, MO 65801-9244


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. This newsletter is published on our WEBSITE and 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/FAMILY CIRCUMSTANCES The District of Connecticut granted a CR.RIS motion in United States v. Derrick Stokes, 2024 U.S. Dist. LEXIS 9845 (D. Conn. Jan. 19, 2024). Stokes is currently at FCI Danbury and filed the instant motion for compassionate release. Stokes argued his responsibilities as caregiver to his disabled mother and sister, the heightened severity of his sentence due to the COVID-19 pandemic, and his extraordinary rehabilitation warrant a reduction of sentence to time served under 18 USC 3582(c)(1)(A)(i). Stokes is the only available caregiver for his physically disabled mother and his intellectually disabled sister who live together in Connecticut. USSG 1B1.13 provides that "the incapacitation of the defendant's parent" or "another immediate family member" may constitute grounds for compassionate release "when the defendant would be the only available caregiver" for that parent or family member. USSG 1B1.13(b)(3)(C) and (D). Stokes and his mother have other family members who live in Connecticut but none are "available" to serve in a caregiving capacity because of their work and familial obligations and their own health issues. Stokes's motion for a sentence reduction was granted and his sentence was reduced to time served.

 

CR.RIS/DISPARITY/SAFETY VALVE. The Southern District of New York granted a CR.RIS motion in United States v. Galdino Garcia Nava, 2024 U.S. Dist. LEXIS 10187 (S.D. Calif. Jan. 19. 2024). Garcia Nava plead guilty to knowingly and intentionally importing over 500 grams of methamphetamine, over 1 kilogram of heroin, and 40 grams of fentanyl. On Oct. 2, 2020, the Court sentenced him to 120 months followed by five years of supervised release. Because the sentencing took place prior to United States v. Lopez, 998 F.3d 431 (9th Cir. 2021), the Court did not consider Garcia Nava eligible for the safety valve, therefore, could not vary below the statutory minimum of 120 months. Garcia Nava has finished the coursework towards his GED and put over 700 hours into studying to be an electrician. He has served about 39 months of his 120-month sentence. The Court "retains substantial discretion to determine what constitutes 'extraordinary and compelling reasons'" pursuant to USSG 1B1.13(b)(5), under which "a court may conclude that 'any . . . circumstance or combination of circumstances that, when considered by themselves or together . . . are similar in gravity to" the reasons explicitly enumerated. Garcia Nava moved for compassionate release primarily because if he had been sentenced after Lopez, 998 F.3d 431 (9th Cir. 2021), he would have been safety-valve eligible and the Court would have sentenced him below the mandatory minimum. He pointed out his sentence is unusually long compared to other offenders with similar profiles. He contends this disparity, independently or combined with his significant rehabilitation, his medical conditions, and the harsher conditions of confinement due to COVID-19 amount to extraordinary and compelling reasons. The Court found that collectively these circumstances constitute extraordinary and compelling reasons. Defendant’s sentence was reduced to time served.

 

CR.RIS/MEDICAL. The Southern District of New York granted a CR.RIS motion in United States v. Anthony Bari, 2024 U.S. Dist. LEXIS 8462 (S.D. N.Y. Jan. 16, 2024). Extraordinary and compelling reasons warrant granting the Motion. The U.S. Sentencing Commission's policy statement regarding compassionate release states that "extraordinary and compelling reasons exist" when (i) "[t]he defendant is suffering from a terminal illness" such as "metastatic solid-tumor cancer[.]" The Court finds extraordinary and compelling reasons exist because Bari has been diagnosed with Stage IV rectal cancer which has metastasized to his lungs. Bari's medical prognosis is "poor"; he is projected to have fewer than 12 months to live. He also suffers from post-traumatic stress disorder and bipolar disorder. Bari's terminal illness warrants his release. A sentence reduction is also consistent with the sentencing factors set forth in 18 USC 3553(a). Bari's offense — planting a fake bomb at a bank and attempting to rob another bank at apparent gunpoint — was undoubtedly very serious. Compassionate release recognizes that some defendants, even those who have committed terrible crimes should be allowed to die with dignity surrounded by loved ones. Bari is such a defendant. Unlike many defendants, Bari has the support of his wife who has indicated she is prepared to arrange palliative care for Bari in a rental home beginning on Feb. 1, 2024.

 

CR.RIS/MEDICAL. The Middle District of Florida granted a CR.RIS motion in United States v. Mary Rodriguez, 2024 U.S. Dist. LEXIS 7375 (M.D. Fla. Jan. 16, 2024). This case is before the Court on the motion of the Government on behalf of the Director of the Federal Bureau of Prisons to Reduce the Term of Imprisonment to Time Served as to defendant Rodriguez. In the motion, the Government indicates the defendant has been diagnosed with stage IV small cell carcinoma with metastatic disease to her liver, brain, and skull. The Government notes she is considered terminally ill with a poor prognosis, a life expectancy of less than 18 months, and an end-of-life trajectory. The Government seeks a reduction in sentence to time-served pursuant to 18 USC 3582(c)(1)(A)(i). The Court granted the motion. Rodriguez is 66 years old, and was sentenced on Nov. 1, 2019, to a 135-months after pleading guilty to one count of conspiracy to distribute heroin and fentanyl in violation of 21 USC 846, 841(b)(1)(C), and 851; one count of distribution of heroin in violation of 21 USC 841(a)(1), (b)(1)(C), and 18 USC 2; and two counts of distribution of heroin and fentanyl in violation of 21 USC 841(a)(1), (b)(1)(C), and 18 USC 2. She is currently incarcerated at FMC Carswell in Fort Worth, Texas, with an anticipated release date of Aug. 20, 2028. The USSG policy statement retained a catch-all provision which now provides that "extraordinary and compelling reasons" for compassionate release exist when "any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons" enumerated by the policy statement, "are similar in gravity to those" enumerated reasons. USSG 1B1.13(b)(5). Time reduced to time served.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. James Keel, 2024 U.S. Dist. LEXIS 9557 (S.D. Ill. Jan. 18, 2024). Keel plead guilty to Possession with Intent to Deliver Cocaine in violation of 21 USC 841(a)(1), (b)(1)(B)(iii) and 851 (Count 1) and Felon in Possession of a Firearm in violation of 18 USC 922(g)(1) and 924(a)(2) (Count 2). On May 12, 2020, he was sentenced to 210 months on Count 1 and 120 months on Count 2, to run concurrently. Keel filed a motion for a reduction of his criminal sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10. Amendment 821 to the Guidelines relates to criminal history and became effective on Nov. 1, 2023. 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 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. Amendment 821 is retroactive, but a court may not order the release of a defendant prior to Feb. 1, 2024. Keel's total offense level at sentencing was 34 and his criminal history category was IV (based upon 7 criminal history points), which yielded a Guidelines sentencing range of 210-262 months imprisonment. Under Amendment 821, Keel's criminal history points are reduced to 5 and his criminal history category is reduced to III, resulting in a lowered Guidelines range of 188-235 months. Keel was eligible for a sentence reduction. The Court granted the motion and reduced Keel's sentence to 188 months effective on Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Derek Murray, 2024 U.S. Dist. LEXIS 8011 (S.D. Ill. Jan. 16, 2024). Murray filed a motion for reduction of his criminal sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10. The parties agreed the defendant is eligible for a reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023) which concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's two status points are reduced to one status point and his criminal history category is reduced from V to IV. The result is his guideline sentencing range is lowered. Considering the lowered guideline range, the parties agreed that a sentence reduction from 156 months to 136 months on all counts of conviction was appropriate. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced the defendant's sentence from 156 months to 136 months effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Steven Gibson, 2024 U.S. Dist. LEXIS 7989 (S.D. Ill. Jan. 16, 2024). Gibson filed a motion for reduction of his criminal sentence pursuant to 18 USC 3582(c)(2) and USSG1B1.10. The parties agreed the defendant is eligible for reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023), concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's two status points are reduced to one status point and his criminal history category is reduced from VI to V. The guideline sentencing range was lowered. The parties agreed it is appropriate to reduce the defendant's sentence from 149 months and 13 days (the low end of the guideline range minus time served on related state cases) to 138 months and 13 days on each count. The Court granted the motion and reduced the sentence from 149 months and 13 days to 138 months and 13 days on each count effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Devale Fredericks, 2024 U.S. Dist. LEXIS 7997 (S.D. Ill. Jan. 16, 2024). Frederick filed a motion for a reduction of his criminal 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 A of Amendment 821 which amended USSG 4A1.1(e) (2023), concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's two status points are reduced to one status point and his criminal history category is reduced from VI to V, and his guideline sentencing range was lowered. Considering this lowered range, the parties agreed that a sentence reduction from 140 months to 83 months on all counts of conviction was appropriate. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced the sentence from 140 months to 83 months or "time served," whichever is longer on all counts effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Trevor Edwards, 2024 U.S. Dist. LEXIS 7991 (S.D. Ill. Jan. 16, 2024). Edwards filed a motion for a reduction of his criminal sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10. The parties agreed defendant is eligible for a reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023), concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's two status points are reduced to 0 status points and his criminal history category is reduced from II to I. The guideline sentencing range was lowered. Considering this lowered range, the parties agreed that a sentence reduction from 33 months to 30 months on all counts of conviction was appropriate. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced the sentence from 33 months to 30 months or "time served," whichever is longer on all counts effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Nicholas Cuprisin, 2024 U.S. Dist. LEXIS 8000 (S.D. Ill. Jan. 16, 2024). Cuprisin filed a motion for a reduction of his criminal sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10. The parties agreed the defendant was eligible for a reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023), and concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's two status points are reduced to one status point and his criminal history category is reduced from V to IV. The result is his guideline sentencing range was lowered. Considering this lowered range, the parties agreed that a sentence reduction from 71 months to 57 months on all counts of conviction is appropriate. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced the sentence from 71 months to 57 months or "time served," whichever is longer on all counts effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Kimberly Atkins, 2024 U.S. Dist. LEXIS 7990 (S.D. Ill. Jan. 16, 2024). Atkins filed a motion for a reduction of her criminal sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10, making Amendment 821 retroactive. The parties agree 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 the defendant's offense level is reduced from 25 to 23. The result is her guideline sentencing range is lowered. Considering this lowered range, the parties agreed that a sentence reduction from 57 months to 46 months on all counts is appropriate. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced defendant's sentence from 57 months to 46 months or "time served," whichever is longer on each count effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Answar Rollins 2024 U.S. Dist. LEXIS 7991 (S.D. Ill. Jan. 16, 2024). Rollins filed a motion for a reduction of his criminal sentence pursuant to 18 USC 3582(c)(2) and USSG 1B1.10. The parties agreed defendant is eligible for a reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023), concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's two status points are reduced to 0 status points and his criminal history category was reduced from IV to III and his guideline sentencing range was lowered. Considering this lowered range, the parties agreed a sentence reduction from 151 months to 101 months on all counts is appropriate. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced the sentence from 151 months to 101 months or "time served," whichever is longer on all counts effective Feb. 1, 2024.

 

APPEAL/SENTENCING. The Fourth Circuit vacated and remanded for full resentencing in United States v. Martrey Newby, 2024 U.S. App. LEXIS 1284 (4th Cir. Jan. 19, 2024). Newby has been incarcerated for more than a decade and is scheduled to be released in 2028. When initially sentenced the district court included discretionary conditions of supervised release in its written judgment that were not orally announced during the sentencing hearing. That was error. Years later the district court modified Newby’s sentence under the First Step Act of 2018, and the court’s amended judgment purported to “carr[y] forward” those same conditions. Newby appealed urging this Court to remand for another round of sentencing. The court concluded that Newby’s challenges are properly before the court. On the merits, the court vacated Newby’s sentence and remand for a full resentencing. In 2008, Newby was convicted of six non-violent drug crimes. On top of 425 months of imprisonment, his sentence included a 10-year term of supervised release. During the post-trial sentencing hearing the district court announced various discretionary conditions of supervised release. In its written judgment memorializing that sentence the court purported to add several more such conditions. Newby appealed his sentence on the grounds unrelated to this proceeding which were rejected in an unpublished per curiam opinion. Almost a decade later, Newby filed a pro se motion seeking a sentence reduction under the First Step Act. The district court appointed counsel and ordered a revised presentence investigation report and Newby objected to the report’s advisory Guidelines range, identifying an error in how the original judgment described one of his offenses of conviction. The district court concluded the “appropriate remedy” was to correct the clerical error under F.R.Crim.P. 36. After doing so, the court—applying the First Step Act—adjusted Newby’s Guidelines range and reduced his sentence to 294 months and four years of supervised release. The court’s resentencing order concluded: “Except as expressly modified herein, the amended judgment carries forward all terms of ” the previous one. The amended judgment contains the same discretionary conditions of supervised release that were not announced orally at Newby’s sentencing hearing. The court vacated and remanded.

 

APPEAL/SENTENCING. The First Circuit vacated and remanded United States v. Luis Colon-Cordero, 2024 U.S. App. LEXIS 1300 (1st Cir. Jan. 19, 2024). Colón-Cordero was convicted of violating the terms of his supervised release and charged with new criminal conduct including the possession of a firearm. The district court sentenced Colón-Cordero to an upwardly variant sentence for his new criminal conduct and a maximum term of imprisonment for violating his supervised release, which were to run consecutively. Colón-Cordero appealed challenging the sentences as unreasonable. The appeals court vacated and remanded the case for resentencing. The court held the district court had not adequately justified or explained its upward variance from the sentencing guidelines in the new criminal conduct case. Specifically, the appeals court found that the district court had not adequately engaged with the mitigating impact of Colón-Cordero's intellectual disability, despite this being a primary argument presented by his defense. In the case of the revocation sentence the appeals court held that the district court's finding that Colón-Cordero was "constantly engaging in the illegal use of controlled substances" during his supervised release period was clearly erroneous. The record showed Colón-Cordero had only tested positive for drug use twice during his release period contradicting the district court's characterization of his drug use as constant. The court concluded this error may have affected the sentencing outcome. The case was remanded for resentencing to a different judge.

 

APPEAL/JAIL CREDIT/WITHDRAW PLEA. The First Circuit vacated and remanded United States v. Samuel Arce-Ayala, 2024 U.S. App. LEXIS 1085 (1st Cir. Jan. 17, 2024). Arce-Ayala was a leader of a drug trafficking organization pled guilty to federal charges related to drug trafficking and firearm possession. He believed, based on his plea agreement, and statements made by his lawyer and the district court, his federal sentence would reflect "credit" for the prison time he served for related non-federal criminal convictions. After entering his guilty plea, Arce-Ayala discovered such credit could not reduce his sentence below the applicable mandatory minimum terms of imprisonment. He moved to withdraw his plea before sentencing arguing he didn't understand the consequences of his guilty plea, but the district court denied the motion. The First Circuit vacated Arce-Ayala's criminal judgment of conviction. The court held Arce-Ayala did not have sufficient "knowledge of the consequences of the guilty plea" because he was told by his defense counsel and the district court that the time he spent in Commonwealth custody would be credited toward his federal sentence. He did not know that the mandatory minimum prison sentence set an inviolable floor as to the amount of credit he could receive for time served on the Commonwealth sentences. As such, his plea violated a "core concern" of Rule 11, which requires a defendant to understand the consequences of a guilty plea and must be set aside. The case was remanded back to the district court for further proceedings.

 

APPEAL/1983/EIGHTH AMENDMENT. The Sixth Circuit vacated and remanded Devin McGuire v. London County, Tennessee, 2024 U.S. App. LEXIS 1318 (6th Cir. Jan. 19, 2024). McGuire is an inmate housed in Loudon County Jail who filed

a complaint alleging the jail and its correction officers violated his Eighth Amendment rights. The district court dismissed McGuire’s case under 28 USC 1915(e)(2)(B) and 1915A for failure to state a claim. The court affirmed in part, vacated in part, and remanded to the district court. McGuire, proceeding pro se, sued the Loudon County Jail and correction officers Brockwell, Ward, and Myers, under 42 USC 1983, alleging excessive force. McGuire initiated his suit using a complaint form. On remand, the district court should consider whether all of McGuire’s filings read together raise individual capacity claims against all defendants and whether those claims satisfy Federal Rule of Civil Procedure 12(b)(6).

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