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SAMARITAN NEWSLETTER- 01-29-2024

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. Have your family check our website – SAMARITANPROJECTS.COM. 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/MEDICAL/DIRECTOR FILED. The District of North Dakota granted a CR.RIS motion in United States v. Gerald Johnson, 2024 U.S. Dist. LEXIS 13727 (D. N.D. Jan. 25, 2024). The Director of the Federal Bureau of Prisons ("BOP"), moved to reduce the sentence of Gerald Jerome Johnson to time served under 18 USC 3582(c)(1)(A)(i). 18 USC 3582(c)(1)(A) allows the Court to modify a term of imprisonment by motion of the Director of the BOP. In considering a motion to reduce sentence, the Court must assess whether after considering the 18 USC 3553(a) factors "extraordinary and compelling reasons" exist that warrant a sentence reduction, and if a sentence reduction is consistent with the Sentencing Commission's applicable policy statement. Johnson is 70 years old and has been diagnosed with squamous cell carcinoma with lymph node involvement. He is considered terminally ill with a poor prognosis, a life expectancy of less than 12 months, and an end-of-life trajectory. There are "extraordinary and compelling

 

reasons" that warrant a sentence reduction under 18 USC 3582(c)(1)(A) and USSG

1B1.13. Johnson is suffering from a fatal medical condition that requires specialized medical care that is difficult to provide in a prison setting. These circumstances satisfy USSG 1B1.13(b)(1)(A) and (B). The Court carefully considered each of the 18 USC 3553(a) sentencing factors and concluded those factors support compassionate release. Sentence reduced to time served.

 

CR.RIS/MEDICAL. The Eastern District of Michigan granted a CR.RIS motion in United States v. Megal Barnett. 2024 U.S. Dist. LEXIS 10293 (E.D. Mich. Jan. 19, 2024). Barnett is a 50-year-old man who was sentenced to 100 months followed by a three-year term of supervised release for three counts of bank robbery. The motion sought compassionate release from prison based on the claim Barnett is suffering from a serious terminal illness. Both parties are in accord that Barnett's Stage IV colon cancer with developed liver metastases is a terminal illness and that such a condition meets the definition of "extraordinary and compelling circumstances." USSG 1B1.13(b)(1)(A).  In Oct. 2023, Barnett was diagnosed with Stage IV colon cancer and was informed he had 12 months to live. He is therefore not expected to live long enough to complete his 100-month sentence according to the "Reduction in Sentence Medical Review" prepared by Dr. Martin S. Tindal. The Government conceded Barnett's diagnosis was not known at the time of his sentencing and he was not aware of it until he began testing while in custody after experiencing bowel issues starting in April 2022. He also faces mental health challenges and fatigue related to his treatment. After he was sentencing for this case, Barnett plead guilty to two state sex offenses. As a result of those convictions he is on lifetime probation by Arizona and under supervision by Michigan's Sex Offender Registry. Both cases involved Barnett's conduct with his stepdaughter. Because the risk of recidivism can be adequately mitigated with appropriate release conditions the motion under 18 USC 3582(c)(1)(A) was granted and his sentence was reduced to time served.

 

CR.RIS/REHABILITATION/MEDICAL. The Southern District of New York granted a CR.RIS motion in United States v. James Cromitie, 2024 U.S. Dist. LEXIS 12253 (S.D. N.Y. Jan. 19, 2024). In Oct. 2010, Cromitie, together with David Williams, Onta Williams, and Laguerre Payen, was convicted of conspiracy to use weapons of mass destruction, conspiracy to acquire and use anti-aircraft missiles, conspiracy to kill officers and employees of the United States, three counts of attempted use of weapons of mass destruction, and one count of attempted acquisition and use of anti-aircraft missiles—all in connection with their participation in an FBI-orchestrated conspiracy to "bomb" a Jewish community center in the Bronx and to "destroy military aircraft" at the New York Air National Guard Base at Stewart Air Force Base. For these crimes Cromitie and his codefendants were sentenced in 2011 to a mandatory minimum term of 25 years imprisonment; the term was dictated by the charges relating to Stewart. Cromitie submits he should be granted compassionate release based principally for the reasons that justified the sentence reduction of Cromitie's codefendants: that the Government-engineered minimum sentence of twenty-five years—based on the Government's decision to include in its plan a conspiracy to shoot down military aircraft with phony "stinger missiles" created by the Government—constituted "extraordinary and compelling circumstances" warranting relief. Defendant argued the difficult conditions of confinement that he had endured during the COVID-19 pandemic, his chronic health issues, and his demonstrated rehabilitation, all counsel in favor of release. Cromitie is now 58 years old. BOP medical records reflect he suffers from diabetes, hyperlipidemia, hypertensionand chronic kidney disease. Cromitie has received counseling, self-improvement programs, and vocational training while in prison. No further services in a prison setting are needed. Sentence reduced to time served.

 

AMENDMENT 821. The Southern District of Illinois granted an Amendment 821 motion in United States v. Thomas Upchurch, 2024 U.S. Dist. LEXIS 10381 (S.D. Ill. Jan. 19, 2024). The case was before the Court on the defendant's motion for a reduction of his sentence pursuant to 18 USC3582(c)(2) and USSG 1B1.10.  The parties agree defendant was eligible for a reduction under Part B of Amendment 821. Under Part B of Amendment 821, which added USSG 4C1.1 (2023), some offenders with no criminal history points may have their offence level reduced by two points. Because the defendant has no criminal history his offense level was reduced from 12 to 10. The result is his guideline sentencing range is lowered. Considering this lowered range, the parties agree a sentence reduction from 10 months to 6 months in prison on all counts of was appropriate. The Court granted the motion and reduced defendant's sentence from 10 months to 6 months or "time served," whichever is longer, effective Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted an Amendment 821 motion in United States v. Thomas Schaefer, 2024 U.S. Dist. LEXIS 10373 (S.D. Ill. Jan. 19, 2024). The case was before the Court on Schaeffer's Motion for Sentence Reduction pursuant to 18 USC 3582(c) and the USSG 1B1.10. The parties agreed that Schaeffer was eligible for a reduction under Part A of Amendment 821 which amended 4A1.1(e) (2023) and concerns criminal history points ("status points") awarded because a defendant was under a criminal sentence when he or she committed the offense of conviction. Schaeffer's total offense level at sentencing was 33, and his criminal history category was IV, which provided for a guideline range between 188 and 235 months. The Court imposed a sentence of 188 months-at the low-end of the guideline range. Under Amendment 821, Schaeffer's criminal history category is reduced from IV to III. Thus, the guideline sentencing range is lowered to a range of 168 to 210 months. With this lowered range, the parties agreed that a sentence reduction from 188 to 168 months is appropriate. The Court granted Schaeffer's motion and ordered his sentence be reduced to a term of 168 months. The Order shall take effect on Feb. 1, 2024.

 

AMENDMENT 821. The Southern District of Illinois granted an Amendment 821 motion in United States v. Talfanita Cobb, 2024 U.S. Dist. LEXIS 10374 (S.D. Ill. Jan. 19, 2024). The parties agreed the defendant is eligible for a reduction under Part A of Amendment 821 which amended 4A1.1(e) (2023) and concerns criminal history points ("status points") awarded because a defendant was under a criminal sentence when she committed her offense of conviction. Cobb's total offense level at sentencing was 20 and her criminal history category was I which provided for a sentencing range of between 33 to 41 months on Counts 1 and 2 and a mandatory minimum consecutive sentence of 24 months on Count 3. The Court imposed a sentence of 20 months each on Counts 1 and 2, to run concurrently, and 24 months on Count 3, for a total of 44 months. Pursuant to Amendment 821 in conjunction with Cobb's criminal history score of zero, her total offense level can be reduced from 20 to 18, resulting in a lower advisory guideline range of 27 to 33 months on Counts 1 and 2 and the same mandatory consecutive 24 months on Count 3. Considering this lowered range, the parties agreed that a sentence reduction to 16 months on Counts 1 and 2 and the same mandatory consecutive 24 months on Count 3 is appropriate. The Court granted the motion and reduced defendant's sentence from 44 months to 40 months on all counts, effective Feb. 1, 2024.

 

AMENDMENT 821. The District of South Dakota granted an Amendment 821 motion in United States v. Vine Janis, 2024 U.S. Dist. LEXIS 10420 (D. S.D. Jan. 18, 2024). On Aug. 13, 2021, the Court sentenced Janis to 48 months for an assault resulting in serious bodily injury followed by three years of supervised release. At the time of the sentencing, Janis was in Criminal History Category III with a guideline range of 41 to 51 months. The retroactive change to 4Al.l(e) of the United States Sentencing Commission's Guidelines Manual has the effect of placing Janis in Criminal History Category II, where his guideline range would have been 37 to 46 months. Janis filed a Motion for Reduction in Sentence proposing a reduction to a 43-month sentence, 3 months below the top end of the amended guideline range. In Part A to Amendment 821 to the Sentencing Guidelines the Commission altered the "status points" provision regarding criminal history, which now appears in Section 4Al.l(e). The amended provision states: Add 1 point if the defendant (1) receives 7 or more points under subsections (a) through (d), and (2) committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. Thus, a person who otherwise has 7 criminal history points or more now receives 1 additional "status" criminal history point, instead of 2, while one who otherwise has 6 criminal history points or fewer receives no status points. The recent guidelines changes places Janis in Criminal History Category II with a guidelines range of 37 to 46 months the Court deemed 46 months to be sufficient but not more than necessary under the 3553 (a) factors. The Reduction in Sentence was granted, and his sentence was lowered from 48 months to 46 months.

 

AMENDMENT 821, The Eastern District of Kentucky granted an Amendment 821 motion in United States v. John Thompson, 2024 U.S. Dist. LEXIS 11621 (E.D. Ky. Jan. 23, 2024). Thompson pled guilty to conspiring to distribute oxycodone in

violation of 21 USC 846 and distributing oxycodone in violation of 21 USC 841(a)(1). He was sentenced to 190 months on March 28, 2014. Two points were added to Thompson's criminal history score during his sentencing hearing because he committed the offenses while under a criminal justice sentence. Amendment 821 to the United States Sentencing Guidelines (Part A) eliminates such "status points" for defendants like Thompson who have six or fewer criminal history points. (U.S.S.G. Amend. 821, eff. Nov. 1, 2023). Thompson's Total Offense Level 34 and Criminal History Category III produced an advisory guidelines range of 188 to 235 months imprisonment. However, if two criminal history points are subtracted pursuant to Amendment 821, Thompson's criminal history category drops to II, resulting in an amended guidelines range of 168 to 210 months. Pursuant to 18 USC 3582(c)(2) and Amendment 821 Thompson's custodial sentence was reduced to a term of 159 months.

 

AMENDMENT 821. The Southern District of Illinois granted an Amendment 821 motion in United States v. Robert Humphrey, 2024 U.S. Dist. LEXIS 12065 (S.D. Ill. Jan. 23, 2024). The parties agreed 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 awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). Under Amendment 821 the defendant's 2 status points are reduced to 0 status points, and his criminal history category is reduced from IV to III. The result is his guideline sentencing range was lowered. Considering this lowered range, the parties agreed it is appropriate to reduce defendant's sentence from 200 months to 133 months on each count of conviction to run concurrently with credit for time served (6 months) on a related state case from Williamson County, Illinois, case number 15-CF-5. The Court agreed for the reasons set forth in the motion. The Court granted the motion and reduced defendant's sentence from 200 months to 133 months or "time served," whichever is longer, effective Feb.1, 2024, with credit for time served (6 months) on a related state case from Williamson County Illinois, case number 15-CF-5.

 

AMENDMENT 821. The Southern District of California granted an Amendment 821 motion in United States v. Andres Loor-Flores, 2024 U.S. Dist. LEXIS 11165 (S.D. Calif. Jan. 22, 2024). Pending before the Court was a joint motion to reduce sentence pursuant to 18 USC 3582(c)(2) and USSG Amendment 821 (2023). The Court found the defendant qualified for a sentence modification to reflect a -2 adjustment to the total offense level pursuant to USSC 4C1.1, and granted the motion. The parties agreed defendant's sentence should be reduced to reflect a -2 adjustment in his offense level pursuant to USSG4C1.1 because at the time of original sentencing defendant was a qualifying zero-point offender. The parties also agree that none of the disqualifications listed in USSG 1B1.10 applies here. At his original sentencing, the Court found defendant's total offense level was 31 and that he was in criminal history category I, resulting in a guideline range of 108-135 months. The Court sentenced defendant to 108 months. Applying the 2-level reduction under USSG 4C1.1 brings down defendant's amended offense level to 29. This results in an amended guideline range of 87-108 months. The parties recommend a modified sentence of 87 months. The Court granted the motion and reduced the sentence to 87 months.

 

AMENDMENT 821. The Northern District of Indiana granted an Amendment 821 motion in United States v. Yvonna Lee, 2024 U.S. Dist. LEXIS 10710 (N.D. Ind. Jan. 22, 2024). The Court previously sentenced Lee to 28 months, four months on Count 3 (wire fraud) and a consecutive 24-months on Count 12 (aggravated identity theft) to be followed by one year of supervised release. The Court granted two downward variations from the proposed offense level of 18 reflected in the PSR. These variations resulted in a total offense level of nine. Coupled with defendant's zero criminal history points this resulted in a Guideline sentencing range of four to ten months imprisonment on Count 3. Per statute, Lee's sentence on Count 12 was a mandatory minimum of 24-months to run consecutively to any other count. The parties filed a joint statement in support of the motion recommending defendant's sentence on Count 3 be amended to a term of imprisonment of "zero months or time served, whichever is greater" while leaving intact other provisions of the original sentence including the 24-month consecutive sentence on Count 12. The Court ordered Lee's sentence on Count 3 be amended to a sentence of time served. The Court ordered this amendment to take effect on Feb. 1, 2024.

 

AMENDMENT 821. The Eastern District of Tennessee granted an Amendment 821 motion in United States v. Gregory Bellas, 2024 U.S. Dist. LEXIS 10914 (E.D. Tenn. Jan. 22, 2024). In determining whether a defendant has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission, the Court must first determine "the amended guideline range that would have been applicable to the defendant had the relevant amendment been in effect at the time of the initial sentencing." USSG1B1.10(b)(1) (Sent'g Comm'n 2023). Other than substituting Amendment 821 for the corresponding provision applicable when the defendant was originally sentenced, the Court "shall leave all other guideline application decisions unaffected." And the Court "shall not" reduce a defendant's term of imprisonment to a term "less than the minimum of the amended guideline range," nor to a term "less than the term of imprisonment the defendant has already served." USSG 1B1.10(b)(2)(A), (C). In addition to these limits, section 1B1.10 states that a court must also consider the 3553 factors and the danger to the public created by any reduction in a defendant's sentence. USSG1B1.10, cmt. n.1(B)(ii). A court may further consider a defendant's post-sentencing conduct. Defendant pled guilty to being a felon in possession of a firearm in violation of 18 USC 922(g)(1). At the time of sentencing the defendant received two criminal history points because he committed the instant offense while under a criminal justice sentence in the Superior Court, Washington, DC. Combined with his three other criminal history points, the defendant had a total of five criminal history points resulting in a criminal history category of III. With a total offense level of 17 and criminal history category of III with a guideline range of 30 to 37 months. The defendant's sentence was reduced to 27 months. If this sentence is less than the amount of time defendant has already served, the sentence shall be reduced to a "time served" sentence. USSG 1B1.10(b)(2)(C). This order shall take effect on Feb. 1, 2024.

 

AMENDMENT 821, The District of South Dakota granted an Amendment 821 motion in United States v. Seth Stadel, 2024 U.S. Dist. LEXIS 10926 (D. S.D. Jan. 22, 2024). On June 7, 2021, the Court sentenced Defendant Seth Stadel to 57 months for an assault by strangulation and suffocation followed by three years of supervised release. At the time of the sentencing, Stadel was in Criminal History Category V with a guideline range of 57 to 71 months. The retroactive change to USSG 4AI.l(e) has the effect of placing Stadel in Criminal History Category IV, where his guideline range would have been 46 to 57 months. Stadel filed a Motion for Reduction in Sentence, proposing a reduction to a 46-month sentence at the bottom end of the amended guideline range. The United States does not contest Stadel's eligibility to be considered for a sentence reduction nor the proposed reduction in Stadel's sentence. The Court granted to the extent that the sentence was lowered from 57 months to 52 months.

 

ALERT - AMENDMENT 821 - NOTICE: United States v. Cowan, 781 Fed. Appx. 571 (8th Cir. 2019) (affirming dismissal of a 18 USC 3582 (c)(2) motion when the record establishes the defendant knowingly and voluntarily entered the plea agreement).

 

2255/BORDEN/ACCA. The Western District of Pennsylvania granted a 2255 motion in United States v. Andre Ruffin, 2024 U.S. Dist. LEXIS 9035 (W.D. Pa. Jan. 22, 2024). On May 11, 2022, the Court granted Ruffin's Motion pursuant to 28 USC 2255 on the basis the United States Supreme Court's decision in United States v. Borden, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (2021), rendered invalid the application of the ACCA to Ruffin. Ruffin is currently on bail awaiting resentencing, but no resentencing has to date occurred.. The Court will address the arguments of both parties and resolve the question central to them; namely, how many "crimes of violence" Ruffin is considered to have committed for the purpose of calculating the Sentencing Guidelines to be applied to his resentencing. After reviewing all the filings in this case in the context of the applicable law, the Court concludes that while Ruffin's federal carjacking conviction under 18 USC 2119 does qualify as a "crime of violence" for purposes of the Guidelines, his Pennsylvania aggravated assault conviction under 18 Pa. Cons. Stat. 2702(a)(3) and his Pennsylvania robbery conviction under 18 Pa. Cons. Stat. 2703(a)(3) do not. As such, Ruffin has only one qualifying "crime of violence" predicate offense for resentencing purposes. The Court's conclusions resolve the outstanding issues related to Ruffin's re-sentencing and to affirm the Court's original Order vacating Ruffin's sentence. Because the Court has concluded only one of Ruffin's underlying convictions—his carjacking conviction under 18 USC 2119—is a "crime of violence" for the purposes of resentencing, and because that conclusion would appear to materially alter Ruffin's sentencing calculation under the Guidelines, this matter is referred to the Probation Office for the purpose of generating a further Supplemental Addendum with a calculation of the Guidelines consistent with this Opinion. The parties are directed to file sentencing memoranda as to the appropriate sentence to be imposed upon Ruffin on the basis of that Addendum and the conclusions set forth above. Such shall be filed not later than 14 days after the posting on the docket of the Addendum. A resentencing hearing will be scheduled by further Order of the Court once the Supplemental Addendum referenced is posted to the docket.

 

2255/IAC/SENTENCE. The Southern District of Alabama granted a 2255 motion in Jessie Parker v. United States, 2024 U.S. Dist. LEXIS 8334 (S.D. Ala. Jan. 22, 2024). On May 5, 2023, the Magistrate Judge filed a Report and Recommendation which recommends the Motion pursuant to 28 USC 2255 be granted and Jesse Anthony Parker's sentence be vacated, and he be resentenced. The Court reviewed this case repeatedly based upon the issues raised by the 2255 motion, the Report and Recommendation, and the subsequent filings by the parties. Importantly, no party disputed that an error was made in the calculation of the Presentence Report which resulted in an incorrect calculation of the guidelines. Therefore, the Court turned to the precise issues raised on the 2255 — namely ineffective assistance of counsel in failing to object on the youthful offender adjudication qualifying as a predicate conviction for a serious drug offense under the ACCA". Ultimately, after due and proper consideration of all portions of the file deemed relevant to the issues raised, the Court agreed with the well-reasoned analysis of the Magistrate Judge and his Report and Recommendation and adopted it as the opinion of this Court. It was ordered that Parker's motion to vacate sentence pursuant to 2255 be granted and Parker's sentence was vacated.

 

APPEAL/2255/IAC. The Fifth Circuit reversed and remanded United States v. Lucas Tighe, 2024 U.S. App. LEXIS 1758 (5th Cir. Jan. 25, 2024). The Fifth Circuit reversed and remanded a district court's denial of Lucas James Tighe's habeas petition under 28 USC 2255. After being convicted and sentenced for possession of stolen firearms, possession of a firearm by a convicted felon, and conspiracy to possess stolen firearms, Tighe alleged ineffective assistance of counsel. He claimed his trial attorney, Sharon Diaz, did not consult with him about filing an appeal. The Fifth Circuit applying the Strickland test found Diaz failed to adequately consult with Tighe about the appeal, which was considered professionally unreasonable. Furthermore, the court found that Tighe demonstrated a reasonable interest in appealing, given the unexpected severity of his sentence and his request to Diaz to ask the court to run his federal sentence concurrently with his forth-coming state sentence. The court also determined that Tighe had shown there was a reasonable probability he would have timely appealed, but for Diaz's deficient performance. As a result, the court found that Tighe had successfully made an IAC claim which entitled him to an appeal. The case was remanded to the district court with instructions to grant an out-of-time appeal and reenter Tighe's criminal judgment.

 

APPEAL/SENTENCE. The Seventh Circuit vacated and remanded United States v. Joseph Wilcher, 2024 U.S. App. LEXIS 1744 (7th Cir. Jan. 25, 2024). Wilcher was convicted of attempted enticement of a minor and travel with intent to engage in illicit sexual activity after he drove across state lines to meet someone he believed was a 15-year-old girl who was actually a federal agent. The Court sentenced Wilcher to a prison term and a term of supervised release. In explaining the sentence, the district court only discussed the seriousness of the offense and did not address any of Wilcher's arguments for mitigation. The Seventh Circuit found the district court erred in its sentencing. The appellate court held the district court had relied on the seriousness of the offense as the sole justification for the sentence, including the term of supervised release. However, the seriousness of the offense is not a factor that courts can consider when imposing a term of supervised release. The appellate court also found that the district court had failed to consider Wilcher's principal mitigation arguments. The appellate court concluded the district court's failure to adequately explain the sentence precluded meaningful appellate review. The Seventh Circuit vacated Wilcher's sentence and remanded for a full resentencing hearing. The court clarified that on remand the district court could not consider the seriousness of the offense when imposing a term of supervised release and must consider Wilcher's principal mitigation arguments.

 

APPEAL/2255/IAC/PLEA OFFER. The Tenth Circuit affirmed the grant of a 2255 in United States v. Jonathan Kearn, 2024 U.S. App. LEXIS 1471 (10th Cir. Jan. 23, 2023). Kearn was initially indicted on three child pornography offenses involving his own children. He faced up to 30 years’ imprisonment for these charges. The Government offered a plea agreement for a 10-year sentence if Kearn pled guilty to one of the counts. Following a six-minute conversation with his trial counsel about the plea agreement, Kearn decided to reject the offer and proceed to trial. He was then convicted on all three counts and sentenced to 24 years in prison. After exhausting his appeals, Kearn filed a pro se 2255 motion arguing that his trial counsel was constitutionally ineffective during the plea-bargaining phase. The district court granted Kearn's motion finding that his trial counsel provided deficient advice about the proposed plea deal, and there was a reasonable probability but for counsel’s errors, Kearn would have pled guilty. The court ordered the Government to reoffer the plea. It then accepted Kearn’s guilty plea, vacated the prior judgment, and resentenced him to 10 years’ imprisonment. On appeal, the Tenth Circuit affirmed the district court's decision. The appellate court found that Kearn's trial counsel's brief discussion with him was inadequate to explain the complexities of the plea and  counsel had given Kearn inaccurate and misleading information. The court found that given the substantial difference in sentencing exposure—20 years—and the evidence suggesting Kearn was amenable to pleading guilty if he had been adequately advised the district court reasonably found that Kearn would have accepted a properly presented plea deal and avoided trial.

 

APPEAL/IAC/WITHDRAW PLEA. The Tenth Circuit reversed and remanded United States v. John Swan, 2024 U.S. App. LEXIS 22-1866 (10th Cir. Jan. 23, 2024). Swan appealed the district court’s denial of his presentence motion to withdraw his guilty plea. The case originated from a grand jury indictment of Swan for being a felon in possession of ammunition. Swan initially pled guilty but five months later the district court allowed Swan's counsel to withdraw and appointed new counsel. Swan later wrote a pro se letter to the district court asserting his factual innocence and indicating his plea counsel had compelled him to plead guilty. This appeal focuses on the claim plea counsel materially misrepresented the nature of Swan's right to a jury trial, which, Swan argued, rendered his guilty plea unknowing and involuntary. The court found Swan’s plea counsel informed him that all minorities would be removed from his jury and his case would be tried before exclusively white jurors. This was seen as a material misrepresentation about Swan’s right to an impartial jury selected through racially nondiscriminatory means. The court determined under these circumstances, Swan’s plea was unknowing and involuntary, and the district court had abused its discretion in denying Swan’s motion to withdraw his guilty plea. The court reversed the lower court's decision and remanded the case back to the district court to allow Swan to withdraw his guilty plea for further proceedings.

 

APPEAL/SPEEDY TRIAL ACT. The Fourth Circuit vacated and remanded United States v. Kenneth Hart, 2024 U.S. App. LEXIS 1740 (4th Cir. Jan. 25, 2024). Hart was convicted of drug dealing, sex trafficking, and witness tampering. He appealed his convictions arguing the Government violated the Speedy Trial Act by failing to indict him for the witness tampering charge within 30 days of his arrest. The Fourth Circuit agreed the Government violated the Speedy Trial Act on the witness tampering conviction but rejected his evidentiary challenges. The court held that the Government failed to indict Hart for witness tampering within the Speedy Trial Act’s 30-day window. It vacated Hart’s witness-tampering conviction and remanded the case for resentencing on the four counts added by the superseding indictment.

 

APPEAL/SEARCH/INVENTORY. The Ninth Circuit vacated and remanded Paul Snitko v. United States, 2024 U.S. App. LEXIS 1484 (9th Cir. Jan. 23, 2024). The Ninth Circuit reversed a judgment from the Central District of California regarding the FBI's "inventory" of 700 safe deposit boxes at US Private Vaults (USPV). The USPV was under investigation for various criminal activities. The FBI seized the boxes and their contents under a warrant that expressly did not authorize a criminal search or seizure of the box contents. After a trial based on written submissions, the district court ruled in favor of the Government holding that the Government's "inventory" of the safe deposit boxes was a constitutionally valid inventory search. The Ninth Circuit disagreed stating the inventory search doctrine did not apply because one of the key features of the doctrine is the existence of standardized instructions which limit the discretion of officers and apply consistently across cases. The court found the FBI had supplemented its standardized instructions with additional instructions specifically designed for the USPV raid which took the case out of the realm of a standardized "inventory" procedure. The Ninth Circuit also held that the Government exceeded the scope of the warrant which did not authorize a criminal search or seizure of the contents of the safe deposit boxes. The case was remanded for the FBI to sequester or destroy the records of its inventory search pertaining to the class members.

 

APPEAL/NATIVE AMERICAN LAW. The Tenth Circuit reversed and remanded United States v. Montelito Simpkins, 2024 U.S. App. LEXIS 1594 (10th Cir. Jan. 24, 2024). The Tenth Circuit reversed the conviction of Montelito Simpkins for sexually abusing a minor and engaging in abusive sexual contact in Indian country. The Government charged Simpkins under the Indian Country Crimes Act, 18 USC 1152, which only applies if either the victim or the defendant, but not both, is an Indian. In this case, Simpkins argued the Government provided insufficient evidence to prove that he was not an Indian an essential element required for a conviction under the Act. The court clarified that a sufficiency challenge must be assessed against the legal elements of the crime, not against the elements listed in the jury instructions. The Government conceded it had offered no evidence of Simpkins’s non-Indian status at trial. The court concluded the evidence was insufficient to prove Simpkins’s non-Indian status and reversed his convictions and remanded the case to the district court to enter a judgment of acquittal.

 

APPEAL/1983/DUE PROCESS CLAUSE. The Seventh Circuit vacated and remanded Steven Johnson v. D. Murray, 2024 U.S. App. LEXIS 23-1805 (7th Cir. Jan 22, 2023). Jail officials may punish a pretrial detainee for violating the facility’s rules, but in doing so they must afford the procedural safeguards required by the Due Process Clause. By contrast, staff may discipline convicted prisoners for rule violations without these procedural safeguards if the punishment involves no severe and atypical hardship. In this lawsuit under 42 USC 1983, Steven Johnson alleged that while he was a pretrial detainee, sheriff’s deputies at the Lee County Jail in Dixon, Illinois punished him for a rule violation without sufficient notice and an opportunity to defend himself. The district judge dismissed Johnson’s amended complaint concluding that the 10 days of segregation imposed on him did not amount to a hardship severe enough to implicate a protected liberty interest and, thus, procedural rights. Because this ruling mistakenly applied the atypical-hardship standard for convicted prisoners to a pretrial detainee, the court vacated the judgment and remanded the case for further proceedings.

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