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SAMARITAN NEWSLETTER – January 6, 2025
The SAMARITAN-PROJECT prepares post-conviction and compassionate release motions under the direction of Attorney Tom Norrid. The Project retrieves documents at reasonable prices. The Project newsletter reports every winning published district court and court of appeals case for the week in review.
CR.RIS/REHABILITATION/DISPARITY/STACKING/USSG 1B1.13(b)(6). The Northern District of Oklahoma granted a CR.RIS motion in United States v. Leslie Barkley, 2024 U.S. Dist. LEXIS 233145 (N.D. Okla. Dec. 27, 2024). Barkley asked the Court to reduce his sentence of 519 months to 309 months asserting that amendments to 18 USC 924(c)'s penalty provisions made by the First Step Act of 2018 created a significant disparity between the mandatory minimum sentence he received for his second 924(c) conviction and the mandatory minimum sentence he would face if sentenced today for that same conviction; that he has served more than 20 years of the sentence imposed; that a reduction of his unusually long sentence would be consistent with the Sentencing Commission's policy statement in USSG 1B1.13(b)(6); that he has made good progress with rehabilitation. In Oct. 2004, a federal grand jury returned a five-count superseding indictment charging Barkley with Hobbs Act Robbery in violation of 18 USC 1951 (count one); attempted carjacking in violation of 18 USC 2119 (count three); two counts of brandishing a firearm during a crime of violence in violation of 18 USC 924(c) (counts two and four); and felon in possession of a firearm in violation of 18 USC 922(g) and 924(a)(2) and (e) (count five). In exchange for the Government's offer to seek dismissal of two charges (counts one and five), Barkley pled guilty to attempted carjacking and both 924(c) charges (counts two, three, and four). The court sentenced Barkley to a total of 519 months: 135 months (count three); 84 months (count two) to be served consecutively to the sentence for count three; and 300 months (count four) to be served consecutively to all sentences. Barkley contended that a combination of circumstances justifies a reduction in sentence, namely, the unusual length of his total sentence (519 months); the extreme disparity between the mandatory minimum sentence he received for his second 924(c) conviction (300 months) and the mandatory minimum sentence he would face for the second 924(c) conviction under current law (84 months); his "advanced age of 64," the BOP's determination he has a low risk of recidivism; and his rehabilitative efforts, including his completion of several self-improvement courses and a nonresidential drug program and his steady employment. The Court agreed. Considering his individualized circumstances the Court found, at step one, that Barkley's current age of 64, the BOP's determination he has a low risk of recidivism, his completion of several BOP courses and programs, including a nonresidential drug program, and recent improvements in his prison disciplinary record, combined with his unusually long sentence that is based on the stacking of 924(c) penalties for multiple violations in a single prosecution and the significantly lower mandatory minimum sentence he would face under current law support his request for a reduction in sentence. Barkley stated reducing his sentence is consistent with the Sentencing Commission's policy statement in USSG 1B1.13(b)(6). Again, the Court agreed. The court reduced Barkley's sentence as to count four from 300 months to 141 months and his total sentence was reduced from 519 months to 360 months.
CR.RIS/DISPARITY/REHABILITATION. The District of Maryland granted in part a CR.RIS motion in United States v. Solothal Thomas, 2024 U.S. Dist. LEXIS 233111 (D. Md. Dec. 27, 2024). Thomas is currently serving two concurrent life sentences for his involvement in a murder for hire conspiracy which resulted in the death of Jesse Williams. He sought a sentence reduction based on a combination of factors, including (1) the disparity of the length of his sentence with the average sentence for murder; (2) the disparity of his sentence with his codefendants' sentences; (3) his age; (4) his mental health and repeated suicide attempts; and (5) his rehabilitation. Thomas was convicted of two counts under 18 USC 1958(a), murder for hire. According to the Sentencing Commission the nationwide mean sentence for murder for fiscal year 2023 was 285 months, and the median sentence was 276 months. The disparity between Thomas's sentence and those of his codefendants is compelling. The court considered Thomas's young age when he committed the offense. Thomas was 25 years old when he killed Williams. Thomas has obtained his GED, completed approximately 1500 hours of additional programming, and started a Stop Bullying program in prison. The court reduced Thomas's sentence to 35 years.
CR.RIS/STASH HOUSE ROBBERY. The Southern District of Florida granted a CR.RIS motion in United States v. Gilberto Rivero, 2024 U.S. Dist. LEXIS 232987 (S.D. Fla. Dec. 20, 2024). The defendant is serving a 420-month sentence for conspiracy with intent to distribute five or more kilograms of cocaine (Count 1), attempted possession with intent to distribute five or more kilograms of cocaine (Count 2), conspiracy to use and carry firearms during and in relation to a crime of violence (Count 3), and using and carrying firearms during and in relation to a crime of violence (Count 4). He is 47 years old and currently scheduled for release on Sept. 22, 2033. In his motion he sought compassionate release due to the length of his sentence and his rehabilitation. Defendant argued he meets the criteria for compassionate release under USSG 1B1.13(b)(5) ("Other Reasons") and (b)(6) ("Unusually Long Sentence"). The Court found that the relatively more flexible standard of 1B1.13(b)(5) supplies an independent basis for reducing defendant's sentence. First, reverse stash-house stings like the one employed in this case have "been decried by numerous courts across the country." The fact that defendant's charges resulted from a reverse stash-house sting supports a finding of extraordinary and compelling reason under section 3582(c)(1)(A). Defendant has served 24 years of his sentence for those offenses. Given his age, 47-years old, and the rehabilitation he has exhibited during his incarceration, the Court found he no longer presented a danger to society. Further, any arguable risk of danger associated with this sentence reduction will be mitigated by his 60-month term of supervised release. Sentence reduced to 248-months imprisonment.
CR.RIS/REHABILITATION/DISPARITY/YOUTH. The Southern District of Florida granted a CR.RIS motion in United States v. Jeffrey Smith, 2024 U.S. Dist. LEXIS 232998 (S.D. Fla. Dec. 20, 2024). Following a Dec. 2002 trial, the defendant was convicted of carjacking and carrying a firearm during a crime of violence. Although the incident involved the shooting of another individual who was engaged in criminal conduct it was established defendant was not the shooter in the events leading to these charges. Smith was sentenced to life imprisonment and a consecutive term of 60 months. He was 20 years old at the time he was involved in these offenses. The defendant was sentenced prior to the Supreme Court's ruling in United States v. Booker, which shifted his sentencing guideline range from mandatory to discretionary, 543 U.S. 220, 227 (2005). "Indeed, Booker created a sea-change: had [Mr. Smith] been sentenced today, a court would have discretion whether to sentence [him] to life; at the time of [his] sentencing hearing[], the sentencing court was required to impose [a] life sentence[]." United States v. Miller, 2023 WL 7065545, at *4 (D. S.C. Oct. 26, 2023) ("Courts in this circuit have found differences of even one to two years to be a gross disparity sufficient to establish an extraordinary and compelling reason for compassionate release.") (collecting cases). Defendant put forward a constellation of extraordinary and compelling circumstances to demonstrate that section (b)(5) warrants a reduction in his sentence: his youth, his relative culpability, his intellectual issues, and his rehabilitation. "Section (b)(5), commonly referred to as the 'catchall provision,' recognizes that the Sentencing Commission could not possibly identify the myriad extraordinary and compelling reasons that might warrant a sentence reduction and that judges are in a unique position to determine what circumstances or combination of circumstances are sufficiently extraordinary and compelling to warrant a reduction in sentence. His life sentence was predicated on felony-murder liability; he was not the shooter in the events at issue. The Supreme Court has "recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment." Graham v. Florida, 560 U.S. 48, 69 (2010). The Court found defendant's relative culpability in the underlying offenses rises to the level of an extraordinary and compelling reason warranting a sentence reduction under section (b)(5). The Court found defendant's youth and intellectual impairments also warrant relief under section (b)(5). Sentence reduced to time served.
CR.RIS/MEDICAL. The Southern District of California granted a CR.RIS motion in United States v. Michael Simpson, 2024 U.S. Dist. LEXIS 232655 (S.D. Calif. Dec. 19, 2024). On April 9, 1998, the defendant was convicted by a jury of armed bank robbery and use of a firearm during the bank robbery. He was sentenced to a total of 360 months in custody on Sept. 21, 1998. Defendant moved for compassionate release due to his serious ocular issues. Simpson first began experiencing pain in his eyes in 1998. Medical records indicate he has been suffering from ocular issues for over 20 years. The ocular issues he has been diagnosed with are panuveitis, retinal edema, pars planitis, and myopia. The Guidelines state that "[e]xtraordinary and compelling reasons exist" based on the "Medical Circumstances of the Defendant" if the defendant is "suffering from a serious physical or medical condition," "suffering from a serious functional or cognitive impairment," or "experiencing deteriorating physical or mental health because of the aging process" "that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." 1B1.13(b)(1)(B). The Guidelines state that "extraordinary and compelling reasons" exist if the defendant is "suffering from a medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death." USSG 1B1.13(b)(1)(C). The Court held Simpson's serious ocular issues present an extraordinary and compelling reason to grant him compassionate release consistent with the Guidelines' policy statement. Because Simpson's ocular issues constitute a "serious medical or physical condition" that "substantially diminishes [his] ability . . . to provide self-care within the environment of a correctional facility and from which he . . . is not expected to recover," the Court found there is an extraordinary and compelling reason to grant him compassionate release. USSG 1B1.13(b)(1)(B). The records demonstrate Simpson's most recent disciplinary violation occurred in Oct. 2023 and was for possession of a dangerous weapon. The disciplinary officer indicated to the Government she did not view Simpson as a danger, did not have concerns about him, and he has been doing well at USP Pollock in comparison to other inmates, which is one of the country's more violent federal penitentiaries. Sentence reduced to time served.
APPEAL/RESENTENCE. The Ninth Circuit vacated and remanded United States v. Michael DeFrance, 2024 U.S. App. LEXIS 32837 (9th Cir. Dec. 30, 2024). DeFrance was convicted of assaulting his girlfriend in 2013 under Montana Code Annotated section 45-5-206(1)(a), a misdemeanor. In 2018, he was found in possession of three firearms leading to a federal indictment for violating 18 USC 922(g)(9), which prohibits firearm possession by individuals convicted of a misdemeanor crime of domestic violence. The District of Montana denied DeFrance's motion to dismiss the indictment which argued the Montana statute could be violated without the use of physical force. DeFrance was subsequently convicted and appealed the decision. The Ninth Circuit reviewed the case and applied the categorical approach to determine whether a conviction under Montana's PFMA statute qualifies as a "misdemeanor crime of domestic violence" under 18 USC 922(g)(9). The court concluded that because the Montana statute can be violated by inflicting emotional distress rather than physical injury it does not have as an element the use or attempted use of physical force as required by 18 USC 921(a)(33)(A)(ii). Consequently, the court held DeFrance's conviction under the Montana statute does not qualify as a misdemeanor crime of domestic violence. The Ninth Circuit reversed DeFrance's conviction under 18 USC 922(g)(9), vacated his sentence, and remanded the case for resentencing.
APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded United States v. Jacques King, 2024 U.S. App. LEXIS 22-4014 (4th Cir. Dec. 31, 2024). King pled guilty to federal drug charges. After his first sentencing and appeal the court vacated King’s sentence because the district court committed procedural error in pronouncing the sentence. King was resentenced to 160 months. He again appealed, arguing his resentencing was procedurally unreasonable. For the reasons that follow the court vacated and remanded for resentencing once more. At resentencing, the Government requested the court again impose a 240-month sentence. King renewed his objections to the PSR and raised new factual arguments as to the drug quantity determination and role enhancement. Specifically, King challenged paragraph 16 of the PSR, which set out the quantity of drugs sold by Jacquarius and attributed to King. In doing so, King attacked the reliability of several witnesses’ testimony based on further investigation his counsel had conducted after King’s initial sentencing. The district court did not address King’s arguments and continued resentencing to the next day. When proceedings resumed the court engaged in a short colloquy with King but did not address his objections. The court imposed a sentence of 160 months. He argued the district court erred in determining the drug quantity based on unreliable information from informants, imposing a sentence enhancement for managing and supervising five participants in the criminal activity, and failing to address his mitigating arguments or explain the 160-month sentence. Vacated and remanded for resentencing.
APPEAL/F.R.CRIM.P. 33. The Fourth Circuit vacated and remanded United States v. Robert Russell, 2024 U.S. App. LEXIS 32755 (4th Cir. Dec. 27, 2024). Russell appealed the district court’s order denying relief on his Fed. R. Crim. P. 33 motion for a new trial based on newly discovered evidence. On appeal, Russell contended the court analyzed his motion under the wrong standard. Russell premised his motion on a Brady violation, arguing the Government had purposefully withheld the evidence at issue. The district court considered the motion under the stricter Rule 33 standard. The court vacated the district court’s order and remanded so that the court can apply the standard that governs Brady based Rule 33 motions.
APPEAL/2255/SUCCESSIVE. The Fifth Circuit reversed and remanded United States v. Rasheed Muhammad, 2025 U.S. App. LEXIS 38 (5th Cir. Jan. 2, 2025). Muhammad was convicted and subsequently appealed his conviction. His appeal was dismissed for want of prosecution. Muhammad then filed a 28 USC 2255 petition which the district court denied as untimely. The Fifth Circuit recalled the mandate in Muhammad’s direct appeal, reasserted jurisdiction, and affirmed the conviction after full briefing and oral argument. The Supreme Court denied certiorari and a rehearing. Muhammad then filed another 2255 habeas petition. The Southern District of Mississippi concluded that Muhammad’s new habeas petition was a “second or successive” petition under the Antiterrorism and Effective Death Penalty Act (AEDPA) and transferred it to the Fifth Circuit. The Fifth Circuit clerk denied authorization to file the petition due to procedural non-compliance. Muhammad appealed the district court’s order. The Fifth Circuit reviewed de novo whether the habeas petition was “second or successive” under AEDPA. The court held that because Muhammad’s initial 2255 petition was not adjudicated on the merits and the mandate in his direct appeal was recalled, the subsequent petition was not “second or successive.” The court emphasized that the procedural history reset the count of Muhammad’s petitions to zero. The Fifth Circuit reversed and remanded the case for further proceedings.
APPEAL/2241. The First Circuit vacated and remanded Joel Cockerham v. Boncher, 2024 U.S. App. LEXIS 32739 (1st Cir. Dec. 27, 2024). Cockerham is confined at a federal facility in Massachusetts after being civilly committed under 18 USC 4243 by a district court in the Northern District of Mississippi. Cockerham filed a habeas petition under 28 USC 2241 seeking discharge from his commitment and compensation for damages. He argued his continued confinement was unlawful and sought non-conditional release. The District of Massachusetts dismissed Cockerham's petition for lack of subject matter jurisdiction reasoning that he should have sought relief from the committing court under 18 USC 4247(h). The court denied Cockerham's motion to amend his petition, concluding that amendment would be futile because the amended petition also sought relief from confinement, which should be addressed by the committing court. The First Circuit affirmed the dismissal of Cockerham's original petition agreeing that 4247(h) provides a mechanism for seeking discharge and Cockerham had not shown this remedy was inadequate or unavailable. The court vacated and remanded the motion to amend. The appellate court found Cockerham's proposed amended petition which challenged the suitability of his confinement at FMC Devens and sought transfer to a less restrictive facility was distinct from a claim for discharge and could potentially be addressed under 2241. The court instructed the District Court to reconsider whether the amended claims could be heard under 2241 or if they must be brought under 4247(h).
APPEAL/GARNISHMENT. The Fifth Circuit reversed and remanded United States v. Leon Stinson, 2024 U.S. App. LEXIS 32877 (5th Cir. Dec. 30, 2024). Stinson pled guilty to conspiracy to engage in bank fraud and was ordered to pay over $3.6 million in restitution. The Government sought to garnish his assets, including retirement accounts solely in the name of Leon’s wife, Ellen. The district court concluded that Ellen’s accounts were marital property in which both Leon and Ellen had a “100% undivided interest” and ordered the liquidation of the accounts to satisfy the restitution order. The Southern District of Mississippi denied Ellen’s motion to dismiss the writ of garnishment, asserting that Leon had no property interest in her accounts. The court held an evidentiary hearing and concluded that Ellen’s retirement accounts were marital property under Mississippi law, as defined in Hemsley v. Hemsley, and subject to garnishment. The Fifth Circuit held under Mississippi law, property is only classified as marital property during the equitable distribution process in a divorce. Until then, a person does not have an interest in property titled solely in their spouse’s name. The court found the district court erred in concluding Ellen’s accounts were marital property subject to garnishment. The Fifth Circuit reversed the orders and remanded with instructions to grant Ellen’s motion to dismiss the writ of garnishment as to her retirement accounts.
APPEAL/1983. The Second Circuit vacated and remanded Clint Edwards v. Arocho, 2024 U.S. App. LEXIS 32863 (2d Cir. Dec. 30, 2024). Edwards is a pretrial detainee in a Westchester County Department of Corrections (WCDOC) jail, filed a lawsuit under 42 USC1983, alleging violations of his Fourteenth Amendment rights. Edwards claimed Correction Officer Christopher Arocho failed to protect him and incited other inmates to attack him. He alleged several WCDOC officials subjected him to unsanitary and unhealthy conditions in administrative segregation and his placement in administrative segregation without notice or a hearing violated his procedural due process rights. The Southern District of New York dismissed Edwards’s conditions of confinement and procedural due process claims for failure to state a claim. The court granted summary judgment in favor of Arocho on the failure to protect claim, determining that Edwards had not exhausted his administrative remedies as required by the Prison Litigation Reform Act (PLRA). The United States Court of Appeals for the Second Circuit reviewed the case and concluded Edwards had adequately stated claims for conditions of confinement and procedural due process violations under the Fourteenth Amendment. The court found Edwards raised a factual dispute regarding whether he exhausted his administrative remedies, which precluded summary judgment on the failure to protect claim. The court vacated the judgment and remanded the case for further proceedings.
APPEAL/1983. The Ninth Circuit vacated and remanded Shawn Sheltra v. Christensen, 2024 U.S. App. LEXIS 32929 (9th Cir. Dec. 31, 2024). Sheltra is an inmate at the Idaho Department of Corrections (IDOC), filed a formal grievance in March, identifying safety concerns and threats from other inmates in his housing unit. He warned he would be attacked in April if he did not make an extortion payment. Despite being briefly isolated, Sheltra was returned to his housing unit and attacked by another inmate in April. He subsequently filed a lawsuit asserting violations of the Eighth and Fourteenth Amendments due to the defendants' failure to protect him from a known harm. The District of Idaho granted summary judgment for the defendants, dismissing the action for failure to exhaust administrative remedies because Sheltra did not file a formal grievance after the April attack. The court also granted summary judgment for the defendants on Sheltra's official-capacity claims as they were barred by the Eleventh Amendment. The Ninth Circuit reviewed the case and adopted the continuing-violations doctrine for purposes of administrative exhaustion under the Prison Litigation Reform Act (PLRA). The court held a properly exhausted prison grievance asserting one continuing harm or a single course of conduct can exhaust events arising out of the same alleged violation that occur after the grievance was made. Applying this doctrine, the court concluded that Sheltra's attack was part of the same continuing harm or course of conduct described in his prison grievance before the attack. Therefore, the court reversed the district court's summary judgment on Sheltra's individual-capacity claims against the defendants. However, the court affirmed the district court's grant of summary judgment for the defendants on Sheltra's official-capacity claims due to Eleventh Amendment immunity.
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