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SAMARITAN NEWSLETTER – 02-12-2024

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.

 

ALERT: The Pardon Attorney has advised if your commutation application was denied in December 2023, you can reapply now without having to wait one-year.

 

CR.RIS/USSG 1B1.13(b)(6). United States v. Capps, 2024 U.S. Dist. LEXIS 20086 (E.D. Mo. Jan. 31, 2024). Capps is currently serving an unusually long sentence, a mandatory life sentence for a non-violent drug offense, and had Capps been sentenced today, he would be sentenced to a vastly shorter term of imprisonment resulting in a gross disparity. Capps argued a sentence reduction was warranted because in addition to having already served more than 12 years of his unusually long sentence he has made remarkable progress toward rehabilitation including a continued dedication to sobriety that began before his sentencing and certification as an HVAC technician; he has strong family support, including a stable place to live and immediate employment; and he poses no danger to any person or to the community. The Court concluded that Capps has shown extraordinary and compelling reasons warranting a sentence reduction and reduced his sentence to 180-months. USSG 1B1.13 b)(6) specifically authorizes district courts to consider nonretroactive changes in the law (other than nonretroactive changes to the Guidelines Manual) as extraordinary and compelling circumstances warranting a sentence reduction, but only under a narrow set of circumstances. Specifically, (a) the defendant must be serving an unusually long sentence; (b) the defendant must have served at least 10 years of that sentence; (c) the change in the law must have produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed; and (d) the court must have fully considered the defendant's individual circumstances. Capps's sentence of life imprisonment is unusually long. According to statistics published by the Commission, only 709 federal offenders—0.2% of the total federal offender population—received a life sentence during fiscal years 2016 through 2021. Between fiscal year 2013 and fiscal year 2022, fewer than 12 percent (11.5%) of all offenders were sentenced to a term of imprisonment of ten years or longer. Moreover, retroactive amendments to the Sentencing Guidelines made effective after the time of sentencing, such as the Drug Minus Two Amendment, USSG App. C, amend. 782 and amend. 788 (effective Nov. 1, 2014), would further reduce the Guidelines range to which Capps would be subject if the mandatory minimum life sentence did not apply. USSG 1B1.13(b)(6) (directing the Court to consider "the sentence likely to be imposed at the time the motion is filed" in determining whether a gross disparity exists). The Government conceded that under the relevant statute in effect at the time Capps's motion was filed, only one of Capps's prior convictions would qualify as a serious drug felony which would result in a mandatory minimum sentence of 180 months incarceration, rather than life. The difference between these reduced ranges and a lifetime sentence, particularly given Capps's young age at the time of sentencing (38 years old), constitutes a gross disparity.

 

CR.RIS/USSG 1B1.13(B)(6). The Northern District of Florida granted a CR.RIS motion in United States v. Foey Padgett, 2024 U.S. Dist. LEXIS 20085 (N.D. Fla. Jan. 30, 2024). Padgett has served 18 years on a mandatory life sentence. He moved for a sentence reduction under 18 USC 3582(c)(1)(A), which allows a reduction for "extraordinary and compelling reasons." Under recently adopted USSG 1B1.13(b)(6), an unusually long sentence that meets specified criteria may be an extraordinary and compelling reason for a sentence reduction. Padgett meets the specified criteria. The Government asserted 1B1.13(b)(6) is invalid and that a reduction would be inconsistent with the overall sentencing purposes set out in 18 USC 3553(a). The Government did not deny Padgett meets the criteria in 1B1.13(b)(6). The court held 1B1.13(b)(6) valid and upon consideration of the 3553(a) sentencing purposes and all relevant circumstances the court reduced the sentence. There is a circuit split on whether a nonretroactive change in the law could ever constitute an extraordinary and compelling reason for a sentence reduction. United States v. Andrews, 12 F.4th 255 (3d Cir. 2021) (holding it could not); United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (same); United States v. King, 40 F.4th 594 (7th Cir. 2022) (same); United States v. Crandall, 25 F.4th 582 (8th Cir. 2022) (same); and United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022) (same) with United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022) (holding it could); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) (same); United States v. Chen, 48 F.4th 1092 (9th Cir. 2022) (same); and United States v. Maumau, 993 F.3d 821 (10th Cir. 2021) (same). In a series of cases, the Government opposed certiorari petitions asking the Supreme Court to resolve the issue. The Government asserted that instead, the issue should be addressed by the Sentencing Commission. The Commission simultaneously provided that except as authorized by 1B1.13(b)(6), a change in the law could not be considered in determining whether there were extraordinary and compelling reasons for a sentence reduction. USSG 1B1.13(c). Padgett presented extraordinary and compelling reasons for a sentence reduction. He met the criteria in 1B1.13(b)(6), as the Government apparently conceded. Defendant’s life sentence was reduced to time served.

 

CR.RIS/USSG 1B1.13(b)(6). The Northern District of Florida granted a CR.RIS motion in United States v. Bruce Smith, No. 07-cr-48 (N.D. Fla. Feb. 2, 2024). The defendant asked the Court to reduce his sentence under the compassionate release statute based on the temporal disparity between his current sentence and the sentence he would have received had been sentenced under current law. Relevant here, under the Sentencing Commission’s updated policy statement, a Court may reduce a sentence if, after considering the relevant 18 USC 3553(a) factors, the Court determines that “extraordinary and compelling reasons” warrant the reduction, the defendant is not a danger to the safety of any other person or the community, and the reduction is consistent with the policy statement. Section 1B1.13 of the Guidelines Manual now defines “extraordinary and compelling reasons” to include an “unusually long sentence,” if the defendant has served at least 10 years of his term of imprisonment and a change in the law would produce a gross disparity between the sentence being served and the sentence likely to be imposed if defendant were sentenced today. The change in law cannot include an amendment to the Guidelines Manual that has not been made retroactive, and this Court must first fully consider the defendant’s individualized circumstances before determining whether his sentence presents an extraordinary and compelling reason for compassionate release. The Court noted an “unusually long sentence” now qualifies as an extraordinary and compelling reason for compassionate release, as long as the defendant has already served ten years and a qualifying change in law would produce a gross disparity between the sentence being served and the sentence likely to be imposed if the defendant were sentenced today. The motion was granted.

 

CR.RIS/DISPARITY/STACKING. The Western District of North Carolina granted in part a CR.RIS motion in United States v. Alberto Aleman, 2024 U.S. Dist. LEXIS 20786 (W.D. N.C. Feb.5, 2024). A federal grand jury indicted Aleman and charged him with two counts of bank robbery and aiding and abetting same in violation of 18 USC 2113(a) and 2; two counts of armed bank robbery and aiding and abetting same, in violation of 18 USC 2113(d) and 2; two counts of brandishing a firearm during and in relation to a crime of violence in violation of 18 USC 924(c)(1); and two counts of being an unlawful possessor of a firearm in violation of 18 USC 922(g)(5). Aleman entered into a plea agreement with the Government agreeing to plead guilty to two 2113(a) bank robbery offenses and the two 924(c) firearm offenses. In exchange for Aleman's guilty plea, the Government agreed to dismiss the remaining counts against him. On April 30, 2007, the Court sentenced Aleman to concurrent 57-month sentences for the bank robbery counts, followed by consecutive sentences of 84 months and 300 months for the two 924(c) counts for a total term of 441 months. Aleman filed the present compassionate release motion in July 2023. Aleman asked the Court for a reduction of sentence because of the unwarranted disparity between his current sentence and those sentenced under 18 USC 924(c) today, the lengthy mandatory sentence he is currently serving, his relative youth at the time of the offenses, and his extensive rehabilitation during the time he has already served. The Court concluded Aleman had demonstrated extraordinary and compelling reasons for a sentence reduction and the relevant 18 USC 3553(a) factors weigh in favor of granting the requested relief. The defendant’s sentence was reduced to 246-months.

 

CR.RIS. The District of Kansas granted in part a CR.RIS motion in United States v. Hector Moreira, 2023 U.S. Dist. LEXIS 234356 (D. Kan. Jan 31, 2024). On Oct. 5, 2007, the Court sentenced defendant to life in prison. The defendant filed a 18 USC 3582(c)(1)(A)(i) motion. The Court sustained defendant's motion in part and reduce his sentence to 292-months in prison. Under the compassionate release statute the defendant asked the Court to reduce his sentence to 180 months because (1) he received an unusually long sentence, (2) his case is similar to the case of Juan Mata Soto (D. Kan. No. 08-20160-01-KHV) who received a sentence reduced from life to 240 months, (3) he is ineligible for good-time credits because of his alien status, (4) he was young at the time of the offense, (5) the law now recognizes that young individuals are less culpable, (6) he had no criminal history and (7) he has shown rehabilitation in prison. The Government conceded the Court should reduce defendant's sentence but argued a sentence of 300 months was sufficient but not greater than necessary to satisfy the statutory factors under 18 USC 3553(a). The Court reduced the defendant’s sentence to 292-months.

 

CR/RIS/STACKING. The Southern District of Ohio granted a CR.RIS motion in United States v. Rufus Brown, 2024 U.S. Dist. LEXIS 18673 (S.D. Ohio Feb. 2, 2024). In 1995, Brown and his co-defendant, Michael Phipps, were the "ringleaders" of a conspiracy to commit a week-long string of robberies. Brown and Phipps recruited younger people to go into establishments and commit the robberies while they waited nearby. Brown never entered any of the establishments the group targeted. No one was physically harmed in any of the crimes and the money taken totaled approximately $15,000. Brown was convicted of Hobbs Act robbery and conspiracy to commit Hobbs Act robbery in violation of 18 USC 1951; armed bank robbery in violation of 18 USC 2113(a) and (d); robbery of a post office in violation of 18 USC 2114(a); and six counts of carrying a firearm in relation to a crime of violence in violation of 18 USC 924(c). At the time Brown was sentenced in Feb. 1996, 924(c) mandated consecutive 20-year terms for each violation of 924(c) after the first 924(c) violations two through six. As a result, he was sentenced to 1430 months of imprisonment—over 119 years. 1260 of those months—105 years—resulted from "stacking" of the 924(c) counts. Brown filed a Motion pursuant to 18 USC 3582(c)(1)(A)(i) arguing, among other things, that the First Step Act's nonretroactive modification to the sentencing of 924(c) convictions provides an "extraordinary and compelling reason," as required by statute to reduce his sentence. "Stacked" sentences were criticized as often excessively harsh since "punishing first offenders with twenty-five-year sentences does not deter crime as much as it ruins lives." Deal v. United States, 508 U.S. 129, 146 n.10 (1993) (Stevens, J., dissenting); U.S. Sentencing Comm'n, 2011 Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 359 (2011) ("The 'stacking' of mandatory minimum penalties for multiple violations of section 924(c) results in excessively severe and unjust sentences in some cases."). The Court reduced the defendant’s sentence to time served.

 

CR.RIS/MEDICAL. The Eastern District of Kentucky granted a CR.RIS motion in United Sates v. Tina Partin, 2024 U.S. Dist. LEXIS 19519 (E.D. Ky. Feb. 5, 2024). On July 22, 2021, a jury found Partin guilty of conspiring to distribute a mixture or substance containing a detectable amount of methamphetamine (500 grams or more) and a quantity of pills containing oxycodone. The defendant was sentenced on Nov. 16, 2021, to a total of 220 months. At the time of her sentencing the defendant had been in custody in a local detention facility since approximately May 2018.  Her projected release date is Dec. 12, 2033. Partin, age 55, states she suffers from "serious medical conditions," including stage four liver failure and end stage renal disease. She stated these conditions have caused her to be hospitalized several times during her incarceration. She further states she "is experiencing both serious and deteriorating physical health symptoms and her ability to perform selfcare activities has significantly declined." For example, during her emergency hospital visits, she experienced ascites, or fluid buildup on the liver, which in turn causes fatigue and is "extremely painful." This condition required her to undergo a procedure to drain off the fluid. She states the BOP is not managing her symptoms or her pain. The defendant noted that COVID-19 "continues to pose a health risk to people like Ms. Partin, and with the fall surge, even more so." On this point, she notes that the Alabama's daily COVID hospital admissions had recently increased by eleven percent. The defendant’s sentence was reduced to time served.

 

CR.RIS. The Southern District of New York granted a CR.RIS motion in United States v. Cuong Bang, 2024 U.S. Dist. LEXIS 22327 (S.D. N.Y. Feb. 8, 2024). Cuong Bang filed a motion for compassionate release pursuant to 18 USC 3582(c)(1)(A)(i) which was granted; Bang's custodial sentence was reduced pursuant to 3582(c)(1)(A)(i) to time served followed by 81 months of supervised release. Bang must reside at the home of his brother for the entirety of the 81 months of supervised release, and serve the first 21 of those months on home confinement as approved by the Department of Probation. THE ORDER NEVER GAVE ANY GROUNDS FOR THE GRANT IN ITS ORDER.

 

2255/SENTENCE. The Eastern District of Washington granted a 2255 motion in United States v. Marwan Nassir, 2024 U.S. Dist. LEXIS 17179 (E.D. Wash. Jan. 31, 2024). Nassir pled guilty to Bank Fraud, Identity Theft, and Interstate Transport of Stolen Property. On Sept.18, 2018, he was sentenced to 24-months and five years of supervised release. While on supervised release, Nassir was convicted in Spokane County Superior Court of Second Degree Assault (Strangulation) and Interfering with the Reporting of Domestic Violence. He was sentenced to 84-months in that case. In this case, the Court found Nassir committed a new crime and revoked supervised release. The court sentenced him to eighteen months followed by forty-two months of supervised release. Notably, Nassir's state court convictions were the Court's only basis for finding he committed a new crime. After Nassir's federal supervised release was revoked his state convictions were overturned. Because evidence of a prior assault was erroneously admitted at trial in the state case, the Washington State Court of Appeals reversed Nassir's convictions and remanded for a new trial. Nassir is currently in state custody awaiting retrial. The 2255 was granted and the judgment was vacated. Nassir's state court convictions were the Court's sole reason for finding Nassir had violated the terms of supervised release, and those convictions have now been reversed.

 

2255/HOBBS ACT/924(c)/TAYLOR. The Western District of Louisiana granted a 2255 motion in United States v. Halston Smith, 2024 U.S. Dist. LEXIS 17459 (W.D. La. Jan. 31, 2024). Before the Court was a motion pursuant to 28 USC 2255 filed by Halston Smith. Smith argued his firearms convictions under 18 USC 924(c), predicated on Hobbs Act convictions, should be vacated in light of recent changes in the law as set forth in United States v. Johnson, United States v. Davis, and United States v. Taylor. Initially, when Smith's requested relief was premised on Johnson, the Government opposed the motion. However, the Government remained silent in light of the changes occasioned by Davis and Taylor, the latter of which is directly applicable to Smith's case. The Court granted in part and denied in part Smith's 2255 motion. The Court found that Smith's convictions on Counts 17 and 21 must be vacated and granted his motion to that extent. The motion was denied in all other respects and the remainder of Smith's convictions and sentence are undisturbed. The convictions on Counts 17 and 21 were vacated. As each of these two counts received a sentence of 25 years, consecutive to any other count, the Court found that Smith's sentence should be reduced by a total of 50 years.

 

2255/IAC. The Central District of Illinois granted a 2255 motion in United States v. Marshon Simon, 2024 U.S. Dist. LEXIS 18956 (C.D. Ill. Feb. 2, 2024). United States Magistrate Judge Jonathan Hawley's recommended to the Court it grant Simon’s 28 USC 2255 motion on the basis his counsel's failed to raise a challenge to his sentence being enhanced because of a prior Illinois cocaine conviction constituted ineffective assistance of counsel, The motion was granted and his sentence was vacated. A "serious drug offense" is "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in . . . 21 USC 802[]), for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 USC 924(e)(2)(A)(ii). "[C]ontrolled substance" is defined in 21 USC 802 as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter." 21 USC 802(6). Thus, a serious drug offense, at least as relevant here, is an offense under a state law that criminalizes manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance included in the federal drug schedules if it has a maximum term of imprisonment of at least ten years. In United States v. Ruth, 966 F.3d 642, 647 (7th Cir. 2020), the Seventh Circuit held that Illinois law categorically defines cocaine more broadly than federal law because in Illinois cocaine is defined to include optical, positional, and geometric isomers while under federal law, cocaine includes only optical and geometric isomers. Because of this mismatch the court held that an Illinois conviction for possessing cocaine with intent to deliver under 720 ILCS 570/401(c)(2) does not qualify as a predicate felony drug offense for an enhanced statutory maximum under 21 USC 841(b)(1)(C). See Ruth, 966 F.3d at 645-50.

 

APPEAL/2255/RULE 59(e). The Fourth Circuit vacated and remanded United States v. Antonio McKoy, 2024 U.S. App. LEXIS 2539 (4th Cir. Feb. 5, 2024). McKoy is serving a sentence of life plus five years, consecutive, sought to appeal the district court’s orders (a) denying his 28 USC 2255 motion; and (b) dismissing without prejudice his Fed. R. Civ. P. 59(e) motion to alter or amend judgment. The district court entered its dispositive order on April 25, 2023, and the accompanying judgment was entered the next day, April 26, 2023. On May 14, 2023, McKoy filed the operative Rule 59(e) motion asserting the court entered judgment without ruling on the merits of his claims. Ten days later, he filed a notice of appeal. On June 23, 2023, the district court entered an order dismissing the Rule 59(e) motion without prejudice because McKoy had noted an appeal. In the informal brief McKoy restated his claims as presented in the 2255 motion—without addressing the district court’s dispositive rationale—and assigns error to the court’s failure to address McKoy’s motions for an evidentiary hearing or to appoint counsel prior to entering judgment. McKoy also complains of the court’s failure to address the merits of his claims prior to entering judgment in his 2255 proceeding. Liberally construed the Rule 59(e) motion suggested McKoy only received the court’s judgment which is consistent with the assertion in his informal brief. The record in its current state did not allow the court to conclusively determine whether McKoy received both the district court’s judgment and the accompanying order addressing his claims on the merits. Thus, in the interest of judicial efficiency and to allow McKoy a fair opportunity to raise arguments on appeal that are responsive to the district court’s dispositive rationale, the court vacated the district court’s order dismissing the Rule 59(e) motion and remanded to the district court for the limited purpose of considering the Rule 59(e) motion on the merits. Regardless of the outcome of the Rule 59(e) motion, the record, as supplemented, will be returned to the court for further consideration.

 

AMENDMENT 821. The Southern District of West Virginia granted an 821 Amendment motion in United States v. Andrew Arnold, 2024 U.S. Dist. LEXIS 19685 (S.D. W.Va. Feb. 5, 2024). The defendant’s sentence was reduced from 51-months to 37-months.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 Amendment motion in United States v. Asa Thompkins, 2024 U.S. Dist. LEXIS 18580 (N.D. Ind. Feb. 2, 2024). The defendant’s sentence was reduced from 37-months to 30-months.

 

APPEAL/2254. The Fourth Circuit vacated and remanded Benjamin Carter v. Virginia Dept. of Corrections Director, 2024 U.S. App. LEXIS 3124 (4th Cir. Feb. 9, 2024). Carter appealed the district court’s orders dismissing without prejudice his 28 USC 2254 petition for failure to exhaust state court remedies and denying his Rule 59(e) motion. In his 2254 petition, Carter presented exhausted and unexhausted claims. The Supreme Court has “held that ‘mixed’ habeas petitions— containing both exhausted and unexhausted claims—cannot be adjudicated.” “[A district] court presented with a mixed habeas petition ‘should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims’” After Respondent moved to dismiss the 2254 petition, Carter filed a declaration waiving the unexhausted ineffective assistance of counsel claims so that his exhausted claims could proceed. However, the court appears to have misconstrued Carter’s filing by finding he did not want to waive his unexhausted claims. In light of Carter’s pro se status and his repeated assertions he wished to proceed only on the exhausted claims the court vacated the district court’s orders and remanded for further proceedings on the exhausted claims.

 

APPEAL/AMENDMENT 821. The Sixth Circuit remanded United States v. Robert Whipple, 2024 U.S. App. LEXIS 2755 (6th Cir. Feb. 6, 2024). The defendant appealed his judgment in a criminal case, following a guilty plea, for bank robbery. The district court issued an indicative ruling pursuant to F.R.Crim.P. 37(a) stating it would grant the defendant relief under Guideline Amendment 821, Part A, upon remand by the appellate court for that purpose. Pursuant to the mechanics of F.R.App.P. 12.1(a), the parties jointly moved the court for an expedited limited remand under FRAP 12.1(b). Because the district court has indicated it would be inclined to grant relief, remand was appropriate. FRAP 12.1(b). A limited remand based on the district court's indicative ruling was granted.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 Amendment motion in United States v. Latrell McGee, 2024 U.S. Dist. LEXIS 18582 (N.D. Ind. Feb. 2, 2024). The defendant’s sentence was reduced from 84-months to 70-months.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 Amendment motion in United States v. Eric Blackmon, 2024 U.S. Dist. LEXIS 18579 (N.D. Ind. Feb. 2, 2024). The defendant’s sentence was reduced from 57-months to 46-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 Amendment motion in United States v. Brently Rubsam, 2024 U.S. Dist. LEXIS 20845 (S.D. Ill. Feb. 6, 2024). The defendant’s sentence was reduced from 121-months to 120-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 Amendment motion in United States v. Desmond Pruitt, 2024 U.S. Dist. LEXIS 21790 (S.D. Ill. Feb. 7, 2024). The defendant’s sentence was reduced from 60-months to 48-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 Amendment motion in United States v. Winston Bailey, 2024 U.S. Dist. LEXIS 20839 (S.D. Ill. Feb. 6, 2024). The defendant’s sentence was reduced from 180-months to 160-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 Amendment motion in United States v. Rodney Messic, 2024 U.S. Dist. LEXIS 20836 (S.D. Ill. Feb. 6, 2024). The defendant’s sentence was reduced from 499-months to 279-months.

 

AMENDMENT 821, The Western District of North Carolina granted a 821 Amendment motion in United States v. Mark Ramsey, 2024 U.S. Dist. LEXIS 20767 (W.D. N.C. Feb. 5, 2024). The defendant’s sentence was reduced from 65-months to 63-months.

 

AMENDMENT 821, The Western District of North Carolina granted a 821 Amendment motion in United States v. Kimberly Palmer 2024 U.S. Dist. LEXIS 21751 (W.D. N.C. Feb. 7, 2024). The defendant’s sentence was reduced from 168-months to 151-months.

 

AMENDMENT 821. The Middle District of Florida granted a 821 Amendment motion in United States v. Carlos Ojeda, 2024 U.S. Dist. LEXIS 20386 (M.D. Fla. Feb. 1, 2024). The defendant’s sentence was reduced from 108-months to 87-months.

 

APPEAL/SENTENCE. The Tenth Circuit vacated and remanded United States v. Kenneth Devereaux, 2024 U.S. App. LEXIS 2751 (10th Cir. Feb. 6, 2024). Devereaux, challenged his 60-month sentence for being a felon in possession of a firearm. He argued the district court erred in treating his prior conviction for assault resulting in serious bodily injury as a "crime of violence" and using that conviction to increase his base offense level. The Tenth Circuit agreed with Devereaux and the Government that the district court had erred. The court concluded that the differing mental states (intentional or reckless) that could constitute a violation of the assault statute were different means of committing a single, indivisible offense, rather than elements of separate offenses. The court applied Mathis v. United States and its own post-Borden decision in United States v. Benally to reach this conclusion. As a result, because the least criminalized conduct the assault statute proscribes is recklessness, a conviction under the statute does not categorically involve the use, attempted use, or threatened use of physical force against another person. Therefore, the court vacated Devereaux's sentence and remanded the case for resentencing.

 

APPEAL/SENTENCE. The Second Circuit vacated and remanded United States v. Dewey Sims, 2024 U.S. App. LEXIS 2506 (2d Cir. Feb. 5, 2024). The case involves the appeal of Dewey K. Sims from a sentencing judgment entered in the Northern District of New York. Sims plead guilty to possessing a firearm after a prior felony conviction. The district court imposed a term of imprisonment followed by a term of supervised release. The release was subject to a special condition that prohibits Sims from associating with "any member, associate, or prospect of the Jungle Junkies, or any other criminal gang, club, or organization", a condition which Sims challenged as lacking support for its imposition from the district court or the record itself and being impermissibly overbroad and vague. The Second Circuit agreed that neither the district court’s comments during the sentencing hearing nor the record showed it fulfilled the requirements necessary to impose the special condition of supervised release in question. Therefore, the Court vacated the special condition and remanded the case for the limited purpose of allowing the district court to further explain its reasoning or develop the record as needed.

 

APPEAL/SENTENCE. The Fifth Circuit vacated and remanded United States v. Shawn Malmquist, 2024 U.S. App. LEXIS 2726 (5th Cir. Feb. 6, 2024). Malmquist appealed his conviction and sentence of 151-months for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. Malmquist argued the Government had breached a clause in his plea agreement, specifically, the Government's promise to recommend a three-level acceptance-of-responsibility reduction. The Fifth Circuit determined the Government's breach of the plea agreement did indeed constitute plain error, as it affected Malmquist's substantial rights and called into question the fairness, integrity, and public reputation of the judicial proceedings. Considering these findings, the Court of Appeals vacated Malmquist's sentence and remanded for resentencing.

 

APPEAL/EVIDENCE. The Third Circuit vacated and remanded United States v. Roderick Long, 2024 U.S. App. LEXIS 2944 (3d Cir. Feb. 8, 2024). The Third Circuit ruled on an appeal by the U.S. Government against the decision of the Western District of Pennsylvania to exclude certain evidence in a child pornography case involving Roderick Long. Long was indicted for knowingly possessing child pornography involving victims under 12 years old and the evidence in question included a video montage and four photos alleged to have been found on Long's electronic devices. The District Court excluded the exhibits on the grounds of Rule 403, citing the risk of unfair prejudice, cumulativeness, wasting time, and potential jury confusion. However, the District Court made its decision without viewing the exhibits but relying on written descriptions provided by the parties. The Court of Appeals held the District Court committed procedural error by not viewing the evidence before deciding on its admissibility, stating it was far from obvious that the risk of unfair prejudice from the disturbing nature of the exhibits substantially outweighed their probative value. The Court of Appeals noted the cumulativeness, potential for wasted time, and possible jury confusion did not make it obvious that the exhibits failed Rule 403’s balancing test. The court vacated the District Court's decision and remanded back to the District Court for a new Rule 403 balancing after viewing the exhibits proffered by the Government.

 

APPEAL/MANDAMUS. The Seventh Circuit allowed the filing of a compassionate release motion in Corey Thomas v. Barbara Crabb, 2024 U.S. App. LEXIS 2336 (7th Cir. Feb. 2, 2024). Corey Thomas has a lengthy history of frivolous collateral attacks on his 2009 conviction for bank robbery. His persistence has twice earned him sanctions and a filing bar under Alexander v. United States, 121 F.3d 312 (7th Cir. 1997), directing the clerks of this circuit to return unfiled any more papers he submits attacking his conviction. Thomas asked the court to lift the bar so he may move for compassionate release under 18 USC 3582(c)(1)(A) based on an asserted change in the law. The court denied his request but clarified that its Alexander order does not preclude him from moving for a sentence reduction under 3582(c)(1)(A). The bar will be lifted immediately on his full payment of the fine. Thomas is authorized to submit another motion to modify or rescind the order no earlier than two years from the date of this decision.

 

APPEAL/TERMINATE SUPERVISED RELEASE. The Eighth Circuit reversed and remanded United States v. Charles Lester, 2024 U.S. App. LEXIS 2911 (8th Cir. Feb. 8, 2024). In 2006, Lester was sentenced to 188 months' imprisonment and 5 years supervised release for conspiring to distribute methamphetamine. After serving a portion of his supervised release term, the Probation Office filed a report recommending early termination of Lester's supervision citing his low risk of recidivism and compliance with the conditions of his supervision. The Eastern District of Missouri denied this request asserting it did not have the authority to terminate Lester's supervised release early due to the requirement in 21 USC 841(b)(1)(A) that a five-year term of supervised release be imposed, which the court interpreted as precluding early termination under 18 USC 3583(e)(1). The Eighth Circuit disagreed with the district court's interpretation. The appellate court held the language of 841(b)(1)(A) requires the imposition of a five-year term of supervised release but does not impact a district court's ability to later terminate an individual's supervised release after the individual has served at least one year as provided in 3583(e)(1). Thus, the district court retained discretion to consider whether Lester's supervised release could be terminated early under 3583(e)(1). The appellate court reversed the district court's order and remanded the case for further proceedings consistent with its opinion.

 

APPEAL/FTCA. The Fourth Circuit vacated and remanded David Bell v. United States, 2024 U.S. App. LEXIS 2554 (4th Cir. Feb. 5, 2024). Bell appealed the district court’s order adopting the magistrate judge’s recommendations and dismissing for lack of subject matter jurisdiction Bell’s civil action seeking relief under the Federal Tort Claims Act (FTCA). The district court appropriately reviewed de novo two of Bell’s timely-filed objections to the magistrate judge’s report. The court conducted only a clear error review of Bell’s objections to the magistrate judge’s dispositive finding that the discretionary function exception to the FTCA foreclosed his claim. The court found de novo review was not required because Bell’s objection mirrored arguments he previously had raised in his response brief which the magistrate judge considered. The court’s review of Bell’s objections reveals they were sufficiently specific to warrant de novo review by the district court. The case was vacated and remanded.

 

APPEAL/1983/FIRST AMENDMENT. The Ninth Circuit reversed and remanded DeWitt Long v. Sugai, 2024 U.S. App. LEXIS 2514 (9th Cir. Feb. 5, 2024). DeWitt Lamar Long is a practicing Muslim and inmate at Halawa Correctional Facility in Hawaii brought a legal action against several prison officials under 42 USC 1983. He alleged his First Amendment rights to freely exercise his religion were violated and he was unconstitutionally retaliated against for engaging in protected First Amendment activity. Long claimed he was denied meals consistent with his Islamic faith, that his meals during Ramadan were delivered early and thus were cold and potentially unsafe by the time he could break his fast. He was transferred from a medium-security facility to a high-security facility in retaliation for filing grievances. The Ninth Circuit affirmed in part, reversed in part, and vacated in part the district court’s judgment. The appellate court found the district court erred in dismissing Long's claims for injunctive relief without allowing him a chance to amend his complaint to demonstrate the need for such relief. The court also vacated the district court’s decision to grant summary judgment in favor of Sergeant Lee holding the delivery of Long's evening meal at 3:30 p.m. during Ramadan substantially burdened his free exercise of religion. The court remanded the case to allow the district court to evaluate whether the burden was justified. However, the appellate court affirmed the district court's summary judgment in favor of Chief of Security Antonio regarding Long’s claim he was transferred from a medium-security facility to a high-security facility in retaliation for filing grievances. The court agreed with the district court that the sequence of events leading to the transfer was insufficient to show retaliatory intent. The court also affirmed the district court’s judgment after a bench trial in favor of Sergeant Sugai and Chief of Security Antonio on Long’s free exercise of religion and retaliation claims.

 

APPEAL/1983/EVIDENTIARY RULINGS. The First Circuit vacated and remanded Lidia Lech v. Von Goeler, 2024 U.S. Dist. LEXIS 2415(1st Cir. Feb. 2, 2023). A pregnant inmate, Lidia Lech, filed a lawsuit against several healthcare providers and staff at the Western Massachusetts Regional Women's Correctional Center, alleging they ignored her serious medical symptoms and denied her requests to go to the hospital which resulted in the stillbirth of her baby. The district court permitted most of Lech's claims to proceed to trial, but granted summary judgment in favor of one of the correctional officers. The jury returned a verdict in favor of the defense. On appeal, the First Circuit found the district court had abused its discretion in two evidentiary rulings. The first error was allowing the defense to use Lech's recorded phone calls to impugn her character for truthfulness. The second error was excluding testimony from Lech's friend which would have corroborated her version of events. The court concluded at least one of these evidentiary rulings was not harmless, vacated the jury verdict, and remanded for a new trial against most of the defendants. However, the court affirmed the district court's grant of summary judgment to the correctional officer, as well as the jury verdict in favor of one of the medical providers.

 

APPEAL/1983/EIGHTH AMENDMENT. The Fourth Circuit vacated and remanded Matthew Safrit v. Drew Stanley, 2024 U.S. App. LEXIS 2545 (4th Cir. Feb. 5, 2024). Safrit is a North Carolina prisoner who filed a 42 USC 1983 complaint against Drew Stanley, the warden of the Nash Correctional Institution; Todd Ishee, the North Carolina Director of Prisons; and Erik Hooks, the Secretary of the North Carolina Department of Public Safety. Safrit alleged Stanley implemented a new headcount policy at NCI which resulted in inmates being deprived of sufficient sleep. The district court reviewed Safrit’s complaint under 28 USC 1915A and determined Safrit failed to state an Eighth Amendment claim. Safrit’s complaint demonstrates he adequately stated a sufficiently serious deprivation at the pleading stage. He alleged the policy resulted in sleep deprivation for over a year and claimed it exacerbated his mental health conditions of depression and anxiety and increased his suicidal thoughts. While the policy permitted at most just under six hours of sleep, Safrit alleged on most days headcounts were conducted at times that further reduced his sleep. The court found Safrit alleged facts adequately pleading the objective component of an Eighth Amendment claim. Moving to the subjective component, Safrit sufficiently pled that Stanley was responsible for implementing the policy and was aware of and disregarded the harm the policy had on Safrit’s mental health. Safrit sent two letters to Stanley requesting a meeting to discuss the issues and Safrit spoke with another prison official who affirmed she had raised Safrit’s concerns with Stanley. Stanley’s alleged response, while acknowledging Safrit’s complaint, was dismissive, and Stanley continued to insist on compliance with the head count policy. Because the court found Safrit stated a claim for an Eighth Amendment violation as to Stanley, the court vacated that portion of the district court’s order and remanded for further proceedings.

 

APPEAL/1983/FORMA PAUPERIS. The Fifth Circuit vacated and remanded Larry Gibbs v. Jackson, 2024 U.S. App. LEXIS 2727 (5th Cir. Feb. 6, 2024). Larry Donnell Gibbs who is a pro se plaintiff filed a complaint under 42 USC 1983 against five officers of the Texas Department of Criminal Justice. He alleged two officers allowed him to bleed for 45 minutes after being stabbed by another inmate and three other officers used excessive force against him in retaliation for filing a grievance about the incident. Gibbs attempted to proceed in forma pauperis which would have allowed service to be made by a United States Marshal but the district court denied this on the basis he had already paid the filing fee, had sufficient funds in his inmate trust account to serve the defendants, and had not provided the addresses of the defendants. The Fifth Circuit reversed the district court's decision. The appellate court found the district court had abused its discretion by denying Gibbs's in forma pauperis status. It held that a person who is not a pauper at the commencement of a suit may become one during or prior to its prosecution. The court found the district court had arbitrarily determined that the funds in Gibbs's inmate trust account were sufficient for him to serve the defendants and that there's no requirement for an individual to be absolutely destitute to enjoy the benefit of in forma pauperis status. The court held that a district court's determination of whether a party may proceed in forma pauperis must be based solely upon economic criteria and not on the lack of addresses for the defendants. The court concluded the denial of Gibbs's in forma pauperis status had prejudiced his chances of effecting service. The case was remanded to the district court with instructions to permit Gibbs to proceed in forma pauperis.

 

APPEAL/1983/FOURTH AMENDMENT. The Third Circuit reversed and remanded Ada Anglemeyer v. Craig Ammons, 2024 U.S. App. LEXIS 2828 (3d Cir. Feb. 7, 2024). In Pennsylvania, four family members, including two elderly parents, were injured during a pre-dawn, no-knock raid by the Special Emergency Response Team (SERT) of the Pennsylvania State Police. The police acted on information about alleged drug sales by a family member, but none of the four injured individuals were suspected of any wrongdoing. They sued the officers for excessive use of force, but the District Court granted summary judgment in favor of the officers ruling they were entitled to qualified immunity. Upon review the Third Circuit reversed the District Court's decision. The court found the officers' conduct was objectively unreasonable as they had used substantial force against individuals who were unarmed, cooperative, outnumbered by law enforcement, not suspected of wrongdoing, and in their own home. Furthermore, the court held the right to be free from such excessive force was clearly established at the time of the officers conduct, and any reasonable officer would have known that their actions were unlawful. Hence, the court concluded that the officers were not entitled to qualified immunity.

 

APPEAL/BIVENS. The Fourth Circuit vacated and remanded Jesse Kyle Keith v. J.C. Streeval, 2024 U.S. App. LEXIS 2936 (4th Cir. Feb. 7, 2024). Keith is a federal prisoner housed in the Special Housing Unit at USP Lee. He appealed from the district court’s order dismissing his complaint pursuant to 28 USC 1915A. Citing Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Keith’s complaint raised claims of unconstitutional prison conditions in the SHU and violation of his procedural due process rights. He sought both damages and injunctive relief. The court affirmed in part and vacated and

remanded in part. The court found the district court properly dismissed Keith’s Bivens claims for damages. However, the district court did not separately

consider Keith’s claims for injunctive relief and Bivens does not govern claims for

injunctive relief. The court found that Keith’s complaint may state a claim for injunctive relief or Keith may be able to do so following amendment. In any event, the district court should consider these claims in the first instance. Accordingly, the court affirmed the dismissal of Keith’s claims for money damages, vacated the dismissal of his claims for injunctive relief, and remanded for further proceedings.

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