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SAMARITAN NEWSLETTER – 02-19-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179

 

The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with 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. Have your friends place the Project on Corrlinks so they can receive the Newsletter.

 

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 Lexandria at 913-940-5014.

 

CR.RIS/REABILITATION/FAMILY CIRCUMSTANCES/DISPARITY. The Eastern District of New York granted a CR.RIS motion in United States v. Anthony Donato, 2024 U.S. Dist. LEXIS 27620 (E.D. N.Y. Feb. 16, 2024). Between Jan.1979 until his arrest in Nov. 2004, Donato participated in illegal gambling operations as a member of the Bonnano organized crime family. For conduct connected to his role in the Bonnano Family, Donato plead guilty on Nov. 8, 2005, to two counts: (1) illegal gambling and (2) racketeering conspiracy predicated on attempted murder and owning and operating gambling businesses in violation of 18 USC 1955, 1962(d), and 1963(a). On Aug. 6, 2008, Donato plead guilty to conspiracy to commit murder in aid of racketeering in violation of 18 USC 1959(a)(5). Donato was sentenced to 300-months. Donato argued four sets of circumstances, when viewed together, create extraordinary and compelling reasons that warrant a reduction in his sentence to time served. These reasons are: (1) the sentencing disparity between Donato and his co-defendants; (2) his family circumstances, in particular the need to take part in the care of his son, Anthony Jr., who has Down Syndrome; (3) the harsher than-contemplated conditions Donato experienced because of the pandemic; and (4) his post-conviction rehabilitation. Donato's motion for compassionate release was granted, and his sentence was reduced to time served.

 

CR.RIS/CAREER OFFENDER. The District of Kansas granted a CR.RIS motion in United States v. Terry Revels, 2024 U.S. Dist. LEXIS 26552 (D. Kan. Feb. 15, 2024). On March 25, 2013, defendant plead guilty without a plea agreement to armed bank robbery in violation of 18 USC 2113. On June 10, 2013, the defendant was sentenced to 235 months. On Oct. 31, 2023, defendant filed a motion seeking a sentence reduction to time served. He stated his term of imprisonment should be reduced because if he was sentenced today, he would no longer qualify as a career offender and his guideline range would be greatly reduced. The defendant asserted he would no longer qualify as a career offender because his prior conviction for Kansas aggravated robbery no longer qualifies as a crime of violence under USSG 4B1.2. The defendant met the requirement in USSG 1B1.13(b)(6) of serving at least 10 years of his sentence because he has served 132 months. Defendant would no longer qualify as a career offender because his prior Kansas conviction for aggravated robbery no longer qualifies as a crime of violence. Finally, there is a gross disparity between the 235-month term being served with the current guideline range of 92-115 months. Accordingly, considering all these individualized circumstances the Court found defendant had established an extraordinary and compelling reason to grant his motion. His sentence was reduced to time served.

 

CR.RIS/FAMILY CIRCUMSTANCES. The Northern District of Illinois granted a CR.RIS motion in United States v. Michael Haldorson, 2024 U.S. Dist. LEXIS 25705 (N.D. Ill. Feb. 14, 2024). Haldorson was found guilty of distribution of cocaine; possession of cocaine with intent to distribute; possession of MDMA (ecstasy) and cocaine; and carrying an explosive—smokeless powder—during the commission of a felony. The jury acquitted Haldorson on a charge of possessing an unregistered explosive device and possessing a firearm after a felony conviction. The narcotics charges all involve controlled purchases in 2015 pursuant to an undercover investigation by law enforcement in Will County. When Haldorson was arrested in June 2015 at the site of the last arranged purchase, three pipe bombs and another device were recovered from the trunk of his vehicle. He was sentenced to 192 months. Haldorson filed a motion for early release under 18 USC 3582(c)(1)(A). He cites the medical condition of his father; his father's need for a caregiver; and the absence of other available care given his father's needs. Haldorson discussed his positive adjustment while incarcerated and his plans if released. Haldorson has clearly shown—that his father Raymond Haldorson is incapacitated. Specifically, he was diagnosed with Parkinson's Disease in 2019, and suffers from diabetes. Haldorson has served to date—a little over six years—which is less than the Court anticipated when it sentenced him. The court held it is nonetheless a significant amount of prison time. The court stated “it would be difficult to say, credibly, that serving six years in a federal prison is anything other than significant punishment.” Sentence reduced to time served.

 

CR.RIS/FAMILY CIRCUMSTANCES/REHABILITATION. The District of New Jersey granted a CR.RIS motion in United States v. Shantay Walker, 2024 U.S. Dist. LEXIS 25188 (D. N.J. Feb. 13, 2024). From April to Aug. of 2019, Walker was involved in trafficking crack and powder cocaine throughout Monmouth County, New Jersey. In Aug. 2019, Walker was arrested for her involvement in the scheme. Ultimately, she was charged with one count of conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base and one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 28 USC 846. Walker was sentenced to 27 months. She requested a sentence reduction so she may "resume the custody and care of her minor children . . . and help care for her mother." She asserted there are two extraordinary and compelling reasons that would justify the reduction: (1) she must care for her three minor children—including her 12-year-old son with diabetes and epilepsy—all of whom are currently under the care and sole custody of Walker's 20-year old daughter "who cannot adequately protect her siblings health and safety"; and (2) Walker must care for her 66-year-old mother, who has been hospitalized for more than 30 days and depends upon medical equipment, as her mother's power-of-attorney. She stated she is no longer a danger to the community and that a reduction would be "consistent with any applicable policy statement." USSG 1B1.13(b)(3). The Court found Walker had demonstrated extraordinary and compelling reasons exist due to the incapacitation of her mother, the caregiver of Walker's minor children. Sentence reduced to time served.

 

CR.RIS/JAIL CREDIT/MEDICAL/FAMILY CIRCUMSTANCES. The District of Utah granted a CR.RIS motion in United States v. Danial Movahhed, 2024 U.S. Dist. LEXIS 23283 (D. Utah, Feb. 8, 2024). The defendant was charged with participation in an illegal drug distribution scheme and plead guilty to one count of conspiracy to distribute methamphetamine in violation of 21 USC 841 and 846. The parties reached a plea agreement under Rule 11(c)(1)(C), and stipulated to a sentence of 60 months. On June 4, 2020, the court accepted the plea agreement and sentenced him to 60 months. The parties understood, and the court ordered the 60-month sentence include credit for the 16 months prior to sentencing that Movahhed spent in custody following a federal detention hearing on Feb. 27, 2019. But because of pending state charges and parole violations the Bureau of Prisons did not give him prior custody credit for these 16 months. Movahhed has been diagnosed with epilepsy and requires medication to control his seizures. The unrefuted evidence before the court was he is no longer receiving adequate and timely medical treatment to keep his epilepsy in check. He reported having two to three seizures a week. Particularly in conjunction with his other chronic health conditions he is not able to adequately manage his health in a correctional environment with the resources currently available to him. Following the deaths of his father, wife, and brother, Movahhed's only other immediate adult family member is his mother. His mother is chronically ill and permanently disabled. Her health is failing. Because of the deaths in their family there is no one to provide his mother with the assistance she needs on a daily basis including assisting her with transportation to medical appointments, managing her medication, and maintaining her household. Defendant’s sentence was reduced to time served.

 

APPEAL/CR.RIS/2255. The Tenth Circuit reversed and remanded United States v. Thierry Roberson, 2024 U.S. App. LEXIS 3534 (10th Cir. Feb. 15, 2024). Roberson plead guilty in 2019 to three counts of possession of a firearm during and in relation to a crime of violence in violation of 18 USC 924(c)(1)(A)(ii). The district court sentenced him to three consecutive seven-year terms for a total of 21-years. Roberson did not appeal. In 2023, Roberson asked the district court for a sentence reduction under 3582(c)(1)(A)(i), commonly referred to as compassionate release. He argued the offenses underlying two of his 924(c) convictions did not qualify as crimes of violence. The relevant predicate offenses were robberies in violation of 18 USC 1951(a), otherwise known as the Hobbs Act. Roberson contended there were extraordinary and compelling reasons to reduce his sentence because these 924(c) convictions were void. The district court denied Roberson's 3582(c)(1)(A)(i) motion. The court rejected his contention Hobbs Act robbery does not qualify as a crime of violence and he failed to provide extraordinary or compelling reasons why the court should consider compassionate release. The Tenth Circuit held the court erred in ruling on Roberson's motion pursuant to 3582(c)(1)(A)(i) because the court was required to treat the motion as filed under 28 USC 2255. "When a federal prisoner asserts a claim that, if true, would mean 'that the sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack,' 2255(a), the prisoner is bringing a claim governed by 2255." In such a case, "the district court must apply 2255," including "the statutory restraints imposed by 2255, such as timing, the content of the motion, and the grounds on which one can bring additional motions." A prisoner challenging his conviction or sentence cannot avoid 28 USC 2255 and its limitations by seeking relief under 3582(c)(1)(A)(i) instead. When Roberson filed his motion purportedly seeking compassionate release he had not previously filed a 2255 motion. On remand the district court shall follow the procedure recharacterizing Roberson's motion as filed under 2255. The court vacated the district court's order denying relief under 3582(c)(1)(A)(i) and remanded for further proceedings.

 

AMENDMENT 821. The Northern District of Ohio granted a 821 Amendment motion in United States v. Edward Marshall, 2024 U.S. Dist. LEXIS 25376 (Feb. 14, 2024). Defendant’s sentence was reduced from 72-months to 60-months.

 

AMENDMENT 821. The Southern District of Illinois granted a 821 Amendment motion in United States v. Christopher Freeman, 2024 U.S. Dist. LEXIS 25279 (Feb. 13, 2024). Defendant’s sentence was reduced from 120-months to 104-months.

 

AMENDMENT 821. The Southern District of West Virginia granted a 821 Amendment motion in United States v. Thomas Matthew, 2024 U.S. Dist. LEXIS 25025 (Feb. 13, 2024). Defendant’s sentence was reduced from 80-months to 60-months.

 

AMENDMENT 821. The Eastern District of Kentucky granted a 821 Amendment motion in United States v. Rudy Guerrero, 2024 U.S. Dist. LEXIS 24020 (Feb. 12, 2024). Defendant’s sentence was reduced from 78-months to 70-months.

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Brandon Cox, 2024 U.S. Dist. LEXIS 26084 (Feb. 14, 2024). Defendant’s sentence was reduced from 75-months to 70-months.

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Clarence Adams, 2024 U.S. Dist. LEXIS 24402 (Feb. 12, 2024). Defendant’s sentence was reduced from 121-months to 108-months.

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Adam Griffith, 2024 U.S. Dist. LEXIS 24420 (Feb. 12, 2024). Defendant’s sentence was reduced from 48-months to 39-months.

 

AMENDMENT 821. The Southern District of New York granted a 821 Amendment motion in United States v. Hicham Kabbaj, 2024 U.S. Dist. LEXIS 26646 (Feb. 15 2024). Defendant’s sentence was reduced from 52-months to 46-months.

 

AMENDMENT 821. The Southern District of New York granted a 821 Amendment motion in United States v. Daniel Tibaduiza-Olarte, 2024 U.S. Dist. LEXIS 22857 (Feb. 9, 2024). Defendant’s sentence was reduced from 108-months to 87-months.

 

AMENDMENT 821. The Eastern District of Tennessee granted a 821 Amendment motion in United States v. Isaac Marble, 2024 U.S. Dist. LEXIS 23269 (Feb. 9, 2024). Defendant’s sentence was reduced from 108-months to 96-months.

AMENDMENT 821. The Southern District of New York granted a 821 Amendment motion in United States v. Faisal Ali, 2024 U.S. Dist. LEXIS 24550 (Feb. 9, 2024). Defendant’s sentence was reduced from 46-months to 42-months.

2255/IAC. The Northern District of Iowa granted an evidentiary in Demetrius Johnson v. United States, 2024 U.S. Dist. LEXIS 23121 (N.D. Iowa Feb. 9, 2024). On Aug. 22, 2019, Johnson was indicted on five counts related to conspiracy to distribute a controlled substance, possession with intent to distribute a controlled substance and possession of a firearm. Pursuant to a plea agreement he plead guilty on Jan. 24, 2020, to Count 1 conspiracy to distribute a controlled substance in violation of 21 USC 841(a)(1), 841(b)(1)(A), 846 and 851, and Count 5 possession of a firearm by a prohibited person in violation of 18 USC 922(g)(1), 922(g)(3) and 924(a)(2). On June 23, 2020, the court sentenced Johnson to 292 months on Count 1 and 120 months on Count 5 to be served concurrently. Johnson asserted his counsel, Plumb, was ineffective for (1) failing to challenge the base offense level for Count 1 in the plea agreement (Claim 3); (2) failing to challenge the drug quantity in the plea agreement (Claim 4); (3) failing to challenge the enhancements in the plea agreement as inapplicable to Count 1 and as lacking factual basis (Claim 5); and (4) providing erroneous advice about his potential sentence (Claim 6). Johnson claims Plumb provided erroneous advice that affected his understanding of the sentence he faced prior to entering into the plea agreement. In Claim 8, Johnson argued Plumb failed to file an appeal after being instructed to do so. Johnson stated in an affidavit that on or around June 23, 2020, shortly after sentencing, he told Plumb he wanted to file an appeal. In Aug. 2020, Plumb notified him by telephone he did not feel it was in Johnson's best interest to file an appeal. Johnson stated he again informed counsel he wanted to appeal on grounds that the sentence was erroneously increased due to misapplication of the career offender guidelines. All claims raised in Johnson's motion under 2255 were denied except for Johnson's claim of ineffective assistance of counsel based on his counsel's failure to file an appeal. Johnson's claim based on counsel's failure to file an appeal requires an evidentiary hearing.

 

APPEAL/SENTENCE. The Fifth Circuit vacated and remanded for resentencing United States v. Miguel Ortega, 2024 U.S. App. LEXIS 3600 (5th Cir. Feb. 15, 2024). Ortega plead guilty to possession of child pornography and appealed the application of a two-level sentencing enhancement for obstruction of justice. The enhancement was based on a conversation he had with his wife regarding a letter of support she was writing for his sentencing proceeding. The Fifth Circuit vacated Ortega's sentence and remanded for resentencing. The court reasoned that Ortega's conduct, i.e., advising his wife about what to say in her letter to the court and in her statement at the sentencing hearing did not constitute obstruction of justice. The Government had argued Ortega was unlawfully influencing a witness's testimony and directing his wife to attribute his conduct to drug addiction which she lacked personal knowledge of. However, the court found no evidence Ortega urged his wife to provide false or misleading information. It also noted that the facts Ortega instructed his wife to include in her statement were all supported by the factual record. The court clarified the obstruction-of-justice enhancement applies if: (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense. In this case, the court concluded the Government failed to show that Ortega's conduct met these requirements. Therefore, the court vacated Ortega's sentence and remanded the case for resentencing without the obstruction-of-justice enhancement.

 

APPEAL/922(g)(3). The Tenth Circuit remanded United States v. Jonathan Morales-Lopez, 2024 U.S. App. LEXIS 3051 (10th Cir. Feb. 9, 2024). The Tenth Circuit overturned the District of Utah's decision to dismiss the charge against Jonathan Alexander Morales-Lopez who was accused of violating 18 USC 922(g)(3). This statute prohibits any person who is an unlawful user of a controlled substance from possessing a firearm. The district court held the phrase "unlawful user" in the statute is unconstitutionally vague both on its face and as applied to the facts of Morales-Lopez's case. However, the appellate court disagreed on both counts. First, the appellate court held the district court erred in considering whether 922(g)(3) was unconstitutional on its face. The court cited longstanding precedent a defendant whose conduct is clearly prohibited by a statute cannot pose a facial challenge to it. Second, the appellate court held the district court erred in finding 922(g)(3) unconstitutional as applied to Morales-Lopez's conduct. The appellate court found there was sufficient evidence of a temporal nexus between Morales-Lopez's drug use and his possession of a firearm. The facts of the case are as follows: Morales-Lopez and another man were caught stealing firearms and ammunition from a store in Utah. Morales-Lopez had a stolen gun and methamphetamine. He admitted to using drugs regularly in the month prior to his arrest. The appellate court concluded the phrase "unlawful user" in 922(g)(3) is clear in its application to Morales-Lopez's conduct and the district court should reinstate the jury’s verdict. The case was remanded with instructions to proceed accordingly.

 

APPEAL/SEARCH. The Ninth Circuit remanded United States v. Brett Parkins, 2024 U.S. App. LEXIS 3427 (9th Cir. Feb. 14, 2024). Parkins was convicted of aiming a laser pointer at a police helicopter. Police officers searched Parkins's apartment without a warrant after obtaining consent from his girlfriend. Parkins, who was present but not at the doorway of his apartment verbally objected to the search. The Ninth Circuit decided under the Fourth Amendment, a defendant must be physically present and expressly refuse consent to nullify a co-tenant’s consent to a warrantless search. The court clarified physical presence does not require the defendant to stand at the doorway — presence on the premises, including its immediate vicinity, is sufficient. The court ruled Parkins was physically present on the premises and had expressly refused consent so the search of his apartment violated his Fourth Amendment rights. However, the court upheld the district court's denial of Parkins's motion to suppress his pre-arrest and post-arrest statements because Parkins was not subject to interrogation for his pre-arrest statements and his post-arrest statements at the police station were not a product of the unlawful search of his apartment. The case was sent back to the lower court for further proceedings.

 

APPEAL/1983/DNA EVIDENCE, The Eighth Circuit reversed in part Estate of Nash v. Folsom, 2024 U.S. App. LEXIS 3039 (8th Cir. Feb. 9, 2024). The Eighth Circuit considered an appeal by several Missouri public officials who were denied qualified immunity by a lower court regarding five claims arising from a murder prosecution. The murder case involved Donald Nash who was eventually convicted for the murder of Judy Spencer, was reopened in 2007, 25 years after the crime occurred. The officials based their case on a theory that DNA evidence found under Spencer's fingernails belonged to Nash which they asserted could not have remained present if Spencer had washed her hair after their last encounter. Nash was convicted and spent 11 years in prison until the Missouri Supreme Court set aside his conviction in 2020. The charges were dismissed after DNA testing on the shoelace used to strangle Spencer supported Nash’s noninvolvement. Nash and his wife filed a lawsuit against the officials claiming violations of rights including unlawful arrest and detention, fabrication of evidence, failure to investigate, violations of rights of access to courts, and violation of the right to familial and marital associations. The Eighth Circuit affirmed in part, reversed in part, and dismissed in part the appeals on the denial of qualified immunity. The court held the officials were not entitled to qualified immunity on the claim of unlawful arrest and detention, finding that the omission of certain exculpatory facts from the probable cause affidavit negated probable cause for Nash's arrest. However, the court reversed the denial of qualified immunity for the claim alleging violation of the right to familial and marital associations as this was not a clearly established constitutional right in 2008.    

 

 

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