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SAMARITAN NEWSLETTER – 02-26-2024

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 BP-199 the Project.

 

CR.RIS/1B1.13(b)(6). The Northern District of Georgia granted in part a CR.RIS motion in United States v. Grant Allen, 2024 U.S. Dist. LEXIS 28049 (N.D. Ga. Feb. 12, 2024). In 2010, Allen was charged with conspiracy to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime. The superseding indictment included the following counts: (1) count one, conspiracy to possess with the intent to distribute cocaine in violation of 21 USC 846 and 841(b)(1)(A)(i); (2) count two, aiding and abetting in the attempt to possess with the intent to distribute cocaine in violation of 21 USC841(a)(1) and 841(b)(1)(A)(ii) and 18 USC 2; (3) count three, aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime in violation of 18 USC 924(c) and 2; and (4) count five, possession of a firearm by a convicted felon in violation of 18 USC 922(g)(1) and 924(e). On Sept. 26, 2011, a jury found Allen guilty on each of these counts. On Jan. 19, 2012, Allen was sentenced to life imprisonment. Following the recent amendments to the sentencing guidelines which went into effect on Nov. 1, 2023, there are now six extraordinary and compelling reasons justifying relief under 1B1.13: (1) the defendant's medical circumstances, (2) advanced age, (3) family circumstances, (4) whether the defendant is a victim of abuse, (5) "other reasons," and (6) whether the defendant received an unusually long sentence. Allen, age 59, seeks relief based in part on his medical condition. He suffers from various comorbidities, including osteoarthritis in his right knee, ventral hernia and muscle diastasis, obesity, asthma, dermatitis and psoriasis, and chronic eye conditions. Allen presents a strong argument that a ground recently added in 1B1.13—an unusually long sentence—supports his motion for compassionate release. This provision effective Nov. 1, 2023, and found in subsection (b)(6), "permits a judge to consider a non-retroactive change in sentencing law as an extraordinary and compelling reason in specified circumstances." Because the Eleventh Circuit has never held that nonretroactive changes cannot be extraordinary and compelling reasons, this Court can accept 1B1.13(b)(6)'s validity and applicability. The First Step Act of 2018 brought a slew of sentencing reforms, including 401. Before the 2018 Act was implemented, the mandatory minimum sentences for those convicted under 841(b)(1)(A) ranged from twenty years for one "felony drug offense" to life for two or more drug offenses.Allen's three drug convictions fell under the broadly defined "felony drug offense" category in place at the time of his sentencing. Because he had more than two "felony drug offenses," he was sentenced to life.

But 401 of the Act replaced "felony drug offense" with "serious drug felony" and reduced the mandatory minimums to 15-years for one serious drug felony and 25- years for two or more. Under the statute as now written, a "serious drug felony" is defined as an offense for which "(A) the offender served a term of imprisonment of more than 12 months; and (B) the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense." 21 USC 802(57). It is undisputed that Allen's previous convictions do not qualify as serious drug felonies. Therefore, "if he were prosecuted and sentenced today, he would not have any qualifying serious drug felonies, would not face mandatory life sentences, and would simply face an advisory guideline range" of 322 to 387 months.Although Allen did not accept responsibility for his involvement in the form of a plea deal the Court was impressed by Allen's behavior while in BOP custody. He has not committed any disciplinary violations, has completed dozens of educational and drug treatment programs and has a PATTERN risk-assessment score of "minimum." Given his life sentence, he has done so without hope of early release for good behavior. The Court granted in part Allen's motion and reduced his sentence on counts one, two, and five.

 

CR.RIS/DISPARITY/REHABILITATION/YOUTH/STACKING/1B1.13(b)(6). The Northern District of Oklahoma granted in part a CR.RIS motion in United States v. James Brooks, 2024 U.S. Dist. LEXIS 28316 (N.D. Okla. Feb. 20, 2024). Brooks sought a reduction of his 435-month sentence asserting that amendments to 18 USC 924(c) made by the First Step Act of 2018 created a significant disparity between the mandatory sentence he received for his second 924(c) conviction and the maximum sentence he would face if sentenced today for that same conviction; that he was relatively young when he committed the offense conduct; that a reduction of his unusually long sentence would be consistent with the United States Sentencing Commission's recent amendment to USSG1B1.13(b); and that consideration of applicable factors under 18 USC 3553(a) support his request for a reduced sentence. Brooks contended reducing his sentence is consistent with the Sentencing Amendments. Specifically, subsection (b)(6). In adding subsection (b)(6) to its policy statement, the Sentencing Commission explained that subsection (b)(6) permits non-retroactive changes in law (other than non-retroactive amendments to the Guidelines Manual) to be considered extraordinary and compelling reasons warranting a sentence reduction, but only in narrowly circumscribed circumstances. Specifically, where (a) the defendant is serving an unusually long sentence; (b) the defendant has served at least ten years of the sentence; and (c) an intervening change in the law has produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, the change in law can qualify as an extraordinary and compelling reason after the court has fully considered the defendant's individualized circumstances. Because nothing in 28 USC 994(t) limits the Sentencing Commission's authority to describe the circumstances set forth in USSG 1B1.13(b)(6) as an extraordinary and compelling reason to reduce a previously imposed sentence, subsection (b)(6) is not an arbitrary or capricious exercise of the Sentencing Commission's delegated authority. The Court found that a sentence reduction is consistent with USSG 1B1.13(b)(6). Sentence reduced from 435-months to 315-months.

 

CR.RIS/MEDICAL. The Southern District of Indiana granted a CR.RIS motion in United States v. David Bell, 2024 U.S. Dist. LEXIS 28414 (S.D. Ind. Feb. 20, 2024). In 2016, a jury convicted Bell of one count of conspiracy to distribute 500 grams or more of methamphetamine mixture and one count of unlawful use of communication facility. The court imposed a lifesentence. Bell contended that extraordinary and compelling reasons for release exist in his case because (1) he suffers from a terminal condition and is unable to provide self-care while in BOP, and (2) a change in the law has produced a disparity between the sentence he received and the sentence he would receive today. Bell argued his end-stage organ failure and pulmonary fibrosis together render his condition terminal which demonstrates an extraordinary and compelling reason for his release. Bell successfully presented an extraordinary and compelling reason for his release and the court reduced his sentence to time served.

 

 

APPEAL/CR.RIS. The Seventh Circuit vacated and remanded United States v. Adam Williams, 2024 U.S. App. LEXIS 3864 (7th Cir. Feb. 20, 2024). In an appeal from the United States District Court for the Northern District of Indiana, the Seventh Circuit reviewed a case concerning Adam Tyrale Williams Jr.'s ongoing effort to reduce his sentences for crack-cocaine offenses. Williams was convicted in 2001 of various drug-related offenses, and over the years, he sought sentence reductions based on retroactive amendments to the guidelines and, most recently, the First Step Act of 2018. The district court denied Williams's most recent application for sentence reductionbut the appellate court vacated the decision because the district court failed to calculate the amended statutory sentencing ranges applicable to Williams's convictions. Upon remand, Williams further emphasized changes to his record and conditions of confinement that occurred after the order was vacated. However, the district court again denied Williams's request shortly after receiving the updated motion. The appellate court found that the district court's reliance on its previous reasoning and failure to adequately explain its decision was an abuse of discretion. Thus, the appellate court vacated the judgment and remanded for further proceedings, indicating that a more complete explanation from the district court was necessary given the changes in law and facts relevant to the case.

 

AMENDMENT 821 – JURISDICTION. United States v. Larry Smith, 2024 U.S. Dist. LEXIS 28652 (E.D. Tenn. Feb. 20, 2024) (The instant 3582(c)(2)  motion will not alter the merits of defendant’s pending appeal); United States v. Quinn, 2023 U.S. Dist. LEXIS 34324 (D. Kan. Mar. 1, 2023) (finding that defendant's pending compassionate release appeal did not divest district court of jurisdiction over 18 USC 3582(c) motion);United States v. Gordon, 2020 U.S. Dist. LEXIS 148296, at *5-7 (E.D. Mich. Aug. 18, 2020) (finding district court had jurisdiction over compassionate release motion which "in no way relates to any aspect of [the defendant's] First Step Act motion appeal, which is based on a different sentencing issue").

 

AMENDMENT 821. The Northern District of Ohio granted a821 Amendment motion in United States v. Edward Marshal, 2024 U.S. Dist. LEXIS 289976 (N.D. Ohio. Feb. 22, 2024). Defendant’s sentence was reduced from 72-months to 60-months.

 

AMENDMENT 821. The Eastern District of Washingtongranted a 821 Amendment motion in United States v. Cody Easterday, 2024 U.S. Dist. LEXIS 28918 (E.D. Wash. Feb. 20, 2024). Defendant’s sentence was reduced from 121-months to 105-months.

 

AMENDMENT 821. The Southern District of New Yorkgranted a 821 Amendment motion in United States v. Mario Delgado, 2024 U.S. Dist. LEXIS 28652 (S.D. N.Y. Feb. 20, 2024). Defendant’s sentence was reduced from 72-months to 70-months.

 

AMENDMENT 821. The District of Maine granted a 821 Amendment motion in United States v. Joshua Dunston, 2024 U.S. Dist. LEXIS 28652 (E.D. Tenn. Feb. 20, 2024). Defendant’s sentence was reduced from 121-months to 120-months.

 

AMENDMENT 821. The Eastern District of Tennessee granted a 821 Amendment motion in United States v. Larry Smith, 2024 U.S. Dist. LEXIS 29119 (D. Me. Feb. 201 2024). Defendant’s sentence was reduced from 42-months to 35-months.

 

AMENDMENT 821. The Southern District of Illinois granted a821 Amendment motion in United States v. Deonta Thomas, 2024 U.S. Dist. LEXIS 27923 (Feb. 16, 2024). Defendant’s sentence was reduced from 120-months to 108-months.

 

AMENDMENT 821. The Southern District of Florida granted a821 Amendment motion in United States v. Aldumar Zuleta, 2024 U.S. Dist. LEXIS 26472 (Feb. 15, 2024). Defendant’s sentence was reduced from 70-months to 63-months.

 

AMENDMENT 821. The Southern District of Florida granted a821 Amendment motion in United States v. James Nino, 2024 U.S. Dist. LEXIS 26475 (Feb. 15, 2024). Defendant’s sentence was reduced from 120-months to 108-months.

 

AMENDMENT 821. The District of New Mexico granted a 821 Amendment motion in United States v. Ignacio Fabian-Hurtado, 2024 U.S. Dist. LEXIS 29806 (Feb. 21, 2024). Defendant’s sentence was reduced from 42-months to 37-months.

 

APPEAL/2254/MIRANDA. The Eleventh Circuit reversed and remanded Jimmie Bowen v. Secy., Florida Dept. of Corrections, 2024 U.S. App. LEXIS 3611 (11th Cir. Feb. 15, 2024). In a dispute that arose from a gang-related murder the Eleventh Circuit was called to examine whether the placement of two suspects (who were allegedly involved in the same crime) in a room together constituted an interrogation under Miranda rights. The case involved Jimmie Bowen a member of the New Moneiigang who was convicted for the murder of Pierre Roche and injuring two others. After his arrest Bowen invoked his right to counsel

at which point the police ceased questioning him. However, they moved him to another room where Bernard Jones, another member of the gang and the alleged getaway driver, was present. The ensuing conversation between Bowen and Jones resulted in Bowen making incriminating statements which were used in his trial. Bowen appealed, arguing that his placement in the room with Jones violated his Miranda rights. The district court agreed with Bowen, but the Court of Appeals reversed that decision. The appeals court found that the Supreme Court's precedent was unclear on whether placing two suspects in a room together constitutes an interrogation under Miranda. The court held that because reasonable jurists could disagree about whether Bowen was "interrogated" in the interview room, federal courts lack the power to overturn his state criminal conviction. The appellate court further noted that the fact that Bowen incriminated himself does not necessarily mean it was "reasonably likely" that he would do so when Jones was placed in the room. The court concluded that the case fell into a gray area not clearly defined by Supreme Court precedent, and thus, Bowen's challenge did not warrant federal habeas relief. As such, the court reversed the district court's decision and remanded for further proceedings.

 

APPEAL/2255/FACT-FINDING/IAC. The Second Circuit vacated and remanded Gregory Thomas v. United States, 2024 U.S. App. LEXIS 3942 (2d Cir. Feb. 21, 2024). In the Second Circuit, the case revolved around the appeal of Gregory Thomas who alleges ineffective assistance of counsel due to the failure to file an appeal from his resentencing. Thomas was convicted in 2006 on various counts, including murder for hire, drug-trafficking offenses, and mail fraud. In 2020, he was resentenced to approximately 24 years of imprisonment. No appeal was filed post-resentencing which Thomas claims was against his explicit instructions to his counsel. He subsequently filed a federal habeas petition under 28 USC 2255 which was denied by the district court without conducting any fact-finding. The Court of Appeals found the district court erred by denying Thomas's petition without conducting a fact-finding inquiry. Citing the precedent set in Campusano v. United States, the court highlighted the necessity of a factual inquiry when a habeas petitioner alleges that his counsel failed to file a requested notice of appeal. The court emphasized that the right to appeal is sacrosanct especially in cases involving the loss of an entire appellate proceeding. As a result, the court vacated the district court's order and remanded the case for further proceedings, including a fact-finding inquiry into Thomas's allegations.

 

APPEAL/SENTENCE/OHIO ROBBERY STATUTE. The Sixth Circuit vacated and remanded for resentencing in United States v. Alexander Ivy, 2024 U.S. App. LEXIS 3861 (6th Cir. Feb. 20, 2024). In 2024, the Sixth Circuit examined whether a conviction for aggravated robbery with a deadly weapon under Ohio law could be considered a "crime of violence" under the federal Sentencing Guidelines, which would lead to an enhanced sentencing range. The defendant, Alexander Ivy, had plead guilty to possession of methamphetamine with intent to distribute and being a felon in possession of a firearm. At sentencing, the district court found that Ivy's prior conviction for aggravated robbery was a "crime of violence," resulting in an increased Guidelines range of 92 to 115 months instead of the likely 46 to 57 months without such a finding. Ivy appealed this decision. The Court of Appeals held that a conviction for aggravated robbery with a deadly weapon under Ohio law without further information that the aggravated-robbery conviction is predicated on a particular underlying theft offense is not a "crime of violence" under the Guidelines. The court found the Ohio aggravated-robbery statute criminalizes a broader range of conduct than both robbery and extortion, making it not a crime of violence under the Guidelines. Moreover, the court found Ohio aggravated robbery doesn't require an offender to obtain something of value from another person, making it broader than the definition of extortion under the Guidelines. Therefore, the court vacated Ivy's sentence and remanded the case back to the district court for resentencing consistent with its opinion.

 

APPEAL/SENTENCE. The Sixth Circuit reversed and remanded United States v. Zachariah Histed, 2024 U.S. App. LEXIS 4110(6th Cir. Feb. 22, 2024). Histed plead guilty to possessing methamphetamine with intent to distribute. The District Court sentenced him to 300 months imprisonment. Histed appealed his sentence on both procedural and substantive grounds arguing the district court incorrectly calculated the drug quantity, wrongly applied multiple sentencing enhancements, improperly denied him credit for acceptance of responsibility, and imposed a sentence that was too long. The Sixth Circuit affirmed in part, vacated Histed’s sentence, and remanded for resentencing. The Court of Appeals held the district court erred in calculating the quantity of methamphetamine attributable to Histed because it did not adequately explain how it arrived at the drug quantity or articulate any methodology for reaching the offense level of 32. Thus, the Court of Appeals vacated Histed's sentence and remanded the case for resentencing with a more precise determination of the drug quantity attributable to Histed.However, the Court of Appeals affirmed the district court's application of the dangerous-weapon, reckless-endangerment, and obstruction-of-justice enhancements, as well as its denial of an acceptance-of-responsibility reduction. The court found that Histed's possession of an inert grenade during his drug-trafficking offense justified the dangerous-weapon enhancement. It also held that Histed's reckless behavior during his flight from law enforcement warranted the reckless-endangerment enhancement, and his attempts to make others lie to investigators justified the obstruction-of-justice enhancement. Finally, the court held that despite Histed's guilty plea, his lack of full acceptance of responsibility for his actions justified the denial of an acceptance-of-responsibility reduction.

 

APPEAL/KNOWLEDGE OF DRUGS. The Tenth Circuit reversed and remanded to enter a judgment of acquittal in United States v. Garcia-Rodriguez, 2024 U.S. App. LEXIS 3936 (10th Cir. Feb. 21, 2024). In this case the Tenth Circuit reversed the convictions of Juanita Viridiana Garcia Rodriguez on charges of conspiracy to possess methamphetamine with the intent to distribute and interstate travel in aid of a drug-trafficking enterprise. The case stemmed from a cross-country car trip where secret compartments containing methamphetamine were found in the car driven by Tony Garcia with Ms. Garcia-Rodriguez as a passenger. The court held that the prosecution failed to show beyond a reasonable doubt that Ms. Garcia-Rodriguez had knowledge of the methamphetamine hidden in the vehicle which was required to prove her guilt. The court found that simply being a passenger in a car carrying drugs is insufficient to implicate the passenger in a criminal conspiracy. The court also found that the evidence presented by the prosecution including the value of the methamphetamine, the appearance of the car's rear doors, and Ms. Garcia-Rodriguez's apparent nervousness were insufficient to prove her knowledge of the drugs. The lack of evidence Ms. Garcia-Rodriguez had ever tried to open the rear doors or that she knew about the secret compartments was particularly significant. The court concluded that any inferences about Ms. Garcia-Rodriguez's knowledge of the drugs were based on speculation which is not sufficient to uphold a conviction. The court therefore reversed the convictions and remanded the case with instructions to enter a judgment of acquittal.

 

APPEAL/SEARCH. The Sixth Circuit remanded United States v. Brett Dauphinais, 2024 U.S. App. LEXIS 4266 (6th Cir. Feb. 23, 2024). In October 2021, Brett Dauphinais ordered a tableting press, a regulated device, for delivery to a residential address triggering a DEA investigation. Agents then monitored the delivery address, as well as a second address to which Dauphinais transported the tableting machine immediately after its delivery. Based on the lengthy affidavit of an experienced agent the DEA sought a search warrant for the second address, which was granted, resulting in seizure of some controlled substances, drug

paraphernalia, and two firearms. The Government indicted Dauphinais on drug and firearm-related charges. The district court granted Dauphinais’s motion to suppress the evidencedetermining that the warrant affidavit failed to establish probable cause to search and that the good faith exception to the exclusionary rule did not apply to the evidence obtained under the warrant. The Government appealed both determinations. The court affirmed the district court’s holding that the warrant lacked probable cause but reversed its determination that the good faith exception did not apply and remanded for further proceedings.

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