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SAMARITAN NEWSLETTER – 06-03-2024

Updated: Jun 12

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 published district court and court of appeals case for the week in review.  Rusty – 417 901 3000 – Eddie 417 818 1938.


SUPREME COURT: The Supreme Court reversed the Ninth Circuit in Thornell v. Jones, 2024 U.S. LEXIS 2365 (S. Ct. May 30, 2024). The case involves Danny Lee Jones who was convicted of three murders committed with the intent to steal a gun collection. Jones brutally killed a man, his 7-year-old daughter, and his grandmother. After being found guilty the trial court proceeded to sentencing. Under Arizona law the court was required to impose a death sentence if it found one or more aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency. The court found three aggravating circumstances and sentenced Jones to death. The Arizona Supreme Court affirmed the decision. Jones sought postconviction review arguing that his attorney was ineffective. He claimed that his attorney should have retained an independent neuropsychologist rather than relying on a court-appointed psychiatrist. The state court denied this claim. Jones then filed a habeas petition in Federal District Court reasserting his ineffective-assistance-of-counsel claims. The District Court held an evidentiary hearing but concluded that Jones could not show prejudice because the additional information he presented barely altered the sentencing profile presented to the sentencing judge. The Ninth Circuit reversed but the Supreme Court vacated that judgment and remanded for the Ninth Circuit to determine whether it had been proper to consider the new evidence presented at the federal evidentiary hearing. On reconsideration the Ninth Circuit again granted habeas relief. The panel held that it was permissible to consider the new evidence and concluded that there was a reasonable probability that Jones would not have received a death sentence if that evidence had been presented at sentencing. The Supreme Court granted certiorari to review the Ninth Circuit’s interpretation and application of Strickland. The Supreme Court reversed the Ninth Circuit's decision stating that it had departed from the well-established rules in at least three ways. The Supreme Court found that the Ninth Circuit failed to adequately take into account the weighty aggravating circumstances in this case, applied a strange Circuit rule that prohibits a court in a Strickland case from assessing the relative strength of expert witness testimony, and held that the District Court erred by attaching diminished persuasive value to Jones’s mental health conditions because it saw no link between those conditions and Jones’s conduct when he committed the three murders. The Supreme Court concluded that there was no reasonable probability that the evidence on which Jones relies would have altered the outcome at sentencing.


APPEAL/FSA/404(b). The Fourth Circuit vacated and remanded United States v. Carlos Kinard, 2024 U.S. App. LEXIS 12854 (4th Cir. May 29, 2024). Carlos Emanuel Kinard appealed the district court’s order granting in part and denying in part his motion for a sentence reduction under 404 of the First Step Act of 2018, (“FSA”). In 1994, Kinard was convicted on twelve counts relating to a drug and racketeering conspiracy: conspiracy to distribute with intent to distribute and distribution of a quantity of cocaine base, violent crimes in aid of racketeering, two counts of possession with intent to distribute cocaine base, two counts of using and carrying a firearm during a drug trafficking crime, using and carrying a firearm during a crime of violence, murder or kidnapping in aid of racketeering and aiding and abetting the same, and two counts of assault in aid of racketeering and aiding and abetting same. Because the district court did not consider Kinard’s nonfrivolous arguments for a sentence reduction, the court vacated and remanded for resentencing. Kinard’s sentencing range under the then-mandatory Sentencing Guidelines was life. The sentences for the firearm convictions were stacked, as required by statute, beginning with a 10-year consecutive sentence for Count 13, plus two 20-year consecutive sentences for Counts 33 and 34. Kinard moved for a sentence reduction under 404 of the FSA. Kinard asserted all the offenses were covered offenses and he should be resentenced to no more than 240 months for those convictions, the maximum sentence under 21 USC 841(b)(1)(C). Kinard also asserted that the district court could unbundle the grouped offenses and resentence him on noncovered offenses. And Kinard asserted he was sentenced under the mandatory Guidelines, but after United States v. Booker, 543 U.S. 220, 227 (2005), the court should consider the Guidelines as advisory.


CR.RIS/DISPARITY. The District of Montana granted a CR.RIS motion in United States v. Curtis Elder, 2024 U.S. Dist. LEXIS 95552 (D. Mont. May 29, 2024). Elder was convicted by a jury of second-degree murder and assault resulting in serious bodily injury. The Court sentenced Elder to 365 months. Elder has served 14 years, or approximately 168 months, of his sentence. The U.S. Sentencing Commission calculates that for FY2019-2023, the average length of imprisonment for a defendant with a final offense level of 40 and a criminal history category of I was 260 months, while the median length of imprisonment was 240 months. See U.S. Sentencing Comm'n, "Interactive Data Analyzer Dashboard." Elder advised he has taken substantial steps toward rehabilitation during his incarceration and has had no serious disciplinary infractions while incarcerated, and no minor write-ups since 2017. Elder was previously enrolled in the Mental Health Step Down program, and he advises that there will be substantial support in place for him when he is released from his term of custody. He has received mental health treatment and medical intervention to treat bi-polar disorder. The Court determined that Elder's substantial sentence coupled with his record of rehabilitation, amount to extraordinary and compelling reasons within the meaning of section 3582(c)(1)(A). Eder has fulfilled this requirement. The seriousness of Elder's crime cannot be overstated. Elder stabbed victim R.B. numerous times as he lay in bed, causing his death, and bit off victim D.B.'s lower ear lobe. The seriousness of Elder's crime and the need for the sentence to deter criminal conduct and protect the public collectively did not warrant Eder's immediate release. Sentence reduced to 300-months.


CR.RIS/DISPARITY/REHABILITATION/USSG 1B1.13(b)(6). The Eastern District of New York granted a CR.RIS motion in United States v. Andres Aguiar, 2024 U.S. Dist. LEXIS 94778 (E.D. N.Y. May 28, 2024). Aguiar was convicted for drug trafficking and witness tampering and was sentenced to multiple life terms. Having served 33 years of that sentence he is now 62 years old and sought compassionate release under the First Step Act. No theory of punishment justifies his continued incarceration. Because there are extraordinary and compelling reasons warranting a reduction in his sentence and defendant has satisfied all other statutory requirements, the Court granted his motion for a sentence reduction and reduced his three life terms on the drug counts to time served on each. The defendant advanced several bases for a reduction in his sentence. As summarized by the Government, they include "(i) changes in the [Sentencing Guidelines] since the defendant's conviction; (ii) a disagreement with the Court's determination of drug weight at sentencing; (iii) . . . the threat that COVID-19 poses [to] his health; (iv) comparison to sentences of other offenders sentenced at other times; and (v) the Section 3553(a) sentencing factors." He focused on the length of his sentence, which he characterizes as so excessive as to create an "undeniable disparity" with similar defendants. He further identifies significant changes in the law that he argued render his sentence "more and more out of step with the times." During his time in prison he earned a GED and completed additional coursework, and has shown an interest in the law. His record reflects positive personal growth despite the serious challenges presented by many years of life in the difficult environment of prison. Defendant has expressed an intention to relocate to Puerto Rico to live with his family and the court held he shall be permitted to do so.


APPEAL/2255/60(b). The Sixth Circuit reversed and remanded In re West, 2024 U.S. App. LEXIS 12826 (6th Cir. May 29, 2024). The case revolves around Roy Christopher West who is serving a life sentence without parole for a conviction that the district judge has attributed to a sentencing error. West was indicted in 2010 on a charge of conspiracy to use interstate commerce facilities in the commission of murder for hire. He was tried twice and during the second trial he was convicted and sentenced to life imprisonment without parole. However, the indictment did not include any allegation that personal injury or death resulted from the conspiracy, and the jury was not instructed that death was an element of West's offense. The district court sentenced West under the federal murder-for-hire statute, which imposes a life sentence in cases where "death results." The court concluded that sentencing West to life imprisonment under these circumstances violated West's constitutional rights. West initially moved to vacate his sentence under 28 USC 2255, arguing that his trial counsel was ineffective for failing to investigate a causation defense. The district court denied that motion. West then moved for compassionate release arguing that his unconstitutionally imposed life sentence, combined with his rehabilitation while incarcerated, created an extraordinary and compelling circumstance that warranted a sentence reduction. The district court agreed and reduced his sentence to time served. However, the Government appealed, and the appellate court reversed, holding that compassionate release could not be used as a vehicle for second or successive 2255 motions. West then sought relief from judgment under Federal Rule of Civil Procedure 60(b). The district court construed West's motion as a second or successive 2255 motion and transferred it. West opposed the transfer and asked the appellate court to remand to the district court for a ruling on the merits of his Rule 60(b) motion. The appellate court vacated the district court's order construing West's motion as a second or successive 2255 motion and remanded the motion to the district court to consider under Rule 60(b).


APPEA/RESENTENCE, The Fifth Circuit vacated and remanded United Staes v. Gene Rudolph, 2024 U.S. App. LEXIS 13033 (5th Cir. May 30, 2024).  The case revolves around Gene Rudolph who plead guilty to conspiracy to distribute significant quantities of cocaine. Prior to sentencing Rudolph objected to the Presentence Investigation Report (PSR), particularly the application of various enhancements and his designation as a "career offender." The latter significantly increased his offense level and advisory guideline range for incarceration. Rudolph's career offender status was based on his past convictions, including a 1996 drug offense. He argued this conviction should not have been considered as it occurred more than fifteen years before the current offense making it too stale for the career offender guideline. The district court, however, determined that the PSR was accurate and that Rudolph's parole on the 1996 drug offense was revoked in 2004, which was within fifteen years of the commencement of the current offense. Consequently, Rudolph was sentenced to 262 months. Upon appeal, the Fifth Circuit found the government failed to provide an adequate evidentiary basis to support its claim that Rudolph's parole was revoked in 2004 for the 1996 drug conviction. The court ruled the district court's adoption of this fact and application of the career offender enhancement was clear error. The court also rejected Rudolph's argument that his current offense did not qualify as a "controlled substance offense" under the sentencing guidelines. The court vacated Rudolph's sentence and remanded the case to the district court for resentencing.


APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded for resentencing United States v. Daniel Mathis, 2024 U.S. App. LEXIS 12855 (4th Cir. May. 29, 2024). The case involves Daniel Lamont Mathis who was convicted of multiple offenses including Hobbs Act robbery, racketeering, and violent crimes in aid of racketeering activity, all in connection with the carjacking, kidnapping, and execution-style murder of a Virginia police officer. Initially, Mathis was sentenced to four concurrent life sentences and a consecutively imposed term of 132 years imprisonment. However, after an appeal and the passage of the First Step Act of 2018, which amended the sentencing structure for second or subsequent convictions under 18 USC 924(c), the district court resentenced Mathis to four concurrent life sentences, plus 48 years imprisonment. The district court also set forth mandatory and discretionary conditions of supervised release. One of the discretionary conditions was that Mathis would be subject to warrantless search and seizure to ensure compliance with these conditions. However, the written judgment included additional language, stating that Mathis must warn any other occupants that the premises may be subject to searches pursuant to this condition. Mathis appealed, arguing that the additional language in the written judgment constituted error under United States v. Rogers and United States v. Singletary. The Fourth Circuit agreed with Mathis finding that the requirement to warn other occupants was inconsistent with the orally pronounced condition. The court held that this discrepancy constituted reversible error under Rogers and Singletary. As a result, the court vacated Mathis' sentence and remanded the case for a full resentencing.


APPEAL/JURY INSTRUCTIONS. The Fourth Circuit vacated and remanded United States v. Frank Purpera, 2024 U.S. App. LEXIS 12977 (4th Cir. May 30, 2024). A jury convicted Frank Craig Purpera, Jr. of 56 counts of distributing controlled substances outside the scope of professional practice and without a legitimate medical purpose in violation of 21 USC 841(a)(1), (b)(1)(C), (b)(2); two counts of obstruction of justice in violation of 18 USC 1512(b)(2)(A), (b)(3); conspiracy to commit health care fraud and falsify information in violation of 18 USC 1035, 1347, 1349; and health care fraud and falsifying information in violation of 18 USC 2, 1349. Purpera appealed asserting the district court erred when instructing the jury on the 841 charges; that the court allowed the Government to introduce prejudicial character evidence; and that the Government made improper comments during its closing argument. He also challenges the sufficiency of the evidence supporting his health care fraud conviction. For the reasons that follow, the court vacated in part, affirmed in part, and remanded. The Government conceded the jury instructions on the 841 charges were erroneous in light of Ruan v. United States, 597 U.S. 450, 457 (2022) and United States v. Smithers, 92 F.4th 237, 248–52 (4th Cir. 2024). In Ruan, the Supreme Court added a scienter element for illegal drug distributions under 841 by medical professionals. Ruan, 597 U.S. at 457. And in Smithers, the court concluded that jury instructions containing a Ruan error were not harmless when the record contains evidence that could rationally lead to a contrary finding with respect to the omitted scienter element. Smithers, 92 F.4th at 251. Here, the record contains Appellants’ testimony that he believed there was a legitimate medical purpose for his prescriptions. A jury could have relied upon his testimony to reach a contrary finding on the scienter element. Accordingly, the court vacated his 56 convictions for unlawful distribution of controlled substances.


APPEAL/JURY INSTRUCTIONS. The Second Circuit reversed and remanded United States v. Quadri Garnes, 2024 U.S. App. LEXIS 12685 (2d Cir. May 28, 2024). Quadri Garnes was charged with threatening to assault and murder employees of the United States Postal Service and transmitting interstate communications containing threats to injure another person. These charges stemmed from a phone call Garnes made to the New York State Department of Labor after his unemployment benefits claim was denied. During the call Garnes made several statements referencing his criminal record. Before trial Garnes moved to exclude these statements arguing they were of limited probative value and could unfairly prejudice the jury. The Eastern District of New York granted his motion excluding the statements under Rule 403 of the Federal Rules of Evidence. The Government appealed the district court's decision arguing the court had exceeded its discretion in excluding the statements. The Government contended the statements were highly probative as they were a significant part of the threat (the actus reus) and substantially indicative of Garnes's intent (the mens rea). The Second Circuit agreed with the Government. The court found the district court had incorrectly concluded that the statements were of limited probative value. The appellate court held that the statements were highly probative as they were both a significant part of the threat and substantially indicative of Garnes's intent. The court also found the district court had overstated the risk of unfair prejudice. The court concluded a jury instruction could mitigate any potential unfair prejudice. Consequently, the appellate court reversed the district court's order of exclusion and remanded the case for further proceedings.


APPEAL/F.R.EVID. 414. The Fourth Circuit reversed and remanded United States v. Alex Tick Chin, 2024 U.S. App. LEXIS 12990 (4th Cir. May 30. 2024). Alex Kai Tick Chin has been charged with various sex offenses pursuant to a three-count second superseding indictment. In this interlocutory appeal, the Government challenged the district court’s decision pursuant to Federal Rule of Evidence 414 to preclude it from introducing evidence of Chin’s previous conviction for possession of child pornography. The court vacated and remanded the district court’s order for further consideration in light of United States v. Hoover, 95 F.4th 763, 772 (4th Cir. 2024).


APPEAL/1983/EXCESSIVE FORCE. The Eighth Circuit reversed and remanded Sarah Watkins v. City of St. Louis, 2024 U.S. App. LEXIS 12797 (8th Cir. May 29, 2024). Sarah Watkins filed a lawsuit against the City of St. Louis, Missouri, and six individual police officers under 42 USC 1983 alleging the officers used excessive force during a routine traffic stop. Watkins was stopped for a traffic violation near St. Louis Lambert International Airport. After she was asked to step out of her car, she was handcuffed and allegedly subjected to verbal abuse, forced into a vehicle, pepper-sprayed, and repeatedly hit on the leg with a baton. Watkins was later treated for injuries to her legs, face, and body. The district court dismissed Watkins's claims ruling the officers were entitled to qualified immunity on her Fourth Amendment excessive force claims. The court also dismissed the claims against the City stating that Watkins failed to provide sufficient facts to state a claim for municipal liability under 1983 and Monell v. Department of Social Services. The Eighth Circuit reviewed the dismissal of Watkins's claims. The court found Watkins had sufficiently alleged a violation of her Fourth Amendment right to be free from unreasonable seizures. The court also determined this right was clearly established at the time of the traffic stop. Therefore, the court reversed the district court's dismissal of Watkins's Fourth Amendment excessive force claims against the individual officers. The court affirmed the dismissal of Watkins's 1983 claims against the City as she had not alleged sufficient facts to support the existence of an unconstitutional policy or custom.


APPEAL/IMMIGRATION. The Eighth Circuit granted a petition in Nguyen Chi Nmn Huynh v. Garland, 2024 U.S. App. LEXIS 12669 (8th Cir. May 28, 2024). The petitioner Nguyen Chi Cuong Nmn Huynh who is a Vietnamese citizen and lawful permanent resident of the United States was convicted in Iowa for knowingly purchasing or possessing a visual depiction of a minor engaging in a prohibited sexual act. Following this conviction Homeland Security sought his removal under the Immigration and Nationality Act arguing that his crime constituted "sexual abuse of a minor," an aggravated felony that warranted his removal. An immigration judge found Huynh removable and the Board of Immigration Appeals dismissed his appeal. The Eighth Circuit reviewed de novo whether Huynh's state crime qualifies as sexual abuse of a minor. The court applied the "categorical approach," examining whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony. The court found the Iowa statute is broader than the generic federal offense of sexual abuse of a minor. The court held the conduct criminalized by the Iowa statute, namely, knowingly possessing a prohibited image falls outside the generic federal offense of sexual abuse of a minor. The court reasoned that none of the definitions of "sexual abuse of a minor" in the INA, reliable dictionaries, or a closely related statute captures simple possession of child pornography. The court also found that the BIA's preferred definition which requires something more than simple possession of child pornography does not apply to Huynh's case. The court also considered the Homeland Security's charge that Huynh committed a "crime involving moral turpitude" within five years of his admission to the United States. The court found that the Government could not defend the BIA's decision on this charge and granted the Government's request for voluntary remand for the BIA to reconsider its decision. In conclusion, the court granted Huynh's petition for review, vacated the BIA's order, and remanded the case for further proceedings.



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