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SAMARITAN NEWSLETTER - 03-04-2024

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.

 

Our website – SAMARITANPROJECTS.COM is available to your family and friends. Our Newsletters and Alerts are published on the WEBSITE.

 

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/MEDICAL. The District of Kansas granted a CR.RIS motion in United States v. Eddie Washington, 2024 U.S. Dist. LEXIS 35174 (D. Kan. Feb. 29, 2024). On Feb. 17, 2022, the defendant waived indictment and plead guilty to one count of the Information to distribution of cocaine in violation of 21 USC 841(a)(1). On June 6, 2022, the defendant was sentenced to 37 months imprisonment. The defendant is 64 years old, currently incarcerated at Springfield MCFP, and his projected release date is March 23, 2025. On Dec. 8, 2023, the defendant filed a motion for compassionate release. He states his prison sentence should be reduced because he is suffering from medical conditions, primarily kidney disease. Washington sought compassionate release due to his medical conditions. He stated he suffers from end stage renal failure which is a terminal illness and he contends that his condition substantially diminishes his ability to provide self-care. The defendant's end-stage renal disease specifically qualifies as an extraordinary and compelling reason under USSG 1B1.13(b) which provides that end-stage organ disease may qualify as a terminal illness. Accordingly, the Court found that defendant's medical conditions fell within the extraordinary and compelling reasons set forth in 1B1.13(b). The defendant’s sentence was reduced to time served.

 

CR.RIS/FAMILY CIRCUMSTANES. The District of Minnesota granted a CR.RIS motion in United States v. Phoumara Todd Sok, 2024 U.S. Dist. LEXIS 33058 (D. Minn. Feb. 27, 2024). In March 2014, Sok and five others were charged with participating in a conspiracy to distribute methamphetamine. In addition to the conspiracy the charges against Sok included possession with intent to distribute methamphetamine and cocaine and using and carrying a firearm in connection with a drug trafficking crime along with being a felon in possession of a firearm. Sok pled guilty to the conspiracy and using-and-carrying-a-firearm counts in July 2014, and was allowed to remain on bond pending sentencing. Within a few weeks, Sok was again apprehended after law enforcement witnessed him selling cocaine. Sok was then charged with distribution of and possession with intent to distribute cocaine. He again pled guilty and the two cases were consolidated for sentencing. In May 2015, Sok was sentenced to 180 months, and consecutive 24 months. Sok's projected release date is Jan. 2029. He has served nearly three-quarters of his 204-month sentence. Sok's mother suffers from vascular dementia, major depressive disorder, and Type 2 diabetes with stage 3a chronic kidney disease, among other conditions. Sok's mother lives part of the time with Sok's brother and part with Sok's sister, but refuses to stay with any of her children on a consistent basis. Recently, Sok's mother has become aggressive and has wandered out of the house on numerous occasions and she now requires 24-hour supervision that the family cannot afford. Sok submitted affidavits from relatives establishing that none of them is able or willing to provide round-the-clock care for his mother. In addition, Sok's sister was diagnosed with breast cancer in 2021 and continues to suffer the effects of chemotherapy and radiation. She works as a surgical assistant at the Mayo Clinic in Rochester, where she lives. Because of her health and her job, she is unable to care for her mother on a 24-hour basis. The defendant’s sentence was reduced to time served.

 

CR.RIS/DISPARITY/REHABILITATION/STACKED. The Eastern District of Virginia granted in part a CR.RIS motion in United States v. Cornelius Clayton, 2024 U.S. Dist. LEXIS 31698 (E.D. Va. Feb. 23, 2024). On Nov. 5, 2013, Clayton was charged in a five-count indictment: two counts of robbery and one count of conspiracy to obstruct, delay, and affect commerce by robbery in violation of 18 USC 1951(a), and two counts of use, carry, and brandish firearm during and in relation to a felony crime of violence in violation of 18 USC 924(c). On April 10, 2014, Clayton entered into a written plea agreement where he pled guilty to one count of conspiracy to obstruct, delay, and affect commerce by robbery and two counts of use, carry, and brandish firearm during and in relation to a felony crime of violence. The Court granted in part Clayton's motion, and reduced his sentence from 408 months to 234 months. In the motion, Clayton discussed his rehabilitation while in prison, his young age at the time of his offense, and the sentencing disparity resulting from his stacked 924(c) convictions. In support of his claims of rehabilitation, Clayton references his completion of several programs aimed towards recovery and rehabilitation as well as his educational efforts such as obtaining his GED and participating in job readiness courses. Clayton urged the Court to take into consideration that he was only nineteen at the time of his offense. Clayton also contended that if he were sentenced today Count Five would result in an 84-month, rather than a 300-month sentence due to Congress ending the practice of "stacking" multiple 18 USC 924(c) convictions in the same prosecution. Under the current provisions, the minimum within-guideline sentence Clayton could receive would be 276 months or 23 years. The court reduced the defendant’s sentence to 234-months.

 

CR.RIS/EXCESSIVE SENTENCE/FAMILY CIRCUMSTANCES. The District of Maryland granted in part a CR.RIS motion in United States v. Garnett Smith, 2024 U.S. Dist. LEXIS 30932 (D. Md. Feb. 21, 2024). On Oct. 10, 2013, Smith plead guilty to Count One of the Superseding Indictment, Conspiracy to Distribute and Possess with the Intent to Distribute Cocaine in violation of 21 USC 846 pursuant to a Rule 11(c)(1)(C) plea agreement. Smith admitted receiving large shipments of cocaine from co-conspirators in California which he sold in Baltimore; the volume of cocaine exceeded 1000 kilograms. He was the organizer and leader of this criminal enterprise. Smith profited handsomely, on the order of millions, and lived a lavish lifestyle. As part of his criminal prosecution, he forfeited property valued at more than $6 million. He was not, however, charged with any violence in relation to this drug trafficking scheme nor is there any non-speculative suggestion that Smith directed or participated in any violence. In his Motion, Smith requests his sentence be reduced to 170 months or time served. After having reviewed Smith's submissions, the Court has concluded extraordinary and compelling circumstances exist justifying a sentence reduction. Specifically, Smith's sentence length is extraordinarily excessive and disproportionate. Taking that into account along with the totality of the Smith's submissions and circumstances, the Court concluded that Smith had satisfied this requirement. Second, while the Court can consider any extraordinary and compelling reason for a sentence reduction, the Court noted that the Sentencing Guidelines favor the Court's conclusion here. USSG 1B1.13(b)(3)(C) provides that the "incapacitation of the defendant's parent when the defendant would be the only caregiver for the parent" can be an extraordinary and compelling justification for sentence reduction. Smith has noted that his mother is elderly and in need of assistance. Likewise, under certain circumstances, admittedly not present here the Guidelines contemplate a sentence reduction where the defendant received "an unusually long sentence and has served at least 10 years of the term of imprisonment." 1B1.13(b)(6). Further, while the Guidelines do not suggest that rehabilitation alone can be an extraordinary and compelling reason, they do suggest that rehabilitation "may be considered in combination with other circumstances in determining whether and to what extent a reduction in the defendant's term of imprisonment is warranted." Smith has takrn significant positive rehabilitative steps. The Court reduced defendant’s 300-month sentence to 240-months.

 

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Matilde Cruz Portillo, 2024 U.S. Dist. LEXIS 35594 (W.D. N.C. Feb. 29, 2024). Sealed.

 

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Anthony Sharper, 2024 U.S. Dist. LEXIS 35487 (W.D. N.C. Feb. 29, 2024). The court reduced defendant’s 30-month sentence to 24-months.

 

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Maria Lopez-Ayala, 2024 U.S. Dist. LEXIS 35645 (W.D. N.C. Feb. 29, 2024). The court reduced defendant’s 135-month sentence to 108-months.

 

AMENDMENT 821. The Western District of North Carolina granted a 821 Amendment motion in United States v. Nick Miller, 2024 U.S. Dist. LEXIS 35610 (W.D. N.C. Feb. 29, 2024). The court reduced defendant’s 105-month sentence to 94-months.

 

AMENDMENT 821. The Western District of Michigan granted a 821 Amendment motion in United States v. Daquane Wilson, 2024 U.S. Dist. LEXIS 35008 (W.D. Mich. Feb. 29, 2024). The court reduced defendant’s 87-month sentence to 70-months.

 

AMENDMENT 821. The Northern District of Ohio granted a 821 Amendment motion in United States v. Hilary Smith, 2024 U.S. Dist. LEXIS 33814 (N.D. Ohio Feb. 28, 2024). The court reduced defendant’s 85-month sentence consecutive to a 48-month sentence to 62-months.

 

AMENDMENT 821. The Eastern District of Tennessee granted a 821 Amendment motion in United States v. Addison Moya, 2024 U.S. Dist. LEXIS 33409 (E.D. Tenn. Feb. 27, 2024). The court reduced defendant’s 50-month sentence to time served.

AMENDMENT 821. The Eastern District of Tennessee granted a 821 Amendment motion in United States v. Samuel Wright, 2024 U.S. Dist. LEXIS 33408 (E.D. Tenn. Feb. 27, 2024). The court reduced defendant’s 84-month sentence to time served.

 

AMENDMENT 821. The Eastern District of Tennessee granted a 821 Amendment motion in United States v. Justin Dotson, 2024 U.S. Dist. LEXIS 34334 (E.D. Tenn. Feb. 28, 2024). The court reduced defendant’s 70-month sentence to time served.

 

AMENDMENT 821. The Southern District of West Virginia granted a 821 Amendment motion in United States v. Dennis Carter, 2024 U.S. Dist. LEXIS 33406 (S.D. W.Va. Feb. 27, 2024). The court reduced defendant’s 188-month sentence to 100-months.

 

AMENDMENT 821. The Southern District of Illinois granted a 821 Amendment motion in United States v. Rory Burkholder, 2024 U.S. Dist. LEXIS 33667 (S.D. Ill. Feb. 28, 2024). The court reduced defendant’s 175-month sentence to 156-months.

 

AMENDMENT 821. The Southern District of New York granted a 821 Amendment motion in United States v. Brian McBeth, 2024 U.S. Dist. LEXIS 34417 (S.D. N.Y. Feb. 28, 2024). The court reduced defendant’s 117-month sentence to 111-months.

 

2255/COA. The Eastern District of Washington denied the 2255 motion but granted a COA in United States v. Randy Del McReynolds, 2024 U.S. Dist. LEXIS 35693 (E.D. Wash. Feb. 29, 2024). On June 30, 2021, McReynolds was convicted of being a felon in possession of a firearm and ammunition as prohibited by 18 USC 922(g)(1). He argued that 922(g)(1) is unconstitutional, at least as applied to him, because it violates the Second Amendment under the framework explained in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022). The court denied the 2255. but granted a COA regarding defendant’s Second Amendment claim.

 

2255/COA. The Western District of Louisiana denied the 2255 motion but granted at COA in United States v. Paul Wilson, 2024 U.S. Dist. LEXIS 31686 (W.D. La. Feb. 22, 2024). The court granted a Certificate of Appealability as to the Court's Memorandum Order denying his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 USC 2255(f)(3) in light of New York Rifle & Pistol Association v. Kevin P. Bruen, 597 U.S. 1 (2022) (In United State v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (U.S. June 30, 2023), the Fifth Circuit found that 18 USC 922(g)(8), which prohibits the possession of firearms by a person subject to a domestic restraining order was unconstitutional.).

 

APPEAL/2255/COA. The Eleventh Circuit granted a COA in Rodrick Jones v. United States, 2024 U.S. App. LEXIS 4629 (11th Cir. Feb. 27, 2024). The Eleventh Circuit granted a COA on the following issue: “Whether the district court violated Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc), in denying Jones's 28 USC 2255 motion without addressing, as a substantive constitutional claim his argument that the Government committed prosecutorial misconduct by misrepresenting relevant information in order to obtain search and arrest warrants in his case.”

 

APPEAL/SENTENCE. The District of Columbia Circuit vacated and remanded United States v. Larry Brock, 2024 U.S. App. LEXIS 4998 (D.C. Cir. Mar. 1, 2024). In 2024, the District of Columbia Court presided over a case involving Larry Brock who had been convicted for his participation in the January 6th riot at the United States Capitol. Brock was convicted on six crimes, including obstructing Congress’s certification of the electoral count under 18 USC 1512(c)(2). The district court applied a three-level sentencing enhancement to Brock’s conviction, arguing his conduct resulted in “substantial interference with the administration of justice[.]” Brock challenged the interpretation of Section 1512(c)(2)’s elements and the sufficiency of the evidence supporting his conviction. The Court of Appeals affirmed Brock’s conviction agreeing with the district court’s interpretation of the elements of Section 1512(c)(2) and finding the evidence sufficient to support the conviction. However, the court concluded that the three-level sentencing enhancement for interfering with the “administration of justice” was inapplicable to interference with the legislative process of certifying electoral votes. As a result, the court vacated Brock’s sentence and remanded the case to the district court for resentencing without the application of the sentencing enhancement.

 

APPEAL/SENTENCE. The Ninth remanded for resentencing United States v. Ahmad Alahmedalabdaloklah, 2024 U.S. App. LEXIS 4678 (9th Cir. Feb. 28, 2024). Alahmedalabdaloklah, a Syrian national, was convicted after a jury trial for participating in a conspiracy that targeted U.S. military personnel and property in Iraq. The Ninth Circuit affirmed some convictions and reversed others. The court agreed with both parties that Alahmedalabdaloklah's convictions for conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same could not stand after the Supreme Court's decision in United States v. Davis. The court reversed these convictions and remanded the case to the district court to vacate them. However, the court affirmed his convictions for conspiring to use a weapon of mass destruction and conspiring to damage U.S. Government property by means of an explosive. The court held that the statutes under which Alahmedalabdaloklah was convicted applied extraterritorially, meaning they applied to acts committed outside the United States. The court also held that the district court properly used procedures set forth in the Classified Information Procedures Act to withhold or substitute classified information from discovery. Despite several errors by the Government in invoking the state-secrets privilege, the court excused these errors because remanding for proper invocation would be of little or no benefit. Finally, the court held that the use of overseas deposition testimony did not violate Alahmedalabdaloklah's rights under the Confrontation Clause or other constitutional and evidentiary rules. The court remanded the case to the district court for resentencing.

 

APPEAL/SENTENCE. The Seventh Circuit vacated and remanded United States v. Jamic Johnson, 2024 U.S. App. LEXIS 4747 (7th Cir. Feb. 29, 2024). Police officers executing a warrant at Johnson's home discovered firearms and baggies of substances that turned out to be methamphetamine leading to Johnson's conviction for federal firearms and methamphetamine-related drug-trafficking offenses. To determine the sentencing guideline range for the drug-trafficking offense, the district court calculated the amount of methamphetamine he was responsible for dealing. However, the court did not differentiate between pure methamphetamine and a mixture containing methamphetamine as required by the Sentencing Guidelines. This error would have resulted in a lower guideline range for Johnson. The Seventh Circuit vacated the judgment and remanded the case for resentencing so that the district court could accurately determine the quantity of methamphetamine attributable to Johnson. The appeal court found the district court's error in not distinguishing between pure methamphetamine and a mixture containing methamphetamine affected Johnson's substantial rights and the fairness or integrity of the judicial proceeding.

 

APPEAL/IMMIGRATION. The Seventh Circuit granted and remanded F.J.A.P. v. Garland, 2024 U.S. App. LEXIS 4532 (7th Cir. Feb. 27, 2024). In this case, the Seventh Circuit was asked to review a decision by the Board of Immigration Appeals concerning F.J.A.P., a petitioner from El Salvador. F.J.A.P. had previously been removed from the U.S. but returned due to threats from the MS-13 gang. After his return to the U.S., his original removal order was reinstated. F.J.A.P. then applied for withholding-only relief under the Convention Against Torture, which an immigration judge granted. However, the BIA reversed this decision. F.J.A.P. petitioned the Seventh Circuit for review. The court first addressed whether it had jurisdiction to review F.J.A.P.'s claim. The court concluded that a reinstated order of removal was not final for purposes of judicial review under 8 USC 1252 until the agency had completed withholding proceedings. Therefore, F.J.A.P.'s petition was timely because it was filed within 30 days of the completion of his CAT proceedings.

On the merits of the case, the court found that the BIA had not applied the correct standard of review to the immigration judge's decision. The BIA was required to review the immigration judge's factual findings for clear error, not de novo. However, the BIA had failed to address the immigration judge's key factual findings, had given more weight to certain facts in the record than others, and had not explained how the immigration judge's alleged errors displayed a lack of logic, plausibility, or support in the record. As a result, the court granted F.J.A.P.'s petition and remanded the case to the BIA for reconsideration of the immigration judge's decision under the correct standard of review.

 

THE SIXTH CIRCUIT HAS HELD FELON IN POSSESSION PURSUANT TO 18 U.S.C. 922(g)(1) TO BE CONSTITUTIONAL. In United States v. Carey, 602 F.3d 738 (6th Cir. 2010), the Sixth Circuit held that section 922(g)'s "prohibition on felon possession of firearms is constitutional." Id. at 741. In a recent unpublished case, the Sixth Circuit recognized that Carey's "unambiguous[]" holding "remains the binding law in this circuit." United States v. Vaughn, 2023 U.S. App. LEXIS 25818 at 2 (6th Cir. Sep. 28, 2023) (citing Carey, 602 F.3d at 741). It further noted that "although there are numerous appeals pending before [the Sixth Circuit] that raise the issue, the vast majority of courts to have reconsidered the constitutionality of 922(g)(1) post-Bruen have upheld it." Id. at 3 (citing United States v. Gleaves, 654 F. Supp. 3d 646, 651 (M.D. Tenn. 2023)). Stated succinctly, "Carey remains the precedent in this circuit," and this Court is bound to follow it. Id.; see also, e.g., United States v. MacKey, 2023 U.S. Dist. LEXIS 208459 at *5 (S.D. Ohio Nov. 21, 2023) (denying a defendant's motion to dismiss an indictment under Bruen because Carey "remains good law after Bruen.”).

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