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SAMARITAN NEWSLETTER 03-11-2024

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/FAMILY CIRCUMSTANCES/MEDICAL. The District of New Jersey granted a CR.RIS motion in United States v. Alia Hunaity, 2024 U.S. Dist. LEXIS 39940 (D. N.J. Mar. 7, 2024). On May 9, 2019, a jury convicted the defendant of multiple offenses, including marriage fraud in violation of 8 USC 1325(c) (Count One); harboring an illegal alien for private financial gain in violation of 8 USC 1324(a)(1)(A)(iii) and 1324(a)(1)(B)(i) (Count Two); and forced labor in violation of 18 USC1589(a) (Count Three). The Court sentenced her to imprisonment for 60-months on Count One and 70-months on each of Counts Two and Three, all to be served concurrently. Since her incarceration the defendant was diagnosed with Type 2 diabetes and suffers from high blood pressure. She has been diagnosed with clinical depression and anxiety, primarily due to concern for her son's medical condition. Defendant alleged that since her incarceration, "both medically and psychologically, [Minor Child-1]'s condition has deteriorated." On Sept. 29, 2022, Minor Child-1 was admitted to the hospital with two forms of pulmonary bacterial infections for which his physicians inserted a "pick-line" to administer the necessary antibiotics. Although released from the hospital on Oct. 6, 2022, he continued this regimen of antibiotics until Oct. 14, 2022. Prior to her incarceration, the defendant was the primary caregiver of each of her sons. The defendant divorced the biological father of the children, Imad Al-Qatarneh, shortly after her sons' births, and was subsequently made the custodial parent. Since defendant's incarceration, Al-Qatarneh has been the triplets' primary caregiver. Minor Child-1's health issues require a caretaker with specialized medical knowledge. Al-Qatarneh's children attested Al-Qatarneh is not a capable caretaker even prior to his heart attack and that there were times when he could not complete his son's treatments due to his own mobility issues and hospital visits. Al-Qatarneh now suffers from an even more threatening condition due to his aneurysm, much of Minor Child-1's daily care is currently being performed by his underage siblings, as Minor Child-1 himself attested. Sentence reduced to time served.

 

CR.RIS/STACKING/DISPARITY/REHABILITATION. The Eastern District of Pennsylvania granted in part a CR.RIS motion in United States v. Stanley Skeeters, 2024 U.S. Dist. LEXIS 39831 (E.D. Pa. Mar. 7, 2024). Skeeters was charged with one count of conspiracy to interfere with interstate commerce by robbing (18 USC 1951(a)); four counts of interference with interstate commerce by robbing and aiding and abetting (18 USC 1951 and 2); and four counts of using a firearm during or in relation to a crime of violence and aiding and abetting (18 USC 924(c) and 2). He and his girlfriend robbed three pizza shops and a grocery store at gunpoint in West Philadelphia. Skeeters hid his identity by wearing full female Muslim garb or a head covering, and his girlfriend wore full female Muslim garb. The net take was approximately $2,300. Skeeters was 28 years old at the time. He brandished a firearm in the commission of the offenses and received the mandatory minimum sentence of seven years on the first 924(c) count and the mandatory minimum sentence of 25 years on each of the remaining three 924(c) counts, all required by law to run consecutively. 18 USC 924(c)(1)(D)(ii). His sentence totaled 82 years and one month. Skeeters primarily relies on the extraordinary and compelling reasons now added in Section 1B1.13(b)(6) of the Sentencing Guidelines. It provides: Unusually Long Sentence. — If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances. USSG 1B1.13(b)(6) The Court reduced his sentence to 28-years and one month.

 

CR.RIS/STING OPERATION/(b)(5). The Northern District of Illinois granted a CR.RIS motion in United States v. Montrece Kindle, No. 09-cr-687 (N.D. Ill. Feb. 23, 2024). Kindle has served about 14 years of a 25-year mandatory minimum sentence based on a law enforcement tactic frequently referred to as “stash house” sting schemes. The Court did not dive into the details of the operation because of the plethora of prior court opinions that offer highly detailed accounts of its history, including several from this Court. In sum, the ATF initiated the tactic in Chicago in the early 2000s by engaging confidential informants to recruit people to rob a fictitious stash house. The Government then brought charges against those who agreed and planned to help with the robbery. Eventually, the ATF discontinued the operation and offered favorable plea deals to 43 of the then-pending stash house defendants. Extraordinary and Compelling Circumstances. USSG 1B1.13(b)(5) – Other Reasons. The Amended Policy Statement retained the “Other Reasons” category of circumstances that constitute an extraordinary and compelling reason to reduce a defendant’s sentence but added the underlined words below. The category now states: (5) Other Reasons. — The defendant presents any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity

to those described in paragraphs (1) through (4). USSG1B1.13(b)(5). Over the last few years, several courts in this district including this one found many stash house cases to be examples of such a “combination of circumstances” that justified

a sentence reduction. Under both the Amended Policy Statement and the prior version Kindle’s case would constitute an “other reason” justifying a reduction in sentence. Kindle argued his participation in the now discontinued stash house operations as the basis for his conviction on its own constitutes an extraordinary and compelling reason justifying his release. Kindle requested the Court consider the Government’s decision to file a 21 USC 851 enhancement (doubling the drug mandatory minimum to 20 years based on a conviction sustained when Kindle was 19 years old) as a reason for early release. Even without considering the enhancement, the Court found that Kindle’s circumstances fell under USSG 1B1.13(b)(5) of the Amended Policy Statement and constituted an extraordinary and compelling reason. Sentence reduced to time served.

 

CR/RIS/YOUTH/DISPARITY/REHABILITATION/MENTOR. The District of Kansas granted a CR.RIS motion in United States v. Piyarath Kayarath, 2024 U.S. Dist. LEXIS 35738 (D. Kan. Mar. 4, 2024). The defendant committed three different robberies in Wichita, Kansas, over a two-month period when he was 18 years old. One of the robberies - of a Mandarin restaurant - involved the murder of Barbara Sun. On Jan. 4, 1996, the defendant and another individual were charged in a two count indictment with respect to the murder and robbery of the Mandarin restaurant. Count One charged a Hobbs Act robbery in violation of 18 USC 1951 and 18 USC 2; and Count Two charged the unlawful carrying and use of a firearm during and in relation to the robbery and causing the death of a person through the use of the firearm in violation of 18 USC 924(j)(1) and 18 USC 2. On  April 15, 1997, the court sentenced defendant to 240-months imprisonment on Count One and to life imprisonment without the possibility of release on Count Two, with the counts to run concurrently. The defendant moved for a reduction of his sentences under 3582(c)(1)(A). The defendant argued the following circumstances, in combination, constitute extraordinary and compelling circumstances: his youth at the time of the offenses; his mandatory-guidelines life sentence that would no longer be mandatory; length of sentence compared to co-defendants and prior plea offer; the length of time he has already served; and his significant rehabilitation. Taking all of these circumstances together, the court concluded defendant had shown extraordinary and compelling reasons exist for a reduction in his sentence. The defendant’s sentence was reduced to a total of 34-years.

 

CR.RIS/DISPARITY/STACKING/REHABILITATION. The District of Utah granted a CR.RIS motion in United States v. Wally Martinez, 2024 U.S. Dist. LEXIS 36728 (D. Utah Feb. 29, 2024). Martinez is serving a 65-year federal sentence for robbery and firearm crimes filed a motion under 18 USC 3582(c)(1)(A)(i) asserting there are extraordinary and compelling reasons for the court to reduce his sentence. Martinez has spent 22 years in custody, and his projected release date is 37 years away: Feb. 25, 2061. Martinez argued two extraordinary and compelling reasons entitle him to relief. The first is set forth in USSG 1B1.13(b)(6), which states that non-retroactive changes in law that create a gross disparity between the sentence being served and the sentence likely to be imposed at the time a motion is filed can warrant relief, so long as the defendant has served at least 10 years of the sentence imposed and the court fully considers the defendant's individualized circumstances. Martinez's individualized circumstances and the fact he has served over 22 years towards his sentence, is an extraordinary and compelling reason that warrants a sentence reduction. USSG 1B1.13(b)(6). Federal courts have rejected the assertion that the Sentencing Commission lacked authority to enact USSG 1B1.13(b)(6). See United States v. Padgett, Jr., 2024 WL 676767, at 1 (N.D. Fla. Jan. 30, 2024) (holding that the amendment is valid); United States v. Allen, 2024 WL 631609, at 5 (N.D. Ga. Feb. 12, 2024) (concluding that the amendment was within the Sentencing Commission's power and presents no separation of powers issues); United States v. Brown, 2024 WL 409062, at *4-5 (S.D. Ohio Feb. 2, 2024) (same). Martinez relied on the amendment's catchall category to argue his sentence should be reduced because of the combination of his young age at the time of the offenses, his rehabilitation, and his struggles with addiction at the time of the offenses. The court agreed that these factors together support a reduction in Martinez's sentence. The defendant’s sentence was reduced to time served.

CR.RIS/CAREER OFFENDER/DISPARITY. The Northern District of Ohio granted a CR.RIS motion in United States v. Jason Bricker, 2024 U.S. Dist. LEXIS 37862 (N.D. Ohio Mar. 5, 2024). Before the Court was Bricker’s Motion for Relief under 18 USC 3582. The Court had previously denied multiple motions for reduction of Bricker’s sentence and/or compassionate release. However, since his last filing the Sentencing Commission regained its quorum and issued, among other provisions, USSG 1B1.13(b)(6), which explains that a nonretroactive change in the law creating a gross disparity between a defendant’s sentence (of which he has served at least 10 years) and the sentence likely to be imposed at the time the motion is filed, may be considered an “extraordinary and compelling reason” for purposes of early release. Bricker has served 18 years of a 294-month sentence. If Bricker had been sentenced today his sentencing guideline range would be between 70-87 months. The Court found that the gross disparity between the current sentencing range and Bricker’s sentence constitutes an extraordinary and compelling reason supporting his early release. The Court granted Bricker’s motion for relief under 18 USC 3582 and ordered him to be released within 10 days of this order. To grant a sentence modification pursuant to 18 USC 3582(c)(1)(A)(i), a court may reduce the term of imprisonment if it finds extraordinary and compelling reasons warrant a

sentence reduction. As an “extraordinary and compelling reason” for sentence reduction, Bricker has identified the disparity between his sentence and the current sentencing range for the same convictions. The Court recognizes that the Sixth Circuit has held that nonretroactive changes in the law are not “extraordinary and compelling circumstances” that can form the basis of a sentence reduction. United States v. McCall, 56 F.4th 1048, 1054 (6th Cir. 2022). However, the McCall decision noted that the Sentencing Commission might amend its policy in the future,

which it has now done. The Government urged the Court to disregard the

Sentencing Commission’s Guideline and to follow McCall, but the Court was not inclined to do so. The Sentencing Commission promulgated 1B1.13(b)(6) in response to a circuit split of which McCall was a part. United States v. Brown, 2024 U.S. Dist. LEXIS 18673, at *13-14 (S.D. Ohio Feb. 2, 2024). Moreover, McCall was issued in the absence of an applicable policy statement,and explicitly left open the possibility that a provision such as 1B1.13(b)(6) could abrogate its holding. Id. at

*17-18.

 

CR.RIS/SEXUAL ASSAULT/MEDICAL. The Eastern District of California granted a CR.RIS motion in United States v. Monica Morales, 2024 U.S. Dist. LEXIS 39753 (E.D. Calif. Mar. 6, 2024). This court sentenced Morales to 128 months for sex trafficking of a minor. Morales sought compassionate release under 18 USC 3582(c)(1)(A). She alleged she is at increased risk of severe illness from COVID-19 and has suffered sexual assault and abuse while incarcerated. Morales and her co-defendant were convicted of trafficking a 16-year-old girl. Morales is diagnosed with several multi-morbidities associated with COVID-19, including "age, Hispanic ethnicity, American Indian race, class I obesity . . . , major depression, anxiety, post-traumatic stress disorder, and substance abuse disorders[.] "Morales stated she was sexually assaulted. Morales further declared the COs at FCI Dublin created an environment of inappropriate conduct, abuse and assault that has affected her well-being. For example, COs would watch her "come from the showers in [her] robe and purposefully wait[] for [her] to return to [her] cell so they could open the door on [her] while she was getting dressed." Morales declared she "do[es] not feel safe in [her] cell and [she] sleep[s] on the floor at night as a security measure." Agents of the FBI located the trafficking victim, who expressed she "wouldn't mind" if Morales was released. Sentence reduced to time served.

 

APPEAL/2254/DEATH SENTENCE. The Third Circuit vacated and remanded Robert Wharton v. Supt. Graterford, 2024 U.S. App. LEXIS 5642 (3d Cir. Mar. 8, 2024). In the case of Robert Wharton, the Philadelphia District Attorney’s Office conceded that Wharton's death sentence should be vacated without conducting a comprehensive investigation into evidence against Wharton’s habeas claim. The Third Circuit determined that the office did not disclose key facts about the claim, leading the District Court to find misconduct and impose mild sanctions. Wharton had been sentenced to death for terrorizing and ultimately murdering a family over a disputed debt. On appeal, the Third Circuit ordered an evidentiary hearing on whether Wharton's counsel was ineffective for not investigating prison records or presenting evidence showing that Wharton had adjusted well to prison life. However, before this hearing could take place, the District Attorney’s Office filed a notice of concession. The District Court did not accept the concession and appointed the Pennsylvania Attorney General as amicus curiae to investigate Wharton’s prison adjustment. The court found that the District Attorney’s Office violated Rule 11(b)(3) by failing to investigate the facts of Wharton's case reasonably and by failing to communicate adequately with the victims' family. Consequently, the court ordered District Attorney Larry Krasner to apologize in writing to the victims' family members and to provide a "full, balanced explanation" of the facts when conceding federal habeas cases in the future. This case highlights the importance of conducting thorough investigations and maintaining honesty and forthrightness in court procedures.

 

APPEAL/SENTENCE. The Third Circuit vacated and remanded United States v. Danny Cruz, 2024 U.S. Dist. LEXIS 5644 (3d Cir. Mar. 8, 2024). In this case from the Third Circuit, Danny Cruz, hatched a plan to smuggle cell phones into prison and sell them to fellow inmates by bribing a prison guard. Upon being caught, Cruz was charged with conspiring to violate the Travel Act under 18 USC 371. Facing an additional five years in prison, Cruz entered a plea deal in which he plead guilty in exchange for the prosecution's agreement to recommend that the total offense level is 14. However, the Probation Office called for a four-level enhancement because the crime involved a public official in a sensitive position leading to a dispute over whether this enhancement should apply. Cruz argued that if the Government endorsed the enhancement, it would contravene the plea agreement, and the prosecution initially supported the enhancement during a presentence conference. Subsequently, the prosecution changed its stance in a brief, taking no position on the enhancement, and reiterated this at the start of the sentencing hearing. Despite this the District Court found that the four-level enhancement did apply leading to a final offense level of 15 and a final Guidelines range of 41 to 51 months. The Third Circuit Court concluded the prosecution breached the plea agreement when it initially supported the four-level enhancement, as it had promised to recommend a total offense level no higher than 14. The Court further ruled the prosecution's later neutral stance did not unequivocally retract its erroneous position, and thus did not cure its breach. Accordingly, the Third Circuit Court vacated Cruz's sentence and remanded the case instructing that a different judge should decide whether to grant specific performance or allow withdrawal of the plea.

 

APPEAL/RESTITUTION. The Ninth Circuit remanded United States v. Edgar Lemus, 2024 U.S. App. LEXIS 5255 (9th Cir. Mar. 5, 2024). The Ninth Circuit affirmed the convictions of Edgar Hernandez Lemus and Junior Almendarez Martinez for conspiracy, aiding and abetting the receipt of the proceeds of extortion, and receiving the proceeds of extortion. The defendants, involved in a scheme to kidnap Mexican nationals seeking illegal entry into the United States and extort their families, argued that they could only be convicted under 18 USC 880 if they knew the money they received was obtained from extortion. The court held that 880 only requires knowledge that the proceeds were “unlawfully obtained,” not specifically from extortion. The court noted that if Congress had intended for specific knowledge of the money's origin from extortion to be necessary, it would have included such language in the statute. The court rejected the defendants' arguments that the court's interpretation of 880 rendered the statute vague, stating that the defendants' conduct clearly fell within the proscription of the law. The court remanded the case for recalculation of the restitution amount, but otherwise affirmed the convictions and sentences.

 

APPEAL/DISMISSAL OF COUNTS. The Second Circuit remanded United States v. Brian Benjamin, 2024 U.S. App. LEXIS 5622 (2d Cir. Mar. 8, 2024).  The case involves Brian Benjamin, a state senator in New York from 2017 to 2021, who was indicted on charges of federal funds bribery, honest services wire fraud, conspiracy to commit each of those offenses, and falsifying records. The Southern District of New York dismissed three of the charges on the ground that the indictment failed to allege an explicit quid pro quo between Benjamin and his campaign donor. The Government appealed this decision. According to the allegations, Benjamin agreed to allocate state funds to a non-profit organization controlled by a real estate developer in his district, in exchange for campaign contributions. The developer was allegedly aware of the quid pro quo arrangement and proceeded to provide funds to Benjamin's campaign. Furthermore, Benjamin allegedly attempted to conceal this arrangement by falsifying campaign forms and providing false information during his background check when he was nominated to be lieutenant governor of New York. On appeal the Second Circuit reversed the lower court's decision. The appellate court held that an explicit quid pro quo does not need to be expressly stated; it can be inferred from the official’s and the payor’s words and actions. The court concluded the indictment sufficiently alleged an explicit quid pro quo, as it stated that Benjamin obtained campaign contributions in exchange for his agreement to use his official authority to obtain a state grant for a non-profit organization. Therefore, the case was remanded for further proceedings.

 

SIXTH CIRCUIT UPHOLDS METH 10 TO 1 RATIO. United States v. Johnson, 2024 U.S. App. LEXIS 5274 (6th Cir. Mar. 5, 2024). One of Johnson convictions was for possession with the intent to distribute 500 grams of a mixture or substance containing methamphetamine. To ascertain the offense level for defendant’s convicted of trafficking methamphetamine, the Guidelines’ Drug Quantity Table employs a 10:1 weight ratio between methamphetamine mixtures  and actual  methamphetamine or “ice.”  USSG 2D1.1(c). For example, “10 grams of a methamphetamine mixture is the equivalent of 1 gram of actual methamphetamine or ice. And, in the case of a mixture, the base offense level is to be determined by (1) the entire weight of the methamphetamine mixture or (2) the weight of the methamphetamine (actual), whichever is greater.” United  States v. Johnson, 812 Fed. Appx. 329, 332 (6th Cir. 2020) (citation and internal quotations marks omitted). Johnson argued the district court erred in its use of the 10:1 ratio because this methodology “is not based upon any accurate factual premise” and “results in unwarranted sentencing disparities.” But a district court’s use of the 10:1 ratio is a discretionary decision that cannot, by itself, render a criminal sentence invalid. See United States v. Kennedy, 65 F.4th 314, 326 (6th Cir. 2023); United States v. Mosley, 53 F.4th 947, 965 (6th Cir.  2022)  finding petitioner’s challenge to 10:1 ratio lacked “salience” because the argument “amount[ed] to little more than a policy disagreement[,] . . . which the district court had discretion to reject.”); see also United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011).  Therefore, the district court did not abuse its discretion when it declined to reject the 10:1 ratio, and Johnson has failed to rebut the presumption of reasonableness.

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