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SAMARITAN NEWSLETTER – 03-19-2024

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.

 

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.

 

SUPREME COURT/SAFETY-VALVE. The Supreme Court affirmed Mark Pulsifer, 2024 U.S. ;EXIS 1215 (S. Ct. Mar. 15, 2024). The Supreme Court decided in the case of Mark Pulsifer who was convicted for distributing methamphetamine and sought to minimize his sentence using the "safety valve" provision of federal sentencing law. This provision allows a sentencing court to disregard the statutory minimum if a defendant meets five criteria, one of which is related to the defendant's criminal history. The Government argued that Pulsifer did not meet this requirement due to his previous three-point offenses, disqualifying him under the safety valve provision. Pulsifer, however, contended that he should be considered eligible as he did not have a two-point violent offense, arguing that only the combination of all three elements of the provision could prevent him from receiving safety-valve relief.

The court held that a defendant is eligible for safety-valve relief only if he or she satisfies each of the provision’s three conditions. More specifically, a defendant is eligible only if they do not have more than four criminal-history points, do not have a prior three-point offense, and do not have a prior two-point violent offense. This interpretation aligns with the text and context of the law and the Sentencing Guidelines. The court rejected Pulsifer’s attempts to invoke the rule of lenity, as the court found no ambiguity in the statute and, therefore, no room for lenity to play a role. The court affirmed the judgment of the Court of Appeals for the Eighth Circuit.

 

CR.RIS/MEDICAL. The Eastern District of Michigan granted a CR.RIS motion in United States v. Gary Jones, 2024 U.S. Dist. LEXIS 45321 (E.D. Mich. Mar. 14, 2024). On July 25, 2022, the defendant plead guilty to possession of a controlled substance with intent to distribute (five grams or more of methamphetamine) in violation of 21 USC 841(a)(1). On Jan. 30, 2023, the Court sentenced defendant to a term of imprisonment of 60 months consistent with the statutory mandatory minimum in this case. Due to the defendant's medical conditions the Court recommended that defendant be designated to a federal medical center. His term of imprisonment commenced on May 2, 2023. The defendant is 69 years old. He has serious medical conditions, particularly end-stage renal disease as well as Type II diabetes, hypertension, an enlarged prostrate, gastrointestinal issues, degenerative disc disease, partial hearing loss, sleep apnea, bladder issues, and ongoing back issues. The defendant moved for compassionate release requesting the opportunity to die at home with his family by his side. Sentence reduced to time served.

 

CR.RIS/(b)(6)/BOOKER. The Northern District of Texas granted a CR.RIS motion in the case of United States v. Thomas Reedy, 2024 U.S. Dist. LEXIS 43824 (N.D. Tex. 43824 (N.D. Tex. Mar. 8, 2024). Reedy was charged and convicted on an 89-count indictment alleging conspiracy to make child pornography available over the internet and distribution-related offenses based on the same conduct. The Guidelines which were mandatory at the time of Reedy's sentencing required a sentence of life imprisonment due primarily to the applicability of certain specific offense characteristics that boosted Reedy's total offense level to the maximum possible level of 43. This, despite his having the lowest possible criminal history category of I. The Guidelines required the Court impose a series of consecutive statutory maximum sentences "to the extent necessary to produce a combined sentence equal to the total [required] punishment"—here, a life sentence. Reedy filed his motion in light of the amendments to the Guidelines enacted last year, contending that Booker and the Guidelines' recognition in its policy statement on 3582 motions that an "unusually long sentence" may constitute an extraordinary and compelling reason warranting relief. The Sentencing Commission added a new compelling reason: an "unusually long sentence." USSG 1B1.13(b)(6). Section 1B1.13 now provides that: [i]f 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. Reedy's attached exhibits and the record in this case demonstrate that: (1) he has been a model inmate; (2) he has held a job while incarcerated for roughly twelve years; and (3) finding a needle in a haystack would be easier than finding a facility supervisor with a negative word on him. Sentence reduced to time served.

 

CR.RIS/DISPARITY. The Northern District of Georgia granted a CR.RIS motion in United States v. Jack Ware, 2024 U.S. Dist. LEXIS 42736 (N.D. Ga. Mar. 6, 2024). In 1996, the defendant was 28-years old and he robbed three Atlanta banks. At each robbery he used a fake bomb and a handgun to threaten the teller and demanded money. The police were alerted to the third bank robbery and a high-speed chase ensued. Eventually the chase came to an end and the defendant was arrested. Each of the three armed bank robberies resulted in the Government charging defendant under 18 USC 2113(a), (d) (for bank robbery) and under 18 USC 924(c) (for use of a firearm) for a total of six counts. Defendant plead guilty to the armed bank robbery and corresponding use of a firearm offenses for the third incident but proceeded to trial with regards to the other two incidents. Ultimately, a jury found him guilty on all four remaining counts. At sentencing, the sentencing judge imposed a sentence of 125 months for the three armed bank robbery charges, and a mandatory 45 year term (or 540 months) for the three firearm charges. The defendant's total prison sentence was just over 55 years (or 665 months). Defendant has been in continuous custody since Dec. 11, 1996. His current projected release date is Sept. 6, 2044. The Court could vary its sentence downward as low as 21 years if it were sentencing defendant today. In 2023, the Sentencing Commission's most recent amendments took effect. These amendments expanded the scope of "extraordinary and compelling reasons" to grant compassionate release to include "unusually long sentences," when the defendant has already served 10 years of his or her sentence. As part this category, the Court can consider instances where a statutory amendment has changed a sentencing range to produce a "gross disparity." USSG 1B1.13(b)(6). In fact, this subsection expressly provides the only circumstance where a nonretroactive change in law can be considered as part of an "extraordinary and compelling reason" for compassionate release. 1B1.13(c). The Court concluded the Sentencing Commission lawfully exercised its authority in defining extraordinary and compelling reasons for compassionate release in Section 1B1.13(b)(6)'s amendment for unusually long sentences. The defendant's previously imposed sentence of 665 months was reduced to 377 months.

 

CR.RIS/COMPELLING REASON. The Southern District of New York granted a CR.RIS motion in United States v. Ira Richards, 2024 U.S. Dist. LEXIS 42815 (S.D. N.Y. Mar. 12, 2024). On Aug. 1, 2014, defendant plead guilty to one count of conspiracy to commit sex trafficking in violation of 18 USC 1594(C) and one count of sex trafficking of a minor in violation of 18 USC 1591(a), (b)(2) & (C). On June 24, 2015, the Court sentenced defendant principally to a term of imprisonment of 240 months. On March 4, 2024, defendant moved for "immediate compassionate release or . . . an appropriate reduction of his sentence." The defendant's principal argument in favor of immediate release or a reduction of his sentence is that he intervened to protect a Bureau of Prisons staff member. Specifically the defendant was among a group of inmates at FCI Berlin who stopped a fellow inmate from physically assaulting a staff member and restrained that inmate until additional staff arrived. The defendant stated that, in addition to "risk[ing] his own personal safety" by intervening, he suffered "severe" "repercussions from other inmates.” Under 18 USC 3582(c)(1)(A), a court may grant compassionate release or reduce a sentence where "extraordinary and compelling reasons warrant [it]," "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission," and a reduction is supported by the factors set forth in 18 USC 3553(a). The defendant's actions constituted an extraordinary and compelling reason to reduce his sentence. Accordingly, the Court reduced the defendant's sentence by 24 months to 216 months. As laudable as defendant's conduct was the Court found that neither immediate release nor a more significant reduction would be consistent with the 3553(a) factors. The defendant committed heinous crimes that necessitate a significant prison sentence. A sentence of 216 months reflects the seriousness of defendant's offenses, promotes respect for the law, and creates an adequate deterrence. Sentence reduced to 216 months.

 

CR.RIS/DISPARITY/REHABILITATION/BOOKER. The District of Kansas granted a CR.RIS motion in United States v. Darrell Triplett, 2024 U.S. Dist. LEXIS 42144 (D. Kan. Mar. 11, 2024). On Sept. 22, 2003, during his trial by jury, Triplett plead guilty to two charges: (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine; and (2) possession with intent to distribute five kilograms or more of cocaine in violation of 21 USC 841(a) and 846. Relying on the PSI the Court found defendant's relevant conduct included the distribution of 397.78 kilograms of cocaine. The Court had no choice other than to impose two concurrent sentences of life imprisonment under the then-mandatory United States Sentencing Guidelines. While his direct appeal to the Tenth Circuit was pending, the Supreme Court decided United States v. Booker. The Government moved for the Tenth Circuit to remand defendant's case for resentencing in accordance with Booker, which the Tenth Circuit granted. At resentencing the Court varied downward and imposed concurrent sentences of 360 months on both charges. The defendant is 55-years-old, and serving the remainder of his sentence under BOP supervision on home confinement in Long Beach, California. The defendant was released pursuant to the CARES Act. In fact, the defendant was released pursuant to the CARES Act two separate times. Defendant was first released in Dec. 2020, but voluntarily returned to prison in April 2021 when his housing situation became unstable. Defendant was released the second time in Jan. 2023, after establishing a re-entry plan with his sister in California and has been on home confinement for the last 14 months. Defendant has been employed since March 16, 2023 as a warehouse technician. In total, Defendant has served more than 20 years of his sentence, which is set to expire in about a year on March 29, 2025. Defendant sought a sentence reduction to time-served. The defendant asserted the following grounds warrant compassionate release: his age, the extraordinary length of his sentence, the time he has already served, his demonstrated rehabilitation, BOP's determination that he is not a danger to the community, and his perfect record on home confinement release. Sentence reduced to time served.

 

CR.RIS/DISPARITY/STACKING. The Northern District of Georgia granted a CR.RIS motion in United States v. Nikita Harper, 2024 U.S. Dist. LEXIS 41738 (N.D. Ga. Mar. 11, 2024). Harper was tried and convicted in 2005 for committing three bank robberies, brandishing a weapon during each of those robberies (the 924(c) convictions), and for his status as a felon in possession of a firearm. Because of his extensive criminal history and the sentencing guidelines at the time, he was sentenced to 1,044 months—87 years—behind bars. The three 924(c) convictions ultimately accounted for 57 of Harper's 87-year sentence. At the time, the first 924(c) count qualified as his "first conviction" under the statute, and the second and third counts (though part of the same case) triggered the "second and subsequent" provisions of 924(c) which required the Court to impose two mandatory 25-year consecutive sentences to run after Harper completed the time imposed for his other convictions. These are referred to as "stacked” 924(c) charges. Congress has since amended 924(c) to prevent stacking and the lengthy mandatory sentences that resulted. District courts (except those in this Circuit) were thus left without an applicable policy statement to apply to prisoner-initiated motions. Predictably, in the wake of the FSA's sentencing-law overhaul and absent policy guidance, a circuit split emerged: Can courts consider nonretroactive changes in sentencing laws when determining whether an extraordinary and compelling reason for compassionate release exists? The First, Fourth, Ninth, and Tenth Circuits held that non-retroactive changes may be considered, while the Third, Fifth, Sixth, Seventh, Eighth, and D.C. Circuits held that nonretroactive changes cannot be considered. Notwithstanding United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), the Eleventh Circuit did not take an explicit position on the treatment of nonretroactive changes in law. However, it did acknowledge the growing split and note that "disparity and uncertainty" follow when district courts reject 1B1.13 as the applicable policy statement. Bryant, 996 F.3d at 1257. Harper moved for a sentence reduction arguing that two extraordinary and compelling reasons justify a reduction: his unusually long sentence, and "other reasons." Because the Court finds that the unusually long sentence provision provides a basis for a sentence reduction, it will not address Harper's alternative argument under (b)(5). Harper asked the Court to consider his exemplary rehabilitation, strong family support system, and his non-dangerous nature as reasons this Court should impose a sentence of time served under 3553(a). Sentence reduced to time served.

 

CR.RIS/MEDICAL. The Southern District of New York granted a CR.RIS motion in United States v. Cuong Bang, 2024 U.S. Dist. LEXIS 42285 (S.D. N.Y. Mar. 11, 2024). Bang was sentenced to serve an 80-month term of imprisonment followed by five years of supervised release moved pursuant to 18 USC 3582(c)(1)(A)(i) for compassionate release on the basis of his rapidly progressing blindness and the nature of his offense. The Government consented to Bang's motion for compassionate release on Feb. 5, 2024. On Feb. 6, 2024, the Court granted the motion and reduced Bang's sentence to a term of 81-months of supervised release with the condition that he serve the first 21-months of that term on home confinement. During his term of imprisonment the defendant has suffered from a debilitating and serious medical condition that substantially diminishes his ability to care for himself in prison and for which he is not receiving care by the BOP which if not properly treated would significantly and detrimentally affect his activities of daily living. He pointed to his progressing blindness caused by cataracts which has not been properly treated by the BOP. As to his cataracts, Bang asserted he is now "legally blind with little to no vision in both eyes," and this "his condition continues to worse[n]." Bang is unable to take care of himself and needs the assistance of his cellmate to complete basic tasks such as showering. One of Bang's brothers, a pharmacist with a large home agreed to provide a place for Bang to live and act as Bang's "third-party custodian." Bang demonstrated extraordinary and compelling reasons for a reduced sentence. Bang's circumstances are not ordinary. He suffers from a serious and debilitating medical condition that requires expert and specialized medical care that he cannot receive in prison. The Court granted Bang's motion for compassionate release on Feb. 8, 2024, and entered an amended judgment that same day modifying Bang's prison sentence to time served and 81-months of supervised release, the first 21 of which are to be served on home confinement.

 

APPEAL/2254. The Eleventh Circuit vacated and remanded Shelton Thomas v. Macon State Prison Warden, 2024 U.S. App. LEXIS 6010 (11th Cir. Mar. 13, 2024). Thomas is a prisoner at Georgia’s Macon State Prison who is proceeding pro se and appealed the dismissal without prejudice of his petition for habeas corpus under 28 USC 2254. The court granted a certificate of appealability on the question of “[w]hether the district court erred in concluding that Thomas’s 28 USC 2554 petition was unexhausted in its entirety, and, if so, whether the court abused its discretion in dismissing the 2254 petition without prejudice.” Thomas argued the district court erred in determining his grounds for relief were unexhausted because: (1) all were presented to the Georgia Supreme Court at some point, even if the case in which some were raised was disposed of on other grounds; (2) the state waived exhaustion in state habeas proceedings; (3) his claims need not be exhausted because the state courts are unduly delayed in resolving them; and (4) even if some of his claims are unexhausted, the district court should have granted a stay and abeyance rather than dismissing his petition. The district court erred in concluding that all of Thomas’s claims were unexhausted and dismissing his petition. First, Thomas may have exhausted a number of claims on direct appeal. He is not required to complete an additional round of state habeas review for any claim raised on direct appeal. Second, while Thomas’s remaining claims are unexhausted, there is an issue of whether delays in processing Thomas’s refiled state habeas (filed on Dec. 17, 2021) might be deemed to excuse exhaustion. The delay since Dec. 17, 2021, was not addressed by the district court should be addressed by the district court in the first instance. Third, even if exhaustion of Thomas’s remaining claims is required the district court abused its discretion by failing to consider whether to stay (as opposed to dismissing without prejudice) and in failing to address the requirement with respect to a petitioner’s opportunity to dismiss his unexhausted claims.

 

AMENDMENT 821. The Southern District of New York granted an 821 Amendment motion in United States v. Cristina Rodriguez, 2024 U.S. Dist. LEXIS 46438 (S.D. N.Y. Mar. 15, 2024). On Nov. 17, 2020, Rodriguez plead guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 USC 846, 841(a)(1) and (b)(1)(B). Rodriguez was sentenced to 65 months. Rodriguez was determined to have zero criminal history points and whose crime did not involve certain aggravating factors. Sentence reduced to 60-months.

 

AMENDMENT 821. The Eastern District of California granted an 821 Amendment motion in United States v. Bryan Herrell, 2024 U.S. Dist. LEXIS 42443 (E.D. Calif. Mar. 11, 2024). Herrell received 2 criminal history points based on his past criminal convictions and 2 criminal history points pursuant to former USSG 4A1.1(d) for a total criminal history score of 4, which placed Herrell in criminal history category III with a recommended guideline range of 240 months based on the statutory maximum. On Sept. 1, 2020, the Court sentenced Herrell to a term of 132 months. Sentence reduced to 129-months.

 

AMENDMENT 821. The District of South Dakota granted an 821 Amendment motion in United States v. Cameron Fanning, 2024 U.S. Dist. LEXIS 42963 (D. S.D. Mar. 11, 2024). On July 19, 2022, this Court sentenced Fanning to 36 months for prohibited person in possession of a firearm. At the time of the sentencing Fanning was in Criminal History Category III with a guideline range of 30 to 37 months. The retroactive change to 4Al.l(e) of the United States Sentencing Commission's Guidelines Manual has the effect of placing Fanning in Criminal History Category II where his guideline range would have been 27 to 33 months. Sentence reduced to 33-months.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 Amendment motion in United States v. Daniel McKinney, 2024 U.S. Dist. LEXIS 43753 (N.D. Ohio Mar. 13, 2024). McKinney plead guilty to one count of felon in possession of a firearm in violation of 18 USC 922(g)(1); and one count of possession with a controlled substance with the intent to distribute in violation of 21 USC 841(a)(1).

On March 10, 2022, the court sentenced McKinney to 84 months on both counts. McKinney received six criminal history points based on prior convictions and received two criminal history points for committing the federal offenses while under supervision. Sentence reduced to 60-months.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 Amendment motion in United States v. Andre Hargrove, 2024 U.S. Dist. LEXIS 43836 (N.D. Ohio Mar. 13, 2024). The court sentenced Hargrove to 80 months. At Hargrove's sentencing, the Court found that Hargrove had a total offense level of 25 and Criminal History Category IV, giving him a guideline-recommended sentencing range of 84-105 months. Hargrove received six criminal history points from prior convictions plus two additional status points for being under a criminal justice sentence when the instant offense occurred. Sentence reduced to 70-months.

 

AMENDMENT 821. The Western District of Virgnia granted a 821 Amendment motion in United States v. Melissa Barrett, 2024 U.S. Dist. LEXIS 43309 (W.D. Va. Mar. 12, 2024). Barrett was sentenced on June 11, 2019, following her convictions for conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 USC 846 and 841(b)(1)(A) (Count 1), and the distribution of methamphetamine in violation of 21 USC 821(a)(1) and 841(b)(1)(A) (Count 14). The defendant was sentenced to 168 months. Part A of Amendment 821 has the effect of lowering the Criminal History Score by eliminating in its calculation so-called "status points" for defendants, like Barrett, with six or fewer Criminal History Points. Sentence reduced to 150-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 Amendment motion in United States v. Thomas Helms, 2024 U.S. Dist. LEXIS 40476 (S.D. Ill. Mar. 7, 2024). The parties agreed the defendant is eligible for a reduction of sentence under Part A of Amendment 821, which amended USSG 4A1.1(e). Defendant plead guilty to Count I (Interference with Commerce by Robbery) and Count 2 (Carry and Use of a Firearm in Furtherance of a Crime of Violence). In a judgment dated Aug. 25, 2017, the defendant was sentenced to a term of 27 months imprisonment as to Count 1 and a mandatory consecutive term of 84 months as to Count 2. The defendant’s 27-month sentence was reduced to 24-months.

 

AMENDMENT 821. The Southern District of Florida granted an 821 Amendment motion in United States v. Michel Radcliff, 2024 U.S. Dist. LEXIS 40686 (S.D. Fla. Mar. 8, 2024). Guerra was sentenced to a term of imprisonment of 60-months after pleading guilty to one count of conspiracy to distribute 500 grams or more of a mixture containing methamphetamine, 100 grams or more of a mixture containing heroin, and a mixture containing cocaine in violation of 21 USC 846. Radcliff qualified for the adjustment for zero-point offenders. Sentence reduced to 57-months.

 

AMENDMENT 821. The Southern District of Florida granted an 821 Amendment motion in United States v. Rigoberto Guerra, 2024 U.S. Dist. LEXIS 39100 (S.D. Fla. Mar. 6, 2024). Guerra was sentenced to a term of imprisonment of 47 months after pleading guilty to one count of possession with intent to distribute fifty grams or more of methamphetamine in violation of 21 USC 841(b)(1)(A)(viii). Guerra qualified for the adjustment for zero-point offenders. Sentence reduced to 46-months.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 Amendment motion in United States v. Dante Reyes, 2024 U.S. Dist. LEXIS 39079 (N.D. Ind. Mar. 6, 2024). Reyes had 2 criminal history points based on his prior convictions and an additional 2 "status points" for committing the instant offense while on probation for a total of 4 points placing him in Category III. This resulted in a Guidelines recommended sentencing range of 262 to 327 months. On July 14, 2015, the court reduced defendant's sentence to 210 months based on Amendment 782. Sentence reduced to 188-months.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 Amendment motion in United States v. Jamal Tyler, 2024 U.S. Dist. LEXIS 38147 (N.D. Ind. Mar. 4, 2024). Tyler plead guilty pursuant to a plea agreement to being a felon in possession of a firearm in violation of 18 USC 922(g)(1). In March 2022, the Court sentenced defendant to 42-months. Defendant received two points to his criminal history score because he committed the offenses while under a criminal justice sentence. Sentence reduced to time served.

 

AMENDMENT 821. The Eastern District of Tennessee granted an 821 Amendment motion in United States v. Jason Callebs, 2024 U.S. Dist. LEXIS 35240 (E.D. Tenn. Mar. 1, 2024). Defendant plead guilty to conspiracy to distribute five grams or more of methamphetamine in violation of 21 USC 846, 841(a)(1), and 841(b)(1)(B). At the time of sentencing the defendant received two criminal history points because he committed the instant offense while under a criminal justice sentence in Claiborne County General Sessions Court. Sentence reduced from 100-months to 84-months.

 

AMNDMENT 821. The Southern District of West Virginia granted an 821 Amendment motion in United States v. Jonathan Hamrick, 2024 U.S. Dist. LEXIS 35236 (S.D. W.Va. Mar. 1, 2024). Sentence reduced to 75-months.

 

APPEAL/DISMISS INDICTMENT. The Ninth Circuit reversed and remanded United States v, Melchor Orozco-Orozco, 2024 U.S. App. LEXIS 5862 (9th Cir. Mar. 12, 2024). In the case before the Ninth Circuit Orozco-Orozco appealed his conviction for being a previously removed alien found in the United States in violation of 8 USC 1326. Orozco had previously been removed from the U.S. following a conviction for carjacking under California Penal Code 215 which had been classified as an aggravated felony under the Immigration and Nationality Act.

The appellate court examined whether this classification was correct. It found the California Supreme Court had determined that a person could commit carjacking under 215 without the intent to steal required by a generic theft offense. This court held that Orozco's carjacking conviction did not qualify as an aggravated felony under the INA because 215 was not a categorical match for a “theft offense.”

The appellate court reversed the district court's order denying Orozco's motion to dismiss his indictment in accordance with 8 USC 1326(d) and sent the case back to the lower court for further proceedings. The court affirmed the district court's order denying Orozco's motion to dismiss his indictment on equal protection grounds.

 

APPEAL/SENTENCE. The Eleventh Circuit reversed and remanded in part United States v. Jesmina Ramirez, 2024 U.S. App. LEXIS 6049 (11th Cir. Mar. 13, 2024).  Ramirez appealed her 63-month sentence for conspiracy to commit money laundering and money laundering. First, she argued the district court erred by imposing a four-level enhancement under USSG 2S1.1(b)(2)(C) when it concluded she was in the business of laundering money and in doing so relied on the commentary to the guideline. Second, she argued the court clearly erred by declining to apply a two-level reduction under USSG 3B1.2(b) when it concluded she did not play a minor role in the offense. Third, she argued the court plainly erred when it failed to personally address her before imposing its sentence. Finally, she argued that, as a first-time offender, her 63-month, within-guidelines sentence is substantively unreasonable. As the Government conceded the district court erred in not personally addressing Ramirez, and a remand is needed to allow her an opportunity to allocute. Further, because the district court will have an opportunity to reconsider the 18 USC 3553(a) factors after allowing Ramirez an opportunity to be heard the court did not reach Ramirez’s remaining argument regarding the substantive reasonableness of her sentence. Accordingly, the court vacated as to this issue and remanded for resentencing.

 

APPEAL/SENTENCE. The Eleventh Circuit remanded for resentencing United States v. John Hemingway, 2024 U.S. App. LEXIS 6147 (11th Cir. Mar. 14, 2024). Hemingway appealed the district court’s imposition of thirteen standard, discretionary conditions of supervised release in its written judgment that it did not orally pronounce at his sentencing for drug and firearm possession crimes. He argued this violated his Fifth Amendment due process rights. He also argued the district court failed to assess whether the conditions were reasonably related to achieving the goals of sentencing. The Government conceded that Hemingway’s due process rights were violated. Therefore, the court vacated Hemingway’s sentence as to the conditions of his supervised release and remanded for resentencing; but the court did not address Hemingway’s other arguments.

 

APPEAL/SENTENCE. The Fourth Circuit remanded for resentencing United States v. Malek Lassiter, 2024 U.S. App. LEXIS 6257 (4th Cir. Mar. 15, 2024). This case was brought before the Fourth Circuit where Lassiter, appealed his convictions for possessing a firearm in furtherance of a crime of violence under 18 USC 924(c)(1)(A). Lassiter argued his convictions were erroneous due to a change in legal authority in the form of the Supreme Court decision in United States v. Taylor which altered the definition of a "crime of violence". Lassiter's convictions were based on attempted murder in aid of racketeering activity and arguing this did not constitute a crime of violence in light of the Taylor decision. However, the court disagreed by distinguishing between the requirements for attempted Hobbs Act robbery which was the focus of the Taylor case, and murder, asserting that murder requires the use of force, therefore attempted murder necessarily requires the attempted use of force, fitting within the definition of a crime of violence. The court rejected Lassiter's arguments and affirmed his 924(c)(1)(A) convictions. However, due to an inconsistency between the oral and written descriptions of one of Lassiter’s supervised-release conditions the court vacated his sentence in its entirety and remanded the case for a full resentencing.

 

APPEAL/SUPERVISED RELEASE/SPECIAL CONDITION. The Second Circuit  vacated and remanded United States v. Alex Oliveras, 2024 U.S. App. LEXIS 6226 (2d Cir. Mar. 15, 2024). Oliveras was sentenced to 63-months for possessing cocaine with intent to distribute and possessing a firearm in furtherance of drug trafficking. On appeal Oliveras challenged the imposition of a special condition of his supervised release that allowed for suspicionless searches by a probation officer.

The Second Circuit held that the "special needs" doctrine of the Fourth Amendment permits when sufficiently supported by the record the imposition of a special condition of supervised release that allows suspicionless searches of the defendant's person, property, vehicle, place of residence, or any other property under their control by a probation officer. However, the court also found that the district court exceeded its discretion in imposing that special condition here. The court explained that the district court failed to make the individualized assessment required to support the special condition under 18 USC 3583(d) including a sufficient explanation as to how the condition was reasonably related in this particular case to the applicable statutory factors under 18 USC 3553(a) and involved no greater deprivation of liberty than was reasonably necessary under those factors. Therefore, the Court of Appeals vacated the Search Condition and remanded the case to the district court for further consideration of whether it is necessary to impose the Search Condition in this particular case and, if so, for the district court to explain the individualized basis for imposing the Search Condition.

 

APPEAL/PLRA. The Second Circuit vacated and remanded Maurice Cotton v. Noeth, 2024 U.S. App. LEXIS 6121 (2d Cir. Mar. 14, 2024). Cotton filed a civil rights lawsuit against corrections officials at the Green Haven Correctional Facility. He alleged he was wrongfully denied a transfer to another prison facility and retaliated against for filing grievances related to the transfer request. Cotton sought permission to proceed in forma pauperis which allows indigent prisoners to pay filing fees through a structured payment plan linked to their prison accounts. The district court denied Cotton's IFP request concluding that he had accumulated "at least three" strikes under the Prison Litigation Reform Act (PLRA) due to previous lawsuit dismissals. The Second Circuit vacated and remanded the district court's decision ruling the district court erred in its interpretation of the three previous lawsuits. According to the appellate court not all of Cotton's previous lawsuits counted as PLRA strikes. The court further explained that a dismissal under Heck v. Humphrey does not automatically count as a PLRA strike arguing that the key consideration is whether the dismissal is based on the merits of the case or if it was merely a matter of timing or sequencing. Therefore, the appellate court concluded the district court incorrectly denied Cotton's request for IFP status warranting a remand for further proceedings.

 

APPEAL/1983/ARREST WARRANT. The Eleventh Circuit reversed and remanded Keith Sylvester v. Fulton County Jail, 2024 U.S. App. LEXIS 5797 (11th Cir. Mar. 11, 2024). In this lawsuit, Keith Sylvester alleged Detective James Barnett violated his Fourth Amendment rights by causing his arrest and detention without probable cause. Sylvester's parents were murdered and their house set on fire. Detective Barnett led the investigation and suspected Sylvester was the culprit, ultimately obtaining an arrest warrant for him. Sylvester spent over a year in jail until the charges were dropped. Sylvester claimed Barnett lacked probable cause when he applied for the arrest warrant, arguing that key exonerating evidence was omitted from the affidavit. The district court granted Detective Barnett summary judgment stating the record did not establish that Barnett knew about the exonerating information when he wrote the warrant affidavit. The court concluded that based on the totality of circumstances known to Barnett at the time of the arrest his suspicion of Sylvester was reasonable. On appeal the Eleventh Circuit reversed the lower court's decision. The appellate court found there were material facts omitted from the warrant affidavit. When those omissions were corrected the affidavit failed to establish even arguable probable cause for Sylvester's arrest. The court further held that a reasonable jury could find that Barnett intentionally or recklessly left out information that exonerated Sylvester. If a jury finds such misconduct, qualified immunity would not shield Barnett from liability. Therefore, the case was remanded for further proceedings.

 

APPEAL/IMMIGRATION. The Ninth Circuit granted a petition in Milly Kalulu v. Garland, 2024 U.S. App. LEXIS 5783 (9th Cir. Mar. 11, 2024). In this case the Ninth Circuit addressed the asylum petition of a Zambian woman, Milly Kalulu. The Board of Immigration Appeals had previously dismissed her appeal of a removal order. Kalulu who identifies as a lesbian claimed past persecution in Zambia on account of her sexual orientation. The Ninth Circuit agreed with the BIA that substantial evidence supported the agency’s adverse credibility determination, meaning that the agency was justified in not believing Kalulu’s testimony. The court found that Kalulu had been inconsistent in her testimony regarding when she made plans to remain in the United States and her alleged fear of future persecution if she returned to Zambia. Her demeanor during the removal hearing also contributed to the adverse credibility determination. However, the Ninth Circuit identified errors in the agency’s evaluation of the documents Kalulu provided as evidence to support her claims of past persecution. The court found that the agency had misread some of these documents and had improperly discounted their evidentiary value based on these misreadings. The court therefore granted Kalulu's petition for a review of the BIA's decision and instructed the agency to reconsider whether the documents, when properly read, independently prove Kalulu’s claims of past persecution. The court made no determination as to whether these documents do provide such proof or whether Kalulu merits any of the relief for which she applied.

 

APPEAL/IMMIGRATION. The Fourth Circuit remanded David Annor v. Garland, 2024 U.S. App. LEXIS 6261 (4th Cir. Mar. 15, 2024). In this case the Fourth Circuit reviewed a decision by the Board of Immigration Appeals regarding whether a money laundering conspiracy conviction constitutes a "particularly serious crime" that would bar withholding of removal under immigration law. The petitioner, David Annor, a citizen of Ghana and a lawful permanent resident of the United States had plead guilty to one count of conspiracy to commit money laundering, related to a romance fraud scheme. The Department of Homeland Security initiated removal proceedings against Annor who sought withholding of removal and deferral under the Convention Against Torture. The Immigration Judge and the BIA both determined that Annor's conviction constituted a "particularly serious crime" thus barring his eligibility for withholding of removal. Upon review the Fourth Circuit found that the BIA had erred in two ways. First, it had incorrectly applied its own precedent by analysing the elements of the wrong statute instead of the correct one under which Annor was convicted. Second, it failed to consider whether the nature of Annor's offense indicated that he posed a danger to the community a key factor in determining if a crime is "particularly serious". Consequently, the court granted the petition for review, vacated the BIA's decision, and remanded the case for further proceedings in accordance with its opinion.

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