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SAMARITAN NEWSLETTER – 04-08-2024

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 published 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. Have your friends or family go to the website and order 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.

 

APPEAL/CR/RIS/NEW 1B1.13. The Eleventh Circuit clarified the new USSG 1B1.13 in United States v. Quinton Handlon, 2024 U.S. App. LEXIS 7915(11th Cir. Apr. 3, 2024). The Eleventh Circuit reviewed an appeal by Quinton Handlon who was convicted of producing, coercing, and possessing child pornography. Handlon had requested compassionate release under 18 USC 3582(c)(1)(A) because his elderly father needed a caregiver. The district court denied the request as Handlon failed to provide substantial evidence about his father's condition or proving he was the only available caretaker. Handlon appealed this decision. The Appeals Court upheld the district court's decision affirming that Handlon's case did not meet the extraordinary and compelling reasons necessary for compassionate release under the policy statement of the U.S. Sentencing Commission. At the time of Handlon's motion the policy statement recognized four categories for compassionate release, none of which included the incapacitation of a parent when the defendant could serve as a caregiver. The court noted that a recent amendment to the policy statement now includes such a scenario but clarified that it could not be applied retroactively in this appeal because it was a substantive amendment, not a clarifying one. The court affirmed the denial of Handlon's motion for compassionate release but hinted that Handlon might be able to file a new motion for compassionate release under the updated policy. 1B1.13(b)(3)(C).

 

CR.RIS/MEDICAL/GANG AFFILILIATION The District of Nevada granted a CR.RIS motion in United States v. Rick Lee Archer, 2024 U.S. Dist. LEXIS 62760 (D. Nev. Apr. 5, 2024). Archer's projected release date is in 2038 but he has been incarcerated since at least 1994. In the late 80s to 90s, Archer committed a series of armed robberies and even escaped from prison at least once while serving his sentence on said robberies. He is currently serving a 240-month sentence (consecutive to his prior sentences) for one count of armed robbery and one count of escape. In his motion for compassionate release Archer informed the court he has not had a write-up in nearly 4 years and has denounced his previous gang affiliations. He has reached the age of 65 and is experiencing deteriorating health and hopes to be able to lead a life outside of prison with this family. Archer suffers from hypertension, chronic obstructive pulmonary disease, shoulder pain, obesity, a urinary system disorder, prostatic hypertrophy, neuropathy, and anxiety. He claimed he has not been able to see a urologist and is not receiving adequate treatment to address his torn ACL. His decades in solitary confinement have significantly affected his mental health and his being a gang drop-out increased his risk of being attacked while incarcerated. These reasons, combined with his advanced age, qualified as "extraordinary and compelling reasons" for release under 18 USC 3582(c)(1)(A). Sentence reduced to time served.

 

CR.RIS/404(b). The Southern District of Indiana granted in part a CR.RIS motion in United States v. Dimitrai Cabell, 2024 U.S. Dist. LEXIS 60270 (S.D. Ind. Apr. 1, 2024). In Sept. 2008, Cabell plead guilty to conspiracy to distribute in excess of 5 kilograms or more of a substance containing a detectable amount of cocaine hydrochloride and 50 grams or more of a substance containing a detectable amount of cocaine base. Cabell had a previous conviction for a drug felony which enhanced the mandatory minimum sentence to 20 years under the law as it existed at the time. Cabell agreed to a sentence of 300 months in the plea agreement. He filed a motion for sentence reduction invoking Section 404 of the First Step Act of 2018. The court reduced Cabell's sentence of imprisonment to 262 months and his term of supervised release term to 8 years. If Cabell were sentenced today he would face a mandatory term of imprisonment of 5-to-40 years and a mandatory minimum term of 4 years of supervised release. 21 USC 841(b)(1)(B)(iii) (eff. Dec. 2, 2022). Those updated provisions of 841 are not, however, retroactive, and 404 limits the Court to reducing Cabell's sentence as if the Fair Sentencing Act had been in place when he was originally sentenced, meaning that the court cannot reduce his sentence below the 10-year mandatory minimum term of imprisonment and 8-year mandatory term of imprisonment discussed above. Cabell has engaged in numerous educational courses in the BOP including drug education. He engaged in HVAC training in an effort to be ready for employment upon release. His BOP disciplinary history contains only two, non-violent, infractions during the course of his more than 16 years of incarceration. He will have the support of and residence with family members if he were released and he attached a letter supporting his release from a BOP staff member. Cabell has been in BOP custody for over 15 years, and his criminal behavior is nearly two decades behind him now. Sentence reduced to 262-months.

 

AMENDMENT 821. The Middle District of Tennessee granted an 821 motion in United States v. Barry Moore, 2024 U.S. Dist. LEXIS 62968 (M.D. Tenn. Apr. 5, 2024). Moore filed a motion for sentence reduction under USC 3582(c)(2) seeking a reduction in sentence from 21 months to 15 months. Moore plead guilty to attempt to possess with intent to distribute MDMA in violation of 21 USC 846. Moore had five criminal history points and received two additional criminal history points because he committed the instant offense while under a criminal justice sentence, which totaled seven criminal history points. Sentence reduced to 15-months.

 

AMENDMENT 821. The Middle District of Tennessee granted an 821 motion in United States v. Marcelius Russ, 2024 U.S. Dist. LEXIS 62967 (M.D. Tenn. Apr. 5, 2024). Russ pled guilty to being a felon in possession of a firearms in violation of 18 USC 922(g)(1). At the time of sentencing Russ had six criminal history points and received two additional criminal history points because he committed the instant offense while under a criminal justice sentence, which resulted in a total of eight criminal history points, and he was sentenced to 72-months. Sentence reduced to 70-months.

 

AMENDMENT 821. The District of Maine granted an 821 motion in United States v. Henry Brackett, 2024 U.S. Dist. LEXIS 62723 (D. Me. Apr. 5, 2024). The Court sentenced Brackett to 92 months of imprisonment for possessing a stolen firearm in violation of 18 USC 922(j). Sentence reduced to 84-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Ashley McKinney, 2024 U.S. Dist. LEXIS 61685 (S.D. Ill. Apr. 3, 2024). McKinney plead guilty to one count of conspiracy to commit wire fraud and bank fraud in violation of 18 USC 1349 (Count 1), one count of aggravated identity theft in violation of 18 USC 1028A(a)(1) (Count 3), and one count of money laundering in violation of 18 USC 1957(a) (Count 4). She was sentenced to 54 months on Nov. 22, 2022. McKinney is eligible for a reduction under Part A of Amendment 821. Sentence reduced to 51-months.

 

AMENDMENT 821. The Southern District of Ohio granted an 821 motion in United States v. Ron Estes, 2024 U.S. Dist. LEXIS 60418 (S.D. Ohio Apr. 2, 2024). On Dec. 12, 2019, Estes was charged by way of a two count Information with: mail fraud, in violation of 18 USC 1341; and embezzlement and theft from an employee benefit plan, in violation of 18 USC 664. Defendant no longer qualifies for the two-point criminal history score increase. His sentence was reduced from 18 months to 15 months.

 

AMENDMENT 821. The Middle District of Florida granted an 821 motion in United States v. Edgar Hurtado-Ramirez, 2024 U.S. Dist. LEXIS 59106 (M.D. Fla. Apr. 1, 2024). On Nov. 22, 2021, Hurtado-Ramirez was sentenced under 18 USC 1956 and 1957 to 121 months. Hurtado-Ramirez was assessed no criminal history points and his criminal history was category I. Sentence reduced to 87-months.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 motion in United States v. Johnny Jones, 2024 U.S. Dist. LEXIS 59369 (N.D. Ind. Apr. 1, 2024). Jones was convicted of one count of conspiring to distribute over fifty grams of methamphetamine in violation of 21 USC 846, 841(b)(1)(B)(viii), and possession of methamphetamine with intent to distribute in violation of 21 USC 841(a)(1), 841(b)(1)(C). Jones was then sentenced to 145 months on each count. The criminal history calculation was eight points based on Jones' prior convictions, and two additional points for committing the instant offense while serving a criminal justice sentence pursuant to the then applicable Guidelines 4A1.1(d). Sentence reduced to 123-months.

 

APPEAL/1983/EXCESSIVE FORCE/FALSE ARREST. The Eleventh Circuit remanded William Martin v. Miami Dade County, 2024 U.S. App. LEXIS 7887 (11th Cir. Apr. 3, 2024). Michael and William Martin (the “Martins”) filed an amended complaint alleging claims of false arrest, excessive force, and malicious prosecution against Officers Mauricio Duran and Bridget Doyle (the “Officers”) under 42 USC 1983. The Officers moved to dismiss based on qualified immunity, which the district court denied. This is the Officers’ appeal. After review and with the benefit of oral argument the court (1) affirm the denial of qualified immunity as to the Martins’ false arrest and excessive force claims; (2) reverse the denial of qualified immunity as to the Martins’ malicious prosecution claims; and (3) remanded for further proceedings.

 

 

 

 

APPEAL/SENTENCE. The Ninth Circuit vacated and remanded for resentencing United States v. Vivian Tat, 2024 U.S. App. LEXIS 8074 (9th Cir. Apr. 4, 2024). The case under review is an appeal regarding the resentencing of Vivian Tat who was involved in a money-laundering scheme. At her initial sentencing Tat was convicted on several counts and sentenced to 24-months. However, she appealed and the higher court vacated her conviction on one count and her sentence was remanded for de novo resentencing. At the resentencing hearing Tat received an 18-month sentence. Her appeal to the Ninth Circuit is her second one and she argued the lower court erred in applying sentencing enhancements related to her role as an organizer/leader and her abuse of trust, improperly considered "cost" in dismissing her community-service proposal at sentencing and violated Federal Rule of Criminal Procedure 32 by failing to make factual findings about certain parts of her presentence report. The Ninth Circuit held a criminal defendant’s failure to challenge specific aspects of her initial sentence on a prior appeal does not waive her right to challenge comparable aspects of a newly imposed sentence following de novo resentencing. The court found that the lower court had erred in applying an organizer/leader enhancement under USSG 3B1.1 as Tat’s status as a mere member of the criminal enterprise did not bear on whether she was an organizer, leader, manager, or supervisor of the criminal activity, and the criminal conduct was not “otherwise extensive.” However, the district court did not err in applying an enhancement for abuse of trust under 3B1.3, where Tat’s position as a manager at the bank gave her the discretion to carry out transactions like the one at issue here without oversight and where her position of trust facilitated her role in the underlying offense. The court also found that the lower court did not improperly consider “cost” in dismissing Tat’s community-service proposal. The court vacated Tat’s sentence and remanded to the district court for resentencing consistent with the opinion.

 

APPEAL/SENTENCE. The Third Circuit vacated and remanded for resentencing United States v. William Barksdale, 2024 U.S. App. LEXIS 8045 (3d Cir. Apr. 4, 2024). This case involves Barksdale who was denied the right to testify in his own defense during a supervised release revocation hearing. Barksdale had previously plead guilty to conspiring to commit wire fraud and was sentenced to twenty months in prison and five years' supervised release. Near the end of his supervised release his probation officer reported ten potential violations of his release terms to the district court. During the revocation hearing Barksdale repeatedly expressed his desire to testify but the judge denied his request stating Barksdale had chosen not to testify. The judge then found Barksdale guilty of nine release violations and sentenced him to thirty months in prison. Barksdale appealed to the Third Circuit, arguing that the district court denied him his right to testify in his own defense. The Circuit Court reviewed the district court's findings of fact for clear error, its legal rulings de novo, and its ultimate decision to revoke supervised release for abuse of discretion. The Circuit Court found that on the record before them the district court judge had erred in denying Barksdale his right to testify. The Court ruled that nowhere on the record did Barksdale himself waive that right and thus he was denied his constitutional right to testify. The Government was then required to prove that this error was harmless beyond a reasonable doubt which they failed to do. The Court noted even if Barksdale's testimony could have reduced his sentence only slightly that is enough to make the error harmful. Finally, despite Barksdale's request for a new judge on remand the Circuit Court found no evidence of bias or appearance of bias from the district court judge. Therefore, the case was remanded to the same judge for a new revocation hearing.

 

APPEAL/RESTITUTION. The Eighth Circuit vacated and remanded United States v. Johathan Arrington, 2024 U.S. App. LEXIS 7891 (8th Cir. Apr. 3, 2024). Arrington was employed by Recon Roofing and Construction to handle their finances. He was found guilty of wire fraud having embezzled a total of $315,835 from the company between Aug. 2019 and March 2021. Arrington appealed his sentence and the related restitution order. He argued the district court erred by assigning him the burden of proof regarding any offset to the restitution amount. The defendant also contended the court didn't account for the value of payments he made towards the loss and the imposed sentence was unreasonably harsh. The Eighth Circuit upheld the sentence but vacated the restitution order. The Appeals Court stated the district court was correct in assigning Arrington the burden of proof for any offset to the amount of restitution. However, it was determined the district court had erred in not reducing the restitution amount by the value of shares sold by the defendant back to the company. Therefore, the restitution amount was reduced by $50,000 to $265,835. The court found the prison sentence to be reasonable considering the factors such as Arrington's position of trust within the company, the extent of the fraud, his attempt to cover it up, and his prior federal fraud conviction.

 

APPEAL/1983/EXCESSIVE FORCE. The Sixth Circuit reversed and remanded Webster Rashada v. Flegel, 2024 U.S. App. LEXIS 7883 (6th Cir. Apr. 1, 2024). Proceeding pro se Webster Rashada a Michigan state prisoner filed a complaint under 42 USC 1983 alleging that two correctional officers used excessive force in retaliation against him for filing previous lawsuits against other officers in the same correctional facility. Rashada stated he sued the defendants in their official rather than individual capacities. After screening Rashada’s complaint pursuant to the Prison Litigation Reform Act (“PLRA”), 42 USC 1997e, the district court sua sponte dismissed Rashada’s claims as barred by sovereign immunity. For the reasons discussed below, the court reversed the dismissal of Rashada’s complaint, and remanded for further proceedings consistent with the opinion. In this case the district court acknowledged that “[i]f Plaintiff had named Defendants in their personal capacities, [it] would not dismiss this matter on screening, as Plaintiff has stated a plausible Eighth Amendment excessive force claim.” That is, but for a procedural pleading deficiency in Rashada’s pro se complaint the district court would have found that he stated a claim for relief as to at least one of his claims. Ordinarily, a plaintiff would have the opportunity to cure such a procedural deficiency without court involvement. Indeed, had the deficiency been raised by defendants in response to Rashada’s complaint after having been served—or even if Rashada later discovered it on his own—he would have been entitled to amend his complaint “once as a matter of course” within 21 days of serving it or 21 days after being served with a responsive pleading or motion to dismiss. Fed.R.Civ.P. 15(a)(1). The court was aware of no authority suggesting that PLRA screening is meant to foreclose this normal operation of Rule 15. Given Rashada’s pro se status in the district court and the highly technical nature of pleading official and personal capacity claims, in the “interest of justice,” Rashada should be permitted to amend his complaint and pursue his claims against defendants in their proper capacities.

 

 

APPEAL/1983/QUALIFIED IMMUNITY. The Eighth Circuit remanded Sease Beard v. Falkenrath, 2024 U.S. App. LEXIS 8025 (8th Cir. Apr. 4, 2024). In this case, Sease Beard, a transgender inmate alleged mistreatment and retaliation by prison officials. Beard, who identifies as a transgender woman, has been provided hormone-replacement therapy by the Missouri Department of Corrections since 2019. The issue in the case centers on whether the prison officials are shielded by qualified immunity. Beard was involved in multiple incidents with guards. In one particular incident when a guard expressed disapproval of Beard's attire, Beard refused to change. Subsequently, several guards physically restrained Beard, used pepper spray, removed Beard's clothes, and carried Beard through the prison's hallways in view of other inmates. Following this incident, Beard filed a lawsuit against nearly everyone involved, claiming violations of state law and the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.

The Western District of Missouri denied the officials' motion to dismiss the case, asserting their claim to qualified immunity. The Eighth Circuit affirmed the lower court's decision in part and reversed in part. The court found that certain prison officials were not entitled to qualified immunity for some of Beard's claims, including a Fourth Amendment claim regarding a strip search and First Amendment retaliation claims related to denial of a promotion, restriction of shower access, and confiscation of personal property. However, the court found that other officials were entitled to qualified immunity for claims relating to the denial of mental health treatment and the supervisors' inaction. The case was sent back to the district court for further proceedings.

 

APPEAL/1983/ATTORNEY FEES. The Ninth Circuit reversed and remanded Adree Edmo v. Corizon, Inc., 2024 U.S. App. LEXIS 8218 (9th Cir. Apr. 5, 2024). The case involves Adree Edmo a transgender woman incarcerated in Idaho who sued the State of Idaho the private prison company Corizon and individual prison officials for failing to provide her with adequate medical care, including gender-confirmation surgery. Edmo alleged violations of the Eighth Amendment, the Fourteenth Amendment’s Equal Protection Clause, the Affordable Care Act, the Americans with Disabilities Act, and negligence under Idaho law. The district court granted an injunction on Edmo’s Eighth Amendment claim and ordered the defendants to provide her with adequate medical care, including gender-confirmation surgery. The court denied preliminary injunctive relief on Edmo’s Fourteenth Amendment and ACA claims because the record had not been sufficiently developed. The district court's decision was appealed and the injunction was stayed. The Ninth Circuit affirmed the district court’s decision except as it applied to five defendants in their individual capacities. After the Supreme Court denied a writ of certiorari the parties engaged in settlement negotiations that led to Edmo voluntarily dismissing the remainder of her claims. The district court awarded Edmo $2,586,048.80 for attorneys’ fees incurred up until the injunction became permanent and all appeals were resolved. The Ninth Circuit reversed in part, affirmed in part, and vacated in part the district court’s award of attorneys’ fees to Edmo. The court held that Edmo was entitled to fees incurred litigating her successful Eighth Amendment claim. However, the court found that the district court erred in calculating the lodestar amount to include fees incurred litigating unsuccessful claims advanced in the complaint, even if those claims were premised on the same facts that supported Edmo’s Eighth Amendment claim. The court also held that the district court did not err by applying an enhancement to the lodestar amount given that Edmo’s counsel operated under extraordinary time pressure and that the customary fee for counsel’s services is well above the PLRA cap. The case was remanded for recalculation of the lodestar amount to include only fees incurred litigating Edmo’s successful claim against the defendants who remained in the case.

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