SAMARITAN NEWSLETTER – 04-08- 2025

Satellite Law Office of Tom Norrid

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The SAMARITAN-PROJECT prepares post-conviction and compassionate release motions under the direction of Attorney Tom Norrid. The Project retrieves documents at reasonable prices. The Project newsletter reports every winning published district court and court of appeals case for the week in review.

APPEAL/CYBERSTALKING. The Second Circuit vacated and remanded United States v. Dennis, 2025 U.S. App. LEXIS 6614 (2d Cir. Mar. 21, 2025). Dennis was convicted of three counts of cyberstalking under 18 USC 2261A(2)(B) for sending repeated abusive electronic communications to his former partners at the law firm K&L Gates LLP after his ouster from the partnership. Dennis argued the statute was unconstitutional because the trial evidence was insufficient to prove his communications constituted "true threats" of physical harm, which would fall outside the First Amendment's protection of free speech. He contended erroneous jury instructions allowed the jury to find him guilty without proof of true threats and he was unduly prejudiced by trial rulings and the trial judge's statements about his pro se status. The Southern District of New York convicted Dennis on three counts of cyberstalking. The Second Circuit reviewed and found the evidence was sufficient to permit a jury to find true threats in Dennis's communications to two of the victims, Bicks and Bostick, but insufficient as to the third victim. The Second Circuit affirmed Dennis's conviction on Counts One and Four but reversed the conviction on Count Two.

APPEAL/ASSESSMENT. The Seventh Circuit remanded United States v. Gregory Johnson, 2025 U.S. App. LEXIS 6875 (7th Cir. Mar. 25, 2025). Johnson was convicted by a jury of attempting to use a minor to engage in sexually explicit conduct for the purpose of producing child pornography. At sentencing the district court found Johnson indigent and waived a fine under 18 USC 3571 and a discretionary assessment under the Justice for Victims of Trafficking Act, 18 USC 3014. The court imposed a $5,000 assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act, 18 USC 2259A, despite Johnson's indigency. The Seventh Circuit clarified the AVAA assessment is mandatory regardless of the defendant's ability to pay, but the amount is discretionary and must consider factors including the defendant's financial condition. The district court did not adequately explain why 5,000 was an appropriate amount given its findings about Johnson's financial condition for other penalties. The Seventh Circuit vacated the AVAA assessment and ordered a limited remand for the district court to reconsider the assessment and provide a reasoned explanation for the amount imposed.

APPEAL/SEARCH. The Ninth Circuit vacated and remanded United States v. John Holcomb, 2025 U.S. App. LEXIS 7135 (9th Cir. Mar. 27, 2025). Holcomb was arrested after his ex-girlfriend, J.J., accused him of sexual assault. During the investigation, officers obtained a search warrant for Holcomb's computer which led to the discovery of videos depicting child sexual abuse. Holcomb initially consented to the search but later withdrew his consent. A second warrant was issued allowing a broader search of his computer which included a provision to search for evidence of "dominion and control" without any temporal limitation. This search uncovered the incriminating videos. The Western District of Washington granted Holcomb's motion to suppress the videos finding the "dominion and control" provision overbroad and insufficiently particular. However, upon reconsideration the court applied the good-faith exception citing the lack of clear precedent requiring temporal limitations for such provisions and denied the motion to suppress. Holcomb pled guilty but reserved the right to appeal the suppression ruling. The Ninth Circuit reversed the district court's decision. The appellate court held the "dominion and control" provision was invalid due to its overbreadth and lack of particularity. The Ninth Circuit vacated Holcomb's conviction and sentence and remanded the case.

APPEAL/RESENTENCE. The Second Circuit vacated and remanded United States v. Kenneth Darrah, 2025 U.S. App. LEXIS 7402 (2d Cir. Mar. 28, 2025). Darrah exchanged messages with an undercover law enforcement officer posing as the mother of a nine-year-old girl. During these exchanges Darrah sent an audiovisual file of child pornography through the Kik Messenger application expecting to receive a picture of the child in return. He pled guilty to distributing child pornography in violation of 18 USC 2252A(a)(2)(A) and was sentenced to 106 months and 20 years of supervised release. Darrah challenging the procedural reasonableness of a five-level increase for distribution of child pornography under USSG 2G2.2(b)(3)(B), the substantive reasonableness of his 106-month sentence, and a special condition of supervised release limiting him to one internet-capable device. The Second Circuit found the district court erred in applying the five-level increase because there was no evidence of an agreement to exchange anything of value as required under the amended USSG 2G2.2(b)(3)(B). However, this error was deemed harmless since the district court indicated it would have imposed the same sentence regardless. The court vacated the judgment regarding the special condition of supervised release which limited Darrah to one internet-capable device as it constituted an impermissible delegation of judicial authority to the Probation Office. The case was remanded for resentencing.

APPEAL/RESENTENCE. The Eighth Circuit vacated and remanded United States v. Edwin Salinas, 2025 U.S. App. LEXIS 7187 (8th Cir. Mar. 28, 2025). Salinas was a passenger in a vehicle driven by Berta Gonzales who initially provided false identification. After her arrest, officers found Salinas throwing items inside the vehicle. They discovered methamphetamine in Gonzales’s purse and a backpack containing fentanyl in the trunk. Salinas and Gonzales were charged with conspiracy to distribute and possession with intent to distribute a controlled substance. A jury found Salinas guilty on both counts. The District of South Dakota calculated a base offense level of 34 for Salinas, applying a two-level enhancement under USSG 2D1.1(b)(13) for trafficking counterfeit fentanyl pills and additional enhancements for his role in the offense. The court imposed a life sentence citing Salinas’s presence on the reservation with a large quantity of fentanyl and the potential harm to the community. The Eighth Circuit affirmed the application of the 2D1.1(b)(13) enhancement finding sufficient evidence that Salinas acted with willful blindness regarding the counterfeit nature of the pills. However, the court held the district court procedurally erred by basing the life sentence on clearly erroneous facts, specifically the unproven intention to distribute drugs on the reservation. The appellate court vacated Salinas’s life sentence and remanded for resentencing.

APPEAL/RESENTENCE. The Sixth Circuit vacated and remanded United States v. Guanterio Logan, 2025 U.S. App. LEXIS 7726 (6th Cir. Mar. 31, 2025). Logan pled guilty to being a felon in possession of a firearm in violation of 18 USC 922(g)(1). The district court sentenced him to 110 months imprisonment. Logan appealed the sentence, raising one issue: whether the district court erred in applying a four-level enhancement for possession of firearms in connection with another felony offense under USSG 2K2.1(b)(6)(B). Because the district court erred in applying the enhancement, the court vacated the sentence and remanded for resentencing.

APPEAL/CAREER OFFENDER/OHIO ROBBERY. The Sixth Circuit reversed and remanded United States v. Tyren Cervenak, 2025 U.S. App. LEXIS 7694 (6th Cir. Apr. 2, 2025). Congress instructed the Sentencing Commission to enhance the Sentencing Guidelines range for individuals convicted of a crime of violence or a controlled substance offense after having been previously convicted of two or more such offenses. 28 USC 994(h). The Commission created the career-offender guideline in response to Congress’s directive. The court must decide if the district court properly increased Cervenak’s Guidelines range under the career-offender guideline. Specifically, the court considers whether Cervenak’s prior convictions for robbery under Ohio law are “crimes of violence,” as the Guidelines use that term. Because the court held that they are not, it vacated Cervenak’s sentence.

APPEAL/VARIANCE. The First Circuit reversed and remanded United Sates v. Jorge Mercado-Canizares, 2025 U.S. App. LEXIS 7719 (1st Cir. Apr. 2, 2025). While on supervised release Mercado was stopped by police for a seatbelt violation. During the stop officers found a modified Glock pistol capable of automatic fire and additional ammunition in his possession. The Probation Office petitioned for revocation of Mercado's supervised release. He was charged with possession of a machinegun and possession of a firearm and ammunition by a prohibited person. At the revocation hearing the district court imposed a 60-month sentence, the statutory maximum, which was an 82% upward variance from the Guidelines range of 27 to 33 months. Mercado's counsel objected to the sentence as procedurally and substantively unreasonable. Subsequently, Mercado reached a plea agreement on the new charges, pleading guilty to possession of a machinegun. The district court imposed a 48-month sentence, a 30% upward variance from the Guidelines range of 30 to 37 months, citing the dangerous nature of machineguns, the quantity of ammunition, a policy disagreement with the Guidelines and community-based statistics on gun violence in Puerto Rico. Mercado's counsel again objected to the procedural and substantive reasonableness of the sentence. The First Circuit vacated the 60-month revocation sentence finding it procedurally flawed due to insufficient explanation for the upward variance. The court affirmed the 48-month sentence for the 922(o) charge finding the amount of ammunition sufficient to support the upward variance.