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SAMARITAN NEWSLETTER – 04-15-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179


 CR.RIS/YOUTH/GANG MEMBER. The Southern District of New York granted a CR.RIS motion in United States v. Enrique Brito, 2024 U.S. Dist. LEXIS 67541 (S.D. N.Y. Apr. 12, 2024).Brito entered a plea of guilty to participating in a racketeering enterprise and using a firearm in furtherance of the crime of attempted murder. Brito discharged the firearm in an attempt to murder rival gang members but hit an innocent bystander. Brito was just under the age of 18 at the time of the shooting. He was sentenced to 270-months. The Policy Statement makes plain that the extraordinary and compelling reason "need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. The fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement." USSG 1B1.13(e). Brito focused largely upon his youthfulness, limited mental capacity at the time of the crime and extremely difficult upbringing. The Court found Brito's age of 17 years and eleven months at the time of the shooting, his horrific upbringing, his low I.Q. of 74, his mental illness and the "additional reflection" now requires a judge sentencing a person whose crimes were committed while a juvenile in combination amount to extraordinary and compelling reasons warranting for a reduction under 3582(c)(1)(A). The court reduced Brito’s sentence to 202-months.

 

APPEAL/CR.RIS/CARES ACT. The Fourth Circuit vacated and remanded United States v. Patrick Smith, 2024 U.S. App. LEXIS 8863 (4th Cir. Apr. 12, 2024). Smith appealed the district court’s order denying his motion for a new trial and denying as moot his third motion for compassionate release. The courtaffirmed the court’s order denying a new trial and vacated the order denying compassionate release and remanded for further proceedings. Smith filed three motions for compassionate release. The district court denied the first two motions finding Smith’s health issues qualified as extraordinary and compelling reasons for early release, but denying the motions because the 18 USC 3553(a) sentencing factors warranted against Smith’s release. Smith’s third motion for compassionate release in which he requested his sentence be reduced to time served appeared to show his health was declining. In particular Smith asserted hewas suffering kidney failure. Smith also noted his fiancé had passed away leaving no one to care for her two adopted children. Smith claimed he was rehabilitated. While the motion was pending, Smith was released to home confinement under the CARES Act. The district court concluded Smith’s motion was moot because he had been released to home confinement. In his motion Smith requested his sentence be reduced to time served. Even though Smith was transferred to home confinement he isstill serving his sentence and remains in the custody of the Bureau of Prisons. Pursuant to 3582(c)(1)(A), the district court has discretion to reduce Smith’s sentence—even to time served—and order Smith’s immediate release. Because it is possible for the district court to grant Smith effectual relief under 3582(c)(1)(A)(i) by reducing his prison sentence or releasing him from the custody of the Bureau of Prisons, his motion for compassionate release was not rendered moot by his release to home confinement.

 

CR.RIS/CAREER OFFENDER/DISPARITY/REHABILITATION. The District of Maryland granted a CR.RIS motion in United States v. Arnell Johnson, 2024 U.S. Dist. LEXIS 65174 (D. Md. Apr. 10, 2024).Johnson plead guilty to bank robbery and brandishing a firearm during a crime of violence. He was sentenced on Oct. 20, 2011, as a career offender to 334 months. Johnson soughtcompassionate release based on a disparity between the sentence he received and the one he allegedly might receive today combined with his record of post-offense rehabilitation. He contended if he were sentenced today he would not qualify as a career offender because neither of his prior convictions for attempted distribution of cocaine qualify as a "controlled substance offense" under the career offender guidelines. Section 1B1.13 now recognizes that a motion may be filed by a defendant based on extraordinary and compelling reasons which include medical circumstances, a defendant's age, family circumstances, victimization while in custody, or other reasons of comparable gravity. The sentence served constitutes just punishment, provided needed educational and vocational training, protected the public, and has had its deterrent effect on Johnson. Johnson’s sentence was reduced to time served.

 

CR.RIS/STACKING/DISPARITY/REHABILITATION. The Eastern District of New York granted a CR.RIS motion in United States v. Edward Byam, 2024 U.S. Dist. LEXIS 65774 (E.D. N.Y. Apr. 10, 2024). Byam is serving a sentence of 32 years and 1 day and moved for a reduction of sentence pursuant to 18 USC 3582(c)(1)(A). Over ten years ago, Byam, along with others, committed two armed robberies of two different Pay-O-Matic check cashing stores in Queens, New York. One robbery occurred in 2010 and the other in 2012. During the commission of each of the robberies, Byam brandished a firearm. Byam was charged with and convicted of two counts of Hobbs Act robbery and conspiracy to commit the same. Byam was also convicted of two counts of federal firearms offenses in violation of 18 USC924(c)(1)(A)(ii). He invoked the FSA's elimination of 924(c) stacking as an "extraordinary and compelling" reason to reduce his sentence. The Court granted Byam's 3582 Motion and reduced his sentence to 16 years. It is undisputed the "'unstacking' provisions of the FSA do not apply retroactively."The Court found the "drastic disparity" between Byam's sentence and the sentence he would receive today is an extraordinary and compelling reason to grant his motion.Notably, 1B1.13(b), the sub-section that covers potential circumstances that may be considered "extraordinary and compelling" for the purposes of 3582, now explicitly includes a provision for an "unusually long sentence." 1B1.13(b)(6). As an initial matter, "many courts have looked to the disparity between co-defendants in granting sentence reduction in 924(c) stacking cases." Rehabilitation requires a court to examine whether a defendant has taken responsibility for his or her actions and acted to reintegrate oneself into a productive society. Courts have considered the following factors: movant's maintenance of familial and societal relationships; letters of support both from community members and prison staff; conduct and disciplinary records while incarcerated; and any achievements and education obtained while incarcerated. The Court considered his relatively young age (between 22 and 24) at the commission of the crimes and the fact he had virtually no criminal history—and no violent criminal history—prior to the robberies.

 

CR.RIS/STACKING/REHABILITATION/DISPARITY/ICE DETAINER/FAMILY CIRCUMSTANCES. The Eastern District of New York granted in part a CR.RIS motion in United States v. Carlo Donato, 2024 U.S. Dist. LEXIS 64025 (E.D. N.Y. Apr. 8, 2024). Donato is currently serving a 115-year sentence for six gunpoint carjackings following a 1996 jury conviction for one count of conspiracy to commit carjacking in violation of 18 USC371, six counts of carjacking in violation of 18 USC 2119, one count of possession of a firearm to commit a crime of violence in violation of 18 USC 924(c) and five counts of use of a firearm during the commission of a crime of violence in violation of 18 USC 924(c). Donato alleged a litany of reasons explaining why his sentence is unjust citing, among other things, (1) his prior claims about the impropriety of the stacking of 924(c) counts; (2) his infection and subsequent vaccination for COVID-19; (3) the disparity of his sentence with similarly situated defendants, including his co-defendant; (4) his rehabilitation and disciplinary history while incarcerated; and (5) new case law that is allegedly favorable to Donato. He argued for a reduced sentence so he can care for his elderly mother who lives in Italy and is purportedly being treated for depression and the lingering effects of COVID-19. Sentence reduced to 50-years.

 

CR.RIS/MEDICAL. The District of Montana granted a CR.RIS motion in United States v. Trevion Jones, 2024 U.S. Dist. LEXIS 64001 (D. Mont. Apr. 8, 2024). Jones argued the dramatic decline in his medical condition qualified as an extraordinary and compelling reason for early release and tips the scales under the 18 USC 3553(a) factors in favor of release. The government agreed. Jones motion was granted. In Aug.2023, Jones experienced a massive cardiac failure and that has been followed with cascading medical problems. He is not a candidate for transplant and his impaired renal function severely limits his available treatments. Jones has been repeatedly hospitalized and has an estimated life expectancy of 3 to 18 months. Sentence reduced to time served.

 

CR.RIS/MEDICAL. The District of Utah granted a CR.RIS motion in United States v. Jeremy McCloy, 2024 U.S. Dist. LEXIS 63336 (D. Utah Apr. 5, 2024). Defendant sought a reduction of sentence or compassionate release arguing he suffers from a terminal medical condition and is receiving inadequate medical care in prison. The defendant is 52 years old and suffers from numerous chronic medical conditions including: Hepatitis C with hepatocellular cancer; esophageal varices; varicose veins-abdomen; cirrhosis of the liver; anomalies of the foot; thrombocytopenia; encephalopathy; osteoarthritis; and contracture of the ankle joint. The defendant's liver disease is a terminal illness. On this record, considering the totality of defendant's medical circumstances, which include a terminal illness, extraordinary and compelling reasons warranteddefendant receiving compassionate release.  Defendant ordered released on April 19, 2024.

 

AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Michelle Clabough, 2024 U.S. Dist. LEXIS 65584 (E.D. Tenn. Apr. 10, 2024). Defendant plead guilty to two counts of forgery of securities of a private entity in violation of 18 USC 513(a), one count of tax fraud in violation of 26 USC 7206(1), and one count of bankruptcy fraud in violation of 18 USC 1519. Defendant received zero criminal history points resulting in a criminal history category of I. With a total offense level of 22 and criminal history category of I, defendant's applicable guideline range was 41 to 51 months. The Court sentenced defendant on Feb. 3, 2022 to 44 months. Sentence reduced to time served.

 

AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Calvin Rader, 2024 U.S. Dist. LEXIS 65546 (E.D. Tenn. Apr. 11 2024). Defendant plead guilty to possessing a firearm as a convicted felon in violation of 18 USC 922(g)(1). At sentencing the defendant received two criminal history points because he committed the instant offense while under a criminal justice sentence. The court sentenced Rader to 100-months. The court reduced his sentence to 87-months.

 

AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Leslie Leavitt, 2024 U.S. Dist. LEXIS 66549 (E.D. Tenn. Apr. 11, 2024). Defendant plead guilty to conspiracy to distribute 50 grams or more of methamphetamine in violation of 21 USC 846, 841(a)(1), 841(b)(1)(A). At sentencing she received two criminal history points because she committed the instant offense while under a criminal justice sentence. She was sentenced to 121-months. The court reduced the sentence to 108-months.

 

AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Dewayne Smith, 2024 U.S. Dist. LEXIS 66547 (E.D. Tenn. Apr. 11, 2024). Defendant plead guilty to conspiracy to commit bank fraud in violation of 18 USC 1349, and aggravated identity theft in violation of 18 USC1028A. At sentencing defendant received two criminal history points because he committed the instant offense while under criminal justice. He was sentenced to 38 months. The court reduced his sentence to 36 months.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Mark Buchanan, 2024 U.S. Dist. LEXIS 64253 (N.D. Ohio Apr. 9, 2024).  Buchanan pled guilty to one count of being a felon in possession. The Court sentenced Buchanan to 30-months. At his sentencing, Marshall received two additional criminal history points because he committed his offense while under a state criminal justice sentence. Sentence reduced to 24-months.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Jose Rosado Olivo, 2024 U.S. Dist. LEXIS 63460 (N.D. Ohio Apr. 8, 2024).  Rosado Olivo plead guilty to three fentanyl-related charges. On July 11, 2022, the Court sentenced him to 49-months. At sentencing thedefendant had zero criminal history points. Defendant moved to reduce his sentence pursuant to 18 USC 3582(c)(2) and U.S. Sentencing Guidelines Amendment 821. Defendant asked the Court to reduce his sentence to 37 months. The Government didnot oppose a sentence reduction. The Court reduced his sentence to 40-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Jesus Corrales, 2024 U.S. Dist. LEXIS 64152 (S.D. Ill. Apr. 8, 2024). Corrales sought a reduction in sentence from 112-months to 101-months under 18 USC 3582(c) and Part A of Amendment 821 to the United States Sentencing Guidelines. The Government suggested a different method of calculating the revised sentence, but it ultimately agreed that a reduction to 101-months is appropriate. Sentence reduced to 101-months.

 

AMENDMENT 821. The District of North Dakota granted an 821 motion in United States v. Anthony Fox, 2024 U.S. Dist. LEXIS 64114 (D. N.D. Apr. 8, 2024). Fox moved for a sentence reduction under 18 USC 3582(c)(2) and Part A of Amendment 821 to the United States Sentencing Guidelines. The United States did not oppose the motion. Fox is eligible for a sentence reduction under 3582(c)(2) and the retroactive application of Part A of Amendment 821 to the Sentencing Guidelines, and the sentencing factors in 18 USC 3553(a) did not weigh against a reduction. Fox's motion was granted. His sentence was reduced to 40-months.

 

APPEAL/2255/REHAIF. The Third Circuit reversed and remanded United States v. Carlos Hill, 2024 U.S. App. LEXIS 8824 (3d Cir. Apr. 12, 2024). Hill was convicted in 2013 for possession of a firearm in violation of 18 USC 922(g)(1), a law that makes it illegal for a person convicted of a crime punishable by more than a year in prison to possess a firearm. In 2019, Hill sought to challenge his conviction following the Supreme Court's decision in Rehaif v. United States which overturned previous interpretations of 922(g)(1) and held that the Government must prove that the person knew they belonged to the prohibited group. Hill requested appointment of counsel to pursue his Rehaif claim pursuant to 28 USC 2255. The district court denied his request ruling Hill's 2255 motion was second or successive and he did not qualify for relief under Rehaif. The Third Circuit disagreed. The appellate court determined Hill's 2255 motion was not second or successive, and Rehaif announced a new substantive rule that is retroactive for non-successive 2255 motions. The court concluded the district court's order was incorrect and vacated it, remanding the case for further proceedings.

 

APPEAL/MAIL FRAUD. The Ninth Circuit reversed and remanded United States v. James Milheiser, 2024 U.S. App. Lexis 8488 (9th Cir. Apr. 9, 2024). Six defendants were convicted of mail fraud and conspiracy to commit mail fraud for their sales companies tactics in selling printer toner. The Government's case was based on the argument that a representative from the sales company would call a business, falsely imply that the sales company was the business's regular supplier of toner and falsely state that the price of toner had increased. The representative would then state that the business could lock in the old price by purchasing more toner that day. The defendants argued this theory of fraud was overbroad because it permitted the jury to convict even though all of the businesses received the toner they ordered at the agreed price. The defendants appealed their convictions arguing the Government's theory of fraud was overbroad. The Ninth Circuit agreed with the defendants holding the Government's theory of fraud was overbroad because it did not require the jury to find that the defendants deceived customers about the nature of the bargain. The court vacated the defendants' convictions and remanded the case back to the lower court.

 

APPEAL/SENTENCE. The Seventh Circuit vacated and remanded United States v. Christopher Yates, 2024 U.S. App. LEXIS 8757 (7th Cir. Apr. 11, 2024). The case involves two defendants, Christopher Yates and Shawn Connelly, who were convicted of conspiring to distribute methamphetamine. The conspiracy operated out of Macomb, Illinois, and lasted thirteen months, from Jan. 2019 to Feb. 2020. Yates supplied the drugs initially from an unknown source in Joliet, Illinois, with alleged Mexican cartel connections. After the arrest of that supplier, Yates sought a new source. Connelly was among the distributors. The Government conducted one seizure and nine controlled buys from members of the conspiracy during its investigation. Both defendants pleaded guilty without a plea agreement. The main dispute at Yates’s sentencing was the classification of the methamphetamine attributable to him as “ice” or “actual” (i.e., pure) methamphetamine, as opposed to its generic variant. The court found that all 737.1 grams of methamphetamine for which the conspiracy was accountable was “ice” methamphetamine. Connelly raised two objections to the PSR at his sentencing hearing. He argued the court could not rely on the statements of his coconspirators for purposes ofdetermining the amount of methamphetamine handled by the conspiracy. He also contended the full drug weight attributed to the conspiracy was not reasonably foreseeable to him. The district court denied both objections. In the Seventh Circuit Yates challenged the district court’s finding the methamphetamine attributable to the conspiracy was “ice” methamphetamine. Connelly once more attacked the district court’s calculation of the total drug weight attributable to him. The court vacated Yates’s sentence and remanded. The court found the Government must supply reliable evidence making that approximation reasonable. Because such evidence was lacking, Yates is entitled to resentencing. The court affirmed Connelly’s sentence.

APPEAL/SECURITIES/DEATH. The First Circuit reversed and remanded United States v. Francis Reynolds, 2024 U.S. App. LEXIS 8497 (1st Cir. Apr. 9, 2024). Reynolds was convicted of three counts of obstruction of a United States Securities and Exchange Commission proceeding and one count of securities fraud. The district court sentenced him to seven years ofimprisonment plus three years of supervised release and ordered him to pay restitution to the victims of his fraud in the amount of $7,551,757, a special assessment of $400, and to forfeit $280,000 to the United States. Reynolds appealed his conviction, but he died while the appeal was pending. He appealed his conviction to the First Circuit. While the appeal was pending Reynolds died. The Government suggested the court should either dismiss the appeal as moot or follow the practice of the Supreme Judicial Court of Massachusetts and dismiss the appeal as moot while instructing the district court to add a notation in the record. The First Circuit had to decide whether to apply the doctrine of abatement ab initio, which holds that when a criminal defendant dies during the pendency of a direct appeal from his conviction his death abates not only the appeal but also all proceedings had in the prosecution from its inception. The court decided to apply the doctrine aligning itself with other federal courts of appeals and its own past decisions. The court dismissed the appeal and remanded the case to the district court to vacate the convictions and dismiss the indictment. The court also instructed the district court to vacate the orders of restitution and criminal forfeiture that were imposed in this case as well as the special assessment.

 

APPEAL/IMMIGRATION. The Sixth Circuit remanded Walid Abdulahad v. Garland, 2024 U.S. App. LEXIS 8720 (6th Cir. Apr. 11, 2024). The case involves Walid Abdulahad an Iraqi national who sought review of the Board of Immigration Appeals' (BIA) denial of his motion to reopen his removal proceedings based on changed country conditions in Iraq. Abdulahad had been living in the U.S. since 1997 was ordered removed in absentia in 2006 following a criminal conviction in Aruba. He remained in the U.S. under supervision and filed multiple motions to reopen his case, arguing he faced a risk of torture if returned to Iraq due to his status as a Chaldean Christian and his ties to the U.S. The BIA denied Abdulahad's latest motion to reopen finding that his evidence was cumulative of evidence submitted with prior motions and he had not established a particularized risk of torture or that each step in his causal-chain claim was more likely than not to occur. Abdulahad petitioned the Sixth Circuit for review of the BIA's decision. The Sixth Circuit granted the petition, vacated the BIA's decision, and remanded the case back to the BIA. The court found that the BIA had applied an incorrect legal standard when determining whether Abdulahad's evidence was new, cumulative, or material, and had failed to assess Abdulahad's claims in the aggregate. The court also found that the BIA had not sufficiently explained or considered the evidence related to Abdulahad's particularized likelihood of torture.

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