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SAMARITAN NEWSLETTER – 04-22- 2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC 

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179


All newsletters will be available at: attorneytnorridnews@gmail.com. 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. Our website – SAMARITANPROJECTS.COM is available to your family and friends. Our Newsletters and Alerts are published on the WEBSITE.


SUPREME COURT/FORFEITURE. The Supreme Court affirmed Louis McIntosh v. United States, 2024 U.S. LEXIS 1815 (S. Ct. Apr. 17, 2024). The case revolves around Louis McIntosh who was indicted on multiple counts of Hobbs Act robbery and firearm offenses. The indictment demanded that McIntosh forfeit all property derived from proceeds traceable to the commission of the offenses. The Government later provided McIntosh with a pretrial bill of particulars that included as property subject to forfeiture $75,000 in cash and a BMW that McIntosh purchased just five days after one of the robberies. After a jury convicted McIntosh the district court imposed a forfeiture of $75,000 and the BMW at the sentencing hearing. However, the Government failed to submit an order of forfeiture for the court’s signature within a week from the hearing as ordered by the district court. On appeal the Government moved for a limited remand to supplement the record with a written order of forfeiture. The Second Circuit granted the unopposed motion. Back in the district court, McIntosh argued that the failure to comply with Federal Rule of Criminal Procedure 32.2(b)(2)(B) meant that the district court could not proceed with forfeiture at all. The district court overruled McIntosh’s objections finding that the Rule is a time-related directive and that the failure to enter a preliminary order of forfeiture before sentencing did not prevent the court from ordering forfeiture because the missed deadline did not prejudice McIntosh. The Second Circuit affirmed in relevant part. The Supreme held that a district court’s failure to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review. The Court agreed with the Second Circuit and the Government that Rule 32.2(b)(2)(B) establishes a time-related directive. The Court affirmed the judgment of the Court of Appeals for the Second Circuit.


APPEAL/CR.RIS. The Fourth Circuit reversed and remanded a CR.RIS case in United States v. Antonio Davis, 2024 U.S. App. LEXIS 9399 (4th Cir. Apr. 18, 2024). Antonio Davis is serving a 210-month prison sentence for conspiracy to possess with intent to distribute heroin and he petitioned the district court for compassionate release due to his elevated risk of severe COVID-19 and a change in the law regarding his career offender status. The district court denied his request concluding that Davis was not due compassionate release based on his susceptibility to COVID-19 and did not fully consider each of Davis’s arguments. Davis was indicted on charges of conspiracy to distribute and conspiracy to possess with intent to distribute heroin in Jan. 2013. He plead guilty to conspiracy to possess with intent to distribute heroin in June of that year. Davis received a career offender enhancement because he had previously been convicted of certain other offenses and because the offense at issue here was a “controlled substance offense” at the time of conviction. In Feb. 2021, Davis filed a pro se motion for compassionate release under 18 USC 3582(c)(1)(A) arguing that he was uniquely susceptible to the potential spread of COVID-19 due to his type-2 diabetes and hypertension. He also argued that a recent court decision invalidated his career offender Guidelines designation. The Fourth Circuit affirmed in part and vacated and remanded in part the district court's decision. The court concluded the district court did not abuse its discretion in finding that Davis failed to show extraordinary and compelling reasons for release based on the pandemic. However, the court found that the district court did not properly address Davis’s arguments regarding intervening changes in law and rehabilitation. Therefore, the court vacated the district court’s denial of compassionate relief and remanded for further proceedings.


APPEAL/CR.RIS. The Fifth Circuit reversed and remanded a CR.RIS case in United States v. Kimberly Bailey, 2024 U.S. App. LEXIS 9319 (5th Cir. Apr. 17, 2024). Bailey appealed the denial of her 18 USC 3582(c)(1)(A)(i) motion for compassionate release. On appeal and filing pro se Bailey argued that: (1) the district court abused its discretion by failing to identify any "extraordinary and compelling reasons" to justify compassionate release; and (2) by failing to identify what factors were considered in reaching its decision. Bailey suffers from a pituitary macroadenoma, a type of brain tumor, and her appellate briefing indicates that the tumor is malignant. Accordingly, she applied for compassionate release pursuant to 18 USC 3553. The district court judge (who was also the sentencing judge) succinctly denied Bailey's motion, stating only: "The Court having considered all the pleadings in this case, the applicable factors provided in 18 USC 3553(a) and the applicable policy statements issued by the Sentencing Commission denies the defendant's Motion on its merits." The court reviewed the denial of Bailey's 3582(c)(1)(A)(i) motion for an abuse of discretion which occurs when a district court "bases its decision on an error of law or a clearly erroneous assessment of the evidence" or denies relief without "sufficiently articulat[ing] its reasons." In denying a 3582(c)(1)(A)(i) motion, "the district court must provide specific factual reasons, including but not limited to due consideration of the 3553(a) factors[.]" The district court did not here give such "specific factual reasons for its decision." The district court judge "only announce[d] that the appropriate analysis has been done." Such limited analysis here deprives the Court of its ability to conduct meaningful review because we "have no reliable indication of the reason for the court's decision to deny relief." The court cannot determine whether Bailey's motion was denied because the 3553(a) factors do not warrant early release or because her medical situation is insufficiently "extraordinary and compelling," or both. The lack of explanation is concerning here because Bailey claims her tumor is malignant and that she has received inadequate treatment and the Court has previously held that a terminal prognosis can constitute an extraordinary and compelling basis for a 3582(c)(1) motion. Vacated and remanded.


CR.RIS/DISPARITY. The District of Rhode Island granted a CR.RIS motion in United States v. Robert Robinson, 2024 U.S. Dist. LEXIS 67456 (D. R.I. Apr. 10, 2024). Robinson filed two motions to reduce the sentences given in his 2001 and 2011 cases. He sets forth several reasons that support his request arguing that (1) if he were sentenced today his mandatory minimum sentence on the 2011 conviction would have only been 15 years instead of the 20 years imposed; (2) his 2001 sentence would have been dramatically lower; and (3) his health condition merits a reduction. In the 2001 case the Court sentenced Robinson to 84 months after he plead guilty to distribution of cocaine base ("crack"). His Guideline range was based on an offense level of 25 and a criminal history category of V with a Guideline range of 100 to 125 months and a mandatory minimum sentence of five years. If Robinson had been sentenced under today's guidelines and laws his sentence would have been based on an offense level of 19 and a criminal history category of IV with a Guideline range of 46 to 57 months. In the 2011 case the Court sentenced Robinson to 240 months after a jury found him guilty of conspiracy and possession with intent to distribute and distribution of crack. At the time his Guideline range was based on an offense level of 38 and a criminal history category of III with a Guideline range of 292 to 365 months and a mandatory minimum sentence of 240 months. If he had been sentenced under today's guidelines and laws, his sentence would have been based on an offense level of 36 and a criminal history category of II with a Guideline range of 210 to 262 months and a mandatory minimum of 15 years. At the time of his sentencing on the 2011 case the Court also found him to be in violation of his supervised release in the 2001 case. The Court sentenced him to 24 months to be served consecutively to the sentence in the 2011 case. This meant Robinson was to serve a total 22 years of incarceration starting in 2011. After serving over 12 years in prison Robinson moved for a sentence reduction arguing that his sentence is unusually long, there is a gross disparity between the sentence he is serving and the sentence the Court would likely impose now due to changes in the law, changes in the way courts now think about sentencing, and the First Step Act's efforts to reduce the prison population such that he has established an extraordinary and compelling reason to reduce his sentence. Sentence reduced to 15-years.


AMENDMENT 821. The Western District of Washington granted an 821 motion in United States v. Larry Bailey, 2024 U.S. Dist. LEXIS 69302 (W.D. Wash. Apr. 16, 2024). Bailey plead guilty to one charge of bank robbery in Dec. 2015 for a robbery he committed in Jan. 2015, and was sentenced to 144 months. He argued and the Government agreed that changes to Amendment 821, Part A of the USSG reduces his guideline range from 84-105 months in 2016 to 70-87 months now. The defendant’s sentenced was reduced to 126-months and his request to be released to residential re-entry center for six months as a condition of his supervised release was granted.


AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Clay Kirby, 2024 U.S. Dist. LEXIS 69457 (S.D. Ill. Apr. 16, 2024). The parties agreed that the defendant is eligible for a reduction under Part A of Amendment 821 which amended USSG 4A1.1(e) (2023) and concerns criminal history points awarded because a defendant was under a criminal sentence when he committed his offense of conviction ("status points"). The court reduced the defendant's sentence from 188-months to 126-months.


AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Lendarious Hayes, 2024 U.S. Dist. LEXIS 67658 (S.D. Ill. Apr. 12, 2024). Hayes sought a reduction in sentence from 135 months to 120-months under 18 USC 3582(c) and the retroactive application of Part B of Amendment 821 to the U.S.S.G. Hayes was a 24-year-old, first-time offender who served as a drug courier for his uncle. Sentence reduced to 120-months.


CR/RIS/MEDICAL/REHABILITATION. The District of Nevada granted a CR.RIS motion in United States v. Hector Cirino, 2024 U.S. Dist. LEXIS 68951 (D. Nev. Apr. 15. 2024). The current sentencing guidelines do not allow a court to consider nonretroactive changes to sentencing law as an extraordinary and compelling reason for release under USSG 1B1.13(b)(6). But Section 1B1.13(b)(5) allows the court to consider "any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those described in paragraphs (1) through (4)." USSG 1B1.13(b)(5). If a defendant "otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction under this policy statement, a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction." USSG § 1B1.13(c). Cirino argued that his age, medical condition, time already spent in custody, unusually long sentence, rehabilitation, and family support meet the requirements for release under Section 1B1.13(b)(5). Cirino is 57 years old; suffers from asthma, chronic lower-back pain, and high blood pressure; has rehabilitated himself while in prison by working and taking educational courses; and has served approximately 250 months of his 360-month sentence. He argued that the combination of these circumstances qualifies as extraordinary and compelling reasons for compassionate release, and the court agrees. Cirino has served more than 20 years in prison, which is twice the sentence length contemplated by the sentencing guidelines under both 1B1.13(b)(2) and 1B1.13(b)(5). His original sentence is also unusually long when compared to those sentenced for robbery in 2023 even after accounting for the career offender enhancement. While incarcerated he is unable to receive the care he needs for his combination of medical ailments and age. He also has community support and a plan for reintegration if released, including a job offer and housing with his family. This circumstance in combination with all those discussed above, "are similar in gravity" to the extraordinary and compelling reasons enumerated in Sections 1B1.13(b)(1) through (4) of the Sentencing Guidelines and supports the court's finding of extraordinary and compelling reasons for a sentence reduction under Section 1B1.13(b)(5). If sentenced today, Cirino's Puerto Rican robbery convictions would not serve as predicate offenses for the career-offender enhancement. After the 2016 amendment to the guidelines felony robbery in Puerto Rico is no longer a "crime of violence" under the federal guidelines. Without the career-offender enhancement, Cirino's sentence today would not likely be more than the time he has already served. The Court ordered immediate release with a reduction in sentence to time served.


AMENDMENT 821. The Western District of Pennsylvania granted an 821 motion in United States v. Ramon Araiza-Vega, 2024 U.S. Dist. LEXIS 70706 (W.D. Pa. Apr. 18, 2024). Pursuant to a plea agreement, on June 9, 2022, defendant plead guilty to Count One of the Indictment charging him with conspiracy to possess with intent to distribute and distribute 5 kilograms or more of cocaine contrary to the provisions of 21 USC 841(a)(1) and 841(b)(1)(A)(ii) in violation of 21 USC 846. The Court further found that defendant had a criminal history score of zero which resulted in a criminal history category of I. Defendant was sentenced to 70-months. Sentence reduced to 65-months.


AMENDMENT 821. The Southern District of Florida granted an 821 motion in United States v. Victor Susana-Castro, 2024 U.S. Dist. LEXIS 67969 (S.D. Fla. Aor. 15. 2024). On October 3, 2022 Victor Susana-Castro was sentenced to a term of imprisonment of 70 months after plead guilty to one count of conspiracy to possess with intent to distribute cocaine in violation of 21 USC 846. On Nov. 18, 2022, Juan R. Corniel was also sentenced to a term of imprisonment of 70 months after he plead guilty to the same offense. The Sentencing Guidelines range for each was 63 to 78 months based on an offense level of 26 and a criminal history category of I. Susana-Castro and Corniel's motions for reduction of sentence was granted and sentences reduced to 57 months.


APPEAL/SENTENCE. The First Circuit vacated and remanded United States v, Heclouis Nieves-Diaz, 2024 U.S. App. LEXIS 9295 (1st Cir. Apr. 17, 2024). Nieves-Díaz was on supervised release for a federal drug conviction when he was convicted of possession of ammunition as a convicted felon, illegal possession of a machine gun, and possession with intent to distribute cocaine. He received an 84-month prison term for each conviction to be served concurrently. His supervised release was also revoked resulting in an additional 18-month prison term to be served consecutively to his 84-month sentences. Nieves had previously plead guilty to one count of drug conspiracy and was sentenced to 80-months and 96-months of supervised release. His term of supervised release was twice revoked. While on his third term of supervised release, Nieves was arrested following a search of an apartment where he was residing. The search yielded cocaine, marijuana, approximately 149 rounds of .223 caliber ammunition and a device that could convert a Glock pistol into a fully automatic weapon. Nieves appealed his 84-month sentences and the revocation sentence. He argued the district court improperly calculated his Guidelines Sentencing Range (GSR) for each of the underlying offenses and the court's application of a four-level enhancement was incorrect. The First Circuit found that the district court did err in applying the four-level enhancement as the record did not support the determination that the ammunition in this case had the required potentially facilitative effect. Therefore, the court vacated the district court's sentences and remanded for resentencing. However, the court affirmed the revocation sentence finding it both procedurally and substantively reasonable.


APPEAL/SENTENCE. The First Circuit reversed and remanded United States v. Ricardo Perez-Delgado, 2024 U.S. App. LEXIS 9404 (1st Cir. Apr. 18, 2024). The case involves Ricardo Perez-Delgado who was sentenced to 40-years in prison for his role in a violent robbery that resulted in the death of a businessman. The sentence was significantly higher than the guideline sentencing range (GSR), which had a maximum of thirty years and five months. Perez-Delgado appealed arguing the district court did not adequately explain its rationale for imposing a sentence nearly a decade over the top of the GSR. The district court adopted the probation office's GSR calculation and considered the relevant statutory factors, Perez-Delgado's background, the nature and circumstances of the offense, and the arguments of both parties. However, the court's explanation for the upward variance was limited to a single sentence stating that the recommended sentence did not reflect the seriousness of the offense, promote respect for the law, protect the public from further crimes by Perez-Delgado, or address issues of deterrence and punishment. The First Circuit agreed with Perez-Delgado's argument. The court found the district court's explanation was insufficient to justify the significant upward variance from the GSR. The court noted that the greater the variance, the greater the explanation must be. The court vacated Perez-Delgado's sentence and remanded the case for resentencing, instructing the district court to provide an individualized explanation proportional to the length of the variance if it decided to upwardly vary again.


APPEAL/HEARSAY. The Ninth Circuit vacated and remanded United States v. Gabriel Mirabal, 2024 U.S. App. LEXIS 9122 (9th Cir. Apr. 16, 2024). The case revolves around Gabriel Mirabal a prisoner at a federal correctional institution in Victorville, California who was convicted of two counts of assaulting a federal officer resulting in bodily injury. The incident occurred when Mirabal and another inmate, Erik Rojo, passed through metal detectors after lunch. A dispute arose over which inmate wore a white shirt and which wore a brown shirt, as the color of the shirt was linked to the initiation of the assault. The Government consistently portrayed Mirabal as the person in the white shirt, while Mirabal maintained that he was clad in brown. Mirabal's defense was predicated upon the theory that he acted in self-defense a theory that was practically unavailable to the white-shirted individual who joined the fight after it started. In the lower courts, the Government filed a motion in limine to exclude the original factual basis under Federal Rules of Evidence 401, 403, and 802. The district court granted the Government’s motion, reasoning that the original factual basis constituted inadmissible hearsay. The court held that Rule 801(d)(1)(A)’s hearsay exclusion for prior inconsistent statements did not apply to the original factual basis because Rojo was not called to testify at Mirabal’s trial. And it reasoned that Rule 801(d)(2)’s hearsay exclusion for an admission of a party opponent did not apply to the “opinion” of a prosecutor. The Ninth Circuit held that the district court abused its discretion in excluding the sworn statement of a Government attorney as hearsay at Mirabal’s trial. The court stated that in a criminal case the sworn statement of a Government attorney in a plea agreement or sentencing memorandum is a party admission excluded from the definition of hearsay under Federal Rule of Evidence 801(d)(2). The court further held that the error was not harmless. As a result, Mirabal’s conviction was vacated and the case was remanded for further proceedings.


APPEAL/RULE 29. The Sixth Circuit reversed in part United States v. Katrina Robinson, 2024 U.S. Dist. LEXIS 9281 (6th Cir. Apr. 17, 2024). The case involves Katrina Robinson the founder and director of The Healthcare Institute (THI), a for-profit company in Memphis, Tennessee that provided certified nursing assistant training. THI received a federal grant from the Geriatrics Workforce Enhancement Program (GWEP), which is administered by the Health Resources and Services Administration (HRSA) from 2015 to 2019. The grant provided scholarships for eligible THI students. Robinson was convicted of four counts of wire fraud for actions she took in administering the grant. The district court granted Robinson's post-verdict motion for a judgment of acquittal on two of the counts, and Robinson appealed the denial of acquittal on the remaining two counts. The district court's decision was based on a federal investigation that raised concerns about Robinson's use of HRSA grant funds for personal expenses and discrepancies in Annual Performance Reports (APRs) that Robinson had submitted on THI’s behalf. The APRs contained inaccurate information on the number of students who graduated from the program, the number of students who received grant-funded scholarships, and the unique numerical identifiers assigned to students. The Government argued that these "errors" were intentional manipulations by Robinson to ensure THI’s continued receipt of grant funds. The Sixth Circuit affirmed in part, reversed in part, and remanded for further proceedings. The court found that there was sufficient evidence to prove that Robinson's submission of false information in the APRs constituted a course of conduct intended to deprive the Government of money. The court also found that Robinson's intent to defraud was demonstrated by her direct involvement in preparing and submitting the APRs and her direction to charge personal wedding expenses to the grant. The court reversed the district court's grant of acquittal on one of the counts finding that a rational juror could conclude that Robinson's transmission of materially false information was done to induce HRSA to continue funding the grant. The court affirmed the district court's denial of acquittal on the remaining two counts.


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