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SAMARITAN NEWSLETTER – 04-29-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179


APPEAL/CR.RIS. The Fourth Circuit vacated and remanded a CR.RIS motion in United States v. David Fox, 2024 U.S. App. LEXIS 9793 (4th Cir. Apr. 23, 2024). Fox appealed the district court's order denying his 18 USC 3582(c)(1)(A) motion for compassionate release. The district court denied Fox's motion finding he failed to demonstrate extraordinary and compelling reasons for a sentence reduction. The court vacated the district court's order and remanded for further proceedings. In his motion Fox stated he contracted COVID-19 in June 2020. Because Fox had shortness of breath, a persistent cough, and a fever, among other symptoms, the Bureau of Prisons (BOP) transferred him to an outside hospital where he stayed for five days. In April and May of 2021, Fox received two doses of the COVID-19 vaccine. Fox argued that vaccination might not be sufficient to protect him because he had several health issues, vaccine effectiveness waned over time, and newer COVID-19 variants might resist the vaccine. The court concluded the district court abused its discretion in denying Fox's compassionate release motion. The court appeared to rely almost exclusively on Fox's vaccination status in determining that he failed to demonstrate extraordinary and compelling reasons for relief.

 

CR.RIS/MEDICAL. The Southern District of California granted a CR.RIS motion in United States v. Leopoldo Aguilera, 2024 U.S. Dist. LEXIS 74864 (S.D. Calif. Apr. 23, 2024). On Feb. 28, 2023, the Court sentenced Aguilera to 33 months in custody—of which he has served approximately 12 months. Aguilera moved to reduce his sentence to time served because of extraordinary and compelling circumstances. At the time of his sentencing, Probation reported Aguilera had diabetes and high blood pressure. Also, he had recently had gallbladder surgery. Further, Aguilera had glaucoma and had undergone four corneal transplants. In June 2022, before going into custody Aguilera underwent surgery to remove his right eye and in Nov. 2022, a prosthetic eye was installed. A doctor at the Shiley Eye Institute where this surgery was performed stated: “It is important that [Mr. Aguilera] is able to appropriately clean the socket and keep his conformer in place to prevent infections. Additionally, he requires monocular precautions as he only has one eye remaining and per his chart needs prednisolone and combigan drops in that eye.” The defendant has not seen an eye specialist of any kind (optometrist, ophthalmologist, or ocularist) in the 12 months he has been in custody. The federal facility has failed to timely renew his prescription for prednisolone eye drops and Aguilera has not been allowed access to his prosthetic eye removal tool since being confined so he can appropriately clean his eye socket and prosthetic eye. Sentence reduced to time served.

 

CR.RIS/FAMILY CIRCUMSTANCES/1B1.13(b)(3)(C). The Western District of Virginia granted a CR.RIS motion in United States v. Christopher Ingram, 2024 U.S. Dist. LEXIS 72753 (W.D. Va. Apr. 22, 2024). The defendant was sentenced on June 26, 2019 to a prison term of 120 months following his guilty plea to conspiracy to possess with the intent to distribute 500 grams or more of methamphetamine, a Schedule II controlled substance in violation of 21 USC 841(b)(1)(A) and 21 USC 846. He is now 52 years old and housed at a medium security facility. The defendant contended that his aging parents are suffering from physical health conditions and need him to return home to be their caretaker. He also argueed that because he has served a large portion of his sentence, much of it under the difficult COVID-19 conditions the time he has served should also qualify as an extraordinary and compelling reason to grant a reduction in his sentence. Under the policy statements, a defendant's sentence may be reduced due to family circumstances if the defendant's parent are incapacitated, and he is the "only available caregiver." U.S. Sentencing Guidelines Manual 1B1.13(b)(3)(C) (2023). Sentence reduced to time served.

 

CR.RIS/DISPARITY/1B1.13(b)(6). The Southern District of Indiana granted a CR.RIS motion in United States v. Anthony Spradley, 2024 U.S. Dist. LEXIS 71706 (S.D. Ind. Apr. 18, 2024). In 1999, a jury convicted Spradley of: (1) one count of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 USC 841(a)(1) and 846; (2) two counts of conspiracy to commit money laundering in violation of 18 USC 1956(a)(i)(A)(B) and (h); (3) six counts of money laundering in violation of 18 USC 1956(a)(1)(B); and (4) three counts of engaging in monetary transactions involving criminally derived properties in violation of 18 USC 1957. The jury acquitted Spradley of charges which alleged he murdered a government informant. At sentencing the guidelines were binding which meant the district court was required to sentence Spradley to life in prison. Spradley filed his second Motion for Compassionate Release in which he argued that he established extraordinary and compelling reasons for compassionate release because: (1) a change in the law has created a gross disparity between the sentence he received and the sentence he would receive today; and (2) his sentence is unusually long and is disproportionately long compared to his co-defendants' sentences. Spradley relied on USSG 1B1.13(b)(6) to establish extraordinary and compelling reasons for release. There is no dispute Spradley has served more than 10 years of his sentence. There can also be no doubt that Spradley's life sentence is unusually long as few federal offenders have received life sentences in recent years. The Court found there exists a gross disparity between the sentence Spradley is serving and the sentence he would receive if he were sentenced today. Spradley has met each element of 1B1.13(b)(6) and he has shown that an extraordinary and compelling reason for a sentence reduction exists. Sentence reduced to 480-months imprisonment.

 

APPEAL/2241/DISCOVERY. The Fourth Circuit vacated and remanded Miguel De Paula Arias v. Warden FCI Williamsburg, 2024 U.S. App. LEXIS 10176 (4th Cir. Apr. 18, 2024). Miguel De Paula Arias is a federal inmate who appealed the district court’s order accepting the recommendation of the magistrate judge; granting summary judgment in favor of Respondent the Warden of Federal Correctional Institution Williamsburg; and dismissing De Paula Arias 28 USC 2241 petition challenging a decision of a Disciplinary Hearing Officer (“DHO”). When granting summary judgment the district court concluded that the magistrate judge did not clearly err in denying De Paula Arias’ motion for leave to conduct discovery. De Paula Arias challengeed that decision, too. The court vacated the district court’s

order and remanded so De Paula Arias may conduct the discovery necessary to resolve his 2241 petition. On Oct. 15, 2019, prison employee Magdeline Mirabal submitted Incident Report Number 3316154 accusing De Paula Arias of “strok[ing] [her] right bottom behind from bottom to top.” This incident occurred at approximately 11:30 a.m. near the commissary area of the prison yard. Based

on Mirabal’s report, De Paula Arias was charged with violating Code 229, a “[s]exual assault of any person, involving non-consensual touching without force or threat of force” (“Code 229 incident report”). De Paula Arias did not receive a copy of the Code 229 incident report right away because the case was referred to the FBI for possible criminal prosecution. On Nov. 13, 2019, at 7:25 p.m., after the FBI deferred the case Lt. D. Davis delivered the Code 229 incident report to De Paula Arias. De Paula Arias proclaimed his innocence and confirmed that he understood his due process rights. D. Davis then referred the case to the Unit Discipline Committee (“UDC”) for a hearing and noted that the Code 229 incident report

was related to Incident Report Number 3327755 though he did not provide any other information about the related report. De Paula Arias maintained his innocence before the UDC, and, due to the severity of the charge, the UDC referred the case to DHO R. Hudson on Nov. 14, 2019, at 10:50 a.m. At the hearing before Hudson on Nov. 18, 2019, De Paula Arias waived his right to the assistance of a staff representative but requested a fellow inmate Mark Winnick as a witness. According to Hudson’s report, Winnick testified, “I was following Aries [sic]

out of the unit. I did not see anything,” and De Paula Arias testified, “I deny this completely. It is not in my DNA.” Hudson also reported that De Paula Arias did not present any documentary evidence. Based on Mirabal’s report and his assessment of Mirabal’s and De Paula Arias’ credibility, Hudson concluded that the greater weight of the evidence supported the finding that De Paula Arias violated Code 229. Hudson sanctioned De Paula Arias to a day in disciplinary segregation, the loss of 27 days of good conduct time, and 180 days without email, visitation, and commissary privileges. During his administrative appeals De Paula Arias faulted Hudson for failing to consider Winnick’s written declaration, deliberately misstating Winnick’s testimony in the report and failing to consider the Special Investigative Services (“SIS”) report about the incident (“SIS incident report”). As for the latter contention, De Paula Arias explained that his charge had been reduced after the SIS conducted its investigation because the primary investigator, SIS Technician Kathleen Andino, concluded that Mirabal’s statement lacked candor and was not supported by the witnesses Andino interviewed including other staff members. De Paula Arias attached the SIS incident report to his 28 USC 2241 petition, but the Incident Report Number was absent or redacted on that document. “Prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply.” The court vacated the district court’s order and remanded so that De Paula Arias may conduct discovery to the extent necessary to determine whether the Code 229 incident report and the SIS incident report arose from the same event and, if so, why two incident reports were produced for the same event.

 

APPEAL/2255/IAC/EVIDENTIARY  HEARING. The Eleventh Circuit vacated and remanded Daniel Rodriguez v. United States, 2024 U.S. App. LEXIS 10022 (11th Cir. Apr. 25, 2024). Daniel Rodriguez appealed the denial of his motion to vacate

his sentence under 28 USC 2255. He asserted his trial counsel provided ineffective assistance by advising him that, even after pleading guilty in an unconditional guilty plea, he would be able to appeal the trial court’s decisions on his pretrial motions. Rodriguez contended but for that advice, he would not have plead guilty. Rodriguez was granted a certificate of appealability on the following issue:

“Whether the district court erred in denying Rodriguez’s claim that his counsel was ineffective for advising him that his guilty plea would not waive his right to appeal his pretrial motions.” After review, the Eleventh Circuit vacated and remanded for the district court to hold an evidentiary hearing on this claim.

 

APPEAL/2255/AUDITA QUERELA/2241/CORAM NOBIS. The Eleventh Circuit granted the motion filed in Andre Saint-Cyr v. United States, 2024 U.S. App. LEXIS 9941 (11th Cir. Apr. 24, 2024). Andre Saint-Cyr appealed from the district court's dismissal for lack of jurisdiction of his pro se "motion for reconsideration . . . or petition for writ of audita querela, habeas corpus, or error coram nobis" on the ground that it was an unauthorized second or successive motion to vacate sentence under 28 USC 2255. After review the court concluded that it was not a second or successive motion because there was a new intervening amended judgment. Accordingly, the court vacated and remanded. In 2014, a jury found Saint-Cyr guilty of conspiracy to commit Hobbs Act robbery in violation of 18 USC 1951 (Count 1); conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 USC 841(a)(1), (b)(1)(A), and 846 (Count 2); attempted possession with intent to distribute 500 grams or more of cocaine in violation of 21 USC 841(a)(1) and 846 (Count 3); conspiracy to use a firearm during and in relation to a crime of violence as set forth in Count 1 and a drug-trafficking crime as set forth in Counts 2 and 3 of the indictment in violation of 18 USC 924(o) (Count 4); use of a firearm during and in relation to a crime of violence as set forth in Count 1 of the indictment in violation of 18 USC 924(c) (Count 5); use of a firearm during and in relation to a drug trafficking crime as set forth in Counts 2 and 3 of the indictment in violation of 924(c) (Count 6); and possession of an unregistered firearm (silencer), in violation of 26 USC 5861(d) (Count 7). The district court sentenced Saint-Cyr to a total of 295 months which included a term of 60 months' imprisonment on each of Counts 5 and 6, to run concurrently with each other but consecutively to the other counts. Saint-Cyr filed the underlying pro se "motion for reconsideration of court's prior order or petition for writ of audita querela, habeas corpus, or error coram nobis," which is the subject of the present appeal. He maintained his 924(o) conviction (Count 4) was no longer valid post-Davis and in light of the Supreme Court's then-recent decision in United States v. Taylor, 596 U.S. 845 (2022) and he urged the district court to reconsider its prior ruling. He also challenged the validity of his conviction for Count 6, and he requested an evidentiary hearing. Two days after Saint-Cyr filed his motion the district court construed it as a 2255 motion and dismissed it for lack of jurisdiction concluding that it was filed without the required permission from this Court under 28 USC 2255(h), 2244(b)(3)(A). "Federal courts have long recognized that they have an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework." In light of the intervening amended judgment the Eleventh Circuit concluded the district court erred in determining that Saint-Cyr's 2255 motion was an unauthorized second or successive 2255 motion, and the district court had jurisdiction to entertain it. Accordingly, the court vacated the district court's order and remanded for further proceedings consistent with this opinion.

 

AMENDMENT 821. The Southern District of Florida granted an 821 motion in United States v. Ronald Ruiz-Mendez, 2024 U.S. Dist. LEXIS 74319 (S.D. Fla. Apr. 24, 2024). On May 31, 2018 the defendant was indicted for participating in a conspiracy to distribute five kilograms or more of cocaine, intending, knowing, and having reasonable cause to believe it would be unlawfully imported into the United States. The defendant was sentenced to 120-months. The defendant invoked Amendment 821—the adjustment for certain zero-point offenders. USSG 4C1.1. Sentence reduced to 108-months.

 

AMENDMENT 821. The Eastern District of California granted an 821 motion in United States v. Manolo Reyes, 2024 U.S. Dist. LEXIS 73834 (E.D. Calif. Apr. 23, 2024). On Jan. 15, 2015 the defendant plead guilty to two counts of an eight-count Indictment. Count One charged Conspiracy to Distribute Methamphetamine in violation of 21 USC 846 and 841(a)(1). Count Six charged dealing firearms without a license in violation of 18 USC 924(a)(1). The defendant was sentenced to 168-months. The amended status point provision, USSG 4A1.1(e), provides that defendants who received eight criminal history points based on prior criminal convictions, now receive one, rather than two status criminal history points. The amended provision applies retroactively. USSG 1B1.10(d). Sentence reduced to 151-months.

 

AMENTMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Jveon Hogg, 2024 U.S. Dist. LEXIS 72344 (N.D. Ohio Apr. 22, 2024). Hogg plead guilty to one count of being a felon in possession of a firearm.  The Court sentenced Hogg to 48 months of imprisonment. At his sentencing the Court assigned Hogg two additional criminal history status points because he committed his offense while under a criminal justice sentence. Sentence reduced to 39-months.

 

AMENDMENT 821. The Eastern District of New York granted an 821 motion in United States v. Leonard Ely, 2024 U.S. Dist. LEXIS 72979 (E.D. N.Y. Apr. 22, 2024). Ely was charged with six counts for his role in a series of armed robberies. On Sept. 7, 2016, Ely plead guilty to three of these six counts. Those counts were: Hobbs Act Robbery Conspiracy in violation of 18 USC 1951(a) (Count I); Hobbs Act Robbery in violation of 18 USC 1951(a) (Count II); and Use of a Firearm During One or More Crimes of Violence in violation of 18 USC 924(c) (1) (A) (i) & (ii) (Count IV). Three criminal history points were added based on his prior convictions and an additional two "status points" for committing the underlying offense while on probation for a total of five points which placed him in criminal history category III. The defendant was sentenced to 130-months. The defendant’s sentence was reduced to 135-months.

 

AMENDMENT 821. The Northern district of Indiana granted an 821 motion in United States v. Devin Myers, 2024 U.S. Dist. LEXIS 72651 (S.D. Ind. Apr. 22, 2024). On Sept. 8, 2020 Myers was convicted after pleading guilty of one count of possessing a firearm as a felon in violation of 18 USC 922(g)(1). Myers was sentenced to 50-months. His criminal history calculation was eight points based on Myers' prior convictions and two additional points for committing the instant offense while serving a criminal justice sentence pursuant to the then applicable guidelines. Sentence reduced to time served.

 

AMENDMENT 821. The Southern District of New York granted an 821 motion in United States v. Michael Pearse, 2024 U.S. Dist. LEXIS 72116 (S.D. N.Y. Apr. 19, 2024). On Oct. 20, 2021 the defendant plead guilty to conspiracy to commit wire fraud and he was sentenced to a term of imprisonment of 109-months. Part B of Amendment 821 inserts a new USSG 4C1.1 which provides for a two-level offense level reduction for offenders with zero criminal history points who meet certain other eligibility criteria. Sentence reduced to 89-months.

 

AMENDMENT 821. The District of Connecticut granted in part an 821 motion in United States v. Jamie Petrone, 2024 U.S. Dist. LEXIS 72192 (D. Conn. Apr. 19, 2024). On March 28, 2022 pursuant to a plea agreement Petrone plead guilty to a two-count information charging her with Wire Fraud in violation of 18 USC 1343 ("Count One"), and Filing a False Tax Return in violation of 26 USC 7206(1). The defendant sentenced to 109-months. The Guidelines "provides a two-point offense level reduction for certain so-called 'zero-point offenders.” The defendant’s sentence was reduced to 98-months.

 

APPEAL/SENTENCE. The Seventh Circuit vacated and remanded for resentencing United States v. Randall Craft, 2024 U.S. App. LEXIS 9634 (7th Cir. Apr. 22, 2024). In Oct. of 2019, Randall Craft pleaded guilty to one count of conspiracy to distribute over fifty grams of

 

methamphetamine in violation of 21 USC 846, 21 USC 841(a)(1), and 21 USC 841(b)(1)(A). Craft was sentenced to 150-months in prison followed by five years of supervised release. When calculating the guidelines range, the district court applied two sentencing enhancements. First, it applied a two-level enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under USSG 2D1.1(b)(12) of the Guidelines. Second, it applied a two-level enhancement for Craft’s role as a manager or supervisor of the scheme under USSG 3B1.1 of the Guidelines. Because the record does not support the conclusion that Craft used his home for the primary or principal purpose of manufacturing or distributing drugs, we conclude that the district court erred in applying the premises enhancement. On the other hand, given Craft’s extensive role in the conspiracy, the court agreed with the district court’s application of the two-level role enhancement. Thus, the court vacated Craft’s sentence and remanded his case to the district court for resentencing.

 

APPEAL/SENTENCE. The Eleventh Circuit vacated and remanded United States v. Vincent Vo Tran, 2024 U.S. App. LEXIS 10068 (11th Cir. April 25, 2024). A jury convicted Vincent Tran of conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. For those crimes the district court sentenced him to 150-months imprisonment with five years of supervised release. Tran appealed his convictions and sentence. He argued the district court erred when it denied his suppression motion, the evidence was insufficient to support his conspiracy conviction, and the district court erred when it imposed a sentence enhancement for methamphetamine importation. The court affirmed Tran’s convictions. The district court did not err when it denied his suppression motion. And sufficient evidence supported the jury’s verdict on the conspiracy charge. The court vacated Tran’s sentence and remanded to the district court. The court erred when it imposed the importation enhancement because the Government failed to prove by a preponderance of the evidence that Tran possessed imported methamphetamine.

 

APPEAL/SENTENCE. The Fifth Circuit vacated and remanded for resentencing in United States v. Thomas Perkins, 2024 U.S. App. LEXIS 10096 (5th Cir. Apr. 25, 2024). The case involves Thomas Perkins who was convicted of one count of distributing child pornography and eight counts of possessing devices containing child pornography. Perkins has mental health issues, but was deemed competent to stand trial by the district court. He was sentenced to over 157-years in prison, a significant upward variance from the guideline range. Perkins appealed, challenging both the competency determination and the reasonableness of his sentence. Perkins was initially charged with possession and distribution of child pornography. His counsel filed a motion for a mental examination which was granted. Perkins was evaluated by a psychologist who determined that he was competent to stand trial. Perkins filed a motion for a second competency hearing supported by a report from a psychologist retained by the defense who diagnosed Perkins with bipolar-type schizoaffective disorder and autism. The Government then moved for another psychological examination. Perkins was evaluated by a second psychologist who determined that Perkins did not have a mental disease that rendered him unable to understand the nature of the charges or the consequences of the proceeding or to assist in his defense. The Fifth Circuit affirmed the defendant’s conviction but vacated the sentence. The court found that the district court's determination of Perkins's competency was not clearly arbitrary or unwarranted. However, the court found that the district court erred in its sentencing as it did not provide a sufficient explanation for the significant upward variance from the guideline range. The case was remanded for resentencing.

 

APPEAL/SENTENCE. The First Circuit vacated and remanded for resentencing 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 30 years and five months. Perez-Delgado appealed the sentence 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 had 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 that 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 vary upwardly again.

 

APPEAL/SENTENCE/ALLOCUTE. The Eleventh Circuit remanded for resentencing United States v. Domingo Martinez Gonzalez, 2024 U.S. App. LEXIS 10187 (11th Cir. Apr. 26, 2024). Domingo Gonzalez appealed the district court’s revocation of his supervised release and the resulting sixty-month sentence. The district court did not err in revoking his supervised release. But because it plainly erred by failing to extend to him personally an opportunity to allocute the court must vacate his sentence and remand for resentencing. At the revocation hearing he argued the district court erred in revoking his supervised release because it made numerous errors in the proceedings concerning his last supervised-release violation. Second, he argued that the district court erred in imposing the sentence because it failed to personally extend to him the right to allocute. Third, he says the sentence it imposed is procedurally and substantively unreasonable. The Government conceded the second point but opposed the other two. Gonzalez asserted the district court erred in revoking his supervised release because it allegedly relied on hearsay evidence to determine that he committed a grade-A violation without engaging in the required balancing test. The court stated it need not determine whether that argument has any merit. Gonzalez separately admitted that he committed four grade-C violations. Those violations independently support the revocation of his supervised release. So the district court did not err in revoking his supervised release. “Before imposing [a] sentence” a district court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii). This right, called the right of allocution, is ancient; a court’s failure to extend that right to the defendant constitutes plain error.

 

APPEAL/SUPERVISED RELEASE/RELEASED TO STATE CUSTODY. The Second Circuit clarified when a term of supervised release begins when a person is released to state custody in United States v. Rodger Freeman, 2024 U.S. App. LEXIS 9766 (2d Cir. Apr. 23, 2024). Rodger Freeman was convicted of a felony in the Eastern District of New York and was sentenced to imprisonment followed by a term of supervised release. After completion of his federal prison sentence, Freeman was transferred to New York State custody to face a pending indictment. The New York Appellate Division vacated Freeman’s state convictions due to procedural error and ordered a new trial. Freeman was held in state custody for over four years pending retrial. The state eventually dismissed the charges against Freeman and released him from pre-trial detention. The district court held that Freeman's term of supervised release began only after his release from state custody not upon his release from federal custody. The court based its decision on United States v. Johnson, which established that a term of federal supervised release does not begin until a defendant’s imprisonment has ended. The Second Circuit affirmed the district court's decision. The Court of Appeals agreed with the lower court's interpretation of 18 USC 3624(e) which states that a term of supervised release commences on the day the person is released from imprisonment. The court held that Freeman's term of supervised release began on the day he was released from state custody not federal custody. The court did not address the question of whether Freeman’s federal term of supervised release was “tolled” during his years in state custody following the vacatur of his state convictions.

 

APPEAL/RESTITUTION. The Fifth Circuit vacated and remanded United States v. Kyle West, 2024 U.S. App. LEXIS 10099 (5th Cir. Apr. 25, 2024). Kyle Lamar West was charged with seven counts of production of child pornography. He negotiated a plea agreement and plead guilty to two counts in exchange for the dismissal of the other five. The plea agreement included a waiver of most of his appellate rights but reserved the right to appeal a sentence exceeding the statutory maximum punishment. The probation office recommended a sentence of 720 months and $6,000 in restitution to the victim's mother. The district court adopted these recommendations. West appealed the restitution part of his sentence arguing the district court failed to conduct a proximate-cause analysis as required by precedent. The Fifth Circuit reviewed the case. The court noted that the district court had cited inapplicable statutes and had not conducted a proximate-cause analysis. The court also noted the record lacked any dollar amount or range approximating the amount of the victim's losses. The Court of Appeals found that the district court's failure to conduct a proximate-cause analysis was a clear and obvious error. The court also found that this error affected West's substantial rights and undermined the fairness, integrity, and public reputation of judicial proceedings. The court concluded that the district court had plainly erred by failing to connect West's offense conduct to the loss suffered by the victim. The Court of Appeals vacated the district court's restitution order and remanded the case for further proceedings consistent with its opinion. The court noted that on remand the district court could determine whether the Government could present new evidence justifying the order of restitution.

 

APPEAL/FTCA. The Fifth Circuit vacated and remanded Nicholas Queen v. United States, 2024 U.S. App. LEXIS 10085 (5th Cir. Apr. 24, 2024). Nicholas Queen is a former federal prisoner who filed a lawsuit against the United States under the Federal Tort Claims Act (FTCA), alleging that prison officials physically assaulted him in January 2019. The incident occurred when four correctional officers woke Queen up in his cell due to a supposed medical emergency. The parties disputed the events that followed with the Government claiming Queen assaulted the officers, while Queen alleged the officers physically attacked him without provocation. Following the incident Queen complained of various physical pains which he associated with the assault. However, prison medical officials dismissed his complaints and suggested over-the-counter pain medication would suffice. After his release from prison Queen was diagnosed with chronic back and right hip pain, which a medical doctor confirmed was severe enough to prevent him from working. The case was initially heard in the Western District of Louisiana. The United States moved for the case to be dismissed at the summary judgment stage arguing that Queen's injuries were de minimis and therefore insufficient to support an FTCA assault claim against a prison officer. The magistrate judge agreed with this argument and recommended dismissal. The district judge adopted this recommendation and dismissed Queen's case. The Fifth Circuit found the district court had erred in its decision. The appellate court noted the de minimis injury test applied to constitutional claims does not apply to an injury alleged under Louisiana tort law which does not impose a de minimis injury bar to tort claims. Therefore, the court reversed the district court's judgment and remanded the case for further proceedings.

 

APPEAL/RLUIPA. The Eleventh Circuit vacated and remanded James Roberts v. Secretary, Department of Corrections, 2024 U.S. App. LEXIS 10186 (11th Cir. Apr. 26, 2024). James Roberts sued the Florida Department of Corrections and Chaplain Marcus Miller (collectively the “FDC defendants”), alleging that they improperly removed him from the Religious Diet Program (“RDP”) in violation of his First Amendment rights and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The district court dismissed Roberts’s amended complaint as moot because the FDC defendants had placed him back in the RDP after he sued. On appeal Roberts argued that his claim was not mooted because of his pending request for costs. The court concluded the district court erred in dismissing Roberts’s case as moot because an exception to the mootness doctrine which arises when a defendant voluntarily ceases its allegedly illegal conduct,applies to Roberts’s case. Accordingly, the court vacated and remanded the district court’s decision

 

APPEAL/CLASS ACTION/1983. The Seventh Circuit reversed in part Celina Montoya v. Rob Jeffreys, 2024 U.S. App. LEXIS 9383 (7th Cir. Apr. 17, 2024). Celina Montoya, Jennifer Tyree, Ronald Molina, and Zachary Blaye brought a class action lawsuit against the Illinois Department of Corrections challenging an IDOC policy restricting contact between a parent convicted of a sex offense and her minor child while the parent is on mandatory supervised release. The plaintiffs alleged that this policy violates the Fourteenth Amendment procedural and substantive due process. The district court entered judgment largely for IDOC. Though the court agreed with the district court that IDOC’s policy does not violate procedural due process the court held that its ban on phone contact violates substantive due process. On this record call monitoring is a ready alternative to the phone-contact ban that accommodates the plaintiffs’ right to enjoy the companionship of their children at a de minimis cost to IDOC’s penological interests. The court therefore affirmed in part and reversed in part.

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