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SAMARITAN NEWSLETTER – 05-06-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244


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.

Rusty – 417 901 3000 – Eddie 417 818 1938

 

 

APPEAL/CR.RIS/SEXUAL ASSAULT. The Sixth Circuit reversed and remanded a CR.RIS appeal in United States v. Darnell Nash, 2024 U.S. App. LEXIS 10519 (6th Cir. Apr. 30, 2024). Darnell Nash, aka Slayana Berts, is a transgender woman currently incarcerated at the United States Penitentiary Terre Haute which is a men’s prison. Nash proceeding pro se appealed the district court’s order denying her 18 USC 3582(c)(1)(A)(i) emergency motion for compassionate release. Nash was initially detained in February 2014. Six months later she plead guilty to

conspiracy to commit mail and wire fraud and 32 other counts related to a scheme to obtain identity information from poor people to file fraudulent unemployment insurance claims in several states. The district court sentenced her to a total of 175 months in prison and $361,341 in restitution. In prior 3582(c) motions, Nash asserted that prisoners and a correctional officer had raped her on more than 135 occasions and that the rapes had not stopped. The district court denied all motions, and the court twice affirmed. In the first appeal, the court recognized that the failure to prevent and end a series of sexual assaults against an incarcerated person would present an extraordinary and compelling reason for granting compassionate release pursuant to 3582(c)(1)(A)(i). In her current 3582(c) motion, filed in May 2023, Nash asserted that new rapes in March and April 2023 constituted an extraordinary and compelling reason for compassionate release from the United States Penitentiary Terre Haute, a prison for men, and that the recent rapes were proof of the inadequacy of policies purporting to prevent and respond to the problem of sexual assault in prison. Nash attached a copy of her request to be in a different prison from a prisoner who had repeatedly raped and sexually abused her. She alleged the prisoner sexually abused her on at least five occasions, including on March 20, 2023, when the prisoner repeatedly slapped and pen[e]trated Nash with his fingers and pulled her hair; forced her to perform oral sex on him after she refused to do so; and forced Nash to engage in sexual intercourse. Because all factors support reassignment in this case, the court granted Nash’s request for reassignment to a different district judge on remand. For these reasons the court vacated the district court’s order and remanded the action for further proceedings before a different district judge consistent with this decision.

 

CR.RIS/DISPARITY/1B1.13(b)(6). The Middle District of Florida granted in part a CR.RIS motion in United States v. Christopher McCain, 2024 U.S. Dist. LEXIS 80070 (M.D. Fla. May 2, 2024). McCain plead guilty to two counts of robbery and two counts of brandishing a firearm in furtherance of a violent crime in connection with a 2012 string of armed robberies. The Court sentenced him to the then-applicable mandatory minimum for the brandishing counts which was 84 months for the first and 300 months for the second, to run consecutively. Considering his already lengthy sentence, minimal criminal record, and youth, the Court sentenced him to only one month on each robbery count to run concurrently with each other and consecutively to the remaining terms. He has completed about 146 months of his 385-month sentence. If sentenced under the revised statute McCain's mandatory minimum sentence would have been 84 months for each brandishing count. McCain moved to reduce his sentence for the second brandishing count to the current mandatory minimum which would result in a total sentence of 169 months. Under the Sentencing Commission's recent policy statement, "extraordinary and compelling reasons" include "a change in the law . . . where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed" if the defendant received an unusually long sentence and has served at least ten years of the imprisonment term. USSG 1B1.13(b)(6). Under Eleventh Circuit precedent this policy statement governs all motions to reduce sentences and is binding on district courts. United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021). He was only 23 at the time of his crimes and he has already paid restitution in full even though he was not required to begin payments until after his release. His disciplinary record in prison is insignificant and he has participated in rehabilitative programs in prison. These factors weigh heavily in his favor. Sentence reduced to 198-months.

 

CR.RI/MEDICAL/1B1.13(b)(5). The District of Montana granted a CR.RIS motion in United States v. Timothy Coleman, 2024 U.S. Dist. LEXIS 80604 (D. Mont. May 2, 2024). Coleman sought release because of the conditions of confinement during the COVID-19 pandemic, the dismissal of some of his prior convictions, and disparities in the treatment of "actual" methamphetamine and methamphetamine "mixture" for purposes of sentencing, and the application of a "career offender" enhancement, and the non-application of safety valve sentencing. Coleman also sought release in light of two medical conditions, "Carpal Tunnel Syndrome" and "Right Bundle Branch Block and Premature Atrial Contractions." Coleman need not meet any one of the circumstances described at USSG1B1.13(b)(1)-(4) if he meets the circumstance described at USSG 1B1.13(b)(5). Coleman's proffer of information as to his "Carpal Tunnel Syndrome" and "Right Bundle Branch Block and Premature Atrial Contractions" informed the Court of his particular medical conditions and the difficulties he personally faces in receiving care in FCI Sheridan. Coleman described lengthy delays and poor medical treatment. The Court further noteed Coleman's  successful completion of skills and substance abuse treatment, and his father's belief that "he has seen a remarkable transformation in his son's attitude and perspective on life over the course of his incarceration," The information Coleman now provides sufficiently "combine[s]" with his other circumstances to constitute a reason "similar in gravity" to the circumstances described in USSG 1B1.13(b)(1)-(4). USSG1B1.13(b)(5). Coleman demonstrated "extraordinary and compelling reasons" to reduce his sentence to 172-months.

 

CR.RIS/MEDICAL/1B1.13(b)(1). The Western District of New York granted a CR.RIS motion in United States v. Kevin McKinney, 2024 U.S. Dist. LEXIS 77587 (W.D. N.Y. Apr. 29, 2024). McKinney filed a motion pursuant to 18 USC 3582(c)(1)(A) for compassionate release due to his deteriorating medical condition, specifically Stage IV lung cancer, a terminal disease. The Federal Public Defender filed a Supplemental Memorandum which included medical exhibits in support of McKinney's motion. McKinney was sentenced on Oct. 26, 2020, to a lengthy term of imprisonment for narcotics distribution. He has been housed at the Butner Federal Medical Center since Jan. 2024 and is classified as the highest level of care available, Medical Care Level IV. McKinney's dire medical condition constitutes an extraordinary and compelling reason to grant the motion for compassionate release. He clearly meets the United States Sentencing Guidelines Policy Statement for such, see USSG 1B1.13(b)(1). Two doctors, one at Butner and a private physician, provide ample evidence of his terminal and spreading lung cancer. McKinney's counsel cites numerous cases, including one from this Court, where courts with circumstances less dire than McKinney's have ordered compassionate release. To say that McKinney's treatment at the Bureau of Prisons was marked by constant, unreasonable delay would be a gross understatement. Such treatment is an additional factor warranting relief here. Sentence reduced to time served.

 

CR.RIS/DISPARITY/STACKING/1B1.13(b)(6). The Middle District of Florida granted in part a CR.RIS motion in United States v. Antonio Bizzell, 2024 U.S. Dist. LEXIS 76204 (M.D. Fla. Apr. 26, 2024). On May 2, 2011, a jury convicted Bizzell of one count of conspiracy to possess with intent to distribute a quantity of a mixture and substance containing a detectable amount of cocaine base commonly known as crack cocaine in violation of 21 USC 846, 841(a)(1) and (b)(1)(B) (Count One); three counts of possession with intent to distribute crack cocaine in violation of 21 USC 841(a)(1) and (b)(1)(c) and 18 USC 2 (Counts Two, Four, and Six); three counts of carrying and using a firearm in connection with a drug trafficking crime in violation of 18 USC 924(c)(1)(A) and 2 (Counts Three, Five, and Seven); and three counts of possession of a firearm by a prohibited person (convicted felon) in violation of 18 USC 922(g)(1) (Counts Eight, Nine, and Ten). The Court sentenced Bizzell to 65 years (780 months) of imprisonment. USSG 1B1.13, as amended Nov. 1, 2023, now authorizes a reduction of sentence where there is a finding made that a defendant was given an "unusually long sentence." 1B1.13(b)(6). See United States v. Luster, 2024 U.S. App. LEXIS 584, 2024 WL 95469, at *3 (11th Cir. Jan. 9, 2024) ("nothing in 3582(c)(1)(A) prevents from filing a new motion for a sentence reduction based on the new version of 1B1.13"). The Court found that Bizzell had established an extraordinary and compelling reason for a modification to his sentence. It is undisputed that Bizzell was eligible for relief under 1B1.13(b)(6) because his original sentence of 65 years is, by any definition, an "unusually long sentence." Bizzell has served more than 10 years in prison. He obtained his GED while in prison and has taken advantage of many other educational opportunities. Notably, he completed a drug education assignment in 2012, and a residential drug treatment assignment in 2013. Bizzell's Motion for Compassionate Release was granted in part to the extent Bizzell's previously imposed sentence of 780 months was reduced to 300 months.

 

CR.RIS/MEDICAL. The Northern District of Illinois granted a CR.RIS motion in United States v. Charles States, 2024 U.S. Dist. LEXIS 76440 (N.D. Ill. Apr. 26, 2024). In July and Aug. of 2001, States served a two-month stint in the Carman Brothers Crew in and around Chicago. The Crew, infamous for its widespread drug trafficking, employed States as an "enforcer" to conduct kidnappings, robberies, and extortion. States helped kidnap four individuals in the summer of 2001. In May 2002, the Government obtained an arrest warrant for State and five other members of the Crew. On Oct. 9, 2002, FBI agents and Chicago police officers arrived at States' apartment to execute the warrant. States responded by firing five gunshots through the door wounding a police officer's hand. The Court sentenced States at the top of the guidelines to three concurrent terms of life in prison and a consecutive term of 57 years for violations of 18 USC 924(c)(1)(A). States moved for compassionate release pursuant to the First Step Act arguing that his diagnosis of State IV metastatic cancer is a "serious and advanced illness with an end-of-life trajectory" that qualifies as an "extraordinary and compelling reason" under 18 USC 3582(c)(1)(A)(i). The 2023 amendments to the guidelines define "extraordinary and compelling reasons" to include terminal illnesses, or "a serious and advanced illness with an end-of-life trajectory." USSG1B1.13(b). The guidelines also clarify that "[a] specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required" and provides examples such as "metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia." This provision focuses on the gravity of the illness alone; considerations for the defendant's capacity to provide self-care while incarcerated or the facility's resources for long-term care are housed in other provisions. States is suffering from metastatic Stage IV spindle cell carcinoma which he shows is such an illness with an end-of-life trajectory. The Court found that States late-stage cancer qualifies as an "extraordinary and compelling reason." Sentence reduced to time served.

 

APPEAL/2255/ACCA. The Seventh Circuit reversed and remanded for resentencing United States v. Denny Anderson, 2024 U.S. App. LEXIS 21-10461 (7th Cir. Apr. 30, 2024). This case revolves around Denny Anderson who was sentenced in 2012 for possessing a firearm as a felon after shooting at a man and using racial slurs. The maximum penalty for the illegal-possession offense is typically 10 years but the Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for anyone with three prior convictions for a "violent felony." Anderson was sentenced to an agreed-upon term of 180 months (15 years) in prison. He was resentenced in 2021 following a successful habeas petition he filed in 2013. The Government maintained he was subject to a 15-year minimum sentence due to his prior convictions. The district court agreed that Anderson's convictions for burglary, robbery, and Florida aggravated assault qualified as violent felonies triggering a 15-year minimum sentence. Anderson did not object to his designation as an armed career criminal. The court then resentenced him to 188 months in prison. The Seventh Circuit reviewed the case and concluded that Anderson’s Florida conviction in 2001 is not a predicate violent felony and the Government may not substitute one of Anderson’s other prior convictions as an alternative predicate offense. Because Anderson does not have three predicate convictions the ACCA enhancement was improper. The court vacated the judgment and remanded the case for resentencing without ACCA enhancement.

 

APPEAL/2254/IAC/JURY INSTRUCTIONS. The Fourth Circuit reversed and remanded Donald Herrington v. Chadwick Dotson, 2024 U.S. App. LEXIS 10430 (4th Cir. Apr. 30, 2024). This case involves Donald Herrington who was charged with multiple counts of perjury, obtaining money by false pretenses, filing false or fraudulent income tax returns, failure to file an income tax return, and drug possession. Herrington chose to represent himself in court waiving his right to counsel. He was eventually convicted on several charges and sentenced to twelve years imprisonment. Herrington appealed his conviction arguing that his Sixth Amendment right to counsel was violated and that his appellate counsel was ineffective for failing to bring two meritorious arguments on direct appeal. The case was initially heard in the Eastern District of Virginia which rejected Herrington's arguments and denied his petition. Herrington then appealed to the Fourth Circuit. The Fourth Circuit affirmed the district court's decision in part, reversed in part, and remanded with instructions. The court found that Herrington knowingly, unequivocally, and voluntarily waived his right to counsel thus affirming that aspect of the district court's decision. However, the court agreed with Herrington that his appellate counsel was ineffective for failing to argue that the jury was erroneously instructed on the requirements for a conviction for failure to file a tax return. The court reversed this part of the district court's decision and remanded the case with instructions to issue a writ of habeas corpus unless Herrington is afforded a new state court appeal in which he may raise this claim.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Charles Gilmore, 2024 U.S. Dist. LEXIS 80679 (S.D. Ill. May 2, 2024). Gilmore plead guilty to felon in possession of a firearm in violation of 18 USC 922(g)(1) and 924(a)(2). Gilmore's total offense level at sentencing was 23 and his criminal history category was IV which yielded a Guidelines sentencing range of 70-87 months imprisonment. He was sentenced to 70 months. Under Amendment 821 Gilmore's criminal history category is lowered to III resulting in a lowered Guidelines range of 57-70 months. Sentence was reduced to 57-months.

 

AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Tyrone James, 2024 U.S. Dist. LEXIS 80669 (S.D. Ill. May 2, 2024). James plead guilty to felon in possession of a firearm in violation of 18 USC 922(g)(1) and 924(a)(2). He was sentenced to 33 months. James' total offense level at sentencing was 13 and his criminal history category was VI which yielded a Guidelines sentencing range of 33-41 months imprisonment. Under Amendment 821, Jamescriminal history points are reduced and his criminal history category is reduced from VI to V resulting in a lowered Guidelines range of 30-37 months. He was sentenced to 33 months. James total offense level at sentencing was 13 and his criminal history category was VI which yielded a Guidelines sentencing range of 33-41 months. Under Amendment 821 the defendant’s criminal history points are reduced and his criminal history category is reduced from VI to V resulting in a lowered Guidelines range of 30-37 months. James's total offense level at sentencing was 23 and his criminal history category was IV, which yielded a Guidelines sentencing range of 70-87 months imprisonment. He was sentenced to 70 months. Under Amendment 821, Gilmore's criminal history category is lowered to III, resulting in a lowered Guidelines range of 57-70 months. Sentence was reduced to 30-months.

 

AMENDMENT 821. The District of New Mexico granted an 821 motion in United States v. Ruben Bustillos-Pacheco, 2024 U.S. Dist. LEXIS 80637 (D. N.M. May 2, 2024). On Feb. 22, 2018, the Court sentenced Bustillos-Pacheco to 70 months for his conviction of Possession with Intent to Distribute Heroin and Possession of a Firearm in Furtherance of a Drug Trafficking Crime. He has a criminal history score of three placing him in Criminal History Category II. With a total offense level of 25 and Criminal History Category of II, the amended Guideline range is now 63 to 78 months. Sentence was reduced to 63-months.

 

AMENDMENT 821. The Western District of New York granted an 821 motion in United States v. Jose Ramirez-Merced, 2024 U.S. Dist. LEXIS 78907 (W.D. N.Y. Apr. 30, 2024). Ramirez-Merced sought a sentencing reduction based upon Guidelines Amendment 821 which amended Guideline 4A1.1(e) to eliminate the award of any "status points" under that Guideline where a defendant receives less than 7 criminal history points under subsection (a) through (d). On Nov. 19, 2015, Ramirez-Merced plead guilty to Count 1 of a Superseding Information which charged him with a violation of 18 USC 924(j)(1) and (2) (discharge of a firearm in furtherance of drug trafficking causing the death of another) for which the maximum possible sentence was a term of imprisonment of life. Defendant was sentenced to 240-months. Sentence was reduced to 228-months.

 

AMENDMENT 821. The Northern District of Indiana granted an 821 motion in United States v. Denzel Payne, 2024 U.S. Dist. LEXIS 79759 (N.D. Ind. Apr. 25, 2024). After the defendant plead guilty to being a felon in possession of a weapon as charged in Count 2 of the indictment the court sentenced him to 84-months imprisonment. USSG 4C1.1 guideline provides a decrease of two offense levels for offenders who did not receive any criminal history points under Chapter Four of the guidelines and whose instant offense did not involve specified aggravating factors. Sentence was reduced to 72-months.

 

APPEAL/RESENTENCE. The Seventh Circuit vacated and remanded for resentencing United States v. John Feeney, 2024 U.S. App. LEXIS 10460 (7th Cir. Apr. 30, 2024). John Feeney is a convicted felon who was charged with unlawfully possessing two pistols and carrying explosives, specifically modified fireworks shells, during the commission of a felony. Feeney plead guilty to both offenses. During sentencing the court and the parties disagreed on the applicable base offense level under the Sentencing Guidelines for Feeney’s conviction of being a felon in possession of a firearm. The court sided with the Government and applied a higher base offense level to Feeney’s sentence. The district court calculated the total offense level for the firearm possession conviction to be 15 which combined with a criminal history category of IV

 

yielded a guideline range of 30 to 37 months of imprisonment. The court imposed a within-guidelines sentence of 30 months for the firearm possession offense and a mandatory consecutive sentence of 120 months for the offense of carrying explosives while committing a felony. Feeney appealed his sentence arguing the district court erred when it applied a base offense level of 18 under the Sentencing Guidelines instead of a base offense level of 14. He contended that the court's decision resulted in him being punished twice for the same conduct, which is prohibited by the Sentencing Guidelines. The Seventh Circuit agreed with Feeney's interpretation of the relevant guideline and application note. The court found that the district court had erred in applying a higher base offense level based on Feeney's possession of an explosive. The court concluded that such an application constituted an "enhancement" prohibited by the Sentencing Guidelines, which aimed to prevent duplicative punishment. The court vacated Feeney's sentence and remanded the case for resentencing.

 

APPEAL/RESENTENCE. The First Circuit vacated and remanded for resentencing United States v. Reynaldo Rosa-Borges, 2024 U.S. App. LEXIS 10201 (1st Cir. Apr. 26, 2024). The case involves Reynaldo Rosa-Borges who was sentenced to 72 months for unlawful firearm possession and 36 months for violating the terms of his supervised release from a previous conviction. The firearm and ammunition were discovered during two separate incidents. The first incident occurred when Rosa-Borges was found with a firearm during a police patrol at a beach. The second incident happened the following day when police searched Rosa-Borges' residence and found additional ammunition. Rosa-Borges brother, Naim, claimed that the ammunition belonged to Rosa-Borges. In the lower court Rosa-Borges plead guilty to the charges. However, he disputed the claim that he possessed the additional 100 rounds of ammunition found at his residence arguing that the information was derived from unreliable hearsay from his brother who had a motive to avoid his own criminal liability. Despite these objections the district court sentenced Rosa-Borges to a total of 108 months in prison. On appeal the First Circuit vacated and remanded the case for resentencing. The appellate court found that the district court had relied on unreliable hearsay evidence from Rosa-Borges brother to extend Rosa-Borges' sentence. The court concluded the brother's statement was self-serving and inconsistent with the Government's version of events and therefore it was an abuse of discretion for the district court to find the statement reliable. The court did not address Rosa-Borges' argument that his limited confrontation right under Rule 32.1(b)(2)(C) was violated.

 

APPEAL/RESENTENCE. The First Circuit vacated and remanded for resentencing United States v. Hassan Abbas, 2024 U.S. App. LEXIS 10288 (1st Cir. Apr. 29, 2024). The case involves Hassan Abbas who was convicted on several counts of wire fraud and money laundering. Abbas was found guilty of participating in an email-based fraud scheme that targeted citizens of Massachusetts. He appealed his conviction on several grounds including the appropriateness of Massachusetts as the venue for his trial. In the lower courts, Abbas challenged the venue for his trial, arguing that the wire fraud and money laundering activities did not occur in Massachusetts. The district court denied his motion, determining that the issue of when the wired funds became "proceeds" was not capable of resolution before the trial. Upon review, the First Circuit affirmed Abbas's convictions for wire fraud but vacated his convictions for money laundering. The court found that the money sent from the victims did not become "proceeds" until it reached Abbas's bank accounts in Illinois and California. Therefore, Abbas did not "participate in the transfer of proceeds" from Massachusetts making Massachusetts an improper venue for the money laundering charges. The court remanded the case for resentencing and recalculation of restitution.

 

APPEAL/RESENTENCE/RESTITUTION. The Seventh Circuit vacated and remanded United States v. Shamar Betts, 2024 U.S. App. LEXIS 10333 (7th Cir. Apr. 29, 2024). Betts was indicted for inciting a riot in violation of the Anti-Riot Act, 18 USC 2101 after he posted a flyer on Facebook calling for a riot at a mall in Champaign, Illinois. The riot resulted in the damage to several businesses. Betts moved to dismiss the indictment arguing that the Anti-Riot Act was overbroad and violated the First Amendment, but the district court denied his motion. Betts then plead guilty and was sentenced to 48 months imprisonment and ordered to pay $1,686,170.30 in restitution to 35 businesses under the Mandatory Victims Restitution Act (MVRA), 18 USC 3663A. On appeal Betts challenged the constitutionality of the Anti-Riot Act, the application of a sentencing guideline by analogy, and the district court's order of restitution. The Seventh Circuit upheld the constitutionality of the Anti-Riot Act finding no compelling reason to overrule its previous decision in United States v. Dellinger which upheld the Act. The court also found no error in the district court's application of a sentencing guideline by analogy to the Anti-Riot Act. However, the court agreed with Betts's argument that the Government failed to meet its burden of showing that he directly and proximately caused damages to all businesses included in the restitution order. The court vacated the sentence with regard to the amount of restitution ordered and remanded the case for the limited purpose of reconsidering the amount of restitution.

 

APPEAL/JURY INSTRUCTIONS. The Sixth Circuit remanded United States v. Terrance Jordan, 2024 U.S. App. LEXIS 10604 (6th Cir. May 1, 2024). The case involves Terrence Jordan and Damara Sanders who were pulled over by a state trooper for speeding. During the stop the trooper noticed inconsistencies in their travel plans and observed Jordan's heavy breathing which raised his suspicion. He called for a canine unit which detected the presence of drugs. A subsequent search of the vehicle and the defendants revealed marijuana, pill presses, digital scales, plastic baggies, firearms, and a significant quantity of pills containing a fluorofentanyl-fentanyl mixture. The defendants were charged with possessing a firearm as a felon, possessing a controlled substance with the intent to distribute, and possessing firearms in furtherance of drug trafficking. They sought to suppress the evidence obtained from the traffic stop arguing that the trooper lacked reasonable suspicion to extend the stop. The District Judge denied the motion. The defendants also proposed a lesser-included-offense instruction for simple possession of a controlled substance, which the court rejected, citing the quantity of drugs and distribution paraphernalia as evidence of intent to distribute. The Sixth Circuit affirmed in part, vacated in part, and remanded for further proceedings. The court held that the trooper had reasonable suspicion to extend the stop, based on the defendants' suspicious travel plans, Sanders's implausible explanations, and Jordan's heavy breathing. The court also agreed with the district court's decision not to give a lesser-included-offense instruction given the substantial evidence of the defendants' intent to distribute drugs. However, the court vacated the defendants' convictions for possessing firearms in furtherance of drug trafficking due to an error in the jury instructions. The case was remanded for further proceedings consistent with the court's opinion.

 

APPEAL/SPEEDY TRIAL. The Sixth Circuit vacated and remanded United States v. Carlos Brown, 2024 U.S. App. LEXIS 10442 (6th Cir. Apr. 30, 2024). Like any other criminal defendant Carlos Brown has a right to be brought to trial within seventy days of his arraignment—absent, of course, the Speedy Trial Act’s laundry list of exclusions. 18 USC 3161 et seq. Yet Brown alleges that in the 1,176 days between his arraignment and his guilty plea his right to a speedy trial was twice violated. Either violation would warrant the dismissal of his indictment. The court considers whether these violations were covered by the Act’s exclusions. 3161(c)(1), (h)(1). The first violation involved a thirty-six-day delay in transporting Brown from Ohio to the Federal Medical Center (“FMC”) Lexington for his competency evaluation. This delay, according to the district court, was excludable. It denied Brown’s motion to dismiss. The second violation involved a twenty-one-day period after the denial of Brown’s first motion to dismiss. Again, the district court denied Brown’s motion to dismiss. It instead entered a twenty- one-day retroactive ends-of-justice continuance. The court found that the district court erred in denying both motions, vacated his conviction, and remanded to the district court to determine whether his indictment should be dismissed with or without prejudice.

 

APPEAL/1983/CLASS ACTION. The Seventh Circuit vacated and remanded Quintin Scott v. Dart, 2024 U.S. App. LEXIS 10305 (7th Cir. Apr. 29, 2024). The case involves Quintin Scott a former pretrial detainee at the Cook County Jail who filed a class action lawsuit against Cook County and its sheriff. Scott alleged the county provided him and other pretrial detainees with inadequate dental care which violated the Fourteenth Amendment. The district court refused to certify the class and Scott settled his individual claim but reserved his right to appeal the class ruling and to seek an incentive award for his role as the named plaintiff. The County argued Scott lacked standing to pursue the class aspects of the case, contending that he no longer had a live interest in the litigation and that courts were forbidden from granting incentive awards. The Seventh Circuit disagreed, finding that Scott had standing and that incentive awards were permissible. The court also concluded that the district court had abused its discretion in denying class certification as it had misapplied a previous decision and used too strict a standard. The Court of Appeals vacated the district court's order and remanded the case for further proceedings noting that the district court was free to revise the class definition as needed to address any overbreadth issues. The court also noted that the district court had not addressed whether the proposed class met the requirements of numerosity and adequacy of representation which must be satisfied before the class can be certified.

 

APPEAL/1983/DELIBERATE INDIFFERENCE. The Seventh Circuit remanded John Sabo v. Erickson, 2024 U.S. App. LEXIS 10503 (7th Cir. Apr. 30, 2024). The case revolves around John Sabo who was sentenced to a probation term that exceeded the maximum limit set by Wisconsin law. After his probation should have ended he was imprisoned for violating its conditions. Sabo sued two groups of defendants under 42 USC 1983: Sheri Hicks and Debra Haley officials from the Wisconsin Department of Corrections who failed to correct his unlawful probation term and Megan Erickson and Barb Hanson the probation officers who enforced it. Sabo alleged that all four defendants violated his right of due process and showed deliberate indifference to his unjustified imprisonment. The district court dismissed all claims against Hicks and Haley and most against Erickson and Hanson before entering summary judgment for Erickson and Hanson on the deliberate indifference and unreasonable seizure claims. Sabo appealed the dismissal of his claims against Hicks and Haley. The Seventh Circuit found that Sabo's complaint stated claims of deliberate indifference against Hicks and Haley. The court held that assuming all facts and inferences in Sabo’s favor the record did not compel a finding of qualified immunity for Hicks and Haley. Therefore, the court vacated the district court’s dismissal of those claims. However, the court affirmed the district court's decision in all other respects including the summary judgment for Erickson and Hanson on the deliberate indifference and unreasonable seizure claims.

 

APPEAL/IMMIGRATION. The Sixth Circuit vacated and remanded Jose Sanchez-Perez v. Garland, 2024 U.S. App. LEXIS 10436 (6th Cir. Apr. 30, 2024). The case involves Jose Yanel Sanchez-Perez a native and citizen of El Salvador who entered the United States in 1998. In 2009, Sanchez-Perez plead guilty to committing misdemeanor domestic assault under Tennessee law. The following day the Department of Homeland Security initiated removal proceedings against him. In 2015, an immigration judge found Sanchez-Perez ineligible for cancellation of removal because he failed to establish that he had been continuously present in the United States for ten years prior to receiving the notice to appear. However, the judge also found that Sanchez-Perez was not statutorily barred from seeking cancellation of removal due to his 2009 domestic-violence conviction. The Board of Immigration Appeals (BIA) dismissed Sanchez-Perez’s appeal and agreed with the immigration judge’s findings that Sanchez-Perez lacked the requisite continuous physical presence and thus was not eligible for cancellation of removal. In 2018, the immigration judge found that Sanchez-Perez’s 2009 conviction is categorically a crime of violence and thus Sanchez-Perez was statutorily barred from obtaining cancellation of removal. The BIA dismissed Sanchez-Perez’s appeal from this decision. The Sixth Circuit reviewed the case. The court found that the BIA erred in determining that Sanchez-Perez’s 2009 conviction was categorically a crime of violence, and thus Sanchez-Perez was statutorily barred from obtaining cancellation of removal. The court noted that the Tennessee statute at issue criminalizes conduct that does not require the use or threatened use of violent physical force. Therefore, the court granted Sanchez-Perez’s petition for review, vacated the BIA’s order, and remanded the case to the BIA for proceedings consistent with its opinion.

 

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