SAMARITAN NEWSLETTER – 05-12-2025

Satellite Law Office of Tom Norrid

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

APPEAL/SUPPRESS EVIDENCE. The Tenth Circuit vacated and remanded United States v. Alexander Santiago, 2025 U.S. App. LEXIS 10358 (10th Cir. Apr. 30, 2025). Santiago was convicted of production and possession of child pornography and sentenced to 240 months and 120 months, respectively, to run consecutively. Santiago arguing the district court erred in denying his motion to suppress evidence obtained from his iPhone. The iPhone was initially searched under a state search warrant which Santiago claimed was impermissibly broad and later under a federal search warrant that relied on the results of the state search. The Western District of Oklahoma denied Santiago's motion to suppress finding the state search warrant failed the Fourth Amendment’s particularity requirement but applied the good faith exception to the exclusionary rule. The court did not address whether there was probable cause for the federal search warrant absent the state search results. Santiago was subsequently found guilty by a jury and sentenced. The Tenth Circuit agreed with Santiago the state search warrant was overbroad and violated the Fourth Amendment’s particularity requirement. The court held the good faith exception did not apply because no reasonable officer could rely on such a warrant. Consequently, the evidence obtained from the state search should be suppressed. The court also examined the federal search warrant determining that without the tainted evidence from the state search the affidavit did not establish probable cause to search Santiago’s iPhone for child pornography. Therefore, the evidence from the federal search was suppressed. The Tenth Circuit reversed the district court’s denial of Santiago’s motion to suppress and vacated his conviction and sentence, and remanded the case for further proceedings.

APPEAL/922(a)(6). The Fourth Circuit reversed and remanded United States v. Steven Fulton, 2025 U.S. App. LEXIS 10865 (4th Cir. May 6, 2025). Fulton was convicted by a jury of knowingly making a false statement in connection with the attempted acquisition of a firearm. The evidence showed Fulton denied having any felony convictions on a background check form at a gun shop in North Carolina, despite having a prior felony conviction in New Jersey. The district court overturned the jury’s verdict and entered a judgment of acquittal reasoning that the Government did not present evidence to the jury demonstrating that Fulton’s New Jersey offense was punishable by more than a year in prison. The district court also conditionally granted Fulton a new trial in case the acquittal was reversed. The district court granted Fulton’s motion for acquittal holding that the Government failed to prove that Fulton’s New Jersey conviction was a felony. The court reasoned that the criminal judgment did not define a third-degree offense did not include the word “felony,” and did not identify the maximum punishment for the offense. The district court also conditionally granted a new trial citing insufficient evidence of Fulton’s knowledge that he was a felon. The Fourth Circuit reversed the district court’s judgment of acquittal holding that the Government had introduced sufficient evidence to prove that Fulton’s New Jersey conviction was a felony punishable by more than one year in prison. The court determined that whether a crime is punishable by more than one year in prison is a legal question for the judge to determine, not a factual question for the jury. The appellate court also reversed the district court’s conditional grant of a new trial finding the evidence presented at trial was sufficient to support the jury’s verdict. The case was remanded with instructions to reinstate the jury’s verdict.

APPEAL/SILENCE. The Tenth Circuit reversed and remanded United States v. Kevin Ward, 2025 U.S. App. LEXIS 10837 (10th Cir. May 6, 2025). Ward was convicted of participating in a violent attack on three men returning from a fishing trip in Indian Country. After his arrest Ward admitted to participating in the attack but claimed at trial he did so under duress due to threats from Anthony Juan Armenta. During cross-examination the prosecutor questioned Ward about his failure to mention these threats when initially questioned by law enforcement. The prosecutor also highlighted this omission during closing arguments to challenge Ward's credibility. The Eastern District of Oklahoma convicted Ward of assault resulting in serious bodily injury, assault with a dangerous weapon with intent to do bodily harm, and use, carrying, brandishing, and discharge of a firearm during and in relation to a crime of violence. Ward did not raise the issue of his post-arrest silence being used against him during the trial so the appellate court reviewed the case for plain error. The Tenth Circuit found the district court committed plain error by allowing the prosecutor to use Ward's post-arrest silence against him. The court held this use of partial silence violated Ward's due process right to a fair trial as established in Doyle v. Ohio and United States v. Canterbury. The court concluded the error affected Ward's substantial rights and the fairness of the judicial proceedings. The Tenth Circuit vacated Ward's convictions and remanded the case for further proceedings.

SENTENCING COMMISSION PROPOSED 2025 AMENDMENTS

Commission amendments will improve federal sentencing by:

1. Encouraging courts to take an individualized approach to the imposition and management of supervised release;

2. Simplifying the “three-step” approach that courts currently use when applying the guidelines; and

3. Promoting consistent guideline application by resolving certain circuit conflicts.

DRUG OFFENSES AMENDMENT This proposed amendment contains two parts (Part A and Part B). The Commission is considering whether to promulgate one or both parts, as they are not mutually exclusive. Part A of the proposed amendment would amend USSG 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); (Attempt or Conspiracy) to address the mitigating role provisions at subsection (a)(5) and the application of the adjustment at §3B1.2 (Mitigating Role) to certain drug trafficking cases. It contains two subparts.

Part B of the proposed amendment would amend 2D1.1 to revise the enhancement for misrepresentation of fentanyl and fentanyl analogue at subsection (b)(13).

FIREARMS OFFENSES AMENDMENT

Section 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) employs, for different purposes, two distinct definitions of the term “firearm” drawn from separate statutory sources: 21 U.S.C. 921(a)(3) (“Gun Control Act (GCA) definition of firearm”) and 26 U.S.C. 5845(a) (“National Firearms Act (NFA) definition of firearm”). One difference between the definitions is the inclusion of machinegun conversion devices (MCDs). Commonly referred to as “Glock switches” or “auto sears,” MCDs are devices designed to convert weapons into fully automatic firearms. The NFA definition of firearm includes “machineguns,” 26 U.S.C. 5845(a), and the definition of “machinegun” includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun,” 26 U.S.C. 5845(b). Therefore, MCDs fall within the NFA definition of firearm. However, the GCA definition of firearm does not encompass MCDs. See 21 U.S.C. 921(a)(3). Section 2K2.1 uses the NFA definition of firearm for certain enhanced base offense levels. See, e.g., USSG 2K2.1(a)(1), (3), (4), and (5). Therefore, those enhanced base offense levels apply to offenses involving MCDs. However, the remainder of 2K2.1, including the specific

offense characteristics and the cross reference, uses the GCA definition of firearm. USSG 2K2.1, comment. (n.1). Therefore, MCDs do not trigger 2K2.1’s specific offense characteristics or the cross reference. For example, an individual convicted under 18 U.S.C. 922(o) for possessing five MCDs would receive an enhanced base offense level because the offense involved a firearm described in 26 U.S.C. 5845(a). See USSG 2K2.1(a)(5). However, this individual would not receive an enhancement under 2K2.1(b)(1) for the number of firearms involved in the offense because the MCDs are not firearms under the GCA definition. See USSG 2K2.1(b)(1). For the same reason, if the individual transferred the MCDs to another person, this conduct would not support an enhancement under 2K2.1(b)(5). See USSG 2K2.1(b)(5).

Commenters have expressed concern that 2K2.1 insufficiently addresses offenses involving MCDs. Commenters have described a significant recent proliferation of MCDs and pointed out the increased danger to bystanders and law enforcement officials when a weapon is equipped with an MCD because those weapons can fire more quickly and are more difficult to control. The proposed amendment would address these concerns by amending 2K2.1 to set forth a new tiered specific offense characteristic to apply to cases involving machinegun conversion devices. Subparagraph (A) would provide for a 2-level enhancement when an individual

possessed four or more MCDs or transferred or sold any MCD. Subparagraph (B) would provide for a 4-level enhancement when an individual possessed 30 or more MCDs. This new specific offense characteristic would be added as subsection (b)(5) and would be subject to the cumulative offense level cap of level 29. Additionally, the proposed amendment provides a definition of “machinegun conversion device.” The proposed amendment also includes conforming changes to the Commentary to 2K2.1 and the Commentary to 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive. During or in Relation to Certain Crimes) to address the renumbering of current 2K2.1(b)(5) through (9).