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SAMARITAN NEWSLETTER – 05-14-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-117

 

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/PLEA AGREEMENT. The Seventh Circuit vacated and remanded United States v. Lagene McGhee, 2024 U.S. App. LEXIS 11465 (7th Cir. May 10, 2024). McGhee appealed the denial of his motion for a reduced sentence arguing the district court erred by determining he was ineligible for relief because his sentence was based on a binding plea agreement, Fed.R.Crim.P. 11(c)(1)(C). The Government agreed. A grand jury indicted McGhee on drug and gun charges. The Government and McGhee negotiated a binding plea agreement which allowed the parties to agree to a specific sentence or range that binds the court if it accepts the agreement. McGhee plead guilty to one count of possession with intent to distribute cocaine and cocaine base and the Government dismissed the other counts of the indictment. The parties stipulated to a sentence between 96 and 132 months. The district court imposed a sentence at the bottom of the binding sentencing range: 96 months. In 2023, McGhee moved for a sentence reduction based on a retroactive change to the Sentencing Guidelines. 18 USC3582(c)(2). Under Amendment 821 district courts are no longer permitted to add two criminal history points where the offense of conviction was committed while the defendant was under any criminal justice sentence. McGhee argued this would lower his criminal-history category from IV to III resulting in a guidelines range of 70 to 87 months. He also moved on the same day for compassionate release based on certain medical issues. The district court denied both motions although it addressed only the3582(c)(2) motion in its order. The district court reasoned that "[b]ecause of the nature of the plea agreement [McGhee] entered into with the Government, the Guidelines played no role in the sentence imposed by the court." The court explained it must deny the motion because it imposed "the lowest sentence available under the plea agreement." On appeal McGhee arguedthe district court erred by concluding he is ineligible for relief under 3582(c)(2) solely because of his binding plea agreement. See Hughes v. United States, 584 U.S. 675 (2018). The Government agreed and conceded the district court's reasoning conflicts with Hughes and urged a remand. The court agreedwith the parties that the district court without acknowledging Hughes concluded that McGhee's sentence was not based on his guidelines range only "[b]ecause of the nature of the plea agreement he entered into with the government." Hughes clarified that a sentence imposed pursuant to a binding plea agreement does not, by itself, make a defendant ineligible for a sentence reduction under 3582(c)(2). On remand, the district court must reconsider whether McGhee is eligible for a sentence reduction because his term of imprisonment was based on a sentencing range that was reduced by Amendment 821. If he is eligible the district court must then consider whether a sentence reduction is appropriate. The court did not address whether the district court erred in denying without explanation McGhee's motion for compassionate release because McGhee has not raised that issue on appeal.

 

CR.RIS/DISPARITY/CAREER OFFENDER/USSG 1B1.13(b)(6). The Southern District of Florida granted in part a CR.RIS motion in United States v. Fred Carswell, 2024 U.S. Dist. LEXIS 85108 (S.D. Fla. May 10, 2024). Defendant was convicted on Nov. 24, 2004, of conspiracy of distribution and possession with intent to distribute at least 35 grams, but less than 50 grams, of crack cocaine in violation of 21 USC 841(a)(1) and 846; and knowingly and intentionally possessing with intent to distribute at least 35 grams of crack cocaine in violation of 21 USC 841(b)(1)(B). The Court sentenced defendant to 360 months. He argued the Sentencing Commission's recent amendments allows for his sentence to be reduced because it is an "unusually long sentence[,]" USSG 1B1.13(b)(6) "that would not likely be imposed today, given several intervening changes in the law that have together produced a gross disparity with his prior sentence" According to the defendant, his sentence is "unusually long" because it is disparate to sentences imposed on defendants convicted of like offenses who -- unlike defendant -- have been granted retroactive application of section 404 of the First Step Act. Defendant argued because Congress revised the penalties associated with crack cocaine in 2010, he "would not likely receive the same 30 year sentence, even as a [c]areer[o]ffender[,]" if he were sentenced today. He asserted that today he would only have an offense level of 34; thus, with a Criminal History Category of VI, his advisory Guidelines range would be 262-327 months rather than 360 months to life. The Court agreed defendant was eligible for some form of relief. The court joined the chorus of other district courts in this Circuit rejecting the Government's argument that the Sentencing Commission was without authority to enact 1B1.13(b)(6). The court ordered resentencing at a later date after the filing of sentencing memoranda.

 

CR.RIS/FAMILY CIRCUMSTANCES/CAREER OFFENDER/USSG 1B1.13(b)(6). The District of Montana granted in part a CR.RIS motion in United States v. David Peters, 2024 U.S. Dist. LEXIS 82515 (D. Mont. May 6, 2024).Peters filed a motion under 18 USC 3582(c)(1)(A) seeking to reduce his 262-month federal sentence for conspiracy to possess with intent to distribute heroin. Peters argued his circumstances qualify as extraordinary and compelling for two reasons: (1) his brother requires a kidney transplant and caregiving assistance,and (2) had he been sentenced today he would not have qualified as a career offender under the Sentencing Guidelines and therefore likely received a lesser sentence. Both arguments are compelling. While he is correct, the 18 USC 3553(a) factors support a reduced sentence but not immediate release. Accordingly, his motion was granted in part. Relevant here, extraordinary and compelling reasons exist if the defendant is the only available caregiver for an immediate family member. USSG 1B1.1B1.13(b)(3)(D). Peters brother is in kidney failure and has been on dialysis for the past 18 months. Independently, extraordinary and compelling circumstances may also exist if "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in law (other than an amendment to the Guidelines Manual that has not been made retroactive)" has occurred, and "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." USSG 1B1.13(b)(6). Peters has served over 15 years of his sentence. Peters has completed drug education and drug treatment as well as counseling and anger management courses. He has also participated in several education programs and earned his GED. Peters' sentence is reduced to time served as of Nov. 1, 2024.

 

CR.RIS/DISPARITY/CAREER OFFENDER/USSG 1B1.13.(b)(6). The Southern District of Florida granted in part a CR.RIS motion in United States v. Carnell Adley, 2024 U.S. Dist. LEXIS 81073 (S.D. Fla. May 3, 2024). The defendant sought early release from service of his prison sentence under new amendments to the Sentencing Guidelines. Defendant was convicted on Oct. 21, 2004 of (1) conspiracy of possession with intent to distribute a controlled substance in violation of 21 USC841(a)(1); (2) conspiracy to commit Hobbs Act robbery in violation of 18 USC 1951(a); (3) conspiracy to use or carry a firearm in relation to and furtherance of a crime of violence and a drug trafficking crime in violation of 18 USC 924(o); (4) possession with intent to distribute cocaine, in violation of 21 USC 841(a)(1); (5) attempt to commit Hobbs Act robbery under 18 USC 1951(a); and (6) use of a firearm in relation to a crime of violence and a drug trafficking crime in violation of 18 USC924(c). Defendant was sentenced to 387 months (327 months for Counts I through V and a 60-month consecutive term for Count VI). Defendant has served over 20 years of his sentence and moved for compassionate release. He argued the Sentencing Commission's recent amendments which took effect Nov. 1, 2023, allow for his sentence to be reduced because it is an "unusually long sentence[.]" USSG 1B1.13(b)(6). According to the defendant had he been sentenced after the Eleventh Circuit decided United States v. Williams, 609 F.3d 1168 (11th Cir. 2010), he would not be considered a career offender and his sentence may have been up to 117 months shorter. The Court agreed defendant was eligible for some form of relief. The Court was persuaded his sentence is "unusually long," and he qualifiedfor a sentence reduction. Under the newly enacted amendments to the Sentencing Guidelines, defendants are eligible for release if they "received an unusually long sentence" and have "served at least 10 years of the term of imprisonment.” USSG 1B1.13(b)(6). The Court may consider "a change in the law" to "determine[e] whether the defendant presents an extraordinary and compelling reason . . . 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, and after full consideration of the defendant's individualized circumstances." The Court joined the chorus of other district courts in this Circuit rejecting the Government's argument that the Sentencing Commission was without authority to enact USSG 1B1.13(b)(6). United States v. Franklin, No. 95-cr-08089, Apr. 19, 2024 Order [ECF No. 1905] filed April 19, 2024 (S.D. Fla. 2024); United States v. Cousins, 2024 U.S. Dist. LEXIS 66811, 2024 WL 1516121, at 4-5 (N.D. Ga. Apr. 4, 2024); United States v. Colley, 2024 U.S. Dist. LEXIS 66695, 2024 WL 1516128, at 4 (N.D. Ga. Mar. 26, 2024); United States v. Ware, 2024 U.S. Dist. LEXIS 42736, 2024 WL 1007427, at 7 (N.D. Ga. Mar. 6, 2024); United States v. Smith, 2024 U.S. Dist. LEXIS 38691, 2024 WL 885045, at 2 (N.D. Fla. Feb. 20, 2024); United States v. Allen, 2024 U.S. Dist. LEXIS 28049, 2024 WL 631609, at 5 (N.D. Ga. Feb. 12, 2024); United States v. Padgett, 2024 U.S. Dist. LEXIS 20085, 2024 WL 676767, at 3 (N.D. Ga/ Kam/ 3-. 2024). The court will resentence at a later date.

 

CR.RIS/EXTRADITION. The Southern District of New York granted a CR.RIS motion in United States v. George Herbert, 2024 U.S. Dist. LEXIS 81253 (S.D. N.Y. May 2, 2024). Herbert was sentenced on June 6, 2005, to 400 months after a jury found him guilty of conspiracy to import and distribute cocaine and distribution of cocaine with the intent that it be imported into the United States. Herbert was responsible for transporting cocaine from Belize to Mexico via boat knowing that it would then be imported into the United States. He has been incarcerated since he was brought from Belize to the Southern District of New York and arrested on April 26, 2003. The court consideredHerbert's lengthy record of rehabilitation, age, low risk of recidivism, non-violent status, the hardship created by the Covid-19 pandemic, his family circumstances, and limited release options as a non-citizen, the Court finds that "extraordinary and compelling reasons" supported a sentence reduction and that the reduction was consistent with the factors set forth in 18 USC 3553(a) and the policy statements of the U.S. Sentencing Commission. Herbert's motion for sentence reduction was granted. Herbert presented a commendable record of rehabilitation, "deeply regrets his criminal conduct" and "realizes the magnitude of his crimes[] and the punishment." He completed a number of education courses including a 450-hour drafting class. Herbert is ineligible for the early release options of a Residential Reentry Center or home confinement, see Bureau of Prisons Program Statement 7310.04, and Herbert's incarceration will likely be extended by removal proceedings.Compassionate release was warranted based on Herbert's lengthy rehabilitation, minor disciplinary record, conditions of confinement during the COVID-19 pandemic, family circumstances, limited release options as a non-citizen, low risk of recidivism, age, non-violent status, and lack of danger to the public upon release. Herbert's motion for compassionate release was granted and his sentence was reduced to time served.

 

CR.RIS/MEDICAL/REHABILITATION. The District of Maryland granted a CR.RIS motion in part in United States v. William Robinson, 2024 U.S. Dist. LEXIS 81817 (D. Md. May 6, 2024). Robinson is currently serving a 144-month sentence for conspiracy to distribute one kilogram or more of heroin.Robinson advanced a host of contentions. These include the claim his health conditions warrant a sentence reduction; his criminal case was improperly "'Fast Tracked'"; he has been rehabilitated by his participation in many prison programs, including the RDAP program; and he has a stable home plan.Robinson has been a drug abuser since age 16 but has been drug free since his arrest, he has a new outlook, and has participated in several drug treatment programs; his sentence reflects sentencing disparity; and he received ineffective assistance of counsel. Moreover, he asserted: "Congress deliberately empowered sentencing judges to mitigate criminal justice inequities." Defendant sought a 24-month reduction in his sentence. The court reduced defendant's sentence to 132 months. Robinson was "the leader" of the drug distribution ring known as the "Good Pussy" heroin shop. Robinson's medical records previously indicated he suffers from several serious medical ailments. These include hypertension, diabetes, and kidney disease. Numerous judges have found extraordinary and compelling circumstances for defendants with multiple chronic medical conditions, such as those applicable to Robinson.

 

APPEAL/2254/ASSISTANCE OF COUNSEL/RIGHT TO APPEAL. The Seventh Circuit affirmed the district court orderfor a new trial in Robert Pope v. Taylor, 2024 U.S. App. LEXIS 11056 (7th Cir. May 6, 2024). In 1996, Robert Pope was convicted of murder and sentenced to life imprisonment. He sought post-conviction relief, but his lawyer, Michael J. Backes, abandoned him and failed to take the necessary steps to protect Pope's rights. After 14 months of inaction, Pope sought help from Wisconsin's public defender who informed him that he first needed an extension from the court of appeals. However, the court of appeals denied his request, stating that he had waited too long. Pope then sought relief from the trial court which also denied his request due to the appellate decision. Despite multiple attempts to reinstate his appeallate rights, all were unsuccessful until 2016 when the state acknowledged his right to an appeal.The state court of appeals and the Supreme Court of Wisconsin reversed a 2017 decision granting Pope a new trial due to the absence of a trial transcript, which was not ordered by his lawyer and was later destroyed. The Supreme Court of Wisconsin held that a new trial based on the absence of a transcript is only appropriate if the defendant first makes a "facially valid claim of arguably prejudicial error" that requires a transcript to substantiate. Pope, not being a lawyer and barely remembering the events of 1996, was unable to do so. In the Seventh Circuit Pope filed a petition for collateral review under 28 USC 2254. The district court issued a conditional writ and directed the state to release Pope unless it set a retrial in motion within six months. The state appealed leading to a deferral of the deadline. The Court of Appeals affirmed the district court's decision, modifying it to include deadlines for Pope's release on bail and unconditional release if a trial does not start within the specified timeframes. The court noted Pope had suffered at least two violations of his constitutional rights: the right to assistance of counsel and the right to an appeal equivalent to that available to well-heeled litigants.

 

AMENDMENT 821. The Southern District of Ohio granted an 821 motion in United States v. Seth Nyamekye, 2024 U.S. Dist. LEXIS 82993 (S.D. Ohio May 7, 2024). Nyamekye was convicted by jury of 1 count of conspiring to commit money laundering, 17 counts of concealment money laundering, and 17 counts of money laundering in connection with a broader scheme to launder funds generated from online romance fraud and to send the monies to Ghana. The Court found under the advisory guidelines his total base offense level to be 26 and his criminal history category to be 1, generating a sentencing range of 63-78 months. The Court sentenced the defendant to 60-months. Sentence reduced to 48-months.

 

AMENDMENT 821. The Eastern District of California granted an 821 motion in United States v. Gonzalo Herrera Medrano, 2024 U.S. Dist. LEXIS 81284 (E.D. Calif. May 3, 2024).Defendant plead guilty to misprision of a felony in violation of 18 USC 4. The PSR calculated a guideline range of 21 to 27 months based on an offense level of 16 and criminal history category of I. Defendant did not receive any criminal history points. The Court adopted the PSR and sentenced the defendant to a high-end 27-month term of imprisonment. Sentence reduced to 21-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. Under Amendment 821 James 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. Sentence reduced to 30 months.

 

AMENDMENT 821. The District of South Dakota granted an 821 motion in United States v. John Klein, 2024 U.S. Dist. LEXIS 81525 (D. S.D. May 2, 2024). The Court sentenced Klein to 240 months for conspiracy to distribute methamphetamine. Klein was in Criminal History Category IV with a guideline range of 210 to 262 months. The retroactive change to 4A1.1(e) of the Guidelines Manual has the effect of placing Klein in Criminal History Category III where his guideline range would have been 188 to 235 months. Sentence reduced to 213-months.

 

APPEAL/18 USC 922(g)(1) UNCONSTITUTIONAL. The Ninth Circuit held 18 USC 922(g)(1) unconstitutional in United States v. Steven Duarte, 2024 U.S. App. LEXIS 11323 (9th Cir. May 9, 2024). This case involves Steven Duarte who was convicted for violating 18 USC 922(g)(1), a law that prohibits anyone previously convicted of a crime punishable by imprisonment for over a year from possessing a firearm. Duartehad five prior non-violent state criminal convictions was charged and convicted under this law after police saw him discard a handgun from a moving car. Duarte appealed his conviction arguing 18 USC 922(g)(1) violated his Second Amendment rights. The Ninth Circuit agreed with Duarte finding the law was unconstitutional as applied to him, a non-violent offender who had served his time in prison and reentered society. The court held that under the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 922(g)(1) violated the Second Amendment as applied to Duarte. The Court concluded that Duarte's weapon, a handgun, is an "arm" within the meaning of the Second Amendment and the Government failed to prove that 922(g)(1)'s categorical prohibition as applied to Duarte is part of the historic tradition that delimits the outer bounds of the Second Amendment right. As a result, the court vacated Duarte's conviction and reversed the district court's judgment.

 

APPEAL/SUPERVISED RELEASE CONDITIONS/AMENDMENT 821. The Ninth Circuit vacated and remanded United States v. Isrreal Millan, 2024 U.S. App. LEXIS 10831 (9th Cir. May 1, 2024). The court vacated the 13 standard conditions of supervised release included in the written judgment and remanded for the limited purpose of permitting the district court to orally pronounce any standard conditions it wishes to impose after giving Millan is given an opportunity to object. On remand the district court is further instructed to consider Millan's eligibility for a sentence reduction under Amendment 821 to the Guidelines.

 

APPEAL/RESENTENCE. The Eleventh Circuit remanded for resentencing United States v. Zachary Lopez, 2024 U.S. App. LEXIS 11117 (11th Cir. May 7, 2024). Lopez appealed his convictions and 84-month sentence for conspiring to possess with intent to distribute cocaine in violation of 21 USC 846 and 841(b)(1)(C) (“Count One”); possessing with intent to distribute cocaine in violation of 841(a)(1) & (b)(1)(C) (“Count Two”); carrying a firearm during and in relation to a drug-trafficking offense in violation of 18 USC 924(c)(1)(A)(i) (“Count Three”); and possessing a firearm with an obliterated serial number in violation of 18 USC 922(k) and 924(a)(1)(B) (“Count Four”). On appeal, Lopez argued (1) he is legally innocent of Counts Three and Four because 922(k) and 924(c) are an unconstitutional infringement on his Second Amendment right to possess a firearm; (2) that 922(k) is unconstitutional, both facially and as applied because the statute exceeds Congress’s authority under the Commerce Clause; and (3) that the district court plainly erred in applying the two-levelUSSG 2D1.1(b)(1) specific offense characteristic for possessinga dangerous weapon in calculating his guidelines range. The court affirmed Lopez’s convictions but vacate his 84-month sentence and remanded for resentencing. The record demonstrates that the district court plainly erred in applying the two-level 2D1.1(b)(1) specific offense characteristic enhancement for possessing a dangerous weapon in calculating Lopez’s guidelines range. The district court sentenced Lopez for violating 924(c)(1)(A)(i) and a defendant’s conviction for possession of a weapon cannot be used to enhance the level of the underlying offense.

 

APPEAL/RESENTENCE. The Third Circuit reversed and remanded for resentencing United States v. Victor Cora-Alicea, 2024 U.S. App. LEXIS 10950 (3d Cir. May 6, 2024). People make poor choices. But our sentencing framework requires judges to balance these decisions against several factors, including any mitigating evidence, before determining an appropriate sanction. When a judge fails to do so on account of an erroneous legal conclusion, a procedural error exists that requires resentencing. The case revolves around Victor Cora-Alicea who was involved in a drug trafficking operation. Cora-Alicea had no supervisory responsibilities and was merely tasked with bagging drugs and plead guilty to violations of drug trafficking laws. His sentencing was calculated based on a base offense level of 31 with reductions for his safety-valve eligibility, minor role, and acceptance of responsibility resulting in a total offense level of 24. His criminal history category I was based on a nonexistent criminal record. The District Court set his Guidelines range at 51–63 months. Cora-Alicea requested a mitigation-based variance from the range, arguing that his life history, personal characteristics, and an anticipated change to the Guidelines for people with zero criminal history points justified a variance to approximately 24 months imprisonment. The District Court sentenced Cora-Alicea to 45 months on each count to be served concurrently. The court took into consideration his zero-point status but ignored Cora-Alicea’s other bases for a variance. Cora-Alicea appealed arguing the court procedurally erred at sentencing by dismissing the majority of his personal mitigation evidence offered in support of a variance under 18 USC 3553(a) on the ground that it was “already taken into account” by the downward adjustments under the Guidelines. The Third Circuit found the District Court had erred in its interpretation of the Guidelines. The court noted the safety-valve provision, minor-role, and acceptance-of-responsibility adjustments considered in Cora-Alicea’s sentencing had nothing to do with the myriad of mitigating circumstances he raised under 3553(a). The court concluded the District Court's erroneous legal conclusion preempted any weighing of the mitigation evidence against the Guidelines range or the other sentencing factors. As a result the court vacated Cora-Alicea’s sentence and remanded his case for resentencing.

 

APPEAL/RESENTENCE/KIDNAPPING. The Tenth Circuit vacated and remanded for resentencing United States v. Patrick Murphy, 2024 U.S. App. LEXIS 11090 (10th Cir. May 7, 2024).Murphy was convicted of murder, murder in perpetration of kidnapping, and kidnapping resulting in death. The crimes occurred in 1999 but Murphy was not indicted until 2020 following a Supreme Court decision that clarified jurisdictional issues related to crimes committed in Indian Country. Murphy appealed his convictions arguing there was insufficient evidence to support the kidnapping charges, that the prosecution was barred by the statute of limitations, and that the nearly two-decade delay between the murder and the federal prosecution violated his Fifth Amendment due process rights. The Tenth Circuit agreed with Murphy's argument regarding the kidnapping charges. The court held that even viewing the evidence in the light most favorable to the Government it did not show that Murphy held the victim for an appreciable period of time which is a requirement under the federal kidnapping statute. However, the court rejected Murphy's other two arguments. The court found that the statute of limitations did not bar the prosecution because the crimes with which Murphy was charged are, as a general matter, punishable by death and thus not subject to the general five-year statute of limitations for non-capital federal crimes. The court also found Murphy failed to demonstrate the 20-year delay in bringing the federal prosecution against him violated his Fifth Amendment due process rights. As a result, the court reversed Murphy's kidnapping-related convictions but affirmed his conviction for murder. The case was remanded to the district court for resentencing.

 

APPEAL/AFFIRMED SUPPRESSION. The Tenth Circuit affirmed suppression of evidence in United States v. Lyndell Daniels, 2024 U.S. App. LEXIS 11211 (10th Cir. May 8, 2024).The case revolves around Lyndell Daniels who was detained by law enforcement officers who linked him to a stolen Glock firearm based on his name. Daniels was charged with being a felon in possession of a firearm. Daniels moved to suppress his name as the fruit of an unlawful investigative detention, arguing that the officers had no reasonable suspicion to detain him. The district court agreed with Daniels and granted his motion. The Government appealed this decision arguing the district court erred because there was reasonable suspicion to detain Daniels.The case originated from a near-anonymous call to the Aurora Police Department expressing concern about three Black men wearing dark hoodies and jeans intermittently taking guns in and out of their pockets and getting in and out of a dark SUV. The caller believed they were “getting ready to do something,” but reported no illegality. The police arrived at the scene and detained Daniels who was standing near the SUV. The officers did not observe any illegal activity or firearms when they arrived. The Tenth Circuit affirmed the district court's decision. The court found the totality of the circumstances known to the officer when he detained Daniels did not amount to reasonable suspicion. The court noted the 911 call, the presence and actions of the SUV, the time of the encounter, and the location of the encounter were not sufficient to establish reasonable suspicion. The court concluded Daniels' detention was unreasonable under the Fourth Amendment and the district court's grant of Daniels' motion to suppress was proper.

 

APPEAL/CIVIL COMMITMENT. The Fourth Circuit vacated and remanded United States v. Corie McNair, 2024 U.S. App. LEXIS 10967 (4th Cir. May 6, 2024). Corie McNair appealedthe district court’s decision to revoke his conditional releasefrom civil commitment. While his appeal was pending the courtdecided United States v. Perkins, 67 F.4th 583 (4th Cir. 2023). There the court established the standard of proof that applies in revocation proceedings and clarified the process by which the district court must make its findings. Because the district court didn’t have the benefit of Perkins when it revoked McNair’s release, the court vacated its order and remanded for further proceedings. Almost twenty years ago, McNair was civilly committed pursuant to 18 USC 4246(d). He was hospitalized at the Federal Medical Center in Butner, North Carolina. McNair’s mental condition improved with treatment. He was conditionally released twice previously pursuant to 18 USC 4246(e). Both times he violated theconditions of his release and was recommitted. McNair was released on Nov. 18, 2020. The district court imposed twenty-six conditions of release. As relevant here, Condition 3 required McNair live at Guide Light Elderly Care Community in Oakland, California, and follow the facility’s rules. And Condition 6 required McNair “[r]emain in treatment andmaintain any prescribed medications.” At the end of January 2021, Guide Light terminated McNair’s placement because he had threatened a staff member. The facility’s director reported McNair harassed other residents, such as by “telling them that they needed to take baths and that they were dirty.” When the director sought to call the police McNair threatened, “If you call the police on me, that’ll be the last time you ever call the police.” The burden is on the Government—not the district court—to “develop the factors, statistical risk predictors, or other factual parameters bearing on the individualized inquiry.” So if the Government alleges the individual missed doses of his medication it must submit evidence of “the effect of the missed medication[].” Only then does the court have a “sound basis for making reasoned findings on the matter of dangerousness for that particular, alleged violation.”

 

APPEAL/1983/EIGHTH AMENDMENT. The Eighth Circuit affirmed the district court denial of qualified immunity in Corey Fisherman v. Launderville, 2024 U.S. App. LEXIS 10943 (8th Cir. May 6, 2024). The case revolves around an incident involving Corey Fisherman who is an inmate at Minnesota’s maximum-security prison, and David Launderville is a prison guard. Fisherman was being transferred to a more restrictive area after a shank was found in his cell. During the transfer process, Fisherman initially refused to undergo a strip search leading to the intervention of the A-Team, a group of guards trained to handle noncompliant inmates, which included Launderville. After the search, Fisherman objected to kneeling and placing his hands through a small opening in his cell door. Once he complied, he was handcuffed. Fisherman allegedLaunderville kneed him six times, three times each in the face and body while another guard kneeled on his legs. Laundervilleclaims he struck Fisherman twice in the leg because he was resisting. The case was initially heard in the District of Minnesota. The magistrate judge identified a potential jury issue: whether Launderville struck a restrained inmate six times in the face and body or a partially unrestrained one just twice in the leg. The district court adopted the report and recommendation leading to an appeal to the Eighth Circuit. The Court of Appeals affirmed the district court's decision, denying Launderville's claim of qualified immunity. The court found that a reasonable jury could conclude that the repeated blows to Fisherman's head and body were "malicious and sadistic." The court determined that the law was clearly established that repeatedly striking a fully restrained inmate violates the Eighth Amendment. The court concluded that every reasonable official in Launderville's position would have understood that kneeing a restrained inmate several times in the face and body violated that right.

 

APPEAL/BIVENS. The Tenth Circuit affirmed the district court’s denial in Khalfan Mohamed v. Jones, 2024 U.S. App. LEXIS 11089 (10th Cir. May 7, 2024). Khalfan Khamis Mohamed is a federal prisoner who alleged officials from the Federal Bureau of Prisons (BOP) beat him while others watched. He brought claims under the Eighth Amendment for excessive force and failure to intervene, arguing the BOP officials' actions gave him a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The BOP officials moved to dismiss the claims arguing that Bivens did not extend to Mohamed's claims. The district court denied their motion. The BOP officials appealed the district court's decisionseeking interlocutory review. The Tenth Circuit dismissed the appeal for lack of jurisdiction. The court found that the BOP officials had not shown the district court's order extending Bivens to Mohamed's Eighth Amendment excessive force and failure to intervene claims qualified for interlocutory review under the collateral order doctrine. The court noted that BOP officials bore the burden of establishing the court's appellate jurisdiction and had failed to convince the court to create an exception to the final judgment rule for all district court orders extending a Bivens remedy. The court noted the BOP officials had not shown that Bivens extension orders were effectively unreviewable after final judgment and therefore had not satisfied the third Cohen factor.

 

APPEAL/IMMIGRATION. The Ninth Circuit remanded Ninoska Suate-Orellana, 2024 U.S. App. LEXIS 11108 (9th Cir. May 7, 2024). This case involves Ninoska Suate-Orellana who was ordered removed to Honduras in 2011 after her asylum application was denied. She reentered the U.S. illegally in 2014 and the Department of Homeland Security reinstated her prior removal order. Suate-Orellana filed a motion for reconsideration and termination of the underlying removal order arguing the Notice to Appear (NTA) in the original immigration proceedings was deficient under 8 USC 1229(a)(1) because it did not state the time or date of her hearing. The immigration judge denied the motion and the Board of Immigration Appeals (BIA) dismissed her appeal. The Ninth Circuit granted Suate-Orellana’s petition for review of the BIA’s dismissal. The court found Suate-Orellana had exhausted her claim that her NTA was statutorily deficient. The court held that 8 USC 1231(a)(5) which bars reopening or review of an order of removal that has been reinstated is not jurisdictional. The court concluded the Government had forfeited its claim that 1231(a)(5) barred reopening this case. The case was remanded to the BIA for reconsideration of the merits of Suate-Orellana’s claim in light of intervening authorities.

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SAMARITAN NEWSLETTER – 05-20-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with a

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