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SAMARITAN NEWSLETTER – 05-27-2024

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 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.

 

SUPREME COURT. The Supreme Court’s decision in Brown v. United States, 2024 U.S. LEXIS 2261 (S. Ct. May 23, 2024). The Supreme Court was tasked with interpreting the Armed Career Criminal Act (ACCA) in relation to state drug convictions that occurred before recent amendments to the federal drug schedules. The ACCA imposes a 15-year mandatory minimum sentence on defendants convicted for illegal firearm possession who have a criminal history demonstrating a propensity for violence. A defendant with three previous convictions for a "serious drug offense" qualifies for ACCA's enhanced sentencing. Petitioners Justin Rashaad Brown and Eugene Jackson were separately convicted of the federal crime of possession of a firearm by a convicted felon. In both cases an ACCA enhancement was recommended based on prior state felony drug convictions. Both defendants argued that their prior convictions did not qualify as "serious drug offenses" due to changes in the federal definition of the drugs involved in their convictions. The District Courts disagreed and sentenced the petitioners to enhanced sentences and the respective appellate courts affirmed. The Supreme Court held that a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of that conviction. The Court reasoned that the ACCA is a recidivist statute that gauges what a defendant’s “history of criminal activity” says about his or her “culpability and dangerousness.” The Court also noted that the Government’s interpretation best fulfills ACCA’s statutory objectives. The Court affirmed the judgments of the Courts of Appeals.

 

CR.RIS/DISPARITY/REHABILITATION/STACKING. The Eastern District of New York granted a CR.RIS motion in United States v. Joel Vasquez, 2024 U.S. Dist. LEXIS 93809 (E.D. N.Y. May 23, 2024). On Oct. 1, 1997, following a jury trial Vasquez was convicted of the following five counts: (1) conspiracy to possess with intent to distribute cocaine (Count One); (2) conspiracy to obstruct interstate commerce by robbery (Count Two) ("Hobbs Act Robbery"); (3) attempting to possess cocaine with intent to distribute (Count Three) (together with Count 1, the "Narcotics Distribution Counts"); (4) using and carrying a firearm in connection with the conspiracies alleged in Counts One and Two (Count Seven); and (5) using and carrying a firearm in connection with Count Three (Count Eight) (together with Count Seven, the "Section 924(c) Counts"). Vasquez's conviction stems from his role as a leader of a street gang that committed armed robberies of drug dealers and then resold the stolen drugs. Vasquez and his co-defendants effected these robberies by carrying and brandishing firearms and by both threatening and engaging in other violent conduct such as beating, burning, and stabbing. Vasquez was sentenced to a total of 660 months imprisonment. Vasquez contended that a number of factors, considered together, warrant a reduction, including:intervening changes in sentencing law and with respect to Section 924(c) stacking; the unusually long duration of his sentence; disparities between his sentence and the sentences imposed on his co-defendants who have already been resentenced; and his significant rehabilitation. The Government agreed with Vasquez that intervening changes in sentencing law and with respect to Section 924(c) stacking and disparities between Vasquez's sentence and the sentences imposed on his co-defendants are extraordinary and compelling reasons for a modification of his sentence. Section 1B1.13(b)(6) provides that if a defendant received an unusually long sentence and has served at least ten years of his term of imprisonment, a change in the law "may be considered in determining whether the defendant presents an extraordinary and compelling reason" only when "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." What constitutes rehabilitation is left to the Court's discretion, but courts in this district have considered the following factors: the defendant's "maintenance of familial and societal relationships; letters of support both from community members and prison staff; conduct and disciplinary records while incarcerated; . . . any achievements and education obtained while incarcerated; . . . gains in maturity[;] and other clear signs that a defendant's incarceration has had rehabilitative value." The Court found that considering the totality of the circumstances, including Vasquez's significant rehabilitation, his stacked Section 924(c) sentence, and the disparities between the sentence he is currently serving and the sentences to which his co-defendants were resentenced, extraordinary and compelling reasons warrant a reduction in his sentence. Sentence reduced to 396-months.

 

CR.RIS/DISPARITY/REHABILITATION/MEDICAL. The Southern District of Indiana granted a CR.RIS motion in United States v. Anthony Bailey, 2024 U.S. Dist. LEXIS 91259 (S.D. Ind. May 20, 2024). On Dec. 30, 1997, Bailey was charged in a six-count superseding indictment with one count of armed bank robbery in violation of 18 USC 2113(a) and (d) (Count 3); two counts of carjacking in violation of 18 USC 2119(1) and (2) (Counts 1 and 5); and three counts of using a firearm during a crime of violence in violation of 18 USC 924(c) (Counts 2, 4, and 6). On Feb. 28, 1998, a jury convicted Bailey on all counts charged in the superseding indictment. The sentence consisted of the following: 188 months for the robbery count, concurrent 180-month sentences for the carjacking counts, a consecutive 60-month sentence for the first 924(c) count, and two consecutive 240-month sentences for the remaining 924(c) counts. He was sentenced to 728 months. Under current law Bailey would not face enhanced penalties on Counts 4 and 6 and his mandatory minimum sentence would now be 60 months rather than 240 months on each of Counts 4 and 6. Bailey filed the present motion for compassionate release. He argued he establishes extraordinary and compelling reasons for compassionate release because (1) a change in the law has created a disparity between the sentence he is serving and the sentence he would receive today; (2) he has undergone substantial rehabilitation while incarcerated; (3) he suffers from a number of medical conditions for which he is not receiving proper medical care in the BOP and has been subjected to harsh prison conditions due to the COVID-19 pandemic; and (4) a combination of factors warrants a sentence reduction. Bailey relies on USSG 1B1.13(b)(6) of the Sentencing Guidelines as an "extraordinary and compelling reason" for sentence reduction. The court reduced Bailey’s sentence to 368 months. THE GOVERNMENT FILED AN IMMEDIATE APPEAL.

 

AMENDMENT 821. The District of the Northern Mariana Islands granted an 821 motion in United States v. Derik Camacho Reyes, 2024 U.S. Dist. LEXIS 91881 (D. NMI May 22, 2024). The Court sentenced Reyes to 27-months at the low end of the USSG as Reyes had a Criminal History Category of IV and a Total Offense Level of 14. Reyes received an additional two points towards his Criminal History Points because his two prior convictions. Sentence reduced to 21-months.

 

AMENDMENT 821. The Eastern District of New York granted an 821 motion in United States v. Gonzalo Castillo Perez, 2024 U.S. Dist. LEXIS 91135 (E.D. N.Y. May 21, 2021). The Court sentenced Perez to a term of imprisonment of 47 months, slightly below the then-applicable Sentencing Guidelines range of 57-71 months. That range was based, in part, on the calculation that Perez's had zero criminal history points resulting in a Criminal History Category of I. The defendant’s sentence was reduced to 46-months.

 

AMENDMENT 821. The Western District of Michigan granted an 821 motion in United States v. Kevin Obi, 2024 U.S. Dist. LEXIS 89123 (W.D. Mich. May 17, 2024). Defendant was charged with conspiracy to distribute heroin, distribution to a minor, and distribution resulting in death. Defendant plead guilty to distribution of heroin resulting in death. At defendant's sentencing hearing the court imposed a sentence of 300 months. Part A, is applicable here. Defendant was given two additional status points for "committing the offense while under a criminal justice sentence." The defendant’s sentence was reduced to 293-months.

 

AMENDMENT 821. The District of Maryland granted an 821 motion in United States v. Patrick Belzner, 2024 U.S. Dist. LEXIS 78617 (D. Md. May 17, 2024). On April 21, 2014, Belzner plead guilty to Count 1 (conspiracy to commit wire fraud in violation of 18 USC 1349), Count 32 (wire fraud in violation of 18 USC 1343), and Count 45 (evasion of assessed tax payments in violation of 26 USC 7201) of the Superseding Indictment. Belzner was sentenced to 180-months, Part A, a defendant's status points are decreased by one if he has seven or more criminal history points, and his status points are eliminated if he has six or fewer criminal history points. Belzner had more than seven criminal history points, as well as two status points. Defendant’s sentence was reduced to 161-months.

 

APPEAL/IMMIGRATION. The Fourth Circuit vacated and remanded David Annor v. Garland, 2024 U.S. App. LEXIS ______ No. 23-1281 (4th Cir. May 22, 2024). David Annor is a citizen of Ghana and a lawful permanent resident of the United States who used his business to funnel the proceeds of a “romance fraud scheme” to militiamen in Ghana. After Annor plead guilty to one count of conspiracy to commit money laundering the Department of Homeland Security (“DHS”) placed him in removal proceedings where he applied for withholding of removal and deferral under the Convention Against Torture (“CAT”). An Immigration Judge (“IJ”) denied relief and the Board of Immigration Appeals (“BIA”) affirmed holding that Annor’s money laundering conspiracy conviction constituted a “particularly serious crime” barring withholding of removal. 8 USC 1231(b)(3)(B)(ii). But in so holding the BIA misapplied its own precedent both by relying on the elements of the wrong statute and by failing to assess whether the nature of Annor’s offense indicates that he presents a danger to the community. Accordingly, the court vacated the BIA’s decision and remanded for further proceedings.

 

 AMENDMENT 821. The Northern District of Indiana granted an 821 motion in United States v. David Hardin, 2024 U.S. Dist. LEXIS 93259 (N.D. Ind. May 20, 2024). Hardin plead guilty to armed bank robbery (Count 1), 18 USC 2113(a), and using/discharging a firearm in furtherance of that crime (Count 2), 924(c). He was sentenced to 355 months. Defendant was eligible under Part A of Amendment 821. Sentence reduced to 210-months.

 

APPEAL/SENTENCE. The First Circuit vacated and remanded for resentencing United States v. Nathan Reardon, 2024 U.S. App. LEXIS 12460 (1st Cir. May 23, 2024). Nathan Reardon who had been self-employed for 24 years was convicted of bank fraud after submitting fraudulent applications for loans under the Paycheck Protection Program (PPP), a financial assistance program enacted by Congress in response to the economic fallout of the COVID-19 pandemic. Reardon used several of his businesses to submit the fraudulent applications and misused the funds from the approved loan. He was sentenced to twenty months and three years of supervised release. As part of his sentence the district court imposed a special condition prohibiting Reardon from all forms of self-employment during his supervised release term. Reardon appealed this special condition arguing that it was overly restrictive and unnecessary. The Government suggested a "middle ground" where the condition could be modified to avoid a total prohibition against self-employment but the district court overruled Reardon's objection and imposed the self-employment ban without explaining why it was the minimum restriction necessary to protect the public as required by the U.S. Sentencing Guidelines.

The First Circuit found that while the district court was justified in imposing an occupational restriction, it did not provide sufficient explanation for why a total ban on self-employment was the minimum restriction necessary to protect the public. The court therefore vacated the self-employment ban and remanded the case for reconsideration of the scope of that restriction.

 

APPEAL/SEARCH. The Tenth Circuit reversed and remanded United States v. Corban Elmore, 2024 U.S. App. LEXIS 12144(10th Cir. May 21, 2014). In this case law enforcement officers responded to a drug overdose at the home of Corban Elmore. After securing the scene and prohibiting anyone from entering the house, the officers waited almost eight hours before applying for a search warrant. Once they had a warrant they searched Elmore’s home and discovered two firearms in his bedroom. Elmore, a convicted felon entered a conditional guilty plea to being a felon in possession of a firearm and appealed the denial of his motion to suppress the firearms. The District of Colorado denied Elmore's motion to suppress the firearms finding no Fourth Amendment violation. The court determined that the officers reasonably seized Elmore’s home because they had probable cause to believe the home contained evidence of drug possession and had good reason to fear that evidence would be destroyed before they could secure a search warrant. The court also concluded that the officers acted reasonably throughout the seizure finding it appropriate for them to prohibit anyone from entering the home and to delay obtaining a warrant so that the lead detective could focus on his investigation. The Tenth Circuit reversed the lower court's decision. The appellate court held that the eight-hour seizure of Elmore’s home was unreasonable under the Fourth Amendment and that the exclusionary rule required suppression of the firearms. The court found that the officers made no effort to reconcile their law-enforcement needs with Elmore’s Fourth Amendment interests in his home and extended the seizure longer than reasonably necessary to diligently secure a warrant. The court remanded the case for further proceedings.

 

APPEAL/BRADY. The Ninth Circuit affirmed the sanctioning of the Government for withholding Brady material in United States v. James Cloud, 2024 U.S. App. LEXIS 12160 (9th Cir. May 21, 2024). This case involves the Government's appeal against a district court's order to pay monetary sanctions for failing to disclose information that suggested its key witness in a criminal trial was willing to shape her testimony in exchange for certain benefits. The case arose from a five-body homicide trial where the Government's star witness, Esmeralda, was willing to alter her testimony for benefits. The defense learned about this not from the Government, but from Esmeralda's counsel. The district court found that the Government's failure to disclose this information violated the defendant's due process rights under Brady v. Maryland, and imposed sanctions on the Government. The district court's order was appealed by the Government before the final judgment was issued in the underlying criminal case. The Ninth Circuit affirmed the district court's order holding that it had appellate jurisdiction under 28 USC 1291 because the sanctions order satisfied the elements of the collateral-order doctrine. On the merits the court found that the Government had suppressed evidence and that suppression was material under Brady. The court held that the district court's decision to exclude the testimony and impose sanctions was not an abuse of discretion. The court also held that the district court did not violate the Government's sovereign immunity by imposing monetary sanctions under an exercise of its supervisory powers.

 

APPEAL/1983/EIGHTH AMENDMENT. The Sixth Circuit reversed and remanded Timothy Finley v. Huss, 2024 U.S. App. LEXIS 12289 (6th Cir. May 22, 2924) Timothy Finley is serving a Michigan prison sentence while suffering from severe psychiatric disorders. Over several weeks in 2016, Finley’s mental health hit a breaking point: he repeatedly cut himself with—and swallowed—multiple

razorblades. At the same time, his persistent misconduct made him difficult to manage. Eventually, prison officials placed Finley in a heavily restrictive cell in administrative segregation and kept him there for approximately three months. Finley now challenges that decision. He brought this action under 42 USC 1983, alleging violations of the Eighth Amendment and his right to procedural due process. He also included disability-discrimination claims under the Americans with Disabilities Act and the Rehabilitation Act. Finley targets two prison decisionmakers. Erica Huss, the deputy warden, assigned Finley to administrative segregation. Then Sarah Schroeder, who temporarily served as deputy warden during Huss’s leave of absence, kept Finley in administrative segregation for months. Both officials knew about Finley’s serious mental-health problems and repeated instances of self-harm. In addition, Huss made her decision despite a warning from Finley’s mental- healthcare provider that solitary confinement was likely to worsen his mental health. And Schroeder failed to carry out the mental-healthcare provider’s request that Finley be promptly transferred to a treatment program. In the process, both deputy wardens likely violated Michigan’s correctional policies about mentally ill inmates in solitary confinement. The district court granted summary judgment to Huss and Schroeder on all claims. The court agreed that summary judgment was warranted for Finley’s procedural due process and statutory discrimination claims. But summary judgment was improper for Finley’s Eighth Amendment claim because he presented evidence sufficient to find that the deputy wardens violated his clearly established rights. The court affirmed in part, reversed in part, and remanded for further proceedings.

 

APPEAL/IMMIGRATION. The Eleventh Circuit vacated and remanded in Marken Leger v. U.S. Attorney General, 2024 U.S. App. LEXIS 12119 (11th Cir. May 20, 2024). The case involves Marken Leger who is a Haitian citizen who has lived in the United States as an asylee since 2000. In 2009, Leger pleaded no contest to a charge of lewd and lascivious battery, in violation of Florida Statute 800.04(4). In 2013 and 2018, Leger pleaded no contest to two other offenses, both for the possession of marijuana in violation of Florida Statute 893.13(6)(b). The Government initiated removal proceedings against him in 2019 alleging that his convictions made him removable under the Immigration and Nationality Act (INA). The immigration judge concluded that Leger was removable, finding that his marijuana possession convictions constituted controlled substance offenses under the INA and that his conviction under Florida Statute 800.04(4) was an aggravated felony. Leger appealed to the Board of Immigration Appeals (BIA) which affirmed the immigration judge’s decision. The court held that Leger's marijuana possession convictions did not constitute controlled substance offenses as defined under federal law, and thus, the BIA erred in determining that Leger was subject to removal on these grounds. The court also held that Leger's conviction under Florida Statute 800.04(4) did not constitute the sexual abuse of a minor and was not an aggravated felony under the INA. The court vacated the BIA's decision and remanded the case for further proceedings.

 

APPEAL/IMMIGRATION. The First Circuit vacated and remanded Edwin Tulung v. Garland, 2024 U.S. App. LEXIS 12179 (1st Cir. May 21, 2024). The case involves an Indonesian family, Edwin Kurniawan Tulung, Elizabeth Angelia Karauwan, and their son Enrico Geraldwin Tulung, who fled to the United States in 2004 due to fear of persecution for their Christian faith. They entered the U.S. on tourist visas and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Their application was denied by an Immigration Judge in 2009, a decision affirmed by the Board of Immigration Appeals (BIA) in 2011 on the grounds that past harm did not rise to the level of persecution and future persecution was not sufficiently likely. The family's petition for review was denied in 2012. The family filed their first motion to reopen based on changed country conditions in 2014, which was denied by the BIA. They did not appeal. In 2020, they filed their second motion to reopen, which was also denied by the BIA. Again, they did not seek judicial review. Instead, they filed three motions in 2022: a third motion to reopen, a motion to reconsider the denial of the second motion to reopen, and a motion to amend the second motion to reopen. The BIA denied all three motions. The First Circuit affirmed the BIA's denial of the motions to reconsider and amend. However, it found that the BIA committed an error of law in reviewing the motion to reopen. The court held that the BIA incorrectly disregarded evidence by comparing it to conditions at the time of the previous motion to reopen, rather than at the time of the original merits hearing. The court vacated the BIA's denial of the motion to reopen and remanded for further proceedings.

 

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