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SAMARITAN NEWSLETTER – 06-10-2024

Updated: Jun 12

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.

 

CR.RIS/FAMILY DEATH. The Southern District of California granted a CR.RIS motion in United States v. Bicentennial Poutoa, 2024 U.S. Dist. LEXIS 98392 (S.D. Calif. June 3, 2024). The Court found that the death of Poutoa's brother and the importance of participating in the culturally significant period of mourning and planning the funeral ceremony constitute extraordinary and compelling circumstances. On Jan. 23, 2017, defendant plead guilty to an indictment charging her with possession with intent to distribute 5 grams or more of methamphetamine in violation 21 USC 841(a)(1) On Jan. 23, 2017, the Court sentenced defendant to 110-months in custody, and four years of supervised release. Poutoa was released from custody on April 6, 2023, and arrested for violations of her supervised release on Feb. 13, 2024. The defendant admitted to changing her residence without notifying the Probation Officer. The Court acknowledged Poutoa's troubling history of non-compliance on supervised release and her admitted gang-affiliation at the time of her original sentence. The defendant’s sentence was reduced to time served.

 

AMENDMENT 821. The Eastern District of Virginia granted an 821 motion in United States v. Andre Suitte, 2024 U.S. Dist. LEXIS 98555 (E.D. Va. June 3, 2024). On March 3, 2020, Suittewas charged in a one-count indictment for Possession of a Firearm by a Convicted Felon in violation of 18 USC 922(g)(1). On Oct. 26, 2020, the Court sentenced Suitte to 96 months. Amendment 821 reduced Suitte's criminal-history points to 9, which in turn reduced his recommended guidelines range to 70-87 months at offense level of 23. The defendant’s sentence was reduced to 84-months.

 

APPEAL/3582(c)(2)/AMENDMENT 821. The Fourth Circuit vacated and remanded

United States v. Darryl Wright, 2024 U.S. App. LEXIS 13916 (4th Cir. June 6, 2024). Darryl Antonio Wright appealed the district court's order construing his sentence reduction motion as a motion for compassionate release under 18 USC 3582(c)(1)(A)(i), and dismissing it without prejudice for failure to exhaust administrative remedies. Wright also appealed the court's order denying his motion for reconsideration. The record disclosed Wright filed his motion pursuant to 18 USC 3582(c)(2), which does not require exhaustion, and he sought relief based upon U.S. Sentencing Guidelines Manual 4A1.1. Accordingly, the court vacated the district court's orders and remanded with instructions to consider Wright's motion under 18 USC 3582(c)(2). Vacated and remanded.

 

2255/924(c)/ATTEMPT BANK ROBBERY. The Eastern District of Pennsylvania granted in part a 2255 motion in United States v. Eric Humbert, 2024 U.S. Dist. LEXIS 101486 (E.D. Pa. June 7, 2024). The defendant was convicted on several counts in connection with two bank robberies and one attempted bank robbery. Presently before the Court are his motions under 28 USC 2255 seeking to vacate two convictions under 18 USC 924(c) for using or carrying a firearm during a "crime of violence." Section 924(c) defines "crime of violence" in two ways: the so-called "elements clause" and the so-called "residual clause." Recent Supreme Court decisions have held that the residual clause is unconstitutional, so convictions under 924(c) must satisfy the elements clause to remain valid. The "crime(s) of violence" that defendant's 924(c) convictions were predicated on were one count of armed bank robbery and one count of attempted armed bank robbery both in violation of 18 USC 2113(d). Armed bank robbery satisfies the elements clause but attempted armed bank robbery does not. Accordingly, the court upheld defendant's 924(c) conviction that is predicated on his armed bank robbery conviction but the court vacated his other 924(c) that is predicated on his attempted armed bank robbery conviction. The Court recently interpreted a case which dictated that attempted armed bank robbery is not a crime of violence under 924(c). United States v. Gordon, 2024 U.S. Dist. LEXIS 66220, 2024 WL 1585919, at *2-4 (E.D. Pa. Apr. 11, 2024). The Third Circuit applied the common law definition of attempt to rob a band under 18 USC 2113 in two unpublished cases. United States v. Sawyer, 39 Fed. Appx. 785, 787 (3d Cir. 2002) (stating that "[a]n attempt conviction in this case requires that [defendants] acted with the intent to commit armed bank robbery and took a substantial step toward carrying out that intent" and upholding the defendants' convictions under 924(c) that were predicated on attempted armed bank robbery under 2113(d)); United States v. McLaughllin, 82 Fed. Appx. 741, 744 (3d Cir. 2003) (same).

 

APPEAL/2254. The Seventh Circuit reversed the grant of a 2254 motion in David Lewicki v. Emerson, 2024 U.S. App. LEXIS 13305 (7th Cir. June 3, 2024). David Lewicki was part of a group that attempted to rob Humberto Pelayo, resulting in Pelayo suffering permanent injuries. Lewicki claimed he did not inflict the injuries and had tried to protect Pelayo. However, the jury found him guilty of attempted robbery causing serious bodily injury, and he was sentenced to 65 years in prison as a habitual offender. Lewicki's conviction and sentence were affirmed by the state courts. Lewicki then sought federal relief arguing that his appellate lawyer had been ineffective for not arguing that his Sixth Amendment right to a speedy trial had been violated. The district court agreed and issued a conditional writ of habeas corpus. The court found that Lewicki's lawyer's failure to raise the speedy trial argument amounted to ineffective assistance of counsel. However, the court did not find that Indiana had violated the Speedy Trial Clause. Instead, it ordered Indiana to release Lewicki unless it provided him with a new appeal. The Seventh Circuit reversed the district court's decision. The appellate court found that the district court had erred in granting relief based on ineffective assistance of counsel without finding that Lewicki had been prejudiced by his lawyer's failure to raise the speedy trial argument. The court explained that ineffective assistance of counsel requires both deficient performance and prejudice. The court also found that Lewicki did not have a strong speedy-trial claim. Despite a nearly three-year delay between his charge and trial the court found that Lewicki had not shown prejudice from the delay. The court noted that Lewicki's own lawyer had proposed multiple continuances and Lewicki had not shown that evidence was lostor memories faded due to the delay. The court also noted that little of Lewicki's time in custody could be attributed to the delayed trial of the attempted-robbery charge. Therefore, the court reversed the district court's decision and upheld Lewicki's conviction and sentence.

 

APPEAL/RESENTENCE. The First Circuit remanded for resentencing United States v. Yavier Mojica-Ramos, 2024 U.S. App. LEXIS 13794 (1st Cir. June 6, 2024). Yavier Mojica-Ramos was on supervised release after serving a five-year sentence for possession of a firearm in furtherance of drug trafficking. In 2020 when he was arrested for unlawfully possessing two modified machine guns which were discovered when police officers were enforcing a COVID-19 mask mandate. Mojica entered into a plea agreement in 2021, promising to plead guilty to the unlawful possession charge. The agreement required both parties to request a sentence within the guidelines range which later calculated as thirty-seven to forty-six months. The Government filed a sentencing memorandum requesting an upper-end guidelines sentence of forty-six months and attached photos and a video from Mojica's cellphone as evidence of his involvement in other criminal behavior. Mojica filed a motion to compel specific performance of the plea agreement alleging that the Government breached the agreement by advocating for an upwardly variant sentence. The district court denied Mojica's motion. The district court imposed an upwardly variant seventy-two-month sentence for the unlawful possession charge, rejecting the parties' recommendations for a guidelines sentence. Immediately following this the court held a supervised release revocation hearing and issued a sixty-month statutory maximum revocation sentence to run consecutively to Mojica's unlawful possession sentence. The First Circuit found that the prosecutor's sentencing advocacy did not conform to the meticulous standards of performance required by Mojica's entrance into the plea agreement. The court vacated Mojica's sentences for unlawful possession and revocation and remanded the cases for resentencing before a different judge.

 

APPEAL/ACCA. The Fourth Circuit vacated and remanded for resentencing United States v. Zavien Canada, 2024 U.S. App. LEXIS 13271 (4th Cir. June 3, 2024). Zavien Lenoy Canada was convicted of violating 18 USC 922(g)(1) which is commonly known as a "felon-in-possession" offense. On appeal, Canada made two arguments: (1) that Section 922(g)(1) is facially unconstitutional and (2) that the district court erred in imposing an enhanced sentence under the Armed Career Criminal Act (ACCA). The District of South Carolina had previously convicted Canada and imposed an enhanced sentence under the ACCA. The district court identified three previous convictions, one of which was for criminal domestic violence under South Carolina law, as the basis for the enhanced sentence. The Fourth Circuit rejected Canada's assertion that Section 922(g)(1) is facially unconstitutional. The court stated that the law has a "plainly legitimate sweep" and can be constitutionally applied in some circumstances. However, the court agreed with Canada's second argument and ruled that the district court erred in sentencing Canada pursuant to the ACCA. The court noted that one of the three convictions identified by the district court, criminal domestic violence, does not constitute a violent felony under the ACCA according to recent decisions. Therefore, the court vacated the district court's judgment and remanded the case for resentencing.

 

APPEAL/REVOCATION/RESTITUTION. The Eleventh Circuit vacated and remanded United States v. Scott Goldstein, 2024 U.S. App. LEXIS 13624 (11th Cir. June 5, 2024). Goldstein appealed his sentence of four months’ imprisonment imposed following the district court’s revocation of his supervised release under 18 USX 3583(e)(3). On appeal, Goldstein argued the district court violated his equal protection and due process rights by conditioning his freedom on his ability to pay restitution without inquiring as to why he did not pay. Second, he argued that the court imposed a substantively unreasonable sentence by giving impermissibly significant weight to his inability to pay restitution. Third, he argued that the court plainly erred by not allowing him to allocute before announcing its sentence. The court agreed with Goldstein that the district court failed to make the required inquiry into the reason for Goldstein’s nonpayment. He court vacated and remanded the case for resenencing.

 

APPEAL/1983/FOURTH AMENDMENT. The Fourth Circuit remanded Caron Nazario v. Gutierrez, 2024 U.S. App. LEXIS 13116 (4th Cir. May 31, 2024). The case involves an appeal by Caron Nazario, an Army officer, against a judgment following a jury trial in the Eastern District of Virginia. Nazario claimed he was mistreated by police officers Joe Gutierrez and Daniel Crocker during a traffic stop. The district court ruled that the officers had probable cause to arrest Nazario for three Virginia misdemeanor offenses, which Nazario contended was an error. This error, according to Nazario, resulted in the court incorrectly awarding the officers qualified immunity on three of his constitutional claims and improperly instructing the jury on probable cause. The Fourth Circuit affirmed most of the judgment but reversed the court’s award of qualified immunity to defendant Gutierrez on Nazario’s Fourth Amendment claim for an unreasonable seizure. The court found that the officers had probable cause for a traffic infraction and a misdemeanor obstruction of justice, but not for the misdemeanor offenses of “eluding” or “failure to obey a conservator of the peace.” The court also ruled that Gutierrez's death threats against Nazario were a clear violation of the Fourth Amendment, and thus, he was not entitled to qualified immunity on the unreasonable seizure claim. The case was remanded for further proceedings.

 

APPEAL/IMMIGRATION. The Second Circuit reversed Carol Black v. Decker, 2024 U.S. App. LEXIS 13100 (2d Cir. May 31, 2024). This case involves two legal permanent residents, Carol Williams Black and Keisy G.M., who were detained by the Government for several months without a bond hearing under the authority of 8 USC 1226(c), pending the conclusion of their separate removal proceedings. Black and G.M. each sought habeas relief asserting that their prolonged detentions without any bond hearing violated their Fifth Amendment rights to due process. The district court granted Black's petition and he was released while G.M.'s petition was denied. The court concluded that the constitutional guarantee of due process precludes a noncitizen’s unreasonably prolonged detention under section 1226(c) without a bond hearing. The court affirmed the district court’s judgment granting habeas relief to Black concluding that the district court properly required the Government to show the necessity of his continued detention by clear and convincing evidence. As to G.M., the court concluded that his detention had become unreasonably prolonged and reversed the district court’s judgment denying habeas relief.

 

APPEAL/IMMIGRATION. The Second Circuit remanded Aleksandra Stankiewicz v. Garland, 2024 U.S. App. LEXIS 13099 (2d Cir. May 31, 2024). The case revolves around Aleksandra Malgorzata Stankiewicz a lawful permanent resident of the United States who was convicted in 2003 for violating a New Jersey statute that criminalizes distributing a controlled substance on or near school property. In 2018 removal proceedings were initiated against her with the immigration judge and the Board of Immigration Appeals concluding her conviction was an aggravated felony making her both removable and ineligible to apply for cancellation of removal. The BIA dismissed Stankiewicz's appeal maintaining its reasoning that her conviction was an aggravated felony. Stankiewicz petitioned the Second Circuit for review of the BIA's decision. The Second Circuit held Stankiewicz's conviction under the New Jersey statute is not an "aggravated felony" under federal law. The court applied the "categorical approach," comparing the state law to any federal controlled substance offense that is a felony subject to a prison sentence greater than one year. The court found that neither of the parties' proposed federal analogs categorically matches the New Jersey statute. The court granted Stankiewicz's petition for review and vacated the agency’s ruling and remanded the case for further proceedings.

 

APPEAL/IMMIGRATION. The Sixth Circuit remanded Evelio Ruiz Lafita v. Garland, 2024 U.S. App. LEXIS 13963 (6th Cir. June 7, 2024). Evelio Ruiz Lafita is a native and citizen of Cuba who petitioned the Court to review a decision of the Board of Immigration Appeals (“BIA”). This BIA decision affirmed an order of the Immigration Judge (“IJ”) which denied Petitioner’s motion to reopen proceedings related to his Convention Against Torture (“CAT”) claim due to changed conditions in Cuba. In addition, the BIA denied Ruiz Lafita’smotion to remand to present additional new evidence to the IJ. On appeal, Ruiz Lafita argued that the BIA declined to consider key new evidence and did not meaningfully review his motion to remand. The court granted Ruiz Lafita’s petition for review in part and remanded to the BIA for further explanation.

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