top of page

SAMARITAN NEWSLETTER – 06-18- 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. 


APPEAL/CR.RIS/REVERSAL. The Second Circuit reversed the Southern District of New York’s decision in United States v. Joe Fernandez, 2024 U.S. App. LEXIS 14133 (2d Cir. June 11, 2024). This case involves the Government's appeal against a decision by the Southern District of New York. The lower court granted federal prisoner Joe Fernandez's motion for a sentence reduction pursuant to 18 USC 3582(c)(1)(A), reducing his sentence to time served and ordering his release. The court based its decision on two grounds: Fernandez's possible innocence due to the questionable credibility of the Government's key witness, and the fact that Fernandez received a far longer sentence than his co-defendants. The Government argued on appeal that the district court had abused its discretion. It contended that potential innocence is never a permissible "extraordinary and compelling reason" for a sentence reduction under 18 USC 3582(c)(1)(A), and Fernandez's sentencing disparity is not an "extraordinary and compelling reason" for a sentence reduction in this case. The Second Circuit agreed with the Government's arguments. It held that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez raised, irrespective of whether his mandatory life sentence is unjust. The court reversed the judgment of the district court.


APPEAL/CR.RIS/SEAL. The Fifth Circuit vacated and remanded United States v. Arturo Enrique Ochoa, 2024 U.S. App. LEXIS 14072 (5th Cir. June 10, 2024). Ochoa plead guilty, pursuant to a written plea agreement to one count of production of child pornography and one count of distribution of child pornography. In July 2022, Ochoa filed a motion for a sentence reduction under 18 USC 3582(c)(1)(A). He also filed a motion to seal all filings and records related to his motion including the final order. In the alternative, he requested "that any judgment be published using only his initials or a surname, but not his full name." He argued that "revelation of his charges by his case [being] published [could] potentially place him in immediate physical danger." The Government filed, under seal, a response in opposition to the motion for compassionate release, and Ochoa filed a sealed reply. In Oct. 2022, the district court denied the motion for a sentence reduction and the motion to seal in a single order. United States v. Ochoa, 2022 WL 5265150, at *1-6, 2022 U.S. Dist. LEXIS 183144 (S.D. Tex. Oct. 6, 2022) (unpublished). Explaining its decision to deny Ochoa's motion for a sentence reduction the district court primarily reasoned that the seriousness of his offenses weighed against granting the motion. This discussion highlighted a number of the more reprehensible aspects of the offense conduct described in Ochoa's Pre-Sentence Investigation Report (PSR). In contrast, the order provides no reasons for denying Ochoa's request that the district court's ruling be sealed or, alternatively, include only his initials or surname, rather than his whole name. Four months later, in Feb. 2023, Ochoa filed a renewed motion to seal again asking the district court to seal the Oct. 2022 order denying his motion for a sentence reduction and to remove it from the LexisNexis electronic law library available to BOP inmates. In April 2023, the district court denied the motion in a one-sentence order stating: After carefully considering [Ochoa's motion, the Government's response, and Ochoa's reply], the Court concluded that Ochoa's Renewed Motion to Seal 10/06/22 Order should be and is hereby denied. The BOP has the ability to restrict inmate access to unsealed court orders (that otherwise are available to inmates via LexisNexis) without authorization from the issuing court. The district court's failure to provide sufficient reasons to enable the court to review its April 19, 2023, decision constitutes an abuse of discretion. Accordingly, for the foregoing reasons, the court vacated the district court's April 19, 2023, order and remanded the case for further proceedings consistent with this opinion.


CR/RIS/STACKING/1B1.13(b)(6). The District of Maryland granted in part a CR.RIS motion in United States v. John Legrand, 2024 U.S. Dist. LEXIS 103282 (D. Md. June 11, 2024). Legrand is a 60-year-old federal prisoner serving a 480-month sentence for his participation in a trio of armed robberies that took place in Jan. 2008. Now pending is Legrand's motion for compassionate release pursuant to 18 USC 3582(c)(1)(A). Legrand has spent the past 14-years (of his forty-year sentence) in prison and asks the court to reduce his sentence to time served. The motion was granted in part and denied in part. Legrand's sentence was reduced to 258 months. Legrand's primary argument for compassionate release centers on a change in the law requiring mandatory minimum sentences for violations of Section 924(c)(1). He also raised arguments related to the difference between his sentence and his codefendant’s five years. Finally, he contended that the threat of COVID-19 presents a severe health risk to him because he is medically vulnerable. The court considered each of these reasons independently before considering whether they collectively establish extraordinary and compelling reasons for compassionate release. Section 1B1.13(b)(6) establishes that an extraordinary and compelling circumstance exists when four factors are present: (1) the defendant "received an unusually long sentence"; (2) a change in the law "would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed"; (3) the defendant "has served at least 10 years of the term of imprisonment"; and (4) "full consideration of the defendant's individualized circumstances" supports finding extraordinary and compelling circumstances. USSG 1B1.13(b)(6).


CR.RIS/MEDICAL. The Eastern District of New York granted a CR.RIS motion in United States v. Christian Griffin, 2024 U.S. Dist. LEXIS 102127 (E.D. N.Y. June 10, 2024). Christian Griffin was convicted of Hobbs Act Robbery in violation of 18 USC 1951(a), in 2017 in the Middle District of North Carolina. The court sentenced him to 70 months in custody, followed by a three-year term of supervised release. In Sept. 2022, this Court accepted transfer of jurisdiction over this case for purposes of overseeing Griffin's supervised release. On Jan. 24, 2023 — during his supervised release term — Griffin was arrested in Massachusetts after an organized and extensive shoplifting spree. He ultimately plead guilty to Charges One, Two, and Three of the Violation of Supervised Release, acknowledging his state convictions for conspiracy, receiving stolen property, and shoplifting by asportation in violation of Massachusetts General Law. On Feb.21, 2024, this Court sentenced Griffin to 90 days in custody for the violations to be followed by a new eighteen-month term of supervised release. This was a below-Guidelines sentence. Griffin surrendered to incarceration on April 8, 2024, and his scheduled release date is June 23, meaning that fewer than 15 days remain. He argued that release is appropriate for two primary reasons. First, he asserted that he was seriously injured in a violent attack while incarcerated at the MDC, and that the facility has since afforded inadequate follow-up care. Second, Griffin's stepfather recently passed away, and his funeral is imminent. Griffin's medical needs and family circumstances present extraordinary and compelling reasons for early release. The combination of the severe injuries that Griffin sustained while incarcerated at the MDC, the facility's failure to provide follow-up care according to his prescribed treatment plan, and the added restrictions placed on him in the SHU amount to extraordinary and compelling reasons for granting the modest two-week modification of his sentence. Sentence reduced to time served.


APPEAL/2254/BATSON. The Tenth Circuit remanded Alonzo Johnson v. Rankins, 2024 U.S. App. LEXIS 14126 (10th Cir. June 11, 2024). This case involves Alonzo Cortez Johnson, a state prisoner who petitioned for federal habeas relief under 28 USC 2254. Johnson, a Black man, claimed that his constitutional rights were violated because the state court failed to follow the appropriate procedural steps under Batson v. Kentucky, which prohibits racial discrimination in jury selection. Johnson alleged that the prosecutor had exercised peremptory strikes based on race. The Tenth Circuit agreed that the state court had mishandled the Batson procedural framework and remanded the case to the district court to hold a Batson reconstruction hearing, unless doing so would be impossible or unsatisfactory. On remand, the district court granted Johnson conditional habeas relief, deciding that holding a Batson reconstruction hearing would be “both impossible and unsatisfactory.” The court reasoned that it could not sufficiently reconstruct all relevant circumstances to meaningfully apply Batson’s third step, which involves determining whether the prosecutor’s stated reasons for the strikes were actually a pretext for discrimination. The Tenth Circuit disagreed with the district court's decision. The court found that the district court had enough evidence to hold a Batson reconstruction hearing at step two, which involves the prosecution providing a race-neutral reason for the objected-to strike(s). The court concluded that the district court had applied the “impossible or unsatisfactory” standard too harshly and remanded the case back to the district court to hold a Batson reconstruction hearing.


AMENDMENT 821. The Southern District of New York granted an 821 motion in United States v. Theofrastos Lymberatos, 2024 U.S. Dist. LEXIS 103274 (S.D. N.Y. June 11, 2024). Lymberatos moved for a reduction in his sentence to 41 months pursuant to 18 USC 3582(c)(2). On June 2, 2021, Lymberatos plead guilty to one count of conspiracy to commit wire and bank fraud in violation of 18 U 1349. He has zero criminal history points. The defendant’s sentence was reduced to 41-months.


AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Griffin Ferguson, 2024 U.S. Dist. LEXIS 104544 (E.D. Tenn. June 12, 2024). On Feb. 23, 2022, the defendant plead guilty to one count of conspiracy to distribute 50 grams or more of methamphetamine in violation of 21 USC 846, 841(a)(1) and (b)(1)(A). The Court sentenced the defendant above the guideline range to a term of 135 months. Defendant received two status points for committing the offense while under a criminal justice sentence. The defendant’s sentence was reduced to 130-months.




APPEAL/RESENTENCE. The Tenth Circuit reversed and remanded for resentencing United States v. Steven Venjohn, 2024 U.S. App. LEXIS 14022 (10th Cir. June 10, 2024). Steven Robert Venjohn plead guilty to being a felon in possession of a firearm in violation of 18 USC 922(g). The district court sentenced him to 41 months imprisonment, considering his prior conviction for Colorado felony menacing as a "crime of violence" under USSG 4B1.2(a)(1). This classification increased his sentencing range. Venjohn appealed arguing that the district court's ruling improperly inflated his sentencing range. The district court's decision was based on the probation officer's calculation in the presentence investigation report. The officer found that Venjohn's previous conviction for Colorado felony menacing qualified as a 4B1.2(a) "crime of violence" and increased his base offense level accordingly. The district court agreed with this assessment and sentenced Venjohn to 41 months imprisonment. The Tenth Circuit reversed the district court's decision. The appellate court held that in light of the Supreme Court's recent decision in United States v. Taylor, Colorado’s felony menacing no longer categorically qualifies as a "crime of violence" under the Sentencing Guidelines. The court found that the district court's characterization of Venjohn's prior conviction as a "crime of violence" and the subsequent enhancement of his sentence was an error. The court concluded that this error was plain under current federal law and Colorado law. Therefore, the court reversed the district court's decision and remanded the case for resentencing.


APPEAL/RESENTENCE. The Eleventh Circuit reversed and remanded for resentencing United Stats v. Michael Hester, 2024 U.S. App. LEXIS 14051 (11th Cir. June 19, 2024). Hester appealed his 262-month sentence for conspiracy to distribute heroin. He moved for summary reversal and the Government did not oppose the motion. Because the district court plainly erred in sentencing him as a career offender when he was convicted only of an inchoate offense, the court granted

Hester’s motion and vacated his sentence and remanded for resentencing. The court has previously held that a defendant’s “conviction for conspiracy to possess with intent to distribute heroin and cocaine” was “not a controlled substance offense.”


APPEAL/REHAIF. The Fourth Circuit reversed and remanded United States v. Randy Banks, 2024 U.S. App. LEXIS 14273 (4th Cir. June 12, 2024). Five members and associates of a Baltimore-based gang (Murdaland Mafia Piru) appealed multiple components of their convictions and sentences. As discussed below, because Shakeen Davis two felon-in-possession convictions were obtained in violation of Rehaif v. United States, 588 U.S. 225 (2019), the court reversed those convictions and remanded for entry of a corrected judgment. As for all the other challenged convictions and sentences, the court affirmed. This trial took place before the Supreme Court issued its decision in Rehaif, so neither the district court nor the parties had the benefit of that ruling, which “brought a sea change to [§ 922(g)(1)] cases.” In Rehaif, the Supreme Court held that the statutory term “knowingly” applied to the defendant’s conduct and status. 588 U.S. at 229. And as had been the situation in so many cases brought before Rehaif was decided, the jury here was not specifically instructed that the Government had to come forward with proof that those defendants charged with a 18 USC 922(g)(1) offense knew that they fell within a class prohibited from possessing firearms. The Government moved to dismiss Anderson’s 922(g)(1) conviction after Rehaif, it did not do the same with respect to Davis’ two 922(g)(1) convictions. Nonetheless, at sentencing, the Government noted the possibility that Davis 922(g)(1) convictions may be reversed on appeal in light of Rehaif, and it asked the district court to specify whether it would have imposed the same sentence for Davis convictions on the other counts regardless of whether his 922(g)(1) convictions were later reversed on appeal. The district court readily agreed to do so, stating that it would impose the same sentence, irrespective of any Rehaif error as to Davis 922(g)(1) convictions. The court reviewed the nature of Davis remaining convictions and the district court’s

explanation at sentencing for the sentence it imposed, the court concluded that this statement adequately addresses the basis for Davis sentence and eliminates the need for resentencing.


APPEAL/JURY INSTRUCTIONS/RUAN. The Fourth Circuit vacated and remanded United States v. Ronald Hargrave, 2024 U.S. App. LEXIS 14271

 (4th Cir. June 12, 2024). A jury convicted Ronald P. Hargrave, a former physician, of seven counts of unlawfully distributing a controlled substance in violation of 21 USC 841(a)(1), (b)(1)(C). On appeal, Hargrave challenged the district court’s jury instructions, the sufficiency of the evidence, and the exclusion of one of his proposed witness’s testimony. The court affirmed Hargrave’s convictions on Counts 1 through 3, vacated his convictions on Counts 4 through 7, and remanded for further proceedings. Hargrave relied on the Supreme Court’s decision in Ruan v. United States, 597 U.S. 450 (2022), to argue that the district court’s jury instructions were erroneous because they applied an objective, rather than subjective, standard to the requirement that Hargrave’s actions were outside the scope of a professional medical practice. The Government argued that Hargrave invited any error by proposing some of the language in the jury’s instructions. Alternatively, the Government contends that plain-error review applies. The court disagreed with the Government on invited error but agreed on plain error. In Ruan, the Supreme Court held that 841’s “knowingly or intentionally” mens rea applies to the “[e]xcept as authorized” clause of the statute. 597 U.S. at 454, 468. Thus, when a defendant shows that he is authorized to issue prescriptions for controlled substances, “the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” This is a subjective, rather than objective, inquiry. The Government cannot meet its burden by proving that the physician lacked objective good faith in issuing the prescriptions.


APPEAL/ACQUITTAL/REVERSED. The Eighth Circuit reversed and remanded United States v. Gabriel Lemoine, 2024 U.S. App. LEXIS 14345 (8th Cir. June 13, 2024). Gabriel Eduardo Lemoine and co-defendant Manuel Martinez were indicted on charges related to drug trafficking including conspiracy to distribute methamphetamine and cocaine, distribution of methamphetamine, and possession with intent to distribute methamphetamine and cocaine. Lemoine and Martinez had moved to Minnesota together, rented apartments and storage units, and were implicated in drug trafficking activities by a confidential informant. Lemoine, however, testified that he was unaware of Martinez's illegal activities. The district court granted Lemoine's motion for acquittal on the conspiracy charge, finding insufficient evidence to prove Lemoine's awareness or involvement in drug trafficking. The court narrowly rejected Lemoine's motion for acquittal on the remaining aiding and abetting counts. The jury found Lemoine guilty on three of the four counts, acquitting him on one charge of aiding and abetting possession with intent to distribute methamphetamine. Lemoine renewed his motion for judgment of acquittal and moved for a new trial after the jury verdict. The district court granted his motion for judgment of acquittal, finding no direct evidence that Lemoine knowingly aided in drug trafficking, and conditionally granted a new trial if its order of acquittal was overturned on appeal. The Eighth Circuit reversed the district court's judgment of acquittal, finding that the district court had impermissibly reweighed the evidence and given Lemoine's testimony more weight than the inferences and evidence supporting the jury's verdict. The court found sufficient evidence for a jury to find Lemoine had constructive possession of the drugs located in the storage units. However, the court affirmed the district court's grant of a new trial, finding that the district court did not clearly or manifestly abuse its discretion in finding that a miscarriage of justice may have occurred. The case was remanded for further proceedings.


APPEAL/1983/DELIBERATE INDIFFERENCE. The Eleventh Circuit vacated and remanded Cleveland Dunn v. Commissioner, Georgia Department of Corrections, 2024 U.S. App. LEXIS 14155 (11th Cir. June 11, 2024). Cleveland Dunn appealed the district court’s grant of the defendants motion for judgment on the pleadings in this 42 USC 1983 civil-rights action for deliberate indifference to Dunn’s serious medical needs. After careful review, and for the reasons described below, the court vacated and remanded for further proceedings. Dunn suffered multiple facial fractures and other injuries during a violent attack by his cellmate at Calhoun State Prison in Sept. 2011. Following the attack, Calhoun’s medical director, Dr. Dwayne Ayers, referred Dunn to doctors at Georgia Correctional Healthcare (“Healthcare”), a partnership between the Georgia Department of Corrections (“GDC”) and Augusta University to provide medical care to inmates. In October 2011, a Healthcare doctor ordered facial reconstruction surgery which GDC’s medical director, Dr. Sharon Lewis, approved soon after. Then, in Nov. 2011, GCHC’s dental director, Dr. Mark Stevens, examined Dunn and he ordered

oral surgery to repair fractures in Dunn’s jaw. Although the surgeries were ordered and approved nothing was scheduled. When Dunn submitted grievances about the lack of treatment, prison officials confirmed that the surgeries had been ordered but stated he needed to keep waiting. As he waited, he continued to experience extreme pain and migraines from the untreated fractures in his face and jaw. Then, during a 2013 visit with Dr. Stevens, Dunn learned that his injuries had healed improperly and that he would need expensive braces along with surgery. Dunn requested that the oral surgery be performed, but Dr. Stevens claimed he had not yet received an order for surgery, contradicting what Dunn’s medical file stated at the time. Dr. Stevens also indicated that Healthcare was unlikely to approve the procedure due to its expense.


27 views0 comments

Recent Posts

See All

SAMARITAN NEWSLETTER – 06-22-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 attorneytnorridnews@gmail.com The SAMARITAN-PROJECTS prepares post-conviction and compassionat

SAMARITAN NEWSLETTER – 07-15-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 attorneytnorridnews@gmail.com The SAMARITAN-PROJECTS prepares post-conviction and compassionat

SAMARITAN NEWSLETTER – 07-08-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 attorneytnorridnews@gmail.com The SAMARITAN-PROJECTS prepares post-conviction and compassionat

Comments


bottom of page