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SAMARITAN NEWSLETTER - 07-03-2024

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.

 

CR.RIS/MEDICAL/DISPARITY/REHABILITATION/1B1.13(b)(6). The Eastern District of Pennsylvania granted a CR.RIS motion in United States v. Sunni Ali, 2024 U.S. Dist. LEXIS 111244 (E.D. Pa. June 25, 2024), On Feb. 4, 2008, Ali pled guilty to one count of conspiracy to interfere with interstate commerce by robbery in violation of 18 USC 1951(a), three counts of interference with interstate commerce by robbery in violation of 18 USC 1951(a), and three counts of using and carrying a firearm during and in relation to a crime of violence in violation of 18 USC 924(c). These charges stem from three armed robberies of restaurants committed from January to April of 2005. Ali was sentenced to 32-years. He has served approximately 17-years and has credit for good conduct time of approximately 29-months, for a total time of approximately 19-1/2 years of his sentence completed. The Government acknowledged Ali has an excellent disciplinary record with no infractions, despite his lengthy incarceration, and that he has remained entirely drug-free. Ali has complied with his inmate financial responsibility plan by having money deducted monthly from his prison account. He is 63-years old. Ali sought relief under 1B1.13(b)(1) and (b)(6)—which he claimed constitute extraordinary and compelling reasons for his release. He suffers from thyroid disease and high blood pressure for which he receives medication. He contracted COVID-19 on at least two occasions and, given his age of 63 and underlying health conditions faces substantial risks and exacerbated symptoms. BOP medical records reveal Ali has hypertension, prediabetes, spinal stenosis, and disorder of the thyroid. The court found 1B1.13(b)(6) of the Sentencing Guidelines aligns with Congressional statements set forth in Section 403(b) of the First Step Act, 18 USC 3582(c)(1)(A)(i), and 28 USC 994(t). Keeping in mind that each motion for compassionate release requires an individualized assessment of all attendant facts, the court found that, in this particular case, Ali had established extraordinary and compelling circumstances. Defendant’s sentence was reduced to 21-years.

 

CR.RIS/STACKING/DISPARITY/VIRUS. The Eastern District of Virginia granted a CR.RIS motion in Larry Reed v. United States, 2024 U.S. Dist. LEXIS 111026 (E.D. Va. June 24, 2024). On May 10, 1996, Reed was named in a superseding indictment alleging his involvement in a "crack" cocaine distribution conspiracy. On Sept. 9, 1996, after a jury trial he was found guilty of the following offenses: Count 1: Conspiracy to Distribute Marijuana, Cocaine, and 50 grams or more of "Crack" Cocaine in violation of 21 USC 846 and 841(a)(1) and (b)(1)(A) (statutory penalty range of 10 years to life); Counts 8 and 9: Distribution or Possession with the Intent to Distribute 50 or more grams of "Crack" Cocaine in violation of 21 USC 841(a)(1) (10 years to life); Counts 7 and 12-19: Distribution or Possession with the Intent to Distribute 5 or more grams of "Crack" Cocaine in violation of 21 USC 841(a)(1) (5 to 40 years); Counts 10 and 11: Distribution or Possession with the Intent to Distribute Cocaine or "Crack" Cocaine in violation of 21 USC 841(a)(1) and (b)(1)(C) (0 to 20 years); Count 20: Use or Carry a Firearm while Trafficking in Illegal Drugs in violation of 18 UDC 924(c)(1) (5 years consecutive); Count 21: Use or Carry a Firearm while Trafficking in Illegal Drugs in violation of 18 USC 924(c)(1) (20 years consecutive). The PSR attributed 2.7 kilograms of crack cocaine to Reed over the course of the conspiracy. On Jan. 17, 1997, Reed was sentenced as follows: Count 1: life in prison; Counts 8-9: life in prison, both to run concurrently with all other counts; Counts 7 and 12-19: 480 months in prison, both to run concurrently with all other counts; Counts 10-11: 240 months in prison, both to run concurrently with all other counts; Count 20: 60 months in prison, to be served consecutively; Count 21: 240 months in prison to be served consecutively. Reed has served approximately 27- years in prison. USSG 1B1.13 is now an "applicable" policy statement under 3582(c)(1)(A), and the Court must ensure that a sentence reduction granted under 3582(c)(1)(A) is "consistent with" that Guideline. Reed argued extraordinary and compelling circumstances exist for two reasons. First, his sentence is unusually long and grossly disparate from the sentence he would receive today for his conduct. Second, his underlying health conditions and the conditions at FCI Butner II put him at risk of severe illness from COVID-19. Reed argued his age, underlying medical conditions, and FCI Butner II's inability to effectively manage his underlying conditions placed him at severe risk of illness from the COVID-19 virus, constituting extraordinary and compelling reasons to warrant compassionate release. He is 54 years old and suffers from high blood pressure, hypertensive heart disease with left ventricle hypertrophy ("LVH"), type II diabetes or prediabetes, hyperlipidemia, obesity, and hypertension. The Court found that extraordinary and compelling circumstances exist to warrant a sentence reduction because 924(c) stacking added 15 years to his term of imprisonment that he would not face if sentenced at the time of his motion. Sentence reduced to 600-months.

 

CR.RIS/DISPARITY. The Southern District of Florida granted in part a CR.RIS motion in United States v. Richard Daniel, 2024 U.S. Dist. LEXIS 110543 (S.D. Fla. June 24, 2024). Defendant was convicted on Feb. 26, 2004, of eight total counts: one count of conspiracy to deal in firearms; one count of conspiracy to distribute a controlled substance; two counts of distribution of cocaine base; one count of distribution of marijuana; and three counts of possessing a firearm in furtherance of drug trafficking. On Aug. 31, 2006, defendant was sentenced to 720 months (60 months each for Counts 1-3, 5, and 7, to be served concurrently; 60 months for Count 4; and 300 months each for Counts 6 and 8, to be served consecutively). Defendant has served nearly 22-years and moved for a reduction of his sentence to time served or, alternatively, 240 months. He argued he is eligible for such a reduction under two recently enacted Sentencing Guidelines from the United States Sentencing Commission: USSG 1B1.13(b)(5) and (6). The Court agreed defendant is eligible for relief. The newly enacted Sentencing Guidelines, each of which went into effect after the Court last ruled on defendant's first request for a sentence reduction. The first, USSG 1B1.13(b)(5), is a broadly phrased provision allowing for a sentence reduction because of "any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described [in the provision,] are similar in gravity to those [reasons]." The second, USSG 1B1.13(b)(6), allows for a sentence reduction where a defendant "received an unusually long sentence" (as defendant argued he has) and has "served at least 10 years of the term of imprisonment" (as defendant has). 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." Because the Court concluded defendant is eligible for relief under this section, it did not address the arguments as to section 1B1.13(b)(5). The language of the Sentencing Guidelines clearly directs the Court to consider whether a defendant "is [] a danger to the safety of any other person or to the community[.]" USSG 1B1.13(a)(2). While the violent nature of a defendant's conviction may be probative of whether he or she might still be a danger to the community, the entirety of the Government's argument here is "[b]ased on defendant's offense characteristics[.] The Court is not persuaded defendant's offenses, which occurred over 20 years ago, can alone support a finding that defendant is so dangerous today as to be ineligible for a sentence reduction. The defendant was will be resentence at a later date.

 

CR.RIS/DISPARITY/REHABILITATION. The District of Maryland granted a CR.RIS motion in United States v. Calvin Savoy, 2024 U.S. Dist. LEXIS 110121 (D. Md. June 21, 2024). In Oct. 2006, a jury convicted Savoy of (1) conspiring to distribute 50 grams or more of cocaine base (more familiarly known as crack cocaine) in violation of 21 USC 846, and (2) using a firearm in furtherance of a drug-trafficking crime in violation of 18 USC 924(c)(1)(A). In Jan. 2007, the defendant was sentenced to life in prison, without parole, on the 846 conviction—which was the then-applicable mandatory minimum sentence under 21 USC 841(b)(1)(A)—plus ten years for the 924(c) conviction. The evidence showed that Savoy shot an Anne Arundel County police officer named William Hicks in the early morning hours of Sept. 11, 2004. As to the 924(c) charge the Fourth Circuit found that there was "no evidence establishing that the shooting of Officer Hicks occurred in relation to the drug conspiracy." A newly amended Sentencing Guidelines policy statement went into effect in Nov. 2023, and provides criteria for determining whether extraordinary and compelling reasons for release exist. USSG 1B1.13(b). The Guidelines provide that extraordinary and compelling reasons for release may be present when (1) the defendant is serving "an unusually long sentence," (2) he has served at least 10 years of that sentence, (3) there has been a subsequent change in the law (other than a non-retroactive Sentencing Guidelines amendment) such that there exists "a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed," and (4) the Court has given "full consideration of the defendant's individualized circumstances." 1B1.13(b)(6). Additionally, the Guidelines contain a catchall provision, 1B1.13(b)(5), that confers discretion on district courts to consider other extraordinary and compelling reasons for release. The Court considered the disparity between the sentence Savoy received and those of his co-defendants. While a substantial difference in sentence is appropriate given the differences in circumstances among these codefendants, the extent of the disparity between Savoy's sentence and those of his codefendants is excessive. The Court considered evidence of Savoy's rehabilitation. Savoy has never once committed an act of violence, and he has not committed even a minor infraction in almost five years. Although Savoy's disciplinary record is not spotless, his post-sentencing behavior, taken as a whole, suggests that he has developed a level of maturity and responsibility that was lacking when he committed the underlying offense and was first sentenced. The Court found there to be extraordinary and compelling reasons for a reduction in Savoy's sentence. Defendant’s sentence was reduced from life to 360-months.

 

AMENDMENT 821, The District of North Dakota granted a 821 motion in United States v. Stedman Dixon, 2024 U.S. Dist. LEXIS 111939 (D. N.D. June 25, 2024). On April 7, 2021, the defendant was charged in a multi-count indictment alleging narcotic offenses. On April 11, 2023, a combined plea and sentence hearing was held at which the defendant pled guilty to conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 USC 846. The Court sentenced the defendant to 84-months of imprisonment. Defendant committed the instant offense while under a criminal justice sentence. Defendant’s sentence was reduced to 79-months.

 

APPEAL/2254/60(b). The Fourth Circuit vacated and remanded Julia Gorman v. Warden Patricia Yedell, 2024 U.S. App. LEXIS 15355 (4th Cir. June 25, 2024). Julia Shawnette Gorman appealed the district court’s order denying Gorman’s Fed.

R.Civ.P. 60(b) motion for relief from judgment in her 28 USC 2254 proceeding. “[A] Rule 60(b) motion in a habeas proceeding that attacks ‘the substance of the federal court’s resolution of a claim on the merits’ is not a true Rule 60(b) motion, but rather a successive habeas petition,” and is subject to the preauthorization requirement of 28 USC 2244(b)(3)(A). By contrast, “[a] Rule 60(b) motion that challenges ‘some defect in the integrity of the federal habeas proceedings’ . . . is a true Rule 60(b) motion, and is not subject to the preauthorization requirement.” Where the movant “presents claims subject to the requirements for successive applications as well as claims cognizable under Rule 60(b),” such a pleading is a mixed true Rule 60(b) motion/successive 2254 petition. In her Rule 60(b) motion, Gorman sought a remedy for a perceived flaw in her 2254 proceeding and raised direct attacks on her conviction. Thus, Gorman’s pleading was a mixed Rule 60(b) motion 2254 petition. The district court did not afford Gorman the opportunity to elect between deleting her successive 2254 claims or having her entire motion treated as a successive 2254 petition. The court therefore granted a certificate of appealability, vacated the district court’s order, and remanded for further proceedings.

 

APPEAL/2254/IAC. The Ninth Circuit reversed Katie Garding v. Montana Department of Corrections, 2024 U.S. App. LEXIS 15775 (9th Cir. June 28, 2024). The case involves Katie Garding, who was convicted by a Montana jury of vehicular homicide while under the influence, failure to stop immediately at the scene of an accident involving an injured person, and driving without a valid driver’s license. Garding filed a habeas petition arguing that her counsel was ineffective for not hiring an accident reconstruction expert and the prosecution violated her rights by not disclosing certain evidence. The Montana Supreme Court rejected Garding's arguments. It held her counsel's decision not to hire an accident reconstruction expert was within the wide range of professionally competent assistance. The court also found the state had not suppressed evidence concerning x-rays of the victim and Garding did not show that the non-disclosure of photos from a different car crash was material. Garding sought federal habeas relief. The District of Montana partially granted and partially denied her petition. It held there was ineffective assistance of counsel but denied the Brady claims. The Ninth Circuit affirmed the district court’s order denying Garding’s Brady claims and reversed its grant of Garding’s ineffective-assistance-of-counsel claim. The court held the Montana Supreme Court reasonably determined that Garding’s trial counsel was not constitutionally deficient and her Brady claims lacked merit.

 

APPEAL/SUPERVISED RELEASE. The Seventh Circuit remanded United States v. Jason Smith, 2024 U.S. App. LEXIS 14673 (7th Cir. June 27, 2024). In June 2022, Jason Smith began serving a three-year term of supervised release after completing a 147-month sentence for federal drug and firearms offenses. Smith struggled to comply with the conditions of release. Just six days after his release from prison he tested positive for marijuana. Smith explained to his probation officer he had used marijuana heavily while in prison and agreed to the imposition of an additional condition of supervised release mandating his participation in a substance abuse treatment program. He completed a substance abuse assessment and enrolled in a relapse prevention program. But Smith, who was either unable or unwilling to kick the habit failed additional drug tests on July 25, November 4, and December 5 and missed a drug test the following February. Given the district court’s complete inattention to the Nov. 4 drug charge—and the fact Smith’s pattern of drug abuse was established by three other violations that withstand scrutiny on appeal—the court found it inconceivable that the Nov. 4 drug charge factored into Smith’s sentence. Any error was harmless. Smith lodged two additional arguments. First, he points out that his revocation judgment erroneously stated he was found guilty of fleeing the police in violation of Michigan law a violation the Government opted not to pursue. He then suggests the district court at sentencing may have considered this violation in fashioning his sentence. The sentencing transcript makes it abundantly clear the district court labored under no such misimpression. Before pronouncing sentence the district court twice recognized that the Michigan felony was not before it. (“[T]he government indicated at the outset of hearing that it was withdrawing” the Michigan and Ohio felonies);  (finding five violations, including the Indiana offense, but not the Michigan offense). It is clear the error did not affect Smith’s sentence. Nonetheless, the court instructed the district court to correct the judgment to accurately reflect the basis for Smith’s revocation. Finally, Smith asked the court to remand with instructions directing the district court to follow through on a promise it made at sentencing to recommend placement at a facility equipped to treat his colon cancer. The court cannot do so. The court lacks jurisdiction to make non-binding recommendations of this sort. For these reasons, the court affirmed and remanded with instructions the district court strike the Michigan felony from Smith’s revocation judgment.

 

APPEAL/JURY TRIAL/SUPERVISED RELEASE VIOLATION. The Seventh Circuit denied a jury trial to a supervised release violation in United States v. Seldrick Carpenter, 2024 U.S. App. LEXIS 14672 (7th Cir. June 27, 2024). The United States Constitution guarantees criminal defendants the right to a jury trial in two places. Section 2 of Article III provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” And, for its part, the Sixth Amendment promises that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” This case presents the question whether a supervised release revocation proceeding held under 18 USC 3583(e)(3) constitutes the “trial of [a] crime” or a “criminal prosecution” within the meaning of either clause. Agreeing with the district court the court held that it does not.

 

APPEAL/SENTENCE ENHANCEMENT. The Seventh Circuit vacated and remanded United States v. Travis Montgomery, 2024 U.S. App. LEXIS 15289 (7th Cir. June 24, 2024). Montgomery plead guilty to distributing methamphetamine. The Government presented evidence that Montgomery stored drugs, cash, and drug trafficking paraphernalia in a storage unit leased by his sister. The district court applied a two-level enhancement under USSG 2D1.1(b)(12) of the United States Sentencing Guidelines, which requires an increase where a defendant “maintained a premises for the purpose of … distributing a controlled substance.” Montgomery objected to this enhancement, arguing his use of the storage unit did not meet the requirements of the enhancement. The district court found that the storage unit qualified as a “premises” under 2D1.1(b)(12), and Montgomery had used it primarily for storing and distributing drugs. This enhancement increased Montgomery’s total offense level, leading to a sentence of 235 months. On appeal Montgomery challenged the application of the 2D1.1(b)(12) enhancement. The court agreed with the district court that the storage unit constituted a “premises” under the enhancement. However, the court was uncertain whether Montgomery sufficiently “maintained” the storage unit for the purposes of 2D1.1(b)(12), given that he did not lease the unit himself and his use of it was for only a short time. The court found that the record fell short of indicating that Montgomery was using the storage unit primarily for distributing drugs during the month in question. he court vacated the judgment and remanded the case for further fact-finding.

 

APPEAL/SENTENCE. The Eighth Circuit vacated and remanded United States v. Jonathan Sutton, 2024 U.S. App. LEXIS 15478 (8th Cir. June 26, 2024). Jonathan Lee Sutton was convicted for unlawful possession of a firearm by a felon violating 18 USC 922(g)(1). The case arose from two shooting incidents in Davenport, Iowa, where Sutton was identified as the shooter. Sutton was associated with a Tesla vehicle which was found abandoned with ammunition visible. A subsequent search of the vehicle revealed a pistol, ammunition, and receipts for the firearm's recent purchase. Sutton, a previous felon, was indicted for unlawful possession of a firearm and plead guilty. The district court imposed three sex-offender-related special conditions of supervised release based on allegations that Sutton had committed incest. The Government claimed the presentence investigation report (PSR) omitted this incestuous relationship. The probation office declined to amend the PSR stating that the Government's objections were commentary in nature. The court expressed concern over the allegations and imposed the special conditions offering Sutton an "escape valve" if he could prove he did not father a child incestuously. The Eighth Circuit found the district court had abused its discretion. The court had used a probable cause standard instead of the preponderance of the evidence standard for judicial fact-finding at sentencing. The court's factual findings about Sutton's alleged incest and paternity were not supported by the sentencing record. The court also improperly shifted the burden of proof from the Government to Sutton. The court vacated the sex-offender-related special conditions and remanded the case.

 

APPEAL/JAILHOUSE RATS. The Ninth Circuit affirmed Christopher Grimes v. Phillips, 2024 U.S. App. LEXIS 15503 (9th Cir. June 26, 2024). Law enforcement is not required to give Miranda warnings to a suspect before placing them in a jail cell with an undercover informant. The court held because the Supreme Court has never squarely addressed whether the Fifth Amendment precludes an undercover jailhouse informant posing as an inmate to question an incarcerated suspect who has previously invoked his right to counsel. The Supreme Court in Illinois v. Perkins, 496 U.S. 292 (1990), held the policy underlying Miranda is not implicated when a suspect makes statements to an individual they believe to be a fellow inmate.

 

APPEAL/SENTENCE. The Third Circuit remanded United States v. Anthony D’Ambrosio, 2024 U.S. App. LEXIS 15492 (3d Cir. June 26, 2024). Between 2012 and 2015, Anthony D’Ambrosio and Armando Delgado were involved in a sex trafficking ring that operated across several states. They were responsible for transporting victims, collecting money, providing security, and supplying drugs to the victims. In 2015, a federal grand jury indicted them, and in 2017, a jury convicted them of several crimes, including sex trafficking of children and transportation of an individual to engage in prostitution. As part of their sentences, the District Court required them to comply with the Sex Offender Registration and Notification Act (SORNA) as a condition of their supervised release. Delgado objected to the SORNA registration requirement at his sentencing arguing that his offenses did not require SORNA registration. The District Court acknowledged that it was unclear whether the SORNA requirement applied to Delgado’s offenses and delegated the determination to the Probation office. Delgado appealed this decision but the Court of Appeals affirmed the District Court's decision stating that the District Court did not impose any SORNA requirement. However, following his direct appeal, Probation required Delgado to register under SORNA. Delgado challenged this condition but the District Court denied his motion, stating that it lacked jurisdiction to consider his legal challenge. D’Ambrosio, on the other hand, did not object to the SORNA registration requirement at his sentencing. The District Court required D’Ambrosio to comply with SORNA as a condition of his supervised release. D’Ambrosio first challenged the SORNA requirement in a motion to modify which the District Court denied on the grounds of lacking jurisdiction. The Third Circuit reversed the District Court's decisions. The Court of Appeals held the District Court erred in delegating its responsibility to determine the applicability of SORNA to the Probation office and in concluding it lacked jurisdiction to consider the defendants' motions to modify the conditions of their supervised release. The case was remanded for further proceedings.

 

APPEAL/SENTENCE. The Fourth Circuit remanded United States v. Chad Bartley, 2024 U.S. App. LEXIS 15679 (4th Cir. June 27, 2024). In 2009, Chad Dewayne Bartley plead guilty to possession with intent to distribute oxycodone (Count 1) and possession of a firearm in relation to a drug trafficking crime (Count 4). The district court sentenced him to 78 months. Just over three years after Bartley’s release from prison the probation officer filed a revocation petition alleging Bartley had committed several new crimes while on supervised release. The district court revoked Bartley’s supervised release and sentenced him to 24 months as to Count 1, and 60-months as to Count 4. Bartley appealed his revocation sentence asserting the district court relied too heavily on the seriousness of his new criminal conduct. Also he claimed the court lacked jurisdiction to impose the 24-month prison term. The court affirmed in part, vacated in part, and remanded. “[A] district court may not impose a revocation sentence based predominately on the seriousness of the releasee’s violation . . . .” However, the court may consider, “to a limited degree, the seriousness of the underlying violation,” as long as the sentence “sanction[s] primarily the defendant’s breach of [the court’s] trust.” Because Bartley did not contest the court’s sentencing explanation below, the court reviewed for plain error. Bartley argued—and the Government conceded—the 24-month revocation sentence must be vacated because Count 1’s term of supervised release had expired at the time the revocation petition was filed. The court agreed. The court affirmed the revocation judgment as to Count 4, vacated the revocation judgment as to Count 1, and remanded so the district court may enter an amended revocation judgment.

 

APPEAL/WITHDRAW PLEA. The Ninth Circuit vacated and remanded United States v. Vladimir Hernandez, 2024 U.S. App. LEXIS 15779 (9th Cir. June 28, 2024). Hernandez plead guilty to felony meth distribution charges. As part of his plea, Hernandez agreed to provide the Government with all the information he knew about the crime in exchange for a potential lower sentence under the safety-valve sentencing provision. However, after entering his plea, Hernandez learned that other inmates might retaliate against him for his cooperation with the Government. He then sought to withdraw his guilty plea, arguing he would not have agreed to the plea deal if he had known about the potential danger in prison. The district court denied Hernandez's motion to withdraw his plea. The court accepted Hernandez did not know about the potential danger at the time of his plea and his request to withdraw was made in good faith. The court concluded Hernandez could avoid the consequences of the safety-valve proffer by not proffering, and thus his concerns were not "fair and just" reasons for withdrawal. The Ninth Circuit vacated the district court's order and remanded the case. The appellate court held a defendant must first offer in good faith a "new" basis for seeking to withdraw his plea, meaning that he subjectively did not know this "new" reason for withdrawal at the time of his plea. He then must show that objectively he could not have known or anticipated this "new" material reason. The appellate court found that the district court did not err in concluding that Hernandez offered in good faith a subjectively new basis for withdrawing his plea. However, the district court did not decide whether objectively Hernandez could have known about or anticipated this new and material reason for withdrawing the plea. The appellate court remanded the case for the district court to decide that issue

 

APPEAL/BREACH PLEA AGREEMENT, The Third Circuit vacated and remanded United States v. Luis Davis, 2024 U.S. App. LEXIS 15614 (3d Cir. June 27, 2024). In Sept. 2017, Luis Davis, Joel Rivera, and Chriss Cepeda broke into the home of Stephen O’Dea and Kathryn Duncan on the island of Saint Croix. The intruders physically assaulted the couple, threatened them with a gun, and stole their money and vehicle. Davis was later indicted on twelve counts, including brandishing a firearm during a violent crime, carjacking, and being a felon in possession of a firearm. Davis plead guilty to these three counts in exchange for the Government dismissing the remaining counts and recommending a sentence at the low end of the Sentencing Guidelines range (87 to 108 months). The District Court determined the applicable Guidelines sentence for brandishing a firearm was the statutory minimum of 84 months and the Guidelines range for the carjacking and felon-in-possession counts was 87 to 108 months. At sentencing, Davis’s counsel presented mitigating evidence regarding his client’s abusive childhood, intellectual disabilities, drug addiction, and the negative influence of his adopted brother. The Government emphasized the heinous nature of Davis’s crimes and the harm suffered by the victims. Davis’s counsel objected claiming the Government’s position sounded like a breach of the plea agreement. The District Court sentenced Davis to 102 months on the carjacking and felon-in-possession counts in addition to the statutory minimum of 84-months for brandishing a firearm. Davis appealed. The Third Circuit agreed with Davis the Government breached the plea agreement. The court found the Government's emphasis on the heinous nature of Davis's crimes and the harm suffered by the victims effectively advocated for a sentence higher than the one it promised to recommend. The court vacated the sentence and remanded the case for resentencing.

 

APPEAL/STATUTE OF LIMITATIONS. The Ninth Circuit reversed and remanded United States v. Jeffrey Page, 2024 U.S. App. LEXIS 15505 (9th Cir. June 26, 2024). The case revolves around a clerical error by the Internal Revenue Service (IRS) that resulted in a taxpayer receiving a tax refund check significantly larger than he was entitled to. Page returned only a portion of the excess refund, prompting the Government to sue under 26 USC 7405 to recover the outstanding balance. Page did not respond to the lawsuit, leading the Government to move for default judgment. The district court denied the motion and dismissed the complaint as untimely arguing the two-year limitations period began when Page received the refund check. The Ninth Circuit disagreed with the district court's interpretation of when the two-year limitations period began. The appellate court held that the limitations period to sue to recover an erroneous refund starts on the date the erroneous refund check clears the Federal Reserve and payment to the taxpayer is authorized by the Treasury. As Page's refund check cleared less than two years before the Government sued, the appellate court held the complaint was timely and the district court erred by dismissing it. The appellate court noted the district court had improperly shifted the burden to the Government to prove at the pleading stage its claim against Page was timely. The case was reversed and remanded for further proceedings.

 

APPEAL/JAILHOUSE RATS. The Ninth Circuit affirmed Christopher Grimes v. Phillips, 2024 U.S. App. LEXIS 15503 (9th Cir. June 26, 2024). Law enforcement is not required to give Miranda warnings to a suspect before placing them in a jail cell with an undercover informant. The court held because the Supreme Court has never squarely addressed whether the Fifth Amendment precludes an undercover jailhouse informant posing as an inmate to question an incarcerated suspect who has previously invoked his right to counsel. The Supreme Court in Illinois v. Perkins, 496 U.S. 292 (1990), held the policy underlying Miranda is not implicated when a suspect makes statements to an individual they believe to be a fellow inmate.

 

APPEAL/1983/FOURTH AND EIGHTH AMENDMENT. The Fourth Circuit vacated and remanded Thomas Alexander v. Sergeant Connor, 2024 U.S. App. LEXIS 15232 (4th Cir. June 24, 2024). The case involves an incarcerated individual who alleged two correctional officers violated his Fourth and Eighth Amendment rights by forcibly removing a contraband phone from his rectum in a prison shower. The officers claimed that they found the phone in Alexander's pocket and used no more force than necessary. The incident was partially captured on video but the footage did not conclusively resolve the dispute over where the phone was located. The Eastern District of North Carolina granted summary judgment in favor of the officers. The court relied on the video footage, concluding that it discredited Alexander's version of events to such an extent that no reasonable jury could have believed him. On appeal the Fourth Circuit vacated the lower court's decision and remanded the case for further proceedings. The appellate court found the video did not clearly depict what happened in the shower room and did not blatantly contradict Alexander's account. The court held the district court should have credited Alexander's version of events when considering the officers summary judgment motion. The appellate court concluded that viewing the evidence in the light most favorable to Alexander, a reasonable jury could find that the officers violated Alexander's Fourth and Eighth Amendment rights.

 

APPEAL/1983/EVIDENTIARY HEARING. The Seventh Circuit reversed and remanded Raymond Jackson v. Esser, 2024 U.S. App. LEXIS 15534 (7th Cir. June 26, 2024). Raynard Jackson is a prisoner at the Wisconsin Secure Program Facility who was placed in a cell without running water for five days. He alleged Lt. Dane Esser, among other WSPF staff, knew he did not have water and yet failed to turn the water on. After Jackson showed another staff member he did not have water, the water was promptly turned on; he claimed Lt. Esser and other WSPF staff failed to provide him with medical care for his dehydration. Jackson filed grievances pertaining to these issues. After he exhausted his administrative remedies within the WSPF, he sued Lt. Esser and other WSPF staff under 42 USC 1983 for violating his Eighth and Fourteenth Amendment rights. The district court only considered the processed grievances without holding an evidentiary hearing found Jackson had not exhausted his administrative remedies as to certain claims. Additional defendants, Nurse Beth Edge and Captain Dale Flannery, were dismissed at summary judgment, leaving only the claims against Lt. Esser for trial. The jury found for Lt. Esser on both claims. The Seventh Circuit agreed with Jackson the district court should not have disregarded his allegedly unprocessed grievances without holding an evidentiary hearing. The court found no error in the district court’s conclusion Jackson’s processed grievances did not exhaust remedies as to all his claims. The court found no error in the district court’s grant of summary judgment to Nurse Edge or its evidentiary rulings before trial. The court affirmed in part, reversed in part, and remanded for a hearing on the unprocessed grievances.

 

APPEAL/1983, The Sixth Circuit reversed and remanded Michael Kitchen v. Whitmer, 2024 U.S. App. LEXIS 15831 (6th Cir. June 28, 2024). In 1987, Michael Kitchen, a 17-year-old was sentenced to forty-two to sixty years in prison by a Michigan state court for his involvement in a home invasion. Under Michigan law, Kitchen is not eligible for parole until he completes his minimum sentence which means he will not be considered for parole until he is nearly sixty. Kitchen filed a pro se 42 USC 1983 suit challenging the statute against Michigan’s governor, the Department of Corrections Director, and the chair of the Parole Board. He alleged Michigan’s parole statute violates his Eighth Amendment rights because it effectively keeps him in prison for life without parole. The district court sided with Kitchen. The district court agreed with Kitchen and ruled against Defendants in an opinion and order on August 16, 2019. The court concluded that despite the “legal and factual support” for Defendants’ position, “Kitchen is not required to bring his federal constitutional claims via a petition for a writ of habeas corpus,” and he could pursue them under 1983. The district court rejected Defendant Heck’s argument. The Heck issue was not litigated any further. The Sixth Circuit disagreed with the district court's decision. The court held Kitchen's claim, if successful, would necessarily imply the invalidity of his sentence. Therefore, his claim must be brought through habeas corpus not 1983. The court reversed the district court's decision and remanded the case for further proceedings.

 

APPEAL/IMMIGRATION. The Ninth Circuit remanded Gerson Manzano v. Garland, 2024 U.S. App. LEXIS 15345 (9th Cir. June 25, 2024). The case involves Gerson Eduardo Alfaro Manzano a native and citizen of El Salvador who fled to the United States after being persecuted for his Jehovah's Witness faith. In El Salvador, Alfaro Manzano preached to the youth of his hometown to dissuade them from joining gangs. This led to him being attacked, threatened, and nearly killed by gang members. He sought asylum in the United States arguing that his faith would be a central reason for his persecution in El Salvador. The immigration judge (IJ) granted Alfaro Manzano withholding of removal but denied asylum finding that his religion would be "a reason" for his persecution but not "one central reason" sufficient for asylum eligibility. The Board of Immigration Appeals affirmed the IJ's decision concluding the gang's desire to increase its wealth and power was the primary reason for targeting Alfaro Manzano, while religion provided only an incidental or subordinate reason. The Ninth Circuit disagreed with the lower courts decisions. The court held the record compelled the conclusion that Alfaro Manzano's faith would be "one central reason" for his persecution. The court clarified that a motive can be a central reason if it, standing alone, would lead the persecutors to harm the individual. The court found that even in the absence of the gang's desire to extort him, Alfaro Manzano's religion, standing alone, would lead the persecutors to harm him. The court remanded the case for the Attorney General to exercise his discretion in determining whether to grant Alfaro Manzano asylum.

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