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SAMARITAN NEWSLETTER – 07-08-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

 

 

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. The Western District of Washington granted a CR.RIS motion in United States v. Michael Wood, 2024 U.S. Dist. LEXIS 114681 (W.D. Wash. June 28, 2024). The defendant has significant medical needs and requires a placement at a BOP medical facility. Since his last motion, the Warden of FCI-Victorville, where defendant currently resides indicated his support for defendant's compassionate release. As a result, the defendant has renewed his motion which the Court stayed consideration of to provide the Bureau of Prisons ("BOP") a final opportunity to transfer the defendant to a medical facility. Nevertheless, the BOP has failed to transfer the defendant and still provides the Court with no timeline for when it might do so. The motion for compassionate release was granted. Defendant's remaining term of incarceration shall be converted to that of supervised release, with the same conditions the Court applied in its original judgment.

 

CR.RIS/FAMILY CIRCUMSTANCES. The District of New Mexico granted a CR.RIS motion in United States v. Carlos Davenport, 2024 U.S. Dist. LEXIS 115042 (D. N.M. June 28, 2024).Carlos Davenport sought compassionate release pursuant to 18 USC 3582(c)(1)(A)(i). To support his motion for compassionate release Davenport cited his family circumstances in that his mother and two disabled brothers are in medical crises as extraordinary and compelling circumstances warranting his early release. The Court granted Davenport's request reducing his term of imprisonment to time served. Davenport argued primarily that he should be released because of his family circumstances. Davenport's mother, Hortencia Davenport, is the sole caretaker of Davenports two adult brothers, Lupe, aged sixty-one, and Arturo, aged fifty-two, who both suffer from developmental disabilities which give them the mental functioning of approximately twelve years old. His brothers are both six-feet tall and weigh over two-hundred and fifty pounds and Mrs. Davenport has to physically assist them with all aspects of their daily lives, in addition to constantly driving her sons to doctors' appointments and to pick up their medication. Mrs. Davenport is now seventy-four years old and is in declining health. Davenport argued that he is the only available caregiver for his two brothers and his mother post-surgery.

 

APPEAL/CR.RIS/APPEAL BOND. The Sixth Circuit granted release in an appeal wherein the Government appealed the grant of a CR.RIS motion in United States v. Jason Bricker, 2024 U.S. App. LEXIS 15572 (6th Cir. June 26, 2024). In an appeal from an order granting defendant compassionate release from his 294-month sentence the defendant stated a case for release pending appeal because defendant had less than 23 months remaining of his original 294-month sentence and pursuant to Fed.R.App.P. 23, that defendant may serve time in custody beyond his sentence appeared exceptional when he would not be subject to immediate release. Apart from Fed.R.App.P. 23, courts have inherent authority to order a defendant's release. When exercising its authority to stay the release of a prevailing post-conviction petitioner seeking release pending appeal, the reviewing court applies the general standards for staying a civil judgment. Under this standard, the party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion. The court considers four factors in determining whether to grant a stay: (1) whether the movant has a strong likelihood of success on appeal; (2) whether the movant will be irreparably harmed absent a stay; (3) whether a stay will substantially injury other interested parties; and (4) where the public interest lies. The first two factors are the most critical, and the last two factors merge when the Government is the opposing party. The Government's alternative arguments don't change that conclusion. It first contends that the Commission's recent amendment, if valid, wouldn't apply to Bricker's situation. But the Government acknowledges that it must overcome the deferential plain-error standard of review to prevail on that unpreserved argument. It also asserts that the district court miscalculated Bricker's purported 16-year sentencing disparity, and that the actual disparity—about ten years—cannot qualify as an extraordinary and compelling basis for relief. Even assuming that argument is adequately preserved, however, some courts have applied the new amendment to grant motions to reduce sentences for ten-year disparities. United States v. Garcia, 2024 U.S. Dist. LEXIS 73250, 2024 WL 1661120, at 1, 2 (M.D. Tenn. Apr. 16, 2024). And the Government's final argument—that the district court erred in balancing the 18 USC 3553(a) factors—faces a steep hill given the "substantial discretion" the court affords sentencing courts in that task. See United States v. Wright, 991 F.3d 717, 719 (6th Cir. 2021) (citation omitted). Thus, when viewed in conjunction with the harms, the factors on balance support Bricker's release. Cf. Hilton, 481 U.S. at 778 (permitting custody to continue when the Government "establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, . . . if the second and fourth factors in the traditional stay analysis militate against release"). The motion for release pending appeal was granted. The court ordered no extensions of time to the briefing schedule will be granted absent extraordinary circumstances, and the Clerk was directed to expedite submission of the case upon the completion of briefing.

 

APPEAL/2255/EVIDENTIARY HEARING. The Fourth Circuit vacated and remanded United States v. Willie Slocum, 2024 U.S. App. LEXIS 15985 (4th Cir. July 1, 2024). Willie Slocum, Jr. appealed the district court’s denial of his 28 USC 2255 motion to correct, vacate or set aside his convictions and sentences based on ineffective assistance of counsel. Slocum was indicted on two counts of drug conspiracy under 21 USC 846, but Slocum argued that the two charged conspiracies were really one. Insisting that he was punished twice for the same conspiracy in violation of the Fifth Amendment’s Double Jeopardy Clause, Slocum argued that his trial counsel rendered ineffective assistance by failing to raise a double jeopardy challenge before the trial court. While not dispositive, Slocum’s ineffective assistance claim invited the court to consider whether Slocum was put in double jeopardy in the first place. The district court determined that he was not. In fact, the district court declined to hold an evidentiary hearing on Slocum’s claim and denied his motion without ordering a response from the Government. But conducting a factual inquiry guided by the “totality of the circumstances” test from United States v. MacDougall, 790 F.2d 1135 (4th Cir. 1986), and our multiple conspiracy case law, Slocum was punished twice for a single conspiracy in violation of the Double Jeopardy Clause. Still, whether trial counsel had a strategic reason for failing to raise a double jeopardy challenge it is unclear on this record. Slocum is entitled to an evidentiary hearing under 28 USC 2255(b) where the performance of his trial counsel can be assessed. The court vacated the district court’s denial of Slocum’s 2255 motion and remanded for an evidentiary hearing on his ineffective assistance claim.

 

APPEAL/2255/SUCCESSIVE. The Sixth Circuit remanded In re: Gergory L. Buckmon, 2024 U.S. App. LEXIS 15891 (6th Cir. June 28, 2024). Gregory L. Buckmon is a federal prisoner proceeding pro se who moved for authorization to proceed with a second or successive 28 USC 2255 motion. Buckmon plead guilty to seven offenses including brandishing a firearm in furtherance of a drug-trafficking crime in violation of 18 USC 924(c). The district court sentenced him to 84 months and one day in prison. Buckmon did not appeal. Buckmon moved for compassionate release under 18 USC 3582(c)(1)(A), but the district court dismissed the motion without prejudice based on Buckmon's failure to exhaust his administrative remedies. Buckmon moved for re-consideration, and he filed a letter seeking a reduced sentence arguing that his counsel rendered ineffective assistance his 18 USC 924(c) conviction was unsubstantiated, his sentence is excessive, and the Bureau of Prisons did not properly credit him for time served. The district court denied Buckmon's request for compassionate release because he did not establish an extraordinary and compelling reason for release. The court also construed Buckmon's letter as seeking 2255 relief, and it denied that request as untimely. Buckmon did not appeal. In 2023, Buckmon moved the district court for authorization to file a second or successive 2255 motion arguing that his counsel rendered ineffective assistance and he is actually innocent of the 924(c) offense, his sentence is unreasonable, and the prosecutor engaged in misconduct. The district court construed Buckmon's motion as a second or successive 2255 motion and transferred it to this court for a determination of whether he may proceed. Buckmon filed a corrected second or successive motion seeking to raise the same grounds for relief. In Castro v. United States, 540 U.S. 375, 124 S. Ct. 786, 157 L. Ed. 2d 778 (2003), the Supreme Court held that a district court cannot recharacterize a pro se litigant's filing as the litigant's first 2255 motion unless the court informs the litigant of its intent to recharacterize and warns the litigant that the recharacterization will subject later 2255 motions to the restrictions on second or successive motions and provides the litigant with an opportunity to withdraw or amend the filing. Id. at 377. Because the district court did not comply with Castro's requirements before recharacterizing Buckmon's letter, the letter does not count as a 2255 motion for purposes of applying 2255's second or successive provision. Buckmon need not obtain this court’sauthorization to proceed with his proposed 2255 motion because it is not second or successive.The court denied as unnecessary Buckmon's motion for authorization to proceed with a second or successive 2255 motion and remanded this case to the Northern District of Ohio to proceed with the 2255 motion.

 

AMENDMENT 821. The Eastern District of Louisiana granted in part an 821 motion in United States v. Kenric Rodney, 2024 U.S. Dist. LEXIS 117296 (E.D. La. July 3, 2024). Defendant was convicted by a jury in 2011 on two counts of distributing more than 50 grams of crack cocaine and one count of conspiracy to possess six or more kilograms of powder cocaine, 280 or more grams of crack cocaine, and some amount of heroin. The defendant's guideline imprisonment range was of 324 to 405 months and in Dec. 2011 the court sentenced him to 365 months. Following the enactment of Amendment 782 the court reduced Rodney's sentence to 327 months, the top of the amended guideline range. The court reduced the defendant’s sentence to 293 months.

 

AMENDMENT 821. The Western District of North Carolina granted an 821 motion in United States v. Elizabeth Mann, 2024 U.S. Dist. LEXIS 116942 (W.D. N.C. July 2, 2024). The defendant was charged with one count of conspiracy to distribute and to possess with intent to distribute methamphetamine in violation of 21 USC 841(a)(1), (b)(1)(A), (b)(1)(B), and (b)(1)(C), and one count of possession with intent to distribute methamphetamine in violation of 21 USC 841(a)(1). The defendant was assessed six criminal history points related to her prior convictions, as well as two criminal history "status" points because she committed the present offense while on post release supervision. Defendant was sentenced to 84 months. The defendant’s sentence was reduced to 70 months.

 

APPEAL/FINE. The Seventh Circuit vacated the fine payment in United States v. Jerome Ford, 2024 U.S. App. LEXIS 16010 (7th Cir. July 1, 2024). Jerome Ford was sentenced to 96 months in prison for possessing a firearm in that he was an ex-felon and this sentence was to be followed by three years of supervised release. The judgment included a condition that Ford must pay a fine of $250 immediately, even though this condition was not mentioned during sentencing or in the presentence report. Ford appealed to the Seventh Circuit arguing that the payment condition was unauthorized because it was not mentioned during sentencing or in the presentence report. He requested that the payment condition be removed from the judgment. The court noted that when there is a conflict between the oral pronouncement and the written judgment in a criminal case the oral pronouncement usually prevails. However, there is an exception for conditions of supervision required by law, which do not need to be announced orally. The court found that the payment condition was not required by law, but was included in a list of mandatory conditions in the Sentencing Guidelines. Ford argued that these guidelines ceased being mandatory after the Supreme Court, United States v. Booker, declared them to be advisory. The court noted that this argument was not necessarily true as the conditions of supervised release were not affected by the Booker decision. However, the court accepted the prosecutor's implied concession that the payment condition may not be mandatory. As a result, the court decided that the payment condition must be vacated. The court noted that this decision may not benefit Ford as a statute provides that people who do not pay their fines may be returned to prison. The court also noted that the district judge could add the payment condition to the judgment at any time. The court modified the district court's judgment to delete the payment condition.

 

APPEAL/CCE/DOUBLE JEOPARDY. The Eighth Circuit vacated and remanded United States v. Steven Pinto, 2024 U.S. App. LEXIS 15953 (8th Cir. July 1, 2024). Steven Barros Pinto was convicted on multiple counts related to the importation and distribution of drugs following a nineteen-day trial. The evidence presented at trial established a drug distribution and importation conspiracy led by Jason Berry and Daniel Ceron, who operated a drug-trafficking operation via the dark web from a Canadian prison. They recruited distributors online, including Anthony Gomes and Brandon Hubbard, who distributed fentanyl shipped from China. Pinto, a childhood friend of Gomes initially declined to join the operation but later contacted Gomes to distribute pills supplied by Ceron. Pinto became an integral part of the fentanyl pill production and distribution network, utilizing others to assist in distribution and financial transactions in multiple states. Pinto was charged in the district of North Dakota on multiple counts, including conspiracy to distribute controlled substances, conspiracy to import controlled substances, participation in a continuing criminal enterprise (CCE), obstruction of justice, and conspiracy to launder money. Pinto appealed arguing that venue was improper on the drug conspiracy counts and challenging his conviction on the money laundering conspiracy count. He also raised a Double Jeopardy argument as to the drug conspiracy counts and the CCE count. The Eighth Circuit found that there was sufficient evidence to support the jury’s finding of a single conspiracy making venue proper in North Dakota. The court also found no grounds for reversal in Pinto’s challenge to the credibility of the Government’s cooperating witnesses. Regarding Pinto’s challenge to his conviction on the money laundering conspiracy count, the court found that the indictment provided Pinto with sufficient notice of the charge. Finally, the court agreed with Pinto that his separate convictions and sentences on the drug conspiracy count and the CCE count violated the prohibition against Double Jeopardy. The court remanded the case to the district court to vacate Pinto’s conviction on either the drug conspiracy count or the CCE count and proceed to resentencing. The judgment was affirmed in all other respects.

 

APPEAL/1983/FORMA PAUPERIIS. The Seventh Circuit vacated and remanded Nirin Walls v. Brett Wells, 2024 U.S. App. LEXIS 15625 (7th Cir. June 27, 2024). Nirin Walls is an Illinois state prisoner who filed with the district court a request to sue correctional officers in forma pauperis (IFP). The request, if granted, would have allowed Walls to pay the filing fee in installments over time, rather than all upfront. See 28 USC 1915. Even though Walls had no money in his prison trust account at the time he filed suit it was the district court’s view Walls could have anticipated this lawsuit and saved up to pay the $402 filing fee for it. Because the district court abused its discretion in imposing this save-up obligation on Walls, the court vacatedand remanded.

 

APPEAL/IMMIGRATION. The Eighth Circuit vacated and remanded Jose Rivera v. Garland, 2024 U.S. App. LEXIS 16410 (8th Cir. July 5, 2024). The case involves a family from El Salvador seeking asylum in the United States. The family consists of Jose Maria Rivera, a pastor, his wife Morena, their two children, and Morena's son Reyes. Rivera and his church were known for evangelizing to gang members which led to threats and violence from the gangs. The situation escalated when a gang member, Ronal Granadeno, decided to join Rivera's church, leading to an attack on Rivera, Granadeno, and Morena. Granadeno was killed, and Rivera was threatened with death. The family fled to the United States and Rivera applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) on behalf of himself and his family. The Immigration Judge (IJ) found Rivera and Reyes credible but concluded that Rivera had failed to demonstrate that the persecution was "on account of" his religion or any other protected ground. The IJ reasoned that the gang was angry that Rivera had interfered with the gang's ranks by convincing Granadeno to leave the gang, and that Rivera's religion was therefore only "incidental" to his persecution. The IJ denied the family's claims for asylum, withholding of removal, and CAT relief. The Board of Immigration Appeals (BIA) dismissed the family's appeal, agreeing with the IJ's findings. The Eighth Circuit partially granted the family's petition for review. The court found that the BIA and IJ had erred in their analysis of whether Rivera's religion was a central reason for his persecution. The court noted that the BIA and IJ had failed to consider evidence that Rivera's religion may have been an additional central reason for his persecution. The court vacated the BIA's decision on the issue of nexus and remanded the case for further proceedings. However, the court denied the petition for review as to Reyes's separate asylum claim and finding that the record did not compel the conclusion that his membership in the family was one central reason that he was threatened.

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