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SAMARITAN NEWSLETTER – 07-29-2024

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/FAMILY CIRCUMSTANCES/MEDICAL/USSG1B1.13(b)(6). The District of Montana granted a CR.RIS motion in United States v. Ricky Blackbird, 2024 U.S. Dist. LEXIS 132594 (D. Mont. July 26, 2024). A jury found Blackbird guilty of Conspiracy to Possess with Intent to Distribute and to Distribute Meth in violation of 21 USC 846, Possession with Intent to Distribute Methamphetamine in violation of 21 USC 841(a)(1), Maintaining Drug-Involved Premises in violation of 21 USC 856, Use or Possession of Firearms During and in Relation to a Drug Trafficking Crime in violation of 18 USC 924(c)(1)(A), Felon in Possession of a Firearm in violation of 18 USC 922(g)(1), and Possession of a Firearm by Person Convicted of Misdemeanor Crime of Domestic Violence in violation of 18 USC 922(g)(9). The Court sentenced Blackbird for a period of 240 months on each drug charge to run concurrently, to 120 months on the charges for felon in possession and possession of a firearm by person convicted of domestic violence offense, to 60 months on his charge for use or possession of a firearm in relation to a drug trafficking crime. The Court ordered that sentence to run consecutively to the other sentences imposed. Blackbird's custodial sentence totaled 300 months. Blackbird filed a motion for compassionate release citing family circumstances, an unusually long sentence, and his own medical conditions as grounds warranting his release and argued that extraordinary and compelling reasons exist for his release because his mother struggles from Stage III chronic obstructive pulmonary disease ("COPD") and needs a caretaker.Blackbird argued his medical conditions constitute extraordinary and compelling reasons for a sentence reduction, and points to his diagnoses for an umbilical hernia, hypertension, presbyopia, hyperlipidemia, obesity, allergies, and lipomatous neoplasm.Blackbird’s 72-year-old mother suffers from severe COPD and requires an in-home caregiver to assist her with day-to-day tasks. Blackbird is his mother's only child, and his mother is widowed. Blackbird submitted medical records for his mother evidencing her diagnosis of Stage III COPD with emphysema and chronic respiratory failure with hypoxia. The Court foundthese circumstances constitute extraordinary or compelling reasons to warrant a reduction of Blackbird's sentence.Blackbird has served over 17 years. Blackbird, at the time of sentencing, had a prior felony conviction for criminal possession of dangerous drugs that triggered the 20-year mandatory minimum. This prior conviction does not meet the definition of a "serious drug felony" under the current law. The Court found this issue presents extraordinary and compelling reasons for a sentence reduction. Sentence reduced to time served.

 

CR.RIS/MEDICAL/1B1.13(b)(6). The Northern District of Ohio granted a CR.RIS motion in United States v. Stanley Cornell, 2024 U.S. Dist. LEXIS 131163 (N.D. Ohio July 25, 2024). Over twenty years ago a jury convicted Cornell on three charges related to a cocaine distribution conspiracy. At that time the mandatory sentence for Cornell's offenses was life in prison and the Court sentenced Cornell to life. After spending the past two decades in prison, Cornell moved for compassionate release under 18 USC 3582(c)(1)(A)(i). Because Cornell's life sentence is excessively long under today's sentencing standards, and Cornell has already spent a significant portion of his life in prison for his drug offenses, the Court granted Cornell's motion.On May 13, 2004, the Court sentenced defendant Cornell. When the Court issued its sentence, Cornell faced a mandatory life sentence for two reasons. First, the statutory minimum was life imprisonment due to Cornell's prior felony drug convictions and the amount of cocaine involved in this case. Second, Cornell's Sentencing Guidelines range was also life imprisonment, and at the time, the Sentencing Guidelines were mandatory. Therefore, the Court sentenced Cornell to life in prison Cornell argued he qualifies for release under two policy statement categories. Cornell argued his prostate cancer and heart disease are an extraordinary medical circumstance under Sentencing Guidelines 1B1.13(b)(1). Cornell says that, if sentenced today, he would not be subject to a mandatory life sentence. Cornell says that the First Step Act reduced the statutory minimum and United States v. Booker-decided less than a year after Cornell's sentencing- invalidated the statutory provision making the Sentencing Guidelines mandatory. Although Cornell does not expressly identify how this secondary argument fits into the extraordinary and compelling reason categories, the Court construed that argument as raising a USSG 1B1.13(b)(6) issue. Under this category, certain "unusually long sentences" are extraordinary and compelling. Cornell's argument about his unusually long sentence succeeds. Under the Sentencing Commission's recent policy statement amendments, an unusually long sentence can be extraordinary and compelling when (1) a defendant has served at least 10 years of his sentence, (2) there have been legal changes (other than nonretroactive  Sentencing Guidelines amendments) that could affect the defendant's sentence, and (3) due to those legal changes and "after full consideration of the defendant's individualized circumstances," there would be a "gross disparity between the sentence being served and the sentence likely to be imposed at the time the [compassionate release] motion is filed."There have also been two legal changes that could affect how Cornell would be sentenced if sentencing went forward today. The Booker decision and the First Step Act mean Cornell would not be subject to mandatory life imprisonment if sentenced today. Sentence reduced to 250 months.

 

CR.RIS/REHABILITATION/USSG 1B1.13(b)(6)/MEDICAL. The District of Maryland granted a CR.RIS motion in United States v. Kevin Honesty, 2024 U.S. Dist. LEXIS 1300369 (D. Md. July 23, 2024). Honesty is a 58-year-old prisoner serving a 25-year sentence for armed bank robbery in violation of 18 USC 2113(a) and (d) (Count Two) and carrying, brandishing, and possessing a firearm during and in relation to a crime of violence in violation of 18 USC 924(c) (Count Three).Previously, the Supreme Court required that district courts consider any non-frivolous argument for sentencing reduction based upon intervening changes in the law. United States v. Concepcion, 142 S. Ct. 2389, 2404 (2022). However, the newly relevant USSG 1B1.13(c) clarifies that a change in the law does not constitute an extraordinary and compelling reason except as defined in 1B1.13(b)(6). USSG 1B1.13(c). That subsection allows that "if a defendant 'received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law . . . may be considered in determining whether the defendant presents an extraordinary and compelling reason.'" But as the Fourth Circuit has noted, "this consideration only applies where such a change in 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, and after full consideration of the defendant's individualized circumstances.'" Furthermore, rehabilitation alone may not serve as an extraordinary and compelling reason, but a court may consider rehabilitation in combination with other circumstances. USSG1B1.13(d); 28 USC 994(t). Honesty clearly faces serious medical circumstances. He has been recommended for knee surgery, but he contends he cannot undertake the procedure given the circumstances of his incarceration. Moreover, he is no longer receiving regular steroid injections that previously helped him manage pain. Additionally, his spine has bulging discs, resulting in sciatica, which is exacerbated by the conditions of his imprisonment. Honesty's 22 years of service, advancing age, and deteriorating health demonstrate extraordinary and compelling reasons for a sentence reduction. Sentence reduced to 276 months.

 

CR.RIS/MEDICAL. The Southern District of Ohio Granted a CR.RIS motion in United States v. Terrell Mabry, 2024 U.S. Dist. LEXIS 130732 (S.D. Ohio July 24, 2024). On May 24, 2016, defendant was sentenced to 168 months imprisonment after pleading guilty to two counts: one count of conspiracy to interfere with commerce through robbery, and one count of aiding and abetting kidnapping. The defendant is 54-years old.Defendant stated he "has been diagnosed with end-stage kidney disease and is dependent on dialysis for survival.”  The BOP not only recognized his kidney disease, but also his "diabetes mellitus, hyperlipidemia, and hypertension[.]" Defendant arguedhe has never received adequate care while incarcerated, leading to his being found unconscious and non-responsive in his prison cell on three separate occasions between March and June 2020.He notes that a district court has held that thrice-weekly dialysis was a definitional restraint on a defendant's ability to threaten the community, and asks that the Court reach the same conclusion here. While the need for defendant to receive extensive medical care was not a factor in the original sentencing, it weighs heavily in favor of release now. The Court was cognizant of defendant's severely-diminished physical state, specifically, his poorly-controlled diabetes and his degenerative kidney disease, for which, it must be emphasized, he requires dialysis at least three times per week and for which there is no reasonable likelihood of improvement. These illnesses are incapacitating and sharply diminish any threat he might pose to the community — especially when, as defendant notes, he will be under the auspices of the USPO during his period of supervised release. Sentence reduced to time served.

 

APPEAL/2255/IAC/PLEA AGREEMENT. The Third Circuitreversed and remanded Steven Baker v. United States, 2024 U.S. App. LEXIS 18333 (3d Cir. July 25, 2024). Baker was charged with bank robbery and using a firearm during the robbery. The Government offered him a plea deal to plead guilty to these charges and admit to two other bank robberies without being charged for them. Baker’s counsel incorrectly advised him that he faced 15-17 years if he accepted the plea and 21 years for the firearm charges if he went to trial. In reality, he faced a 57-year mandatory minimum for the firearm charges due to the statute’s “stacking” provision. Misled by this advice, Baker rejected the plea, went to trial, and was convicted on all counts, receiving a 57-year sentence for the firearm charges plus 87 months for the bank robberies. Baker appealed and the Third Circuit affirmed his conviction and sentence. He then filed a Section 2255 motion arguing ineffective assistance of counsel due to the miscalculation of his sentence exposure. The District of New Jersey denied relief finding that Baker could not show prejudice from his counsel’s error. The Third Circuit reviewed the case. That court found Baker’s counsel’s performance was objectively unreasonable due to the significant miscalculation of his sentence exposure. The court also determined Baker demonstrated prejudice because there was a reasonable probability he would have accepted the plea offer if he had been correctly advised. The court noted the substantial disparity between the plea offer (15-17 years) and the actual sentence (57 years plus 87 months) and credited Baker’s testimony that he would have accepted the plea but for his counsel’s error. The court reversed the District Court’s decision and remanded with instructions to order the government to reoffer the original plea agreement to Baker.

 

APPEAL/RESENTENCE. The Seventh Circuit vacated and remanded United States v. Anycco Rivers, 2024 U.S. App. LEXIS 18228 (7th Cir. July 24, 2024). On March 17, 2022, Rivers and Ladonta Tucker carjacked a BMW in Bourbonnais, Illinois. Rivers pointed two guns at the car’s owner while Tucker searched the owner and then drove the car away. During a high-speed chase Rivers fired a gun into the air. The chase ended when the BMW crashed into a guardrail. Tucker and Rivers fled on foot but were eventually captured. Police found firearms and spent cartridges at the scene. The Central District of Illinois indicted both Rivers and Tucker on charges of carjacking and firearms violations. At trial both were found guilty. Tucker was sentenced to 100 months for carjacking and an additional 60 months for the firearms charge, plus 24 months for violating supervised release, totaling 184 months. Rivers received 87 months for carjacking and 120 months for the firearms charge. Rivers objected to a two-level enhancement for reckless endangerment during flight, which the district court applied. Tucker challenged his conviction arguing insufficient evidence that his firearm facilitated the carjacking. The Seventh Circuit upheld his conviction, stating that the jury could reasonably conclude that carrying a firearm during a carjacking had the potential to facilitate the crime. Rivers challenged his sentence enhancement and requested resentencing due to recent amendments to the Sentencing Guidelines. The court affirmed the enhancement but vacated and remanded defendant’scarjacking sentence for reconsideration in light of the new Guidelines amendments.

 

APPEAL/RESENTENCE. The Tenth Circuit vacated and remanded United States v. Eligius Montano, 2024 U.S. App. LEXIS 18014 (10th Cir. July 23, 2024). Montano plead guilty to robbing a Metro PCS store in Belen, New Mexico, in 2022. During the robbery Montano and his father created the impression they were armed by positioning their hands inside their sweatshirts. They stole approximately $8000 in merchandise and fled in a getaway car driven by Daniel Montano’s girlfriend Jennah Payne. During the police pursuit Payne drove recklessly, allegedly at Montano’s urging, before the vehicle was stopped by spike strips. Montano and his father were apprehended after attempting to carjack other vehicles. The District of New Mexico sentenced Montano applying two sentencing enhancements: one for creating the impression of possessing a firearm and another for reckless endangerment during the getaway. The court also assigned three criminal history points to each of five consolidated state cases from a prior judgment resulting in a criminal history category of VI. Montano challenged the application of the sentencing enhancements and the calculation of his criminal history points. The court upheld the district court’s application of the sentencing enhancements finding sufficient evidence that Montano created the impression of a firearm and induced reckless driving during the getaway. However, the appellate court found the district court erred in assigning three criminal history points to each of the five consolidated state cases without sufficient evidence to support this allocation. The Tenth Circuit concluded that Montano’s appropriate criminal history category should be V, not VI. The Tenth Circuit affirmed the district court’s application of the sentencing enhancements but reversed the criminal history calculation. The case was remanded to the district court with instructions to vacate the judgment and resentence Montano based on a criminal history category of V.

 

APPEAL/RESENTENCE. The Seventh Circuit vacated and remanded United States v. Shannon Cotton, 2024 U.S. App. LEXIS 18527 (7th Cir. July 26, 2024). Cotton violated his supervised release by using cocaine and losing all contact with his probation officer. After the district court revoked his release a dispute arose over the maximum period of imprisonment cotton could face for the violations. The district court determined the answer was two years, disagreeing with the Government's contention that Cotton faced a maximum revocation sentence of five years. The court concluded the answer is five years based on the language Congress used in 18 USC 3583(e)(3). That lead the court to vacate Cotton's revocation sentence and remand for resentencing. Consistent with the view of the Probation Office the Government took the position that the answer was five years. But Cotton believed any revocation sentence could not exceed two years. The different perspectives rooted themselves primarily in competing interpretations of 18 USC 3583(e) — the statutory provision addressing maximum penalties attaching to revocations of supervised release.

 

APPEAL/RESTITUTION. The Eleventh Circuit vacated and remanded United States v. Elizabeth Young, 2024 U.S. App. LEXIS 17934 (11th Cir. July 22, 2024). Young was convicted of conspiring to pay and receive kickbacks from federal reimbursements for medical creams and lotions dispensed by pharmacies she worked with. The district court sentenced her to 57-months in prison and ordered her to pay $1.5 million in restitution and forfeiture, representing the gross proceeds she controlled during the conspiracy. Young challenged her conviction, restitution order, and forfeiture judgment, arguing insufficient evidence for her conspiracy conviction, improper calculation of restitution, and errors in the forfeiture amount. The district court denied her motion to set aside the verdict and sentenced her, including the contested financial penalties. The Eleventh Circuit affirmed Young’s conspiracy conviction, finding sufficient evidence that she conspired with others, including a pharmacy, to receive kickbacks, and upheld the forfeiture judgment ruling Young was liable for the gross proceeds she controlled, even if she distributed some to co-conspirators. However, the court vacated the restitution order, agreeing with Young that the Government did not prove the amount of loss it experienced due to her conduct. The court remanded the case for further proceedings to determine the correct restitution amount.

 

APPEAL/SEALING INDICTMENT. The Fifth Circuit vacated and remanded United States v. Joseph Boswell, 2024 U.S. App. LEXIS 18071 (5th Cir. July 23, 2024). Boswell was convicted by a jury of bankruptcy fraud and tax evasion. He operated a business servicing pizza ovens and stopped reporting income and paying taxes around 1995. He filed for bankruptcy in 2011, claiming significant back taxes owed. The Government alleged Boswell used various corporate entities, nominally owned by family members, to conceal assets from the IRS and creditors. During his bankruptcy, Boswell reported minimal assets and income, despite evidence suggesting he controlled significant funds through these entities. The Western District of Louisiana oversaw the initial trial. Boswell moved to dismiss the bankruptcy fraud charge arguing it was untimely and that the indictment was improperly sealed. The district court denied this motion finding the Government had a legitimate reason for sealing the indictment. Boswell requested a bill of particulars which the court denied, and he was ultimately convicted on both counts. The district court sentenced him to 60-months in prison and ordered restitution to the IRS. The Fifth Circuit found the Government failed to demonstrate a legitimate prosecutorial purpose for sealing the indictment which meant the statute of limitations was not tolled rendering the bankruptcy fraud charge untimely. The court reversed Boswell's conviction on the bankruptcy fraud charge. However, the court affirmed the tax evasion conviction finding sufficient evidence to support the jury's verdict. The court upheld the district court's jurisdiction to impose restitution while the appeal was pending and found no cumulative errors warranting a new trial for the tax evasion charge.

 

APPEAL/PLRA. The Fourth Circuit reversed and remanded Andrew Fields v. Federal Bureau of Prisons, 2024 U.S. App.LEXIS 18367 (4th Cir. July 25, 2024). While incarcerated at U.S. Penitentiary Lee, Andrew Fields was the target of egregious physical abuse. There is little doubt Fields would have a viable 42 USC 1983 claim against prison officials if he had been incarcerated at a state prison. But Fields was at a federal facility and claims against federal officials for constitutional violations are severely limited under established precedent. Thus, the district court concluded Fields cannot obtain relief and his claim must be dismissed pursuant to the Prison Litigation Reform Act’s prescreening procedure. Though the courtacknowledged the limited availability of claims under Bivens v. Six Unknown Named Agents of Federal Narcotics Bureau against federal officials, including officers in federal prisons, the court concluded that Fields can overcome those

limitations and successfully state a claim against the officers. Accordingly, the court reversed. Fields alleged he was the victim of excessive force inflicted by several prison officials at USP Lee in violation of the Eighth Amendment. Specifically, he alleged that on Nov. 10, 2021, he went to lunch without his inmate movement pass which he was required to carry with him whenever he left his housing unit. Upon his return he was escorted to USP Lee’s lieutenants’ office, where he was berated for failing to carry his inmate movement pass with him at all times. He was then ordered to be taken to the special housing unit, colloquially known as “the hole,” and placed inadministrative segregation. Before he was taken to the SHU an officer conducted a pat down search and seized several legal documents Fields had on his person and Fields’s prescription eyeglasses. To date, neither the documents nor the eyeglasses have been returned. On the way to SHU, a scuffle erupted. According to an incident report appended to the complaint, Fields allegedly tried to assault the officers escorting him. As a result of this incident, Fields was placed in ambulatory restraints and taken the rest of the way to the SHU in a wheelchair. This is the first alleged incident of excessive force though Appellees argue that the officers’ actions were justified because Fields initiated the scuffle. Once at the SHU, Fields was placed in an observation cell. At regular intervals prison staff were required to check on Fields. Despite the fact that Fields was still in restraints with both his hands and feet cuffed the officers used each check as another opportunity to physically abuse Fields including ramming his head into the concrete cell wall and hitting Fields with a fiberglass security shield. There is no allegation that Fields posed a physical threat to the officers during any of these checks. Fields alleged this entire sequence of events was retaliation for his involvement in an unrelated proceeding concerning events that occurred at a different federal prison. The Fourth Circuit affirmed the dismissal of claims against the Bureau of Prisons and supervisory officials but reversed and remanded the excessive force claim against the individual officers who allegedly subjected Fields to abuse.

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