The Law Office of Tom Norrid
SAMARITAN PROJECTS LLC
P.O. Box 9244
Springfield, MO 65801-9244
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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 District of Montana granted a CR.RIS motion in United States v. Gina Mann, 2024 U.S. Dist. LEXIS 142190 (D. Mont. Aug. 9, 2024). Mann argued that her health concerns—including Osteoporosis and chronic myeloid Leukemia—amount to extraordinary and compelling circumstances that warrant early release. Mann submitted that she is not receiving adequate medical care at Federal Medical Center, Carswell. The Court granted the motion. On July 27, 2023, Mann was sentenced in this matter to a custodial sentence of 40 months after count of aggravated identity theft in violation of 18 USC 1028A(a)(1) (Count 11), and one count of money laundering in violation of 18 USC 1956(a)(1)(A)(i) (Count 21). The offense conduct in this case involved Mann committing fraud on a single victim by opening credit cards in his name, withdrawing funds from his accounts without his authorization, transferring funds from his account to her account without his authorization and using his credit cards and debit cards without his authorization. In total, Mann was accountable for a total loss of $119,269.07. Mann has served twelve months of her sentence. Mann's medical conditions have caused her time in custody to be harsher than contemplated by this Court. Mann argued her extremely poor health and lack of adequate medical care are extraordinary and compelling reasons to reduce her sentence. In Feb. 2020, Mann was diagnosed with Osteoporosis and chronic myeloid Leukemeia. Prior to sentencing, Mann's medical provider noted that follow up treatment was needed every three months to control her disease. Mann's medical provider further explained that without the three month follow up and treatment, Mann is at risk for infection, bleeding and red blood cell deficiency, leukemic transformation requiring more intensive chemotherapy, and death. However, since being incarcerated Mann has not received the treatment she needs. In addition to cancer, Mann also suffers from scoliosis. Mann's scoliosis has progressed to the point that she has been recommended for spinal surgery; however, she cannot undergo the risk associated with surgery while she battles cancer. The Court found Mann presented the perfect example of what amounts to an extraordinary and compelling circumstance. Mann is not only "suffering from a serious physical or medical condition . . . that substantially diminishes the ability of [Mann] to provide self-care within the environment of a correctional facility and from which [] she is not expected to recover," but also she "is suffering from a medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death." USSG 1B1.13(b)(1)(B), (b)(1)(C). Defendant’s sentence reduced to time served.
CR.RIS/REHABILITATION/MEDICAL/USSG 1B1.13(b)(6). The District of Connecticut granted a CR.RIS motion in United States v. Larry Hall, 2024 U.S. Dist. LEXIS 140982 (D. Conn. Aug. 8, 2024). Hall sought a reduction of 18-24 months from his sentence for extraordinary and compelling reasons under 18 USC 3582(c)(1)(A). The grounds of the motion are the length of his sentence, his rehabilitation, and his medical issues. Hall was part of a 29-defendant, large-scale narcotics distribution organization in the Waterbury, Connecticut area. He was a lead organizer within the organization and was responsible for the distribution of substantial quantities of heroin and cocaine. Hall plead guilty to Conspiracy to Distribute and to Possess with Intent to Distribute 1 Kilogram or More of Heroin in violation of 21 USC 841(a)(1), 841(b)(1)(A)(i), and 846. He was sentenced to the 10-year mandatory minimum. The court did not consider Hall's medical issues namely, hypertension and asthma, as well as long-term effects from contracting COVID-19 sufficient to warrant a reduction in sentence. Hall's argument regarding his rehabilitation is significantly more persuasive. Hall noted he has completed multiple educational programs and has received no disciplinary tickets. Hall described the character "journey" he has experienced while in BOP custody and proffered a personal statement detailing his new outlook and his commitment to becoming a productive, positive member of society. The court held Hall had proffered extraordinary and compelling circumstances that, when considered in the aggregate, are sufficient to justify a reduction in his sentence. Sentence reduced to time served.
CR.RIS/MEDICAL/REHABILITATION/FAMILY CIRCUMSTANCES. The District of Maryland granted in part a CR.RIS motion in United States v. Steven Cole, 2024 U.S. Dist. LEXIS 140814 (D. Md. Aug. 7, 2024). Cole was indicted and charged with three crimes: possession with intent to distribute oxycodone in violation of 21 USC 841(a)(1) and 18 USC 2 (Count One); possession of a firearm in furtherance of a drug trafficking crime in violation of 21 USC 924(c) and 18 USC 2 (Count Two); and possession of a firearm and ammunition by a felon in violation of 21 USC 922(g)(1) and 18 USC 2 (Count Three). Pursuant to a plea agreement, Cole entered a plea of guilty to Counts One and Two of the Indictment. At sentencing the Court sentenced Cole to 48 months as to Count One and 60 months as to Count Two, consecutive, for a total term of incarceration of 108 months. The defendant stated he was 35 years old and still high risk and vulnerable to COVID, monkey pox and other diseases spreading around the prison, especially having asthma, hypertension, sickle cell trait, obesity issues, PTSD and a minor heart issue, as well as dental issues. Cole maintained he is entitled to relief under 3582(c)(1)(A) because of family circumstances, including the need to serve as a caregiver for his seven-year-old daughter and teenage son. Specifically, he explains he is the only caregiver for his daughter due to the incarceration of the child's mother, Cole's fiancée. In his submission Cole noted that his son was about to graduate from high school. He asserted that although his son "has family []with him," he still "need[s] his father . . . ." Cole expressed the desire to be home to "support [his son] every step of the way," including to "[g]uide him to go to college . . . ." A defendant's efforts at rehabilitation are "a significant factor" in determining whether a sentence reduction is warranted. The court stated a reduction of sentence was warranted in light of defendant's efforts to rehabilitate himself, reflected in his recent lack of prison infractions, his completion of numerous educational courses, and his remorse. The court reduced Cole's sentence by one year, from 108 months to 96 months.
CR.RIS/MEDICAL/USSG1B1.13(b)(6). The Southern District of Georgia granted a CR.RIS motion in United States v. Bobby Ingram, 2024 U.S. Dist. LEXIS 140389 (S.D. Ga. Aug. 7, 2024). In 1995 a jury found Ingram guilty of one count of conspiracy to possess with intent to distribute crack cocaine in violation of 21 USC 846 and 841 (Count One), and five counts of distribution of crack cocaine in violation of 21 USC 841 (Counts Six, Eight, Nine, Ten, and Fourteen). The Government filed a notice of enhancement of sentencing because of Ingram's prior convictions pursuant to 21 USC 851. The Court sentenced Ingram to life imprisonment on the conspiracy count and 360 months on the remaining counts, to be served concurrently. Ingram suffers from Type II diabetes, hypertension, Hepatitis C, and clinical depression. Ingram meets each prerequisite of USSG 1B1.13(b)(6) provision. His life sentence, the longest sentence of imprisonment the Court can impose is obviously unusually long. He has served more than ten years of that sentence. Additionally, the sentence he would receive today would be profoundly less than the sentence imposed. As Ingram detailed in his Motion, because of several intervening changes in statutory penalties and case law, he would no longer face a mandatory sentence of life imprisonment and instead would face a sentence of 30-years at most. The Government did not dispute Ingram meet the requirements of USSG 1B1.13(b)(6). Defendant's Notice of Supplemental Authorities listing 35 orders, including 23 from district courts in the Eleventh Circuit, upholding Subsection (b)(6). The court reduced Ingram’s sentence to 327-months.
CR.RIS/REHABILITATION/MEDICAL. The District of Montana granted in part a CR.RIS motion in United States v. Jaycob Kutzera, 2024 U.S. Dist. LEXIS 139932 (D. Mont. Aug. 7, 2024). Kutzera plead guilty to three counts of sexual exploitation of a child in violation of 18 USC 2251(a). The Court sentenced Kutzera to 180 months on each count, running concurrently. Kutzera stated he suffers from seizures and that medications provided to address these seizures prove ineffective. Kutzera claims relatedly that he suffers from anxiety, agitation, and bouts of elevated blood pressure. Kutzera argued these medical issues amount to extraordinary and compelling reasons to warrant compassionate release or a sentence reduction. The Court recognized that Kutzera experiences symptoms and side effects while receiving treatment, including drowsiness, mood instability, and anxiety. The Court determined that Kutzera'smedical history, considered alongside his educational accomplishments and good behavior record while incarcerated, amount to extraordinary and compelling reasons pursuant to the Sentencing Commission policy statement. He has completed approximately 20 classes while incarcerated. Kutzera and has received effective correctional treatment as evidenced by his educational accomplishments while incarcerated and done so while maintaining a good disciplinary record. The Court determined that 150 months of custody properly reflects the seriousness of Kutzera's offenses and provides just punishment as well as promotes respect for the law.
CR.RIS/REHABILITATION/FAMILY CIRCUMSTANCES. The Southern District of New York granted a CR.RIS motion in Daryl Simon v. United States, 2024 U.S. Dist. LEXIS 138459 (S.D. N.Y. Aug. 5, 2024). On May 11, 2006, Simon was arrested following an attempt to buy electronics at a Target store in West Nyack, New York, with a fraudulent credit card. On Sept. 25, 2007, Simon pled guilty to one count of access device fraud. Shortly thereafter, in Oct. 2007, Simon was charged with possession of stolen property after driving a motorcycle with a stolen license plate in the Bronx. On Jan. 13, 2010, Simon plead guilty to one count of failure to appear and another count of access device fraud. On July 15, 2010, the defendant was sentenced to 285 months of incarceration. Simon asserted that his mother requires his aid as a caregiver due to her poor health. According to Simon, his mother suffers from forgetfulness, chronic arthritis, poor eyesight, and grief from the loss of her husband—Simon's stepfather—in 2023. Accordingly, Simon's mother requires physical assistance and memory care and, following the death of Simon's stepfather, she has no other family in-state. Simon provided a letter from his mother where she confirms that she is now living alone and in need of care. Second, Simon argued that changes to the sentencing guidelines weigh in favor of a sentence reduction. Simon relies on Amendment 792 to the guidelines which modified enhancement levels based on victim harm. According to Simon, if he were sentenced under the changes set forth in Amendment 792, the guideline range for his conduct would be 120 to 150 months. While the Government argued that Amendment 792 is not retroactive and thus does not provide Simon relief it did not dispute his calculation. Third, Simon details his rehabilitative efforts and argued they warrant a sentence reduction. In a letter addressed to the Court that he attached to the motion, Simon expresses remorse for his misconduct and reflects on the consequences of his actions. Simon also mentions that he completed treatment and vocational training programs and has mentored other individuals who are incarcerated. The Court found that Simon had sufficiently established extraordinary and compelling circumstances to justify a reduction of his sentence. Sentence reduced to time served.
CR.RIS/FAMILY CIRCUMSTANCES. The District of Montana granted in part a CR.RIS motion in United States v. Tommy Vasquez, 2024 U.S. Dist. LEXIS 139546 (D. Mont. Aug. 6, 2024). The Court granted in part the Motion for Compassionate Release upon finding that the sentencing disparity resulting from stacked 924(c) convictions offers an "extraordinary and compelling reason" to support his request for relief. 18 U 3582(c)(1)(A)(i). The Court also found that the sentencing factors set forth in 18 USC 3553(a) support a partial reduction in sentence. Relevant here, a defendant can demonstrate an extraordinary and compelling reason upon showing the "incapacitation of the defendant's parent when the defendant would be the only available caregiver for the parent." USSG1B1.13(b)(3)(D). Additionally, this requirement may be met if "[t]he defendant presents any other circumstance or combination of circumstances that... are similar in gravity" to the reasons described in this section. USSG 1B1.13(b)(5). Vasquez argued he is the sole available caregiver for his ailing mother. Indeed, Vasquez has presented a letter from his mother indicating that she is 72 years old and suffers from medical issues. In that letter, she specifically states that she "do[es] not have anyone other than [her] son who could take care of [her]." Her debilitated condition is also supported by medical records. Sentence reduced to time served.
CR.RIS/MEDICAL/DISPARITY/REHABILITATION/USSG1B1.13(b)(6). The Eastern District of Virginia granted in part a CR.RIS motion in United States v. Troy Baylor, 2024 U.S. Dist. LEXIS 139713 (E.D. Va. Aug. 6, 2024). On March 1, 2011, Troy Baylor, along with his brother James Baylor were charged in a 13-count indictment. The Indictment spoke to two armed robberies: one on Nov. 30, 2010, and a second on Dec. 21, 2010. On Feb. 1, 2012, the Court granted the United States Motion to Dismiss Counts Five through Ten of the Indictment. Two days later, on Feb. 3, 2012, a jury convicted James Baylor on the seven remaining counts. Baylor's total term of imprisonment for 624 months. Baylor discussed the sentencing disparity resulting from his stacked 924(c) convictions and his severe health issues, to include prostate cancer, liver hemangioma, and permanent nerve damage, as well as the impact that COVID-19 has had on these conditions, rehabilitation while in prison, the advanced age he will be when released from prison. The Court granted in part the Motion for Compassionate Release upon finding that the sentencing disparity resulting from Baylor's stacked 924(c) convictions offers an "extraordinary and compelling reason" to support his request for relief. 18 USC 3582(c)(1)(A)(i). The Court found that the sentencing factors set forth in 18 USC 3553(a) support a partial reduction in sentence. Sentence reduced to 411-months.
APPEAL/2254/JUDICAL BIAS. The Sixth Circuit remanded Nathaniel Jackson v. Cool, 2024 U.S. App. LEXIS 19600 (6th Cir. Aug. 6, 2024). Nathaniel Jackson was convicted of a capital offense and sentenced to death. His sentencing was marred by judicial bias and misconduct, including ex parte communications between the judge and prosecutor and the prosecutor ghostwriting the judge’s sentencing opinion. When this misconduct was revealed the Ohio appellate courts ordered new sentencing proceedings. However, the trial judge denied Jackson’s motion to present additional mitigating evidence and resentenced him based on the old record, issuing a nearly identical opinion to the original one. The Ohio appellate courts affirmed Jackson’s sentence despite the trial judge’s misconduct. Jackson then filed a habeas corpus petition in federal district court. The district court granted the petition on the grounds that Jackson was unconstitutionally denied the opportunity to present mitigating evidence but denied his other claims, including judicial bias. The Sixth Circuit reviewed the case. The court held that Ohio’s standard for assessing judicial bias was contrary to clearly established federal law. On de novo review the court found that the trial judge was unconstitutionally biased. The court also held that the exclusion of mitigating evidence at Jackson’s resentencing violated the Eighth Amendment as capital defendants have the right to present all relevant mitigating evidence. Consequently, the court affirmed the district court’s issuance of a writ of habeas corpus on the mitigating-evidence claim, reversed the denial on the judicial-bias claim and remanded for further proceedings.
APPEAL/2254/NAPUE. The Ninth Circuit remanded with instructions to grant Charles Clements v. Madden, 2024 U.S. App. LEXIS 20047 (9th Cir. Aug. 9, 2024). Charles Clements was convicted by a California state jury of two counts of aggravated kidnapping, three counts of second-degree robbery and related enhancements. His convictions were based in part on the testimony of a jailhouse informant, Donald Boeker, who claimed Clements had solicited him to murder a key witness. Boeker testified he received no benefits for his cooperation and that his motives were altruistic. However, it was later revealed Boeker did receive parole consideration for his testimony which the prosecution knew or should have known. Clements appealed the denial of his federal habeas corpus petition which was filed under 28 USC 2254 to the Ninth Circuit. The district court had denied his claims, including one under Napue v. Illinois, which asserted the prosecution knowingly used false testimony. The district court reviewed the Napue claim de novo but ultimately denied it finding no reasonable likelihood that Boeker’s false testimony affected the jury’s judgment. The Ninth Circuit reversed the district court’s denial of Clements’s Napue claim holding that the prosecution violated Napue by allowing Boeker to falsely testify about not receiving any benefits for his cooperation. The court found Boeker’s testimony was highly probative of Clements’s consciousness of guilt and identity on the aggravated kidnapping counts. The court concluded there was a reasonable likelihood that the false testimony could have affected the jury’s judgment. Consequently, the Ninth Circuit remanded the case with instructions to grant Clements’s habeas petition with respect to the aggravated kidnapping charges. The court did not address Clements’s Brady claim or his request for an evidentiary hearing as the relief sought was already granted under the Napue claim. The court affirmed the denial of Clements’s Massiah and prosecutorial misconduct claims finding that the state court’s determinations were not objectively unreasonable.
APPEAL/2254/DELAY. The Third Circuit vacated and remanded Jamal Morton v. Director Virgin Islands Bureau of Corrections, 2024 U.S. App. LEXIS 19465 (3d Cir. Aug. 5, 2024). Jamal Morton was convicted in 2012 in the Virgin Islands Superior Court of second-degree murder and various firearm offenses receiving a 50-year sentence. After his conviction was affirmed on direct appeal, Morton filed a territorial habeas petition in 2014, raising twenty claims, including violations of his Fifth and Sixth Amendment rights. Despite his numerous attempts to move the case forward, including motions for default judgment, discovery requests, and status conference requests, the Superior Court took no substantive action for nearly six years. Frustrated by the inaction Morton filed a federal habeas petition in the U.S. District Court of the Virgin Islands in April 2020, raising the same claims. The District Court dismissed his petition without prejudice citing his failure to exhaust territorial court remedies. The court reasoned that Morton had not taken sufficient steps, such as seeking a writ of mandamus from the Virgin Islands Supreme Court, to address the delay in the territorial court. The Third Circuit reviewed the case and found that the nearly six-year delay in the territorial court coupled with the lack of progress and Morton’s reasonable efforts to advance his case constituted inordinate delay. The Third Circuit held the District Court erred by not requiring the Government to justify the delay before dismissing Morton’s petition. The court vacated the District Court’s dismissal and remanded the case instructing the lower court to allow the Government to provide any justifications for the delay and proceed accordingly.
APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded for resentencing United States v. Donovin Paige, 2024 U.S. App. LEXIS 19441 (11th Cir. Aug. 5, 2024). Donovin Paige was convicted of one count of theft or receipt of stolen mail matter under 18 USC 1708 and appealed his sentence as procedurally and substantively unreasonable. Paige’s Presentence Investigation Report calculated an advisory Guidelines range of six to twelve months. The district court sentenced Paige to 48 months a 400 percent upward variance. Upon review, the court found that the district court relied on erroneous factual findings in calculating Paige’s sentence and thus found the imposed sentence procedurally unreasonable. The court vacated and remanded for resentencing. In sentencing Paige, the district court expressed concern he had failed to appear at his initial hearing scheduled for October 2021. The court then stated that “while [Paige] was out on lam”— as in during the time of his failed appearance—he was charged and convicted of two other crimes: (1) “unlawful distribution of controlled substances as reflected in Paragraph 31” and (2) “theft of property in the fourth degree in Paragraph 30.” The district court described this as conduct deserving an upward variance. The court’s review showed that the district court made a mistake of fact in summarizing Paige’s previous convictions.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for resentencing United States v. Jesus Soto Parra, 2024 U.S. App. LEXIS 19516 (5th Cir. Aug. 5, 2024). On Dec. 22, 2022, Jesus Soto Parra who is an American citizen attempted to enter the United States at the Presidio, Texas port of entry. After being turned back by Mexican officials due to a vehicle registration issue, Soto Parra returned to the U.S. and initially denied having any weapons, ammunition, or cash over $10,000 to a Customs and Border Protection officer. Upon further inspection he admitted to having a weapon in his vehicle. A search revealed a firearm, ammunition, and body armor. Soto Parra was charged with exporting a pistol without authorization and was found guilty by a jury. The Western District of Texas sentenced Soto Parra and applied a two-level enhancement for obstruction of justice based on his false statements to the CBPofficer and during his post-arrest interview. The Presentence Investigation Report recommended a base offense level of 14, which was increased to 16 due to the obstruction enhancement resulting in a sentencing range of 24 to 30 months. Soto Parra objected to the enhancement but the district court overruled his objections and sentenced him to 30 months in prison. The Fifth Circuit reviewed the case and found that the district court erred in applying the obstruction of justice enhancement. The appellate court determined Soto Parra's false statements did not significantly impede the investigation or prosecution as required for the enhancement under USSG 3C1.1. The court held the error was plain and affected Soto Parra's substantial rights as it resulted in a higher sentencing range. Consequently, the Fifth Circuit vacated Soto Parra's sentence and remanded the case for resentencing without the obstruction of justice enhancement.
APPEAL/DISMISS INDICTMENT. The Ninth Circuit affirmed the dismissal of the indictment in United States v. Rosendo Valdivias-Soto, 2024 U.S. App. LEXIS 20051 (9th Cir. Aug. 9, 2024). Rosendo Valdivias-Soto was indicted for illegally reentering the United States after being previously removed. During his removal proceedings, Valdivias, who only speaks Spanish and has cognitive impairments, was misinformed about his right to counsel due to translation errors. The interpreter repeatedly used the Spanish word for "hire," suggesting that Valdivias could only have an attorney if he could pay for one which led him to waive his right to counsel and proceed pro se. Additionally, the immigration judge (IJ) incorrectly advised him that he was ineligible for any relief due to his aggravated felony conviction which affected his waiver of the right to appeal. The Northern District of California dismissed the indictment finding that the removal order was invalid due to due process violations. The court held that Valdivias did not knowingly and voluntarily waive his right to counsel or his right to appeal because of the translation errors and the IJ's incorrect advice. The court found that Valdivias was prejudiced by these errors as he could have plausibly obtained a U-visa and avoided deportation if he had been properly informed and represented. The Ninth Circuit affirmed the district court's judgment. The Ninth Circuit held that Valdivias's removal proceedings were fundamentally unfair due to the due process violations stemming from the translation errors and the IJ's misstatements. The court also held Valdivias satisfied the requirement to exhaust administrative remedies because the erroneous advice and translation errors rendered administrative review unavailable. Finally, the court concluded that Valdivias was improperly deprived of the opportunity for judicial review due to the invalid waiver of his right to appeal. Therefore, the dismissal of the indictment was affirmed.
APPEAL/ESCAPE/JURY INSTRUCTIONS. The Eleventh Circuit granted a new trial in United States v. Frederick Bush, 2024 U.S. App. LEXIS 19961 (11th Cir. Aug. 8, 2024). Frederick Bush was convicted of escaping from the Keeton Residential Reentry Center in Tallahassee, Florida, before completing his required stay. The Government indicted him on a single count of knowingly escaping from custody by willfully failing to remain within the extended limits of his confinement, citing 18 USC 751(a) and 4082(a). Bush argued he left the center because an employee threatened him and that he did not know his actions were illegal. The Northern District of Florida handled the initial trial. Bush represented himself after a Faretta hearing, with Joseph Debelder as standby counsel. Throughout the trial Bush contended the Government needed to prove he knew his actions were illegal. The district court, however, instructed the jury the Government only needed to prove Bush knew he was not allowed to leave the facility without permission and he intentionally left. The jury found Bush guilty and the district court denied his motion for a new trial and sentenced him to 37 months in prison. The Eleventh Circuit reviewed the case. The court found the district court's jury instructions were erroneous because they did not include the requirement that Bush acted "willfully," as mandated by 18 USC 4082(a). The appellate court held that the district court's instruction allowed the jury to convict Bush without proving he knew his actions were unlawful, which was a plain error likely responsible for an incorrect verdict. Consequently, the Eleventh Circuit vacated Bush's conviction.
APPEAL/CONFESSION. The Ninth Circuit reversed and remanded United States v. Heraclio Osorio-Arellanes, 2024 U.S. App. LEXIS 20050 (9th Cir. Aug. 9, 2024). Heraclio Osorio-Arellanes was involved in a firefight with U.S. Customs and Border Patrol agents in Arizona resulting in the death of Agent Brian Terry. Osorio fled to Mexico where he was later arrested and interrogated by U.S. officials in a Mexico City prison. During this interrogation he confessed to key elements of the Government's case on the advice of a Mexican attorney, Juan Salvador Pimentel. Osorio's confession was later used against him in court. The District of Arizona initially suppressed Osorio's confession on Sixth Amendment grounds but later reversed this decision following a Government motion for reconsideration. Consequently, the confession was admitted at trial leading to Osorio's conviction on multiple charges, including first- and second-degree murder, conspiracy to interfere with commerce by robbery, and assault on a federal officer. The Ninth Circuit reviewed the case. The court found that Pimentel's advice during the interrogation was deficient and prejudicial under the framework established in Strickland v. Washington. Specifically, Pimentel erroneously advised Osorio that robbing drug smugglers was not a crime leading Osorio to confess. The court held this advice was legally unjustifiable and that there was a reasonable probability that, absent this advice, Osorio would not have been convicted. The Ninth Circuit reversed the district court's order reconsidering the suppression of Osorio's confession and vacated his convictions and sentences, and remanded the case for further proceedings. The court did not address Osorio's Fifth Amendment claim as the Sixth Amendment claim was sufficient to decide the case. The dissenting judge would have affirmed the conviction and required Osorio to pursue his ineffective assistance of counsel claim through a 28 USC 2255 motion in the district court.
APPEAL/FIREARM WITH AN OBLITERATED SERIAL NUMBER. The Fourth Circuit vacated and remanded United States v. Randy Price, 2024 U.S. App. LEXIS 19623 (4th Cir. Aug. 6, 2024). Randy Price was charged with possession of a firearm with an obliterated serial number and possession of a firearm by a felon. Following the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, Price moved to dismiss the indictment arguing that both statutes were facially unconstitutional. The district court denied the motion regarding the felon-in-possession charge but granted it for the obliterated serial number charge finding that the analysis required under Bruen rendered the statute an impermissible restriction on the Second Amendment. The Southern District of West Virginia denied Price's motion to dismiss the felon-in-possession charge but granted it for the obliterated serial number charge. The court concluded that the conduct prohibited by the statute was protected by the Second Amendment and that there was no historical tradition of firearm regulation consistent with the statute. The Government appealed the dismissal of the obliterated serial number charge. The Fourth Circuit reviewed the case and reversed the district court's decision. The Fourth Circuit held that the conduct regulated by the statute does not fall within the scope of the Second Amendment because a firearm with a removed, obliterated, or altered serial number is not a weapon in common use for lawful purposes. The court concluded that there is no compelling reason for a law-abiding citizen to possess such a firearm, and such weapons are primarily used for illicit purposes. Therefore, the statute's regulation of these firearms does not violate the Second Amendment. The case was remanded.
APPEAL/GEOFENCE WARRANT. The Fifth Circuit affirmed the convictions in United States v. Jamarr Smith, 2024 U.S. App. LEXIS _________ No. 23-60321 (5th Cir. Aug. 9, 2024). Three individuals, Jamarr Smith, Thomas Iroko Ayodele, and Gilbert McThunel were convicted of robbery and conspiracy to commit robbery. The convictions were based on evidence obtained through a geofence warrant, which collected location data from Google to identify suspects. The robbery involved the theft of $60,706 from a U.S. Postal Service route driver, Sylvester Cobbs, who was attacked with pepper spray and a handgun. Video footage and witness testimony linked the suspects to the crime scene, but no arrests were made immediately. Investigators later used a geofence warrant to gather location data from Google, which led to the identification of the suspects. The Northern District of Mississippi denied the defendants' motion to suppress the evidence obtained through the geofence warrant. The defendants argued the warrant violated their Fourth Amendment rights due to lack of probable cause and particularity, and that the Government did not follow proper legal procedures in obtaining additional information from Google. The district court found that law enforcement acted in good faith and denied the motion to suppress. The defendants were subsequently convicted by a jury and sentenced to prison terms ranging from 121 to 136 months.
The Fifth Circuit reviewed the case and held that geofence warrants, as used in this case, are unconstitutional under the Fourth Amendment because they resemble general warrants, which are prohibited. However, the court affirmed the district court's decision to deny the motion to suppress, citing the good-faith exception. The court concluded that law enforcement acted reasonably given the novelty of the geofence warrant and the lack of clear legal precedent. Therefore, the convictions were upheld. Moreover, the use of these warrants has not been limited to egregious or violent crimes. Law enforcement officials have obtained geofence warrants for investigations into stolen pickup trucks and smashed car windows. “The government’s undisciplined and overuse of this investigative technique in run-of-the-mill cases that present no urgency or imminent danger poses concerns to our collective sense of privacy and trust in law enforcement officials.” “Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects [are] not.” Thus, geofence warrants effectively “work in reverse” from traditional search warrants. In requesting a geofence warrant, “[l]aw enforcement simply specifies a location and period of time, and, after judicial approval, companies conduct sweeping searches of their location databases and provide a list of cell phones and affiliated users found at or near a specific area during a given timeframe, both defined by law enforcement.” YOUR PHONE IS GOING TO SNITCH ON YOU.
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