The Tom Norrid Law Firm
SAMARITAN PROJECTS LLC
4415 Gladstone Blvd.
Kansas City. MO 64123-1238
417-236-1179
The SAMARITAN-PROJECTS prepares post-conviction motions along with appeals under the direction of Attorney Tom Norrid and specializes in the preparation of compassionate release and 2255 motions. 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.
APPEAL/FSA/404(b). The Sixth Circuit vacated and remanded United States v. Theodore Henderson, 2024 U.S. App. LEXIS 23259 (4th Cir. Sept. 11, 2024). Henderson appealed the district court’s order granting in part and denying in part his motion for a sentence reduction under the First Step Act of 2018. In 1991, a federal jury convicted Henderson of conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 USC 846 (Count 1); conspiracy to commit violent crimes in aid of racketeering in violation of 18 USC 1959 (Count 2); attempt to commit murder and assault with a dangerous weapon in aid of racketeering in violation of § 1959 (Count 3); two counts of using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Counts 4 and 6); assault with a dangerous weapon in aid of racketeering in violation of 1959 (Count 5); conspiracy to engage in a pattern of racketeering (“RICO conspiracy”) in violation of 18 USC 1962(d) (Count 7); engaging in a pattern of racketeering (RICO), in violation of 18 USC 1962(c) (Count 8); and two counts of possession with intent to distribute 50 grams or more of cocaine base in violation of 21 USC 841(a) (Counts 10 and 12). The district court sentenced Henderson to life imprisonment for the drug conspiracy charged in Count 1, the RICO conspiracies charged in Counts 2 and 7, the RICO charges in Count 5 and 8, and the possession with intent to distribute charges in Counts 10 and 12. The court also imposed a term of 10 years for the attempted violent crimes in aid of racketeering charged in Count 3, and the statutory mandatory consecutive terms of five years each for the 924(c) offenses charged in Counts 4 and 6. In 2022, Henderson moved for a sentence reduction under 404(b) of the FSA, seeking a reduction of all of his life sentences to time served. The district court determined that while Henderson’s drug-related offenses in Counts 1, 10, and 12 were covered offenses under the FSA, his RICO conspiracy and substantive RICO offenses were not, and therefore the court did not have the authority to reduce his sentences for those noncovered offenses. The court, however, reduced the life sentences for Counts 1, 10, and 12 to 480 months of imprisonment. On appeal, Henderson argues that the district court erred in determining that he was not eligible for a sentence reduction on his noncovered offenses. After the district court’s ruling in this case, the court held that a “district court has the discretion to reduce [the sentences for] both covered and noncovered offenses under the [FSA] if they function as a package.” Thus, where a defendant has been convicted of both covered and noncovered offenses under the FSA, the district court “should consider whether the noncovered offenses represent a freestanding and distinct sentence from that of the covered offenses, or whether the sentence reflects an attempt to achieve an overall sentence without regard to the component parts.” While a district court is not required to reduce any sentence under the FSA, if the court determines that the sentences for the covered offenses were interconnected with the sentences for the noncovered offenses the court has the discretion to reduce the sentences for the noncovered offenses as well. Importantly, “the best entity to determine the intention of the district court’s sentence is the district court itself not the reviewing court.” Because the district court did not have the benefit of our decision in Richardson, the court remanded this case “with instruction that its discretion under Section 404 includes the authority to use the sentencing package doctrine.”
CR.RIS/MEDICAL/CCE. The Southern District of New York granted a CR.RIS motion in United States v. Angel Martinez, 2024 U.S. Dist. LEXIS 165567 (S.D. N.Y. Sept. 13, 2024). On Nov. 2, 1992, shortly after being informed that Herbert Ortiz was selling drugs on his "turf," Martinez -- together with Steven Mangual and George Torres -- shot and killed Ortiz while he was making a call on a payphone. After Ortiz collapsed to the ground Mangual and Torres fled. Martinez, however, stood over Ortiz and continued to fire rounds into his body. The murder helped Martinez transform his organization into a substantial narcotics operation and he was at its helm for the next fourteen years. Martinez was involved with a crack distribution organization from 1991 to November 2006. On Oct.29, 2009, a jury convicted Martinez on two counts: (1) conspiracy to distribute and possess with intent to distribute 50 grams and more of crack cocaine in violation of 21 USC 846 ("Count One") and (2) conspiracy to commit murder in furtherance thereof in violation of 21 USC 848(e)(1)(A) and 18 USC 2 ("Count Two").Martinez was sentenced to a term of life imprisonment. Martinez's disciplinary record in prison is "exemplary," "with no infractions over [fourteen] years." Martinez serves as a Suicide Watch Companion for other inmates. On Jan. 5, 2024, Martinez was diagnosed with stage four metastatic neuroendocrine carcinoma, which is "non-curative." Martinez's cancer has spread to his liver, spleen, and bones. Martinez's treatment focuses on improving his quality of life rather than curing his disease. The Sentencing Commission has made clear that extraordinary and compelling reasons exist if "[t]he defendant is suffering from a terminal illness" and lists metastatic cancer as an example of such illness. USSG 1B1.13 n.1(A). Because Martinez's metastatic cancer is terminal Martinez's condition now plainly constitutes an extraordinary circumstance warranting a sentence reduction. Sentence reduced to time served.
CR.RIS/MEDICAL. The Western District of Washington granted a CR.RIS motion in United States v. Floyd Martin, 2024 U.S. Dist. LEXIS 161898 (W.D. Wash. Sept. 9, 2024). The defendant pled guilty to two counts of possession of controlled substances with intent to distribute, one count of possession of a firearm in furtherance of a drug crime, two counts of possession of a firearm as a felon, and one count of bank fraud. The Court imposed the mandatory minimum sentence of 120-months. Defendant primarily relies on two medical conditions necessitating release: (1) his need for hip replacement surgery, and (2) his prescription for morphine to treat the pain associated with his hip condition. A defendant may present "extraordinary and compelling reasons" for a sentence reduction or release when he 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." USSG 1B1.13(b)(1)(C). The defendant has been suffering from severe osteoarthritis of his right hip and has been waiting for a hip replacement since 2019. As of the date of this order, Martin still has not been scheduled for surgery. BOP's mismanagement of defendant's condition was troubling to the court, and the court was persuaded Martin is suffering from a serious medical condition and is not receiving the specialized medical care he requires to avoid deteriorating. Sentence reduced to time served.
AMENDMENT 821. The Southern District of Indiana granted an 821 motion in United States v. Jose Araujo-Orduno, 2024 U.S. Dist. LEXIS 162372 (S.D. Ind. Sept. 10, 2024). Araujo-Orduno was convicted of Conspiracy to Distribute and/or Possession with Intent to Distribute 500 Grams or More of Methamphetamine (Mixture) and 100 Grams or More of Heroin. He received a sentence of 128 months. He sought a sentence modification based on the provision that provides a guideline reduction for offenders with zero criminal history points. Sentence reduced to 120-months.
AMENDMENT 821. The District of North Dakota granted an 821 motion in United States v, Chance Riederer, 2024 U.S. Dist. LEXIS 163842 (D. N.D. Sept. 11, 2024). In 2017, the defendant was charged in a multi-count indictment alleging two drug and three gun offenses. The binding plea agreement called for a sentence of 96 months. Defendant committed the instant offense while under a criminal justice sentence and 2 points were added under USSG 4A1.1(d). Sentence reduced to 84-months.
AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Juan Solis, 2024 U.S. Dist. LEXIS 160651 (E.D. Tenn. Sept. 6, 2024). Defendant pled guilty to one count of conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine in violation of 21 USC 846, 841(a)(1) and (b)(1)(B) and one count of conspiracy to distribute and possess with the intent to distribute 50 grams or more of methamphetamine in violation of 21 USC 846, 841(a)(1) and (b)(1)(A). Defendant was sentenced to 150-months. Solis had zero criminal history points at the time of sentencing. Sentence reduced to 135-months.
AMENDMENT 821. The Southern District of Illinois granted an 821 motion in United States v. Aziz Sadiq, 2024 U.S. Dist. LEXIS 160139 (S.D. Ill. Sept. 5, 2024). Defendant entered an open plea of guilty to one count of attempted possession with intent to distribute methamphetamine in violation of 21 USC 841(a) and (b)(1)(A). Sadiq was under a criminal sentence at the time he committed his offense. The Court sentenced him to 208 months to run consecutive to the 16-month sentence for revocation of his supervised release in his prior federal crack cocaine case. Sentence reduced to 180-months.
APPEAL/2254. The Ninth Circuit remanded Jerry Frye v. Broomfield, 2024 U.S. Dist. LEXIS 22950 (9th Cir. Sept. 10, 2024). In 1988, a California jury sentenced Jerry Grant Frye to death for the first-degree murders of Robert and Jane Brandt. Frye and his girlfriend, Jennifer Warsing had moved to Amador County to grow marijuana. Warsing testified that Frye after seeing the devil and feeling threatened, forced her to accompany him to the Brandts' cabin, where he shot and killed them. They then stole the Brandts' valuables and fled to South Dakota where Frye was later arrested and confessed to the murders. The prosecution's case relied heavily on Warsing's testimony, corroborated by physical evidence and Frye's own statements. The California Supreme Court affirmed Frye's conviction and sentence in 1998. Frye filed a state habeas petition in 2000 claiming his due process rights were violated when jurors saw him shackled during the trial. The California Supreme Court summarily denied the petition on the merits in 2001. Frye then sought federal habeas relief, and in 2022, the district court granted a writ of habeas corpus on the shackling claim concluding that the shackling prejudiced Frye at both the guilt and penalty phases. The Ninth Circuit reviewed the case and reversed the district court's order. The Ninth Circuit held that Frye did not overcome the significant deference owed to an unreasoned state court decision on the merits under the Antiterrorism and Effective Death Penalty Act (AEDPA). The court rejected the argument that the right to be free from unjustified guilt-phase shackling was not clearly established federal law at the time of the state court's decision. However, given the limited shackling evidence and the guilt evidence before the state court the Ninth Circuit concluded that every fair minded jurist would not agree that the state court's harmlessness decision was objectively unreasonable. The case was remanded for further proceedings on Frye's remaining claims.
APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded United States v. Elboghdady, 2024 U.S. App. LEXIS 22851 (4th Cir. Sept. 9, 2024). The case involves Makel Elboghdady who was convicted of traveling in interstate commerce with the intent to engage in illicit sexual conduct violating 18 USC 2423(b) and (e). The conviction stemmed from an undercover operation where a West Virginia State Police officer posted an ad on Craigslist to attract child predators. Elboghdady responded to the ad and engaged in a series of communications with the undercover officer which led to his travel from Ohio to West Virginia for a face-to-face meeting. Upon arrival he was arrested and charged. In the Southern District of West Virginia Elboghdady was denied an entrapment defense and subsequently convicted by a jury. The district court sentenced him to 120 months’ imprisonment, applying an enhancement and cross-reference for crimes involving a victim under the age of 12. Elboghdady appealed arguing he was entitled to an entrapment defense and that his sentence was unreasonable. The Fourth Circuit affirmed the district court’s decision to deny the entrapment defense finding no evidence of Government overreach or inducement. However, the appellate court vacated Elboghdady’s sentence determining that the district court improperly applied sentencing enhancements that required evidence of intent to engage with a minor under 12 years old. The appellate court found that the district court’s factual findings did not support the application of these enhancements. Consequently, the case was remanded for resentencing without the improper enhancements.
APPEAL/RESENTENCE. The Seventh Circuit remanded for resentencing United States v. Jose Mireles, 2024 U.S. App. LEXIS 23193 (7th Cir. Sept. 12, 2024). José Mireles was involved in a drug distribution conspiracy that transported large quantities of cocaine and heroin from Los Angeles to Chicago. Mireles's role included retrieving drug shipments, delivering them to customers, and laundering the proceeds back to Los Angeles. The Drug Enforcement Agency eventually dismantled the network arresting Mireles and other conspirators. Mireles escaped custody while being transported to court but was re-arrested 18 months later. He was convicted and sentenced to 342 months in prison. The Northern District of Illinois handled the initial trial. Mireles challenged the admission of certain evidence and the calculation of his sentence. The district court admitted evidence of Mireles's failure to file tax returns, his escape from custody, and a conversation about procuring a firearm. The court also calculated the drug quantity attributable to Mireles and applied sentencing enhancements for obstruction of justice and reckless endangerment. The Seventh Circuit affirmed Mireles's conviction, finding no abuse of discretion in the admission of the challenged evidence. However, the court ordered a limited remand for resentencing. The appellate court could not discern the factual basis for one of the sentencing enhancements related to obstruction of justice. The court upheld the enhancement for reckless endangerment but required further proceedings to clarify the obstruction enhancement. The court vacated Mireles's sentence and remanded the case for further proceedings consistent with its opinion.
APPEAL/JURY INSTRUCTIONS/NEW TRIAL. The Tenth Circuit reversed and remanded for a new trial United States v. Elijah Hicks, 2024 U.S. App. LEXIS 22829 (10th Cir. Sept. 9, 2024). Hicks shot and killed his cousin Timothy Ray Buckley in the middle of a residential street. Buckley, who had a history of violence when intoxicated was drunk at the time. Hicks claimed self-defense stating that Buckley had knocked out his girlfriend and charged at him. The Government argued that Hicks intentionally murdered Buckley due to a personal grudge, highlighting that Hicks had non-lethal alternatives available. The Eastern District of Oklahoma tried the case. The jury found Hicks guilty on all counts: second-degree murder, use of a firearm during a crime of violence, and causing death in the course of a 18 USC 924(c) offense. Hicks was sentenced to concurrent 240-month sentences for the murder and causing death charges plus a mandatory 120-month consecutive sentence for the firearm charge. Hicks appealed arguing the district court erred in its jury instructions, particularly by not instructing the jury that he had no legal duty to retreat or exhaust alternatives before acting in self-defense. The Tenth Circuit reviewed the case. The court held that the district court's failure to instruct the jury on the lack of a duty to retreat or exhaust alternatives deprived the jury of critical legal guidance, thereby prejudicing Hicks' self-defense claim. The Tenth Circuit found that the jury instructions were inadequate and reversed the convictions and remanded the case for a new trial. The court emphasized that Hicks was entitled to an instruction clarifying that he had no legal duty to retreat or consider alternatives before using deadly force in self-defense.
APPEAL/1983/DELIBERATE INDIFFERENCE. The Seventh Circuit vacated and remanded Dionte Nowels v. Schneider, 2024 U.S. App. LEXIS 22306 (7th Cir. Sept. 3, 2024). Dionte Nowels is a Wisconsin prisoner who was provided with what the prison characterized as a “medical restriction” to first-floor cells after a surgery left him on crutches. A correctional sergeant, Linda Schneider, ignored that restriction and placed Nowels in a second-floor cell. Later, when Nowels had to navigate those stairs while still recovering on his crutches he tripped and fell down the stairs and injured himself. He sued Schneider for deliberately disregarding his medical needs in violation of his Eighth Amendment rights. He also sued a nurse, Mary Moore, for deliberate indifference to the care he needed after his fall. 42 USC 1983. The district court entered summary judgment for Moore, but it ruled that the case against Schneider must go to trial. Shortly before trial Schneider moved to dismiss the case for lack of prosecution after Nowels’s lawyer abandoned the case. The district court ruled that Nowels was not personally at fault, but it would reassess the record against Schneider. Without providing Nowels an opportunity to respond to Schneider’s motion to dismiss or its plan to reassess the record the district court decided that the case did not warrant a trial after all and granted Schneider’s motion to dismiss. The court affirmed summary judgment in favor of Moore because no evidence suggests that she ignored Nowels. But the court vacated and remanded the dismissal of the claim against Schneider.
APPEAL/RLUIPA. The Fifth Circuit vacated and remanded Keith Cole v. Collier, 2024 U.S. App. LEXIS 23144 (5th Cir. Sept. 11, 2024). Keith M. Cole is a prisoner in the Texas Department of Criminal Justice (TDCJ) and a devout member of the Bahá’í faith and believes he must eat non-pork meat with every meal. TDCJ, however, only provides non-pork meat in about two-thirds of its meals. Cole sued TDCJ under the Religious Land Use and Institutionalized Persons Act (RLUIPA), claiming that the prison's meal policy violated his religious rights. TDCJ offers three meal options: a regular tray, a meat-free tray, and a pork-free tray, but none replaced excluded items with non-pork meat. Cole supplemented his diet by purchasing non-pork meat from the commissary, incurring significant personal expenses. The Eastern District of Texas granted summary judgment in favor of TDCJ. The court held that TDCJ had a compelling interest in controlling costs and that its meal-selection policy was the least restrictive means of furthering that interest. The magistrate judge's report, adopted by the district court, concluded that TDCJ's policy was justified despite Cole's objections. The Fifth Circuit found that TDCJ provided no evidence to support its claim of a compelling interest in controlling costs or that its policy was the least restrictive means of achieving that interest. The court emphasized that RLUIPA requires the Government to demonstrate that it has no other means of achieving its goal without imposing a substantial burden on religious exercise. The Fifth Circuit vacated the district court's summary judgment and remanded the case for further proceedings noting that TDCJ's unsupported assertions were insufficient to meet the strict scrutiny standard required under RLUIPA.
APPEAL/IMMIGRATION. The Second Circuit remanded Bessy Castellanos-Ventura v. Garland, 2024 U.S. App. LEXIS 23298 (2d Cir. Sept. 13, 2024). Bessy Orbelina Castellanos-Ventura is a citizen of Honduras, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) in the United States. She claimed past persecution due to her membership in a social group of Honduran women, citing physical and sexual abuse by family members and a local criminal. She did not report the abuse to authorities, believing they would not help her. The Immigration Judge (IJ) assumed without deciding that Castellanos-Ventura's social group was cognizable and that she suffered persecution. However, the IJ denied her application finding she failed to show that the Honduran government was "unable or unwilling to control" her persecutors. The IJ noted her failure to report the abuse and pointed to her mother's success in obtaining a restraining order as evidence of government action. The Board of Immigration Appeals (BIA) affirmed the IJ's decision adopting the same reasoning. The Second Circuit found that the agency incorrectly applied the "unable or unwilling to control" standard. It noted the agency failed to consider whether it would have been futile or dangerous for Castellanos-Ventura, as an abused child, to seek protection. Additionally, the agency did not evaluate significant evidence indicating the Honduran government's inability to protect women and children from violence. The court granted the petition for review and remanded the case to the BIA for further proceedings consistent with its opinion.
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