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.
CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The District of Colorado granted a CR.RIS reconsideration motion in United States v. James Eads, 2024 U.S. Dist. LEXIS 166639 (D. Colo. Sept. 16, 2024). Eads has been incarcerated since May 1996, two years before a jury convicted him of the following offenses: conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine in violation of 21 USC 846 and 841(b)(1)(A) ("Count 1"); possession with intent to distribute methamphetamine in violation of 21 USC 841(b)(1)(A) ("Count 2"); and using or carrying a firearm during and in relation to the crime charged in Count 2 in violation of 18 USC 924(c) ("Count 3"). The defendant was sentenced to life imprisonment on Count 1, 235 months imprisonment on Count 2, to run concurrently to the life sentence, and 30 years imprisonment on Count 3 to run consecutive to any other sentence. In Oct. 2020, Eads filed a motion for compassionate release seeking immediate release based on, among other issues, the outbreak of COVID-19 at his facility. In support he argued that extraordinary and compelling circumstances justified his release, particularly, (1) his minor, non-violent role in the underlying offenses; (2) his "exemplary conduct while in prison"; (3) his "impressively short disciplinary record"; (4) an amendment to section 841(b)(1)(A); (5) his lack of risk to the community; (6) the section 3553(a) factors; (7) his various medical issues; (8) the unconstitutionality of his life sentence under the Alleyne and Apprendi decisions; (9) the grossly length of his sentences; and (10) his plan to live with his sister and her husband upon release. In May 2021, the Court denied Eads's motion. Considering Eads's age at the time (62) and his medical conditions, including atrial fibrillation, bone spurs, a recent hip replacement surgery, and diverticulitis, the Court acknowledged that these circumstances "may be risk factors for severe COVID-19." But the Court concluded that they did not constitute extraordinary and compelling circumstances where "the BOP website reflects that zero cases of inmates with virus currently exist at FCI Florence." Nevertheless, assuming without deciding that Eads's health conditions constituted extraordinary and compelling circumstances the Court went on to consider the 18 USC 3553(a) factors. In Dec. 2023, Eads filed the instant motion asking the Court to reconsider its earlier Order denying his compassionate release motion. The defendant largely repeated the arguments he made in his original motion pertaining to his lessor role in the offenses and culpability but focuses primarily on an amendment to USSG 1B1.13(b)(6) which he asserted provides that an unusually long sentence can constitute an extraordinary and compelling circumstance. Eads contended his medical conditions, exemplary disciplinary record, rehabilitation, and the gross disparity between the mandatory life sentence he originally received and the 55-year sentence he would likely receive today under the since-amended section 841(b)(1)(A) collectively constitute extraordinary and compelling reasons to reduce his sentence. Eads was sentenced to an unusually long sentence which in combination with his rehabilitative efforts and health challenges in the Court's view constituted extraordinary and compelling reasons to reduce his sentence. The Court concluded Eads's unusually long sentence constitute extraordinary and compelling circumstances which in the aggregate are sufficient for it to conclude that a sentence reduction in this case, and at this time, is consistent with the policy statements contained in1B1.13(b)(6), and reduced his sentence to time served.
CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The Middle District of Georgia granted a CR.RIS motion in United States v. Williams, 2024 U.S. Dist. LEXIS 165775 (M.D. Ga. Sept. 13, 2024). On June 20, 1994, Williams pled guilty to one count of armed bank robbery in violation of 18 USC 2113(a) and 2113(d) (Count One), and two counts of possession of a firearm during a crime of violence (bank robbery), in violation of 18 USC 924(c)(1) (Counts Two and Four). Williams was sentenced to serve 488 months, or 40 years and 8 months: 188 months on Count One, 60 months on Count Two, and 240 months on Count Four—all to be served consecutively. The Court has denied Williams four prior compassionate release motions because he failed to establish an extraordinary and compelling reason under USSC 1B1.13 warranting his release. On Dec. 5, 2023, Williams, pro se, again moved for compassionate release citing the Nov. 1, 2023 amendments to 1B1.13, which expanded the meaning of "extraordinary and compelling." Williams argued he is entitled to compassionate release because of his "unusually long sentence." The Government argued that the Commission exceeded its authority when it promulgated 1B1.13(b)(6) to allow courts to release inmates for this reason. Numerous district courts in the Eleventh Circuit have addressed and rejected the Government's argument. An "unusually long sentence" can be an extraordinary and compelling reason for compassionate release if the defendant has served at least ten years of his term of imprisonment and if the applicable change in law results in "a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed." 1B1.13(b)(6). Williams has served almost thirty years and thus meets the first requirement. Because the Court found that Williams' circumstances satisfy the requirements for a reduction under 1B1.13(b)(6), Williams has shown that an extraordinary and compelling reason exists warranting his release. Sentence reduced to time served.
CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The Western District of Virginia granted a CR.RIS motion in United States v. Samuel Fields, 2024 U.S. Dist. LEXIS 165706 (W.D. Va. Sept. 13, 2024). The case came before the court on Fields motion for compassionate release pursuant to 18 USC 3582(c)(1)(A). On June 6, 2024, the court denied with prejudice a pro se motion for compassionate release and denied without prejudice a supplemental motion for compassionate release filed by counsel. In addition, the court ordered the parties to brief the issue of whether Fields is entitled to compassionate release based on the change in the mandatory minimum sentences set forth in 21 USC 841(b)(1)(A). The parties briefed the issue and the court granted Fields' supplemental motion and reduced his sentence from 240 months to 180 months, but not less than time served. On Feb. 2, 2012, Fields and five codefendants were charged with seven counts related to distributing drugs. Fields was charged with one count of conspiring to distribute and manufacture 280 grams or more of a mixture and substance containing a detectable amount of cocaine base, or "crack," more specifically, 5 kilograms or more of crack; conspiring to distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin; and conspiring to distribute 100 grams or more of PCP in violation of 21 USC 841(a)(1) and 841(b)(1)(B), all in violation of 21 USC 846 (Count One); and one count of possessing with intent to distribute a detectable amount of crack in violation of 21 USC 841(a)(1) and 841(b)(1)(C) (Count Seven). The court ordered the parties to address whether Fields met the "change in the law" criterion in USSG 1B1.13(b)(6) because of changes to the mandatory minimum sentences set out in 21 USC 841(b)(1)(A). The Government’s argument is the Commission exceeded its authority when it promulgated USSG 1B1.13(b)(6) and (c). The court found that 1B1.13(b)(6) and (c) of the guidelines are consistent with 18 USC 3582(c)(1)(A) and 28 USC 994(t). The Commission did not exceed its authority when it amended the policy statement, and the court will apply the Commission's interpretation of what constitutes an extraordinary and compelling circumstance warranting a sentence reduction to Fields' case. Sentence reduced to 180-months.
APPEAL/2255/IAC. The Eleventh Circuit vacated and remanded Patrick Hall v. United States, 2024 U.S. App. LEXIS 23707 (11th Cir. Sept. 18, 2024). Hall appealed the district court’s denial of his 28 USC 2255 motion to vacate his sentence. A member of the Eleventh Circuit granted Hall a certificate of appealability (COA)on whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) by failing to address Hall’s ineffective-assistance-of-counsel claims. The grant had six subclaims: (1) trial counsel was ineffective for failing to prepare his case, file motions, request discovery or investigate a defense prior to the change-of-plea hearing; (2) trial counsel was ineffective for misadvising him that it did not matter if he was charged related to heroin even if he was not involved in dealing heroin; (3) trial counsel was ineffective for failing to consult with him about forfeiture and for allowing the government to seek forfeiture; (4) trial counsel was ineffective for misadvising him that he had to plead guilty to all charges; (5) trial counsel's conduct was sufficient for presumed prejudice under United States v. Cronic, 466 U.S. 648 (1984); and (6) trial counsel was ineffective for failing to file a motion pursuant to Kastigar v. United States, 406 U.S. 441(1972), and for failing to challenge the Government’s response to the Presentence Investigation Report when the Government used immune information from his proffer session in support of the drug attribution amount. A remand is appropriate as to subclaim 1 of the COA. The court remanded on subclaim 1, but did not examine subclaims 2 through 6 of the COA. On remand, the district court should, if necessary, make sufficiently clear findings on these issues.
APPEAL/RESENTENCE. The Sixth Circuit vacated and remanded United States v. Jayshawn Robinson, 2024 U.S. App. LEXIS 23733 (6th Cir. Sept. 17, 2024). Jayshawn Robinson was sentenced to 185 months’ imprisonment for a conspiracy to distribute 500 grams or more of methamphetamine and heroin. His sentence included three enhancements, one for possession of a gun during the offense, a second for attempting to distribute heroin in jail while awaiting sentencing, and a third for his role in the original offense. Robinson argued that these enhancements were unjustified because no firearm was ever seized during the investigation, his conduct in the prison was not part of the same scheme as the charged offense, and the conspiracy did not include at least five individuals. The court affirmed the sentence enhancements for possession of a firearm and for Robinson’s role in the offense, but reversed on the enhancement for distributing drugs in jail drug and remanded for re-sentencing.
APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded United States v. Diogenes Arias, 2024 U.S. App. LEXIS 23583 (11th Cir. Sept. 17, 2024). Diogenes Arias and Kaisi Presinal appealed their convictions under the Maritime Drug Law Enforcement Act. They argued the MDLEA is unconstitutional as applied to them because they were apprehended outside U.S. “high seas” jurisdiction. Arias also argued he should have received a minor role reduction and his sentence was substantively unreasonable. The Government cross-appealed Presinal’s sentence, arguing the district court erred in finding Presinal did not possess a gun. The court affirmed the convictions and Arias’s sentence because the court had already resolved the constitutional issues raised and was not persuaded by the defendants sentencing arguments. Because the district court’s finding as to possession of the gun was clearly erroneous the court vacated Presinal’s sentence and remanded to the district court for resentencing.
APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded United States v. Smith, 2024 U.S. App. LEXIS 23573 (4th Cir. Sept. 17, 2024). The case involves defendants Aghee William Smith II and David Alcorn who were convicted in the Eastern District of Virginia for their roles in fraudulent schemes that defrauded investors of millions of dollars. The schemes included marketing and selling phony investments in a dental services marketing program and fraudulent spectrum investments. The fraudulent activities primarily targeted elderly victims, resulting in significant financial losses. In the district court, Smith and Alcorn were tried together before a jury in Feb. 2022. They raised three main issues on appeal: a joint constitutional challenge to the district court’s COVID-19 trial protocol under the Public Trial Clause of the Sixth Amendment, Smith’s separate challenge to the admission of videotaped depositions under the Confrontation Clause and Alcorn’s challenge to the imposition of supervised release conditions. The Fourth Circuit rejected Smith and Alcorn’s joint contention that the COVID-19 trial protocol violated their rights under the Public Trial Clause, finding that the protocol did not constitute a partial courtroom closure and was justified by substantial public health reasons. The court also rejected Smith’s Confrontation Clause challenge concluding that the Government had made a good faith effort to secure the witnesses presence at trial and that the witnesses were unavailable due to health concerns. However, the court found merit in Alcorn’s challenge regarding the imposition of supervised release conditions. The district court had failed to properly incorporate the standard conditions of supervised release during the oral pronouncement of Alcorn’s sentence, leading to a Rogers error. As a result, the Fourth Circuit vacated Alcorn’s sentences and remanded for resentencing. In summary the Fourth Circuit affirmed Smith’s convictions and sentences, affirmed Alcorn’s convictions, but vacated Alcorn’s sentences and remanded for resentencing.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded United States v. Ethan Day, 2024 U.S. App. LEXIS 23480 (5th Cir. Sept. 24, 2024). Ethan Sturgis Day was involved in a fraudulent scheme that purported to sell shipping containers converted into housing units. The scammers, including Day, misrepresented their credentials and affiliations to lure customers, collected payments, and never delivered the promised container homes. Day managed employees and the scammers bank accounts. The Presentence Investigation Report (PSR) identified 41 victims and assessed a loss amount of $2,563,123.72, but only detailed the financial circumstances of eight victims. The Western District of Texas sentenced Day to 101 months of incarceration and three years of supervised release. The court enhanced Day's offense level based on the loss amount and for causing substantial financial hardship to 25 or more victims as well as for his role as an organizer or leader. Day objected to these enhancements but the district court overruled his objections and adopted the PSR. After a restitution hearing, the court lowered the loss amount by nearly $1 million and re-sentenced Day to 101 months, maintaining the same enhancements. The Fifth Circuit found that the district court erred in applying the six-point enhancement for substantial financial hardship to 25 or more victims, as the record did not support that 25 or more victims experienced substantial financial hardship. However, the court upheld the two-point enhancement for Day's role as an organizer or leader, noting that he exercised control over other participants and managed significant assets of the fraud. Consequently, the Fifth Circuit vacated Day's sentence and remanded the case for resentencing.
APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded United States v. Aaron Martinez, 2024 U.S. Dist. LEXIS 23981 (11th Cir. Sept. 20, 2024). Aaron Martinez appealed his sentence of 248 months for possession of methamphetamine and cocaine with intent to distribute, possession of a firearm in furtherance of a drug-trafficking offense, and being a felon in possession of a firearm. Martinez argued that the district court violated his Fifth Amendment right to due process by imposing discretionary conditions of supervised release in its written judgment without first pronouncing those conditions at sentencing. At the sentencing hearing the district court did not reference any of the 19 standard conditions of supervised release it imposed in the final written judgment including the 16 discretionary conditions. While the conditions were drawn from a standing administrative order the district court never referenced that order during sentencing; nor did it reference the written plea agreement’s recommendation that Martinez be “subject to the Court’s standard conditions of supervised release” after his term of imprisonment. Because the district court included the additional discretionary conditions of supervised release in its written judgment without indicating at sentencing that it would adopt them it deprived Martinez of notice of the conditions and an opportunity to object in violation of the Fifth Amendment’s Due Process Clause. Therefore the court vacated the discretionary conditions and remanded for resentencing, so that the district court may reconsider whether to impose the conditions after giving Martinez an opportunity to be heard.
APPEAL/ADA/REHABILITATION ACT. The Seventh Circuit vacated and remanded Robert McDaniel v. Salam Syed, 2024 U.S. App. LEXIS 23410 (7th Cir. Jan. 18, 2023). Carl McDaniel was a Wisconsin prisoner for more than fourteen years. He had many serious medical conditions, including some that caused problems with mobility and incontinence. McDaniel sued the Wisconsin Department of Corrections under Title II of the Americans with Disabilities Act (ADA), 42 USC 12131, and Section 504 of the Rehabilitation Act, 29 USC 794. He asserted that the Department violated his rights under both statutes by denying him a cell (a) in a no-stairs unit, (b) that was single-occupancy, and (c) with a bed without a top bunk above it. McDaniel also brought an Eighth Amendment claim against a prison physician, Dr. Salam Syed, alleging he was deliberately indifferent to McDaniel’s medical needs. The district court granted summary judgment for the Department on all claims and for Dr. Syed on the Eighth Amendment claim. McDaniel appealed. After the court heard oral argument, McDaniel was released from prison, but he later died, in February 2024. His son Robert McDaniel represents his father’s estate and is now the plaintiff. The district court's grant of summary judgment for the Department on McDaniel's ADA and Rehabilitation Act failure-to-accommodate claim based on the denial of a no-stairs unit at the Columbia Correctional Institution was reversed. The court affirmed in part and reversed in part.
APPEAL/1983. The Ninth Circuit vacated and remanded Spender v. Pew, 2024 U.S. App. LEXIS 23463 (9th Cir. Sept. 16, 2024). The case involves a plaintiff who alleged that four law enforcement officers used excessive force during his arrest. The incident occurred on March 21, 2018, in Mesa, Arizona. The plaintiff was a passenger in a vehicle that was pulled over for an unsafe traffic maneuver. During the stop the plaintiff provided a false name and was asked to step out of the vehicle. When he did, he pushed one of the officers, leading to a struggle during which he was repeatedly punched, kicked, and tasered. The officers eventually handcuffed him using two linked sets of handcuffs. After being handcuffed, the plaintiff claimed that one officer continued to kneel on his upper back and neck, making it difficult for him to breathe. The District of Arizona granted summary judgment in favor of the officers, concluding that they were entitled to qualified immunity. The court found that the officers' use of force was not clearly established as unlawful under existing precedent. The court also noted that one of the officers did not use any force and was focused on another individual, thus granting summary judgment on the merits for that officer. The Ninth Circuit reviewed the district court's grant of qualified immunity for the officers concerning the force used up to the point of handcuffing, as there was no clearly established law prohibiting their actions. However, the court reversed the grant of qualified immunity for the officer who continued to kneel on the plaintiff's back and neck after he was handcuffed, finding that this conduct violated clearly established law. The court remanded the case for further proceedings regarding this officer and affirmed the summary judgment for the other officers.
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