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SAMARITAN NEWSLETTER – 09=30= 2024

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/CR.RIS/FAILURE TO ADDRESS ARUGMENT. United States v. Christopher Ogochukwu, 2024 U.S. App. LEXIS 24284 (6th Cir. Sept. 24. 2024). Christopher Ugochukwu appealed the district court's order denying his motion for compassionate release. Because the district court failed to address Ugochukwu's arguments in support of compassionate release, the court vacated and remanded. In 2011, a jury found Ugochukwu guilty of conspiring to possess with intent to distribute one kilogram or more of a mixture containing detectable heroin, possessing with intent to distribute one kilogram or more of heroin, and using a communication facility to facilitate a drug-trafficking offense, andsentenced to a total term of 320 months in prison. In 2022, Ugochukwu filed a motion for compassionate release arguing (1) in light of United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), his drug-conspiracy conviction cannot be used to enhance his sentence as a career offender, and there was a disparity between the sentence he received and the sentence he would receive if he were sentenced under the First Step Act of 2018; (2) his obesity and age render him susceptible to contracting COVID-19; and (3) the applicable 3553(a) factors favor release. In a supplemental motion, Ugochukwu reiterated his argument that Amendment 782 afforded him relief. He also argued he is entitled to a sentence reduction in light of United States v. Jones, 565 U.S. 400, 404 (2012) which held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" for Fourth Amendment purposes and Concepcion v. United States, 597 U.S. 481, 500 (2022), which held that district courts may "consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act." Upon review, the court concluded a remand was warranted because nothing in the record suggests the district court considered any of Ugochukwu's arguments other than his COVID-related one even though he set forth those arguments in considerable detail and with legal support. in his motion for compassionate release, supplemental motion, and reply. Although a "district court does not abuse its discretion simply by failing to explicitly address each individual argument put forward by the defendant in support of a sentence reduction," United States v. Rafidi, 842 Fed. Appx. 1017, 1023 (6th Cir. 2021) (citing Chavez-Meza v. United States, 585 U.S. 109, 118-19 (2018)), "we require that the district judge 'set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority.'" Elias, 984 F.3d at 521 (quoting Jones, 980 F.3d at 1113). Stated another way, "where 'a matter is [] conceptually simple . . . and the record makes clear that the sentencing judge considered the evidence and arguments,' a district court is not required to render an extensive decision." That did not happen here. The district court addressed only one of the four allegedly extraordinary and compelling reasons Ugochukwu proffered and did not mention the 18 USC 3553(a) factors at all. It stated that "[t]he Sixth Circuit has noted that a district court does not abuse its discretion when denying a motion when the prison facility at issue has no positive cases or otherwise has COVID under control" and denied Ugochukwu's motion on that basis alone because the motion presents only a speculative risk" with respect to COVID.

 

CR.RIS/REHABILITATION/CAREER OFFENDER. The District of Maryland granted a CR.RIS motion in United States v. Tamar Baldwin, 2024 U.S. Dist. LEXIS 174125 (D. Md. Sept. 26, 2024). Baldwin was sentenced to 240-months in following his guilty pleas to armed bank robbery and using and carrying a firearm in connection with a crime of violence. He argued because he would no longer qualify as a career offender if he were sentenced today he would have proceeded to sentencing with a far lower advisory guidelines range and would have received a much lower sentence. He contended the extended length of his sentence, in combination with his evident rehabilitation constitutes an extraordinary and compelling reason supporting his release from custody. Because of a change in the law following Baldwin's conviction neither of his two previously qualifying convictions would make him a career offender today. United States v. Royal, 731 F.3d 333, 340-42 (4th Cir. 2013) (determining that second-degree assault is not a crime of violence); United States v. Norman, 935 F.3d 232, 237-38 (4th Cir. 2019) (determining that conspiracy to distribute controlled substances is not a qualifying controlled substance offense). As a result, if sentenced today, Baldwin would no longer be a career offender under the sentencing guidelines. Because the changed case law is not retroactive, Baldwin is not entitled to automatic resentencing. However, Baldwin argued because he is no longer a career offender his sentence today would be far lower than the sentence he received in 2008 when the sentencing court considered the career offender sentencing guidelines range. At that time, Baldwin's sentencing guidelines as a career offender resulted in an advisory range of 188-235 months in prison plus a mandatory 84-month consecutive sentence for the handgun conviction. The court-imposed a below-guidelines sentence of 240 months (156 months for the armed robbery count plus 84 months consecutive for his handgun conviction). In combination with the length of his sentence Baldwin cites to his rehabilitation. He concedes his initial years were fraught with disciplinary infractions, but argues a significant "positive trend" in his behavior. He has been entirely infraction-free for the past four years. Sentence reduced to time served.

 

CR.RIS/STING OPERATION/REHABILITATION/DISPARITY. The Northern District of Illinois granted a CR.CIR motion in United States v. James King, 2024 U.S. Dist. LEXIS 173926 (N.D. Ill. Sept. 20, 2024). King agreed to join a crew of people planning to rob a stash house they believed contained 20 kilograms of cocaine. On the day of the planned robbery King and others arrived at the scene of the stash house armed with a loaded semi-automatic pistol and a loaded revolver. But it turned out that there were no drugs, the stash house was fake, and some members of the crew were actually undercover agents and a confidential informant. King and others were arrested and indicted for conspiracy with intent to distribute more than five kilograms of cocaine, possession of a firearm in connection with a drug crime, and possession of a firearm by a felon. King was found guilty at trial and sentenced to 420 months' incarceration. He has been in custody for 18 years and his anticipated release date is February 22, 2037. King presented two circumstances he contends, individually and together, are extraordinary and compelling reasons for a sentence reduction: (1) he remains imprisoned because of a "disreputable" reverse sting operation now disavowed by the Government; and (2) as one of only two defendants who remain incarcerated and his sentence is grossly disparate to the sentences of the other defendants. He argued those circumstances fall under the catch-all provision of USSG 1B1.13(b)(5) because they are "similar in gravity" to the other circumstances enumerated by the Guidelines. The Court considered King's efforts at rehabilitation. According to the probation department's supplemental PSR King currently holds a prison job and has received good work evaluations. He completed his GED in 2008 and has taken numerous educational courses offered to him to continue bettering himself, including computer courses, math and history courses, job skills courses, and courses on cognitive thinking and violence awareness and prevention. He served as a GED tutor and earned praise from one of his students. The Court noted his disciplinary history while incarcerated is not spotless and includes possessing drugs or alcohol as recently as 2019, but he seems to have turned a corner and has no reported disciplinary infractions since then. Sentence reduced to time served.

 

APPEAL/RESTITUTION/SPECIAL ASSESSMENT/BREACH PLEA AGREEMENT. The First Circuit vacated and remanded United States v. Acevedo-Osorio, 2024 U.S. App. LEXIS 24236 (1st Cir. Sept. 25, 2024). The defendant pled guilty to one count of coercion and enticement of a minor. The plea agreement included a joint recommendation for a 120-month sentence, which is the statutory minimum, despite the calculated Guidelines sentencing range being significantly higher. The Government did not provide an explanation for this recommendation at the sentencing hearing. The district court sentenced the defendant to 292 months in prison, imposed a condition of supervised release prohibiting unsupervised contact with any minor, including his children, and ordered a special assessment and restitution. The defendant appealed, arguing that the government breached the plea agreement by not adequately supporting the recommended sentence and that the sentence and conditions imposed were unreasonable. The First Circuit agreed the Government breached the plea agreement by failing to provide a minimal explanation for the recommended sentence which was necessary given the significant downward variance from the Guidelines range. However, the court concluded that this breach did not constitute plain error and affirmed the length of the sentence as reasonable. The court also upheld the restriction on the defendant's unsupervised contact with his children, finding it reasonably related to the nature of the offense and necessary to protect the community and minors. However, the court vacated the special assessment and restitution orders remanding these issues to the district court for further consideration. The special assessment was vacated because the district court did not make a finding regarding the defendant's indigency, and the restitution order was vacated because the district court did not find that the victim's mother was a victim within the statutory definition.

 

APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded United States v. Kenneth Ritchey, 2024 U.S. App. LEXIS 24485 (5th Cir. Sept. 26, 2024). Ritchey operated Gulf Coast Pharmaceuticals Plus, LLC, a wholesale distributor of pharmaceutical products. During the COVID-19 pandemic, Ritchey directed his employees to acquire large quantities of personal protective equipment (PPE) and resell them at inflated prices to various healthcare providers including the Department of Veterans Affairs (VA). The VA was charged significantly higher prices than the market value which resulted in Ritchey and his company receiving over $2 million, including more than $270,000 from the VA. Ritchey was charged with six counts including conspiracy to defraud the United States. He pled guilty to violating 18 USC 371, and the remaining counts were dismissed. The Southern District of Mississippi calculated Ritchey’s offense level based on the estimated pecuniary loss caused by his actions which included a significant enhancement for the amount of loss. The court determined the fair market value (FMV) of the PPE based on pre-pandemic prices and 3M’s pricing leading to a higher offense level and a 60-month prison sentence. Fifth Circuit found the court erred in calculating the FMV by relying on pre-pandemic prices and 3M’s pricing which did not reflect the actual market conditions during the pandemic. The appellate court held that the district court’s method of determining the FMV was not based on a realistic economic approach. Consequently, the Fifth Circuit vacated Ritchey’s sentence and remanded for resentencing emphasizing the need for a more accurate calculation of the FMV that reflects the market conditions at the time of the transactions.

 

APPEAL/HEARSAY RULE. The Eleventh Circuit reversed and remanded United States v. John Holland, 2024 U.S. App. LEXIS 24383 (11th Cir. Sept. 25, 2024). The case involves John Holland, William Moore, and Ed Cota who were accused of participating in an illegal healthcare kickback scheme. The Government alleged that Holland and Moore, hospital executives for Tenet Healthcare, paid the Cotas to refer Medicaid or Medicare-covered pregnant women to Tenet hospitals. The payments were purportedly disguised as contracts for translation services. Tracey Cota, Ed Cota's wife, pled guilty to violating the Anti-Kickback Statute (AKS) by participating in this scheme. However, the other defendants argued their business relationship did not violate the AKS because they lacked the requisite mental state or mens rea. The Northern District of Georgia held a pretrial "paper" hearing to determine the admissibility of out-of-court statements made by the defendants' alleged coconspirators. The district court concluded the Government needed to prove by a preponderance of the evidence that the defendants' conduct was illegal to admit the statements under Rule 801(d)(2)(E). The court found the Government failed to prove the defendants' knowledge of illegality and thus excluded the coconspirator statements. The Eleventh Circuit held the district court erred in requiring proof of an illegal conspiracy to admit coconspirator statements. The court clarified that under Rule 801(d)(2)(E), it is sufficient to show that the statements were made during and in furtherance of a joint venture, regardless of the venture's legality. The Eleventh Circuit reversed the district court's decision and remanded for further proceedings consistent with this opinion.

 

APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded United States v. Antonio Simmons, 2024 U.S. App. LEXIS 23975 (4th Cir. Sept. 24, 2024). Simmons was convicted of various crimes arising from his involvement in the Nine Trey Gangsters, a set of the United Blood Nation. On appeal, the court vacated certain convictions and remanded for resentencing. On remand, Simmons was sentenced to three consecutive life terms plus 35 years’ imprisonment. He again appealed. On appeal, the parties agree the discretionary condition of supervised release imposed requiring substance abuse treatment suffered from Rogers error in that there was a discrepancy between the oral pronouncement and written judgment. The parties further agree that resentencing is required. Accordingly, the court vacated Simmons’ sentence and remanded for a full resentencing. In light of the court’s remand it declined to address Simmons’ challenge to another condition of his supervised release. In addition, although this case began as an Anders case, the parties were directed to file merits briefs, and they have done so. Accordingly, the court declined to consider the issues raised in Simmons’ pro se supplemental briefs.

 

APPEAL/BRIBERY/EXTORTION. The First Circuit vacated and remanded United States v. David DeQuattro, 2024 U.S. App. LEXIS 24539 (1st Cir. Sept. 27, 2024). A federal grand jury indicted David DeQuattro, an architect, and Cedric Cromwell, Chairman of the Mashpee Wampanoag Tribal Council and President of the Mashpee Wampanoag Gaming Authority. They were charged with various federal offenses including bribery and extortion related to Cromwell allegedly soliciting and DeQuattro allegedly providing checks and other items of value to protect a contract between DeQuattro's firm and the Gaming Authority for building a casino on tribal land. The District of Massachusetts held a jury trial where DeQuattro was convicted of one count of federal-program bribery and Cromwell was convicted of two counts of federal-program bribery and multiple counts of Hobbs Act extortion. However, the District Court later entered a judgment of acquittal on the Hobbs Act-related counts, determining that the Hobbs Act did not clearly abrogate tribal immunity. Both defendants appealed their 18 USC 666 convictions, and the Government cross-appealed the judgment of acquittal on the Hobbs Act counts. The First Circuit reversed both the 666 convictions and the judgment of acquittal. The court found that the evidence did not suffice to show that the RGB contract was "business" of the Tribe, as required under 666, because the Gaming Authority, which entered the contract, was a separate legal entity from the Tribe and received almost all its funding from a third party. The court also reversed the District Court's judgment of acquittal on the Hobbs Act convictions, holding that tribal officials do not enjoy immunity from federal criminal prosecution and that the evidence was sufficient to show Cromwell's intent to engage in a quid pro quo arrangement. The case was remanded for further proceedings consistent with this opinion.

 

APPEAL/1983/EXCESSIVE FORCE. The First Circuit vacated and remanded Joseph Segrain v. Duffy, 2024 U.S. App. LEXIS 24143 (1st Cir. Sept. 20, 2024). Joseph Segrain is an inmate at Rhode Island's Adult Correctional Institutions filed a civil lawsuit against the Rhode Island Department of Corrections and several correctional officers alleging violations of his Eighth Amendment rights and various state laws. Segrain claimed that on June 28, 2018, officers used excessive force by executing a leg-sweep maneuver, spraying him with pepper spray, and delaying his decontamination. The district court granted summary judgment in favor of the officers on all claims, leading Segrain to appeal. The District Court for the District of Rhode Island initially reviewed the case. The court found that no reasonable jury could conclude that the officers' conduct constituted an Eighth Amendment violation. It granted summary judgment on the basis that the force used was minimal and necessary to maintain order. The court also dismissed the state law claims concluding that the officers' actions did not meet the legal standards for battery, intentional infliction of emotional distress, or excessive force under Rhode Island law. The First Circuit reversed the district court's judgment regarding the 42 USC 1983 claim that Officer Walter Duffy's use of pepper spray violated Segrain's Eighth Amendment rights. It found that a reasonable jury could conclude that Duffy's use of pepper spray was excessive and not in good faith. The court vacated the district court's judgment on the Rhode Island Constitution Article I, Section 8 claim regarding Duffy's use of pepper spray and remanded for further proceedings. However, the court affirmed the district court's judgment on all other claims, including the leg-sweep maneuver and the delayed decontamination, granting qualified immunity to the officers on those issues.

 

APPEAL/ADA/DELIBERATE INDIFFERENCE. The Third Circuit vacated and remanded Roy Williams v. Secretary Pennsylvania Department of Corrections, 2024 U.S. App. LEXIS 24147 (3d Cir. Sept. 20, 2024). Roy Lee Williams is a death-row inmate with a history of mental illness was held in solitary confinement for twenty-six years. Williams filed a lawsuit claiming that his prolonged solitary confinement without penological justification violated the Eighth Amendment's prohibition against cruel and unusual punishment and the Americans with Disabilities Act (ADA). The District Court granted summary judgment in favor of the defendants, ruling that the former Secretary of the Pennsylvania Department of Corrections (DOC) was entitled to qualified immunity on the Eighth Amendment claim and that Williams could not prove deliberate indifference under the ADA. Before the summary judgment, the District Court dismissed Williams' Fourteenth Amendment claim for failure to state a claim. Williams appealed both the summary judgment and the dismissal of his Fourteenth Amendment claim. The Third Circuit concluded that the Secretary had "fair and clear warning" that keeping Williams in solitary confinement without penological justification was unconstitutional, thus rejecting the qualified immunity defense. The court held it was clearly established that someone with a known preexisting serious mental illness has a constitutional right not to be held in prolonged solitary confinement without penological justification.

Regarding the ADA claim, the court found that the District Court erred in concluding a trier of fact could not find the DOC deliberately indifferent to the risk of harm caused by placing and keeping Williams in solitary confinement despite his mental illness. The court vacated the District Court's grant of summary judgment on both the Eighth Amendment and ADA claims and remanded for further proceedings. However, the court affirmed the dismissal of Williams' Fourteenth Amendment claim.

 

APPEAL/ILLEGAL SEARCH. The Fifth Circuit reversed and remanded United States v. Samuel Crittenden, 2024 U.S. App. LEXIS 24252 (5th Cir. Sept. 25, 2024). Federal agents received a tip about ten pounds of methamphetamine. Crittenden admitted to storing items at the house and giving a bag to Dominguez, claiming he thought it contained marijuana. Additional drugs were found in the attic of the house. Crittenden and Dominguez were charged with conspiracy to possess and distribute methamphetamine and marijuana. The Government raised a potential conflict of interest with Crittenden’s attorney, Leonard Morales, who also represented another individual involved in drug activities. The district court held a Garcia hearing, where Crittenden waived his right to conflict-free counsel. The court accepted the waiver, and the trial proceeded. Crittenden was convicted on all counts but later granted a new trial due to insufficient evidence. The Fifth Circuit reinstated the conviction for possession with intent to distribute methamphetamine and remanded for sentencing. The Fifth Circuit reviewed Crittenden’s appeal, where he argued the district court erred in accepting his waiver of conflict-free counsel and denying a lesser-included-offense instruction for simple possession. The Fifth Circuit found Crittenden’s waiver was voluntary, knowing, and intelligent, and the district court did not err in accepting it. The court also held the evidence overwhelmingly indicated intent to distribute, making a lesser-included-offense instruction for simple possession inappropriate. The court affirmed the district court’s decisions and remanded for further proceedings consistent with the opinion.

 

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