top of page

SAMARITAN NEWSLETTER 1-1-24

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179

 

SAMARITAN NEWSLETTER – January 1, 2024

 

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 district court and court of appeals case for the week in review. These cases will not be on the BOP LEXIS computer for 4 to 6 weeks. The Project charges reasonable rates to retrieve cases, documents, docket sheets, transcripts, etc., from PACER. If you want to order documents, call Lexandria at 417 771 0736. Have your friends place the Project on Corrlinks so they can receive the Newsletter. Have your family check our website – SAMARITANPROJECTS.COM. This newsletter is published on our WEBSITE and available for review by your family and friends.

 

The “SAMARITAN PROJECTS COMPASSIONATE RELEASE ISSUES AND CITATIONS MANUAL” is available. The Manual contains all the winning issues and supporting cases on compassionate release. To keep it simple, the book is approximately 190 pages and sent priority legal mail. The cost is $75.00. To order, have your outside contact call Eddie at 417 818 1938 or Rusty at 417 901 3000, or BP-199 the Project.

 

CR.RIS/MEDICAL. The District of Utah granted a CR.RIS motion in United States v. Sergio Sosa, 2023 U.S. Dist. LEXIS 230468 (D. Utah Dec. 28, 2023). Sosa is a 72-year-old man suffering from ongoing health concerns including uncontrolled hypertension, stage 3 chronic kidney disease, elevated prostate specific antigens (PSA) indicative of a heightened risk of prostate cancer, and hyperlipidemia. He sought compassionate release due to his rapidly deteriorating health and the BOP's failure to provide timely care for his medical conditions. The new "Medical Circumstances of the Defendant" subcategory refers to medical conditions requiring "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." Sosa appeared to be the individual that this amendment was intended to help. And the court so found. The standard is not, as the government argued, whether Sosa suffers from "life threatening medical conditions," but whether he suffers from medical conditions that require long-term or specialized care that the BOP is not providing and put Sosa at risk of serious deterioration in health. Sosa suffers from several medical conditions that require long-term or specialized care, including uncontrolled hypertension; chronic kidney disease, stage 3b; elevated prostate specific antigens (PSA); and hyperlipidemia. The defendant was hospitalized on May 8 when his condition appeared to be worsening rapidly and he failed to respond to changes in medication. When Sosa's kidney failure was diagnosed in May 2023, his blood work showed a GFR of 52. As of Nov. 20, 2023, his GFR was 33. Anything below a GFR rating of 60 is considered kidney failure, and Sosa's kidney functions have decreased rapidly over the last 6 months according to the medical records before the court. There was no question that Sosa's medical conditions, which require long-term and specialized care, were not being treated, and his health was seriously deteriorating as a result. The court reduced the defendant’s sentence to time served.

 

CR.RIS/MEDICAL The District of Alaska granted a CR.RIS motion in United States v. Robert Bell, 2023 U.S. Dist. LEXIS 229283 (D. Alaska Dec. 26, 2023). Bell filed a Motion for Compassionate Release pursuant to 18 USC 3582(c)(1)(A)(i). Bell argued there are extraordinary and compelling reasons warranting his early release including a recent diagnosis of Stage III lung cancer and other medical issues. He asked the Court to reduce his sentence to time-served and agreed to a condition of supervised release that he be placed in a transitional living facility so he could seek needed medical care. On Jan. 10, 2021, Bell plead guilty to Conspiracy to Distribute Methamphetamine in violation of 21 USC 846, 841(a)(1), and 841(b)(1)(B). On Oct. 15, 2021, the Court sentenced Bell to a below-guidelines term of 72 months imprisonment followed by five years supervised release. Bell argued his Stage III-B non-small cell lung cancer constitutes an extraordinary and compelling reason warranting his early release under 18 USC 3582(c)(1)(A)(i). Bell argued the BOP's "delay[ed]" and "negligent" diagnosis and treatment of pulmonary nodules which were identified as potentially cancerous in June 2021, prevented him from being eligible for surgery. While surgery is "the most effective treatment for [Stage III lung cancer]," Bell contends that surgery is unavailable "[d]ue to BOP's negligent care . . . leaving chemotherapy/radiation as the only options." Bell also reported symptoms from severe chronic obstructive pulmonary disease (COPD), emphysema, a history of severe aortic regurgitation (including chest pain, shortness of breath, hypertension, and high blood pressure), two previous cases of COVID-19 (contracted in confinement and requiring hospitalization), an arachnoid cyst, and permanent hearing loss. Bell's lung cancer diagnosis and treatment in BOP custody demonstrate extraordinary and compelling reasons for release. The Court found that Bell had demonstrated extraordinary and compelling reasons warranting his early release. Defendant’s sentence was reduced to time served.

 

FSA/404(b). The District of Puerto Rico Magistrate Judge recommended the court grant the FSA motion in United States v. Eduardo Pabon-Mandrell, 2023 U.S. Dist. LEXIS 229346 (D. P.R. Dec. 22, 2023). Pabon-Mandrell filed a motion for reduction of sentence raising several grounds for relief. He moved the Court for compassionate release under 18 USC 3582(c)(1)(A)(i) asserting extraordinary and compelling reasons exist warranting a reduction of his life sentence to time served. Defendant argued he is entitled to a sentence reduction under section 404 of the First Step Act of 2018 ("FSA"). It is imperative to note the Sentencing Commission's policy statement regarding defendant-filed motions for compassionate release is now in effect. See USSG 1B1.13 (Nov. 1, 2023). Consequently, the court must take heed of the policy statement and consider its scope in deciding what constitutes an extraordinary and compelling reason. If a defendant establishes extraordinary and compelling reasons warranting a reduction, "a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction." The Magistrate recommended defendant's motion be granted in part and denied in part. It should be granted as to section 404 of the FSA. It should be denied without prejudice as to the compassionate release request. In making this recommendation, the Magistrate deferred to the Presiding Judge for the use of her discretion and expressed no view as to whether the Court should ultimately reduce the sentence of Pabon-Mandrell, and if so, how much.

 

APPEAL/CR.RIS. The Fourth Circuit vacated and remanded a CR.RIS appeal in the case of United States v. Randall Keystone, 2023 U.S. App. LEXIS 34317 (4th Cir. Dec. 27, 2023). Keystone appealed the district court’s order denying his 18 USC 3582(c)(1)(A) motion for compassionate release. In his motion, Keystone asserted that relief was warranted in light of his age, the nature of his offense conduct, the sentence he received and the nature of his sentencing, and his post-sentencing conduct and efforts at rehabilitation and because he was found guilty due to ineffective assistance of counsel and that he had served his fair share of punishment. The district court acknowledged Keystone’s assertion his conviction resulted from ineffective assistance of counsel and concluded that relief was unwarranted based on his claim he had served his fair share of punishment. The court vacated the district court’s order and remanded for further proceedings. Under 3582(c)(1)(A)(i), a district court may reduce a defendant’s term of imprisonment if “extraordinary and compelling reasons warrant such a reduction.” The court is “empowered to consider any extraordinary and compelling reason for release that a defendant might raise” in deciding whether to grant a defendant-filed motion. The court also must consider the 18 USC 3553(a) factors “to the extent that they are applicable.” the district court explicitly considered Keystone’s arguments that he was found guilty because of ineffective assistance by trial counsel and that he had served his fair share of punishment. Nevertheless, the court’s order did not reveal whether it considered Keystone’s remaining arguments that relief was warranted in light of his age, the nature of his offense conduct, the sentence he received and the nature of his sentencing, and his post-sentencing conduct and efforts at rehabilitation and, if so, on what basis it rejected those arguments. Accordingly, the court could only speculate as to whether the district court adequately and reasonably considered Keystone’s arguments and properly applied the governing law, or whether it abused its discretion. The court vacated the district court’s order and remanded for further proceedings.

 

APPEAL/CR.RIS. The Fourth Circuit vacated and remanded United States v. Raymond Hibbert, 2023 U.S. App. LEXIS 34421 (4th Cir. Dec. 28, 2023). Hibbert appealed the district court’s order dismissing his 18 USC 3582(c)(1)(A) motion for compassionate release and a reduction in his sentence as moot due to his release to home confinement by the Bureau of Prisons. The court vacated the district

court’s order and remanded for further proceedings. Pursuant to Section 3582(c)(1)(A) the district court has discretion to reduce Hibbert’s sentence—even to time served—and to order Hibbert’s immediate release. In his motion, Hibbert requested “immediate release” and a sentence reduction to time served. Because it is possible for the district court to grant Hibbert effectual relief under 18 USC 3582(c)(1)(A)(i) by reducing his prison sentence or releasing him from the custody of the Bureau of Prisons, his motion for a sentence reduction and compassionate

release were not rendered moot by his release to home confinement. Accordingly, the court vacated the district court’s order and remanded for further proceedings.

 

AMENDMENT 821. The Southern District of West Virginia granted a 821 Amendment motion in United States v. Ricky Clark, 2023 U.S. Dist. LEXIS 230256 (S.D. W.Va. Dec. 28, 2023). On Nov. 1, 2023, a multi-part criminal history amendment designated as Amendment 821 in Appendix C to the Guidelines Manual became effective. Part A of the amendment addresses status points, decreasing them by one point for individuals with seven or more criminal history points and eliminating status points for those with six or fewer criminal history points. Subpart 1 of Part B creates a new USSG 4C1.1 guideline that provides a decrease of two offense levels for "Zero-Point Offenders" (those with no criminal history points) whose offense did not involve specified aggravating factors. Parts A and B, subpart 1 of the criminal history amendment both have retroactive effect. Recognizing that the courts, probation officers, and the Bureau of Prisons would need time to process motions and prepare release plans, the Commission also decided to require that any reduction in the term of imprisonment based on retroactive application of Amendment 821 not be effective until Feb. 1, 2024, or later. (See Amendment 825 to USSG 1B1.10, effective Nov. 1, 2023). Accordingly, an order reducing a term of imprisonment based upon retroactive application of Amendment 821 must have an effective date of Feb. 1, 2024, or later. By previous Order entered on Dec. 13, 2023, this case was designated for Expedited consideration pursuant to this Court's Standing Order Adopting Procedures for Petitions Seeking Retroactive Application of the 2023 Criminal History Amendments. The Court ordered that defendant's Criminal History Category be reduced from Category IV to Category III, for a new advisory guideline range of 15 months to 21 months. It was further ordered that defendant's previous sentence be reduced to a period of 15 months, with credit for time served to date, effective Feb. 1, 2024.

 

APPEAL/SENTENCE. The Ninth Circuit vacated and remanded United States v. Christopher De Leon Guerrero, 2023 U.S. App. LEXIS 34172 (9th Cir. Dec. 26, 2023). Guerrero was convicted on two counts of attempted enticement of a minor in violation of 18 USC 2422(b) and 18 USC 2, and was sentenced to ten years in prison and five years of supervised release. Guerrero appealed his conviction and sentence.

Guerrero's conviction was based on his online conversations with a fictional 13-year-old girl named "Emily," who was actually a federal agent. He made plans to meet "Emily" at Andersen Air Force Base for sexual activities. Guerrero argued that he could not be charged under Guam law for actions that took place on a federal enclave, Andersen Air Force Base. The court affirmed Guerrero’s convictions under 2422(b) by referencing another predicate offense, not specified in the indictment, with which he could have been charged. They concluded that both of Guerrero’s convictions could be supported by Section 13.10, the Guam criminal attempt statute. As for the sentence the court agreed with both parties that Guerrero’s sentence should be reversed, vacated, and remanded to the district court for reconsideration of three special conditions imposed on his supervised release. These conditions were that Guerrero must not go to places where children under the age of 18 are likely to be, must not view or possess any visual depiction of sexually explicit conduct, and must participate in a sex offense-specific treatment program. The court affirmed the convictions but reversed, vacated, and remanded the sentence to the district court for reconsideration of the three special conditions of supervised release.

 

APPEAL/SENTENCE. The Tenth Circuit remanded for resentencing United States v. Christopher Guinn, 2023 U.S. App. LEXIS 34391 (10th Cir. Dec. 28, 2023). Guinn appealed his convictions for aggravated sexual abuse and assault arguing that the district court improperly admitted evidence of his prior nonsexual abuse under Federal Rules of Evidence Rule 413. He also contested his 240-month sentence, arguing that the district court miscalculated his criminal-history category, which led to the wrong advisory Guidelines range. The court affirmed Guinn's convictions but vacated his sentence and remanded for resentencing. The court found that the district court did not err in admitting evidence of Guinn’s previous sexual assaults against his former girlfriends under Rule 413. However, the court agreed with Guinn that his sentences for two prior convictions should have been counted as a single sentence because they were not separated by an intervening arrest. This error led to an incorrect calculation of Guinn's criminal-history category, which in turn affected his sentencing range. The court remanded the case for resentencing under the correct criminal-history category.

 

APPEAL/SENTENCE. The Fourth Circuit vacated and remanded United States v. Ryan Jones, 2023 U.S. App. LEXIS 34418 (4th Cir. Dec. 28, 2023). Jones appealed the 240-month sentence imposed on resentencing following his guilty plea to attempted Hobbs Act robbery in violation of 18 USC 1951(a). On appeal, Jones asked the court to vacate his sentence and remand for resentencing due to inconsistencies between several discretionary conditions of supervised release that the district court pronounced at sentencing and those contained in the written judgment. The Government conceded the conditions are inconsistent but argued that, for various reasons, a full resentencing is unnecessary. Here, the district court’s intention as to the challenged conditions is unclear from the record. And the court found unpersuasive the Government’s arguments as to why resentencing is unnecessary. Accordingly, the usual remedy is appropriate in this case. The court vacated Jones sentence and remanded for resentencing.

 

APPEAL/EVIDENCE. The Ninth Circuit vacated and remanded United States v. Benjamin Galecki, 2023 U.S. App. LEXIS 34296 (9th Cir. Dec. 27, 2023). The Ninth Circuit upheld the drug-trafficking and money-laundering convictions of Benjamin Galecki and Charles Burton Ritchie for their distribution of "spice," a synthetic cannabinoid product. The defendants were found guilty of manufacturing and distributing spice through their company, Zencense Incenseworks, LLC. The drug-trafficking charges were based on the premise that the cannabinoid used, XLR-11, was treated as a controlled substance because it was an "analogue" of a listed substance. The court rejected the defendants' arguments their convictions should be set aside due to Fourth Amendment violations, insufficient evidence, and vagueness of the Controlled Substance Analogue Enforcement Act of 1986. However, the court reversed their mail and wire fraud convictions due to insufficient evidence. The case was remanded for further proceedings.

 

APPEAL/VENUE. The Ninth Circuit reversed and remanded United States v. Jeffrey Fortenberry, 2023 U.S. App. LEXIS 34167 (9th Cir. Dec. 26, 2023). The Ninth Circuit reversed the conviction of former congressman Jeffrey Fortenberry for making false statements during an investigation into illegal campaign contributions. Fortenberry was interviewed by federal agents in his Nebraska home and his lawyer's office in Washington D.C., who were based in Los Angeles, California, where the alleged illegal contribution activity occurred. He was charged in California, tried, and convicted there. Fortenberry argued the district court incorrectly denied his motion to dismiss the case because venue was improper in the Central District of California. The district court held that a violation of making a false statement under 18 USC 1001(a)(2) occurs not only where the false statement is made, but also where it has an effect on a federal investigation. The Ninth Circuit rejected this interpretation, holding that such an effects-based test for venue in a 1001 offense has no support in the Constitution, the text of the statute, or historical practice. The court held that the false statement offense is complete when the statement is made and it does not depend on subsequent events or circumstances, or whether the recipient of the false statement was in fact affected by it in any way. The court reversed Fortenberry's conviction without prejudice to retrial in a proper venue.

 

APPEAL/1983/CONSTITUTIONAL RIGHTS. The Eighth Circuit vacated and remanded Brandon Peterson v. Roger Heinen, 2023 U.S. App. LEXIS 34138 (8th Cir. Dec. 26, 2023). Peterson filed a lawsuit alleging violations of his constitutional rights by various jail officials. The Eighth Circuit had to decide on numerous instances of alleged excessive force, failure to intervene, and deliberate indifference to serious medical needs, as well as constitutional and state law claims. The court found that on several occasions of alleged excessive force the officers' actions were justified given Peterson's disruptive and threatening behavior. Consequently, the court granted qualified immunity to the officers involved in these incidents. In the case of the failure to intervene claims, the court decided that without an underlying constitutional violation, there can be no liability for failure to intervene, resulting in the officers being granted qualified immunity for these claims as well. On the issue of deliberate indifference to Peterson's mental health condition, the court found that the prison officials had made efforts to address his condition and had not acted with deliberate disregard for his health. Therefore, the court reversed the district court's denial of qualified immunity to the officials involved. Regarding Peterson's claim of being subjected to unconstitutional conditions of confinement the court remanded the case to the district court for it to address this issue. The court also remanded the case to the district court to decide on the state law and Monell claims. As such, the Appeals Court reversed in part, dismissed in part, and vacated in part the district court's decision, remanding the case for further proceedings consistent with the court’s opinion.

 

APPEAL/IMMIGRATION. The First Circuit vacated and remanded Juan Espinoza-Ochoa v. Garland, 2023 U.S. App. LEXIS 34364 (1st Cir. Dec. 27, 2023). After a gang stole livestock from his Guatemalan farm and threatened his life, Juan Jose Espinoza-Ochoa fled to the United States and sought asylum based on his status as a landowning farmer. The Immigration Judge and the Board of Immigration Appeals (BIA) denied Espinoza-Ochoa's application on the grounds that he had not established that the persecution was motivated by a protected ground and that his defined social group was "impermissibly circular." The First Circuit disagreed with these findings, stating that a social group's reference to harm does not resolve its legal validity on its own and requires further substantive analysis. The Court found that the BIA had committed legal errors both in its particular social group analysis and in failing to consider whether being a landowning farmer was a central reason for Espinoza-Ochoa's persecution. Therefore, the Court granted Espinoza-Ochoa's petition, vacated the BIA's decision, and remanded the case for further proceedings.

 

APPEAL/IMMIGRATION. The Ninth Circuit remanded Ashley Alcarez-Rodriguez v. Garland, 2023 U.S. App. LEXIS 34433 (9th Cir. Dec. 28, 2023). The Ninth Circuit heard the case of Ashley Rodriguez a transgender woman who is a native and citizen of Mexico. The court reviewed the decision of the Board of Immigration Appeals (BIA) that denied her motion to remand her removal proceedings to the Immigration Judge (IJ) for the consideration of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court found that the BIA abused its discretion by failing to adequately address Rodriguez’s arguments in support of her motion to remand. Rodriguez had argued that she had good cause for missing the filing deadline for her application for asylum and other relief due to her homelessness and inability to access her personal documents during the relevant period. Her medical conditions and criminal history which were relevant to her asylum application were also unavailable for the same reasons. The court held that the BIA should have considered whether Rodriguez’s evidence was material and not reasonably available to her at the time of the final filing deadline. The court also held that the BIA had failed to properly evaluate whether Rodriguez had established good cause for missing the filing deadline. Thus, the court granted Rodriguez’s petition for review and remanded the case to the BIA to properly consider the merits of her motion.Renew your subscription >Renew your subscription >

10 views0 comments

Recent Posts

See All

SAMARITAN NEWSLETTER – 05-20-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with a

SAMARITAN NEWSLETTER – 05-14-2024

The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-117 The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with ap

תגובות


bottom of page