top of page

SAMARITAN NEWSLETTER 1-8-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC 

P.O. Box 9244

Springfield, MO 65801-9244


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.


CR.RIS/STACKING/AGE/TRANSGENDER. The District of Utah granted a CR.RIS motion in United States v. Amador Ramirez, 2024 U.S. Dist. LEXIS 2735 (D. Utah Jan. 4, 2024). On June 21, 2000, a ten-count superseding indictment charged defendant with crimes related to the armed robberies of four small businesses in Salt Lake City which occurred on Feb. 13, March 2, March 11, and June 16, 2000. The defendant was named in eight of the ten counts. Though initially denying her involvement the defendant eventually plead guilty to two counts of Interference with Commerce by Threats or Violence & Aiding and Abetting in violation of 18 USC 1951 (Counts 7 and 9), and two counts of Using or Carrying a Firearm During a Crime of Violence in violation of 18 USC 924(c) (Counts 8 and 10). In the plea agreement the defendant admitted to the charges associated with the March 11 robbery of Montero Imports where defendant and her codefendant took $300 from the cash register and took the wallets of four customers present at the time of the robbery; and the June 16 robbery of Quetzal Imports where defendant and her codefendant took approximately $230 cash from the register. In each of these offenses the defendant or her codefendants threatened use of a firearm on their victims to obtain the cash. At the time defendant entered her plea, the first 924(c) conviction (Count 8) carried a mandatory minimum sentence of seven years to run consecutively, and the second 924(c) conviction (Count 10) carried a mandatory minimum sentence of 25 years also to run consecutively. She received 37 months for Counts 7 and 9 which represented the low-end of the guideline range and 32 years for Counts 8 and 10 bringing her sentence to 35 years and one month. In exchange for the guilty plea, the Government agreed to recommend a low-end sentence and dismiss Counts 3 through 6. The defendant has served roughly 23 years of the 35-year sentence and has an expected release date of March 4, 2032. Defendant filed her First Step Act Motion for Compassionate Release on March 24, 2023, and counsel supplemented the Motion on June 9, 2023. The defendant argued there were extraordinary and compelling circumstances for a reduction, specifically: the length of the sentence imposed, the elimination of the stacking provisions in 924(c), defendant's young age at the time of sentencing, and the uniquely difficult circumstances she faces in prison due to her status as a transgender female. She further argued that the time she has served satisfies the 18 USC 3553(a) factors. Policy statement USSG 1B1.13 was recently amended to be "applicable" to 3582(c)(1)(A) motions filed by prisoners. A sentence reduction here is consistent with that policy statement. As stated, USSG 1B1.13(b)(6) contemplates the possibility of a sentence reduction in cases of unusually long sentences where there has been a change in the law and the defendant shows extraordinary and compelling reasons for a reduced sentence. Defendant’s sentence was reduced to time served.


CR.RIS/AGE/INADEQUATE MEDICAL CARE. The District of Montana granted a CR.RIS motion in part in United States v. Keith Cunningham, 2024 U.S. Dist. LEXIS 2223 (D. Mont. Jan. 4, 2024). Cunningham filed a motion for compassionate release on July 21, 2023. Cunningham's counsel filed an amended brief in support of Cunningham's motion on Sept. 22, 2023. He argued that his age and the inadequate medical care that he has received in custody of the Bureau of Prisons warrants a reduction in his sentence. The Government opposed Cunningham's motion. The Government argued Cunningham has received adequate medical care in prison and his advanced age primarily stems from him committing his offense at age 69. The Government filed an indictment on Sept. 5, 2012, charging Cunningham with Sexual Exploitation of Children in violation of 18 USC 2251(a). The Court found Cunningham guilty after a bench trial on Jan. 14, 2014. Cunningham's offense level was 36 and his criminal history score placed him in category I. The Court calculated a guideline range of 188 to 235 months. The Court sentenced Cunningham to 228 months. Cunningham filed a motion for compassionate release in Nov. 2020, citing his age and medical conditions as grounds for a sentence reduction. The Court reduced his sentence to 180 months which constituted the mandatory minimum for his offense. Cunningham has served approximately 129 months which constitutes approximately 71.7 percent of his term of imprisonment. Cunningham's projected release date is Jan. 18, 2026. Section 1B1.13 of the United States Sentencing Guidelines, titled Reduction in Term of Imprisonment Under 18 USC 3582(c)(1)(A) ("Policy Statement"), previously only provided a policy statement for motions filed by the BOP director. Amendments to USSG 1B1.13 took effect on Nov. 1, 2023. "The amendment revises 1B1.13(a) to reflect that a defendant is now authorized to file a motion under 18 USC 3582(c)(1)(A), making the policy statement applicable to both defendant-filed and BOP-filed motions." Cunningham is 81 years old and he asserted that he has a hernia upon which he has not received an operation, "bone on bone" arthritis, and a bloody fluid buildup in one of his testicles. Cunningham also asserted he has recently began experiencing seizures, one of which resulted in compression fractures in his neck and back. Cunningham argued that the BOP provides "at best [ ] lackadaisical and uncoordinated treatment." The Court found he "is experiencing a serious deterioration in physical or mental health because of the aging process." USSG 1B1.13(b)(2). The Court further found that Cunningham has experienced a deterioration in his physical health because of the aging process "that substantially diminishes the ability of [ ] [Cunningham] to provide self-care" and "from which he [ ] is not expected to recover." USSG 1B1.13(b)(1)(B)(iii). Accordingly, the Court found extraordinary and compelling reasons exist to warrant a reduction of Cunningham's sentence. Sentence reduced to time served.


AMENDMENT 821. The District of Columbia granted a Amendment 821 motion in United States v. Kelvin Otunyo, 2024 U.S. Dist. LEXIS 1583 (D. D.C. Jan. 4, 2024). Otunyo was sentenced on Aug.13, 2021 to 66 months on two counts of Bank Fraud in violation of 18 USC 1344(2) and two counts of Conspiracy to Launder Monetary Instruments in violation of 18 USC 1956(h), to run concurrently and 24 months for one count of Aggravated Identity Theft in violation of 18 USC 1028A(a)(1) to run consecutively to all other counts for a total of 90 months. Defendant moved pro se for a reduction of his sentence to 82 months pursuant to 18 USC 3582 in light of Part A of Amendment 821, enacted on April 27, 2023, and effective Nov. 1, 2023. The Government "does not oppose a three-month reduction in the defendant's sentence from 90 months to 87 months which represents the lower bound of the defendant's amended Guidelines range." The defendant's motion was granted in part, and his sentence was reduced to 87 months. Defendant's sentence was below the recommended Guidelines range of 94 to 111 months based on defendant's criminal history category of II, a total offense level of 26 for Counts 1, 2, 4, and 5, and a mandatory consecutive 24-month sentence for Count 3. Specifically, defendant's criminal history category of II was based on a finding that his criminal history score was 3, which reflected one point, pursuant to USSG 4A1.1(c) for a 2013 New York conviction for criminal possession of stolen property in the third degree and two points pursuant to USSG 4A1.1(d) for committing the instant offense while on probation from the 2013 conviction. Defendant's sentence may not be reduced below 87 months, and it was reduced to 87 months.


AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Kathryn Garten, 2024 U.S. Dist. LEXIS 2245 (S.D. Ill. Jan 4, 2024). Garten sought a reduction in sentence from 168 months imprisonment to 135 months pursuant to 18 USC 3582(c)(2) and Part B of Amendment 821 to the United States Sentencing Guidelines ("USSG"). The Government did not oppose the motion. Under Part B of Amendment 821, offenders with zero criminal history points and whose offense did not involve specified aggregating factors shall receive a two-level decrease in their offense level. USSG 4C1.1. Part B of Amendment 821 applies retroactively, though a court may not order the release of a defendant to occur before Feb. 1, 2024. See 1B1.10(e)(2) (Nov. 1, 2023). At the time of sentencing, Garten was assessed a total offense level of 35 and a criminal history category of I, resulting in an advisory guideline range of 168 to 210 months. The Court sentenced Garten to a low-end sentence of 168 months' imprisonment. Because Garten had zero criminal history points she is now eligible for an offense level reduction from 35 to 33 under Part B of Amendment 821. This results in a lower advisory guideline range of 135 to 168 months. The parties thus asserted that a sentence reduction to 135 months was appropriate. The Court granted Garten's motion and ordered her sentence be reduced to a term of 135 months.


AMENDMENT 821. The Southern District of Illinois granted a Amendment 921 motion in United States v. Michael Dawson, 2024 U.S. Dist. LEXIS 2241 (S.D. Ill. Jan. 4, 2024). Dawson sought a reduction in sentence from 87 months imprisonment to 78 months pursuant to 18 USC 3582(c) and Part A of Amendment 821 to the United States Sentencing Guidelines. The Government did not oppose the motion. In Part A of Amendment 821, the Sentencing Commission altered the "status points" provision regarding criminal history, which now appears in USSG 4A1.1(e). Under the amended provision a defendant who has 7 or more criminal history points and who committed the offense of conviction while under any criminal justice sentence receives 1 status point. A defendant who has 6 or less criminal history points and who committed the offense of conviction while under any criminal justice sentence receives no status points. The changes apply retroactively, though a court may not order the release of a defendant to occur before Feb.1, 2024. Here, with the addition of two status points, Dawson's total offense level at sentencing was 27 and his criminal history category was III which provided for a sentencing range between 87 and 108 months. The Court imposed a low end sentence of 87 months. Under Amendment 821, Dawson would no longer receive any status points reducing his criminal history category from III to II and resulting in a lower advisory guideline range of 78 to 97 months. The parties asserted that a sentence reduction to 78 months was appropriate. The Court granted defendant’s motion and ordered his sentence be reduced to a term of 78 months.


AMENDMENT 821. The Southern District of Illinois granted a Amendment 821 motion in United States v. Ernesto Vizcarra-Aguilar, 2024 U.S. Dist. LEXIS 2240 (S.D. Ill. Jan. 4, 2024). The parties agree that the defendant is eligible for a reduction under Part A of Amendment 821, which amended USSG 4A1.1(e) (2023) and concerns criminal history points ("status points") awarded because a defendant was under a criminal sentence when he committed his offense of conviction. Vizcarra-Aguilar's total offense level at sentencing was 33 and his criminal history category was I, which provided for a sentencing range of between 135 to 168 months. The Court imposed a sentence of 135 months at the low end of the Guidelines range. (See Doc. 258). Pursuant to Amendment 821 in conjunction with Vizcarra-Aguilar's criminal history score of zero, his total offense level can be reduced from 33 to 31, resulting in a lower advisory guideline range of 120 to 135 months. Considering this lowered range, the parties have agreed that a sentence reduction from 135 months to 120 months in prison on the single count conviction is appropriate. The Court agrees for the reasons set forth in the Motion. Accordingly, the Court granted the agreed motion and reduced the defendant's sentence of imprisonment from 135 months to 120 months on the single count effective February 1, 2024.


AMENDMENT 821. The Southern District of Florica granted a Amendment 821 motion in United States v. Robert Castro Riascos, 2024 U.S. Dist. LEXIS 711 (S.D. Fla. Jan. 3, 2024). Riascos filed a motion for a reduction of his sentence pursuant to 18 USC 3582(c)(2) and for the appointment of counsel. The Government responded arguing that although Castro Riascos is eligible for a reduction under 3582(c)(2), the 18 USC3553(a) factors weighed against him. The Court granted the motion for reduction of sentence, in part, but denied Castro Riascos's request for the appointment of counsel. Since Castro Riascos was sentenced the Sentencing Commission issued a sentencing adjustment for certain zero-point offenders, which provides, in relevant part, for "a decrease of two levels from the offense level . . . for offenders who did not receive any criminal history points . . . and whose instant offense did not involve specified aggravating factors". Castro Riascos sought retroactive application of Amendment 821 to the Court's judgment sentencing him to 72 months. The Government acknowledged a review of Castro Riascos's case revealed he was indeed eligible for a sentence reduction pursuant to Amendment 821. Castro Riascos qualifies for the adjustment for zero-point offenders because he meets all the criteria. In addition, a reduction in Castro Riascos's sentence was consistent with the applicable policy statements. The Court reduced Castro Riascos's sentence to 60 months.


2255/EVIDENTIARY HEARING. The District of New Jersey granted an evidentiary hearing in Vincent Falci v. United States, 2024 U.S. Dist. LEXIS 193 (D. N.J. Jan. 2, 2024). Petitioner was convicted at trial on one count of securities fraud and three counts of wire fraud. He is currently serving a sentence of 180 months. Petitioner is proceeding pro se pursuant to 28 USC 2255. Petitioner raises two claims in this action. In Claim 1, Petitioner states that defense counsel, John H. Yauch, Esq., an Assistant Federal Public Defender, was ineffective during the plea negotiation process when he failed to notify Petitioner of the elements that the government was (and was not) required to prove for a conviction. According to Petitioner, this purported ineffectiveness by Mr. Yauch led Petitioner to reject government plea offers of eighty-four months imprisonment if Petitioner pled guilty to one count of securities fraud. In Claim 2, Petitioner asserts Mr. Yauch provided ineffective assistance of counsel at trial by failing to provide any defense whatsoever on the wire fraud counts. The Court finds that, in an abundance of caution, an evidentiary hearing is warranted on Claim 1 only. Petitioner and Mr. Yauch appear to differ in certain respects regarding the nature and extent of their conversations prior to and ultimately culminating in Petitioner's rejection of the Government's plea offers. Testimony from Petitioner and Mr. Yauch may be helpful to the Court in deciding Claim 1. The Court reserves judgment on Claim 2 until such time as Claim 1 is decided. The court ordered an evidentiary hearing on Claim 1 of Petitioner's 2255 motion — ineffective assistance of counsel for purportedly failing to notify Petitioner of the elements the Government needed to prove for a conviction; and it was further ordered that Petitioner be appointed counsel to represent him at the evidentiary hearing pursuant to Rule 8(c) of the Rules Governing Section 2255 Proceedings and 18 USC 3006A.


APPEAL/2255/IAC/COA. The Fifth Circuit granted a COA in United States v. Gerardo Ibarra, 2024 U.S. App. LEXIS 246 (5th Cir. Jan. 4, 2024). Ibarra plead guilty to one count of possession of child pornography and was sentenced to 100 months to be followed by 10 years of supervised release. Ibarra moved for a certificate of appealability (COA) to appeal the denial of his 28 USC 2255 motion. Ibarra asserted that trial counsel was ineffective for inducing him to plead guilty based on the assertion that he would receive residential sex offender treatment while in prison that could be used to reduce his sentence by 12 months. As the claim is raised for the first time in his COA motion, it will not be considered. In his COA motion, Ibarra argued that the district court erred in denying relief under 2255 on his claim that his trial counsel was ineffective for failing to file an appeal following his sentencing. By failing to challenge the denial of 2255 relief on any other basis, he has abandoned all other possible issues. Ibarra has shown that reasonable jurists would debate the district court's assessment of his constitutional claim. A COA was granted on whether counsel's failure to file a direct appeal constituted ineffective assistance.


APPEAL/SENTENCE/STATUS POINTS. The Seventh Circuit ordered resentencing in United States v. Rickey Claybron, 2023 U.S. App. LEXIS 33625 (7th Cir. Dec. 29, 2023). At sentencing, Rickey Claybron’s criminal history category included two “status points” for committing Hobbs Act robberies while on parole for a previous crime. Months later, the United States Sentencing Commission proposed and enacted a retroactive amendment, changing how status points are applied. Had that amendment been in effect at the time of sentencing, Claybron’s criminal history score would have been one point lower, enough to lower his criminal history category and resulting Guidelines range. Claybron appealed and sought (1) a remand to reconsider the sentence imposed for his Hobbs Act robbery convictions, and (2) reversal of his firearm-related convictions under 18 USC 924(c). The court affirmed Claybron’s firearm-related convictions and sentences. But because of the post-sentencing, retroactive change to the Guidelines, the court ordered the remand as Claybron requested.


APPEAL/SENTENCE. The Fourth Circuit vacated and remanded United States v. Rodriquies Evans, 2024 U.S. App. LEXIS 314 (4th Cir. Jan. 5, 2024). Evans was convicted of four criminal offenses related to his involvement in a multistate conspiracy to transport and distribute methamphetamine and other controlled substances. The district court sentenced him to the statutory maximum of 80 years in prison. The Fourth Circuit found that the district court had erred in calculating Evans’s Sentencing Guidelines range and vacated his sentence and remanding the case for resentencing. The court determined the district court had incorrectly attributed nearly 3 kilograms of crystal methamphetamine seized from a co-conspirator to Evans. The court held that for sentencing purposes under the Sentencing Guidelines, only acts that fall within the scope of the criminal activity the defendant agreed to jointly undertake can be considered relevant conduct. The district court had attributed the drugs based on the broader standard of substantive liability under Pinkerton, which allows a defendant to be held liable for the acts of co-conspirators if they are within the scope of the overall conspiracy and reasonably foreseeable to the defendant. The court also found that the district court erred in applying a threat enhancement in calculating Evans's Sentencing Guidelines range as the possession of a firearm enhancement could not by itself be the basis for a threat enhancement.


APPEAL/SENTENCE. The Fifth Circuit remanded for resentencing United States v. Jose Diaz-Diaz, 2024 U.S. App. LEXIS 136 (5th Cir. Jan. 3, 2024). In this case the Fifth Circuit considered an appeal by Jose Guadalupe Diaz-Diaz and Martin Perez-Marrufo, two members of the Barrio Azteca gang, who were convicted for their involvement in the murders of three people in Ciudad Juarez, Mexico in 2011. The defendants separately appealed their convictions and sentences specifically questioning whether sufficient evidence existed to support their convictions for conspiracy to commit murder in a foreign country under 18 USC 956(a)(1). Diaz also challenged his aiding-and-abetting convictions and his three consecutive life sentences for his convictions under 18 USC 924(c) and (j). Perez-Marrufo also challenged an obstruction of justice enhancement imposed at sentencing. The court held that sufficient evidence existed to support defendants convictions for conspiracy to commit murder in a foreign country. The court also affirmed the obstruction of justice sentencing enhancement in Perez-Marrufo's case and the sufficiency of the evidence to support Diaz's convictions for aiding and abetting in Salcido's murder. However, the court held that the district court erred in imposing mandatory consecutive life sentences for Diaz's three section 924(j) convictions and remanded the case for resentencing on these counts.


APPEAL/SENTENCE/ACCA. The Seventh Circuit vacated and remanded United States v. Sergio Gamez, 2024 U.S. App. LEXIS 5 (7th Cir. Jan. 2, 2023). Sergio Gamez challenged the 15-year mandatory minimum federal sentence he received under the Armed Career Criminal Act which applies to persons with three or more violent felonies who are convicted of possessing a firearm as a felon. The court previously certified this case to the Indiana Supreme Court for guidance on the elements of Indiana arson—one of Gamez’s prior felony convictions. The state’s supreme court declined to address the certified question requiring the court to now resolve whether a conviction under Indiana’s 2002 arson statute constitutes a “violent felony” within the meaning of 18 USC 924(e). Concluding that the answer was no, the court returned the case to the district court for resentencing. Because Sergio Gamez’s arson conviction does not qualify as a crime of violence rendering him an armed career criminal under ACCA, the court vacated his sentence and remanded for resentencing without the 15-year mandatory minimum required by 924(e).


APPEAL/SENTENCE. The Fourth Circuit remanded for resentencing United States v. David Nance, 2024 U.S. Dist. LEXIS 200 (4th Cir. Jan. 4, 2024). This case was returned to the court after its remand to the district court for the resentencing of David Travis Nance. Because the district court again failed to meaningfully address Nance’s argument for a lower sentence, and because the error is not harmless, the court vacated the amended judgment and remanded for resentencing before a different district judge. Nance plead guilty to possessing a firearm as a felon in violation of 18 USC 922(g)(1). The district court calculated an advisory Sentencing Guidelines range of 37 to 46 months imprisonment and sentenced Nance to 46 months. Nance appealed and asserted that the district court had not meaningfully addressed his primary argument for a below-Guidelines sentence. Specifically, Nance faulted the district court for not addressing his argument based on his family responsibilities: he is the sole caretaker of his six-year-old son and also looks after his elderly mother who is disabled. The Government agreed with Nance and filed an unopposed motion to remand stating that a “resentencing [was] necessary to allow the [district] court to meaningfully address [Nance’s] mitigating arguments.” The court granted the Government’s motion and remanded for resentencing. On remand, the district court conducted a resentencing hearing and imposed the same top-of-the-Guidelines 46-month sentence of imprisonment. In explaining its chosen sentence, the court recited the 18 USC 3553(a) factors, described Nance’s criminal history, and observed that Nance’s offense was serious. The court added that it had “considered” Nance’s arguments for a lower sentence but did not mention any of those arguments, including his argument based on his family responsibilities. The court also imposed a three-year period of supervised release that includes a special condition requiring Nance to support his dependents. The court remanded for resentencing.


APPEAL/EN BANC/BUYER-SELLER JURY INSTRUCTION. The Seventh Circuit granted rehearing en banc in United States v. Royal Page, 2023 U.S App. LEXIS 33780 (7th Cir. Dec. 20, 2023). The court voted sua sponte to rehear this appeal en banc. Accordingly, the panel opinion of August 4, 2023 was vacated and the court will set an argument date by separate order. The court decided that supplemental briefs would assist in its consideration of the case. The parties shall each file supplemental briefs of up to 7,000 words addressing the following question, in addition to any other points they wish to raise: Whether the trial judge plainly erred in failing to sua sponte provide a buyer-seller instruction. In answering this question counsel should address whether the record reflects presentation of a buyer-seller theory and the role of the party-presentation principle in the district court. The parties briefs should address how United States v. Olano, 507 U.S. 725 (1993); United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020); Greer v. United States, 141 S. Ct. 2090 (2021); United States v. Douglas, 818 F.2d 1317 (7th Cir. 1987); United States v. Thomas, 150 F.3d 743 (7th Cir. 1998); United States v. Gee, 226 F.3d 885 (7th Cir. 2000); and United States v. Cruse, 805 F.3d 795 (7th Cir. 2015) affect these questions. 


APPEAL/EVIDENCE. The Fourth Circuit vacated the conviction in United States v. Laura Gallagher, 2024 U.S. App. LEXIS 99 (4th Cir. Jan. 3, 2024). In this case before the Fourth Circuit a foreign service officer and a non-citizen were convicted of conspiring to fraudulently obtain U.S. citizenship for the non-citizen and making false statements in the process. The defendants, Laura Anne Gallagher and Andrey Nikolayevich Kalugin, were married in 2015. They were accused of conspiring to achieve naturalization and proof of citizenship for Kalugin by making false statements and submitting fraudulent documents. The jury found them guilty on all counts. On appeal the court concluded that the evidence was sufficient to support each defendant’s convictions. However, it found that the jury was allowed to consider a legally inadequate theory on one count and an erroneous evidentiary ruling prevented the defendants from offering certain evidence on the remaining two counts. As a result, the court vacated the convictions and remanded the case for further proceedings.


APPEAL/EVIDENCE. The Seventh Circuit remanded United States v. Johneak Johnson, 2024 U.S. App. LEXIS 336 (7th Cir. Jan. 5, 2024). Johnson was indicted for violating 18 USC 922(g)(1) by possessing a firearm as a person previously convicted of a felony. He awaits trial. To challenge a pretrial ruling excluding evidence from trial the Government brought this interlocutory appeal under 18 USC 3731. Relying on Federal Rule of Evidence 403 the district court decided before trial to exclude evidence that the firearm in question had an attached laser sight and that two key witnesses saw the sight activated when defendant possessed (and brandished) the firearm. The district court found that any evidence regarding the laser sight would cause unfair prejudice to the defendant that would substantially outweigh its probative value. The Government proposed to limit the laser sight evidence to reduce any risk of unfair prejudice. The Government’s final proposal was to have its witnesses describe the firearm only as having a “glowing red dot,” without naming the laser sight or physically demonstrating that feature of the firearm. The district court found that the risk of unfair prejudice from even this limited evidence of the laser sight would still substantially outweigh its probative value. The court stood by its decision to exclude all evidence of the laser sight under Rule 403. The court’s disagreement with the district court affects the weights assigned to both sides of the scale. The district court erred by unduly discounting the probative value of the laser sight evidence while simultaneously overstating the danger of unfair prejudice, at least with the limits the Government proposed. These differences in weight are so substantial that they necessarily change the result of the Rule 403 balance and require the court to reverse. The court’s ruling today is intended to be narrow. First, the court does not mean to imply that any of the limits the Government has proposed on the laser sight evidence are essential to a fair trial in this or similar cases. Other judges in other cases might well exercise their discretion under Rule 403 to allow such evidence of a firearm’s identifying characteristics or relevant events without such limits. The court held only that the district court abused its discretion when it excluded under Rule 403 even the limited version of the laser sight evidence proposed in the government’s motion for reconsideration. The court did not endorse all portions of the Government’s proposed limiting instruction about the gun’s dangerousness. The court left the framing of appropriate limiting instructions to the district court’s sound discretion. The district court’s exclusion of the limited laser sight evidence under Rule 403 as proposed in the Government’s motion for reconsideration was reversed, and the case was remanded for further proceedings consistent with the opinion.


APPEAL/REVERSE WITNESS TAMPERING. The Eleventh Circuit reversed and remanded United States v. Jason Gatlin, 2024 U.S. App. LEXIS 354 (11th Cir. Jan. 5, 2024). Gatlin was convicted of sex trafficking of a minor, production of child pornography, and witness tampering in the Eleventh Circuit. The appeal focused on several issues including the evidence supporting the convictions, the district court's action in directing the jury to continue deliberating after they reached an inconsistent verdict, the proper application of sentencing enhancements and the reasonableness of the sentence, and whether the order of restitution violated Gatlin's constitutional rights. The court affirmed Gatlin's convictions and sentences for sex trafficking of a minor and production of child pornography. The court found there was sufficient evidence to support these convictions. However, the court reversed Gatlin's conviction for witness tampering by finding that the evidence only established a remote or simply hypothetical possibility that the witness's recantation statements would reach a federal officer. Regarding the sentencing, the court affirmed the district court's application of the custody, care, or supervisory control enhancement and the repeat offender enhancement. It also found Gatlin's life sentence was reasonable. As to the restitution order, the court affirmed it holding that it did not violate Gatlin's Sixth Amendment rights. The court concluded the district court did not err in its calculation of the restitution amount and did not violate Gatlin's rights.


APPEAL/60(b)/DISCOVERY. The Fourth Circuit vacated and remanded for a new trial  Frank Morgan v. J.D. Tincher, 2024 U.S. App. LEXIS 97 (4th Cir. Jan. 3, 2024). Morgan appealed from a decision of the Southern District of West Virginia. Morgan alleged that a police officer, J.D. Tincher, used excessive force during his arrest and subsequent detention, causing him serious injuries. The case proceeded to a jury trial and the jury found in favor of Officer Tincher. However, after presenting his case, Morgan discovered another lawsuit against Officer Tincher involving similar allegations of excessive force which Tincher had failed to disclose during discovery. Morgan requested sanctions and moved for a new trial under Federal Rule of Civil Procedure 60(b)(3), alleging misconduct by the opposing party. The district court denied the motion, leading to this appeal. In its decision the Fourth Circuit held that Officer Tincher's failure to disclose the other excessive-force lawsuit constituted misconduct under Rule 60(b)(3). It also found Morgan had presented a meritorious claim and that misconduct prevented him from fully presenting his case. The court further concluded the district court had erred in its analysis of whether the undisclosed evidence would have changed the trial outcome. Lastly, the court ruled the interest of justice in this case outweighed the interest in the finality of judgments.


APPEAL/IMMIGRATION. The Fourth Circuit vacated and remanded Roberto Belong v. Garland, 2024 U.S. App. LEXIS 95 (4th Cir. Jan. 3, 2024). A provision of Delaware law—which the court called Section 907(1)—makes it a misdemeanor to “impersonate[] another person and do[] an act in an assumed character intending to obtain a benefit or to injure or defraud another person.” Del. Code Ann. tit. 11, Section 907(1). The question here is whether that offense is a crime involving moral turpitude under the Immigration and Nationality Act. Because under this Court’s precedent the answer is no, the court granted the petition for review and vacated the Board of Immigration Appeals order and remanded for further proceedings.


APPEAL/1983/TRANSER. The Fourth Circuit reversed and remanded Jordan Jones v. George Solomon, 2024 U.S. App. LEXIS 100 (4th Cir. Jan. 3, 2024). Jordan Jones is a prisoner at North Carolina’s Avery-Mitchell Correctional Institution and he sued multiple prison officials under 42 USC 1983. The suit challenged the conditions of his confinement and a transfer to another prison that he alleged was retaliatory. The Fourth Circuit affirmed in part and reversed in part the district court's grant of summary judgment to the defendants. Jones had been placed in a “dry” cell with the water turned off for about 17 hours after he was suspected of having ingested contraband. He was allowed to clean himself only with toilet paper despite having to defecate three times in a portable toilet. He also had to eat a meal with his hands which he was unable to wash. The court concluded while the conditions of Jones's confinement were deplorable the officials were entitled to qualified immunity on this claim because it was not clearly established in April 2015 that these conditions posed a substantial risk of serious harm in violation of the Eighth Amendment. However, the court reversed the district court's grant of summary judgment to defendant Gregory Taylor on Jones's claim that his transfer to another prison was in retaliation for his filing of grievances. The court concluded a reasonable jury could find that Taylor ordered the transfer in retaliation for Jones's grievances, and Taylor was not entitled to qualified immunity on this claim because it was clearly established at the time of the transfer such retaliation violated the First Amendment. The court remanded for further proceedings on this claim.


APPEAL/1983/FAILURE TO PROTECT. The Fourth Circuit vacated and remanded Terrence Hammock v. Officer Andoh, 2024 U.S. App. LEXIS 106 (4th Cir. Jan. 3, 2024). Hammock is a former Maryland pretrial detainee who was housed at the Baltimore County Detention Center and he appealed the district court’s order awarding summary judgment to Correctional Officer Phillip Andoh on Hammock’s claim for failure to protect under the Fourteenth Amendment to the United States Constitution. Consistent with the court’s precedent at the time that it entered its order, the district court assessed Hammock’s claim using the test for Eighth Amendment failure-to-protect claims brought by convicted prisoners. That test has both an objective element and a subjective element. The district court ruled that Andoh was entitled to summary judgment because Hammock had not produced evidence creating a genuine issue of material fact on the subjective element. See Fed.R.Civ.P. 56(a). After the district court entered its order, the court held that the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015) had abrogated our precedent requiring the application of the subjective element of the Eighth Amendment test to a pretrial detainee’s failure-to-protect claim under the Fourteenth Amendment. That is, the court held that a pretrial detainee’s failure-to-protect claim must be evaluated under an entirely objective standard. “The plaintiff no longer has to show that the defendant had actual knowledge of the detainee’s serious medical condition and consciously disregarded the risk that their action or failure to act would result in harm. That showing remains sufficient, but it is no longer necessary. Now, it is sufficient that the plaintiff show that the defendant’s action or inaction was . . . objectively unreasonable.” 


APPEAL/1983/DELIBERATE INDIFFERENCE. The Fifth Circuit affirmed the right to sue under 42 USC 1983 in Brian McNeal v. LeBlanc, 2024 U.S. App. LEXIS 392 (5th Cir. Jan. 5, 2024). Gatlin was convicted of sex trafficking of a minor, production of child pornography, and witness tampering. The appeal focused on several issues including the evidence supporting the convictions, the district court's action in directing the jury to continue deliberating after they reached an inconsistent verdict, the proper application of sentencing enhancements and the reasonableness of the sentence and whether the order of restitution violated Gatlin's constitutional rights. The Court of Appeals affirmed the district court's decision finding that McNeal's claims were not barred by Heck v. Humphrey, 512 U.S. 477 (1994), a case that limits certain legal claims if they would imply the invalidity of a conviction or sentence. The court reasoned that McNeal did not challenge his conviction or attendant sentence but rather challenged the 41 days he was imprisoned beyond his release date. Therefore, Heck did not apply. The court also rejected LeBlanc's argument that he was entitled to qualified immunity a legal doctrine that shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights. The court determined McNeal had sufficiently alleged that LeBlanc was deliberately indifferent to a pattern of over detention in the DPSC. Furthermore, the court found that the right to a timely release from prison was clearly established at the time of McNeal's over detention. Consequently, the court concluded that LeBlanc was not entitled to qualified immunity in this case.

26 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

Comments


bottom of page