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SAMARITAN NEWSLETTER- 10-07-2024

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/MEDICAL. The Third Circuit vacated and remanded United States v. Thomas Traumann, 2024 U.S. App. LEXIS 24853 (3d Cir. Oct. 1, 2024). Traumann appealed the denial of his second motion for compassionate release. Two years had passed since his previous motion for compassionate release, and he alleged a change in health condition as an extraordinary and compelling circumstance. However, the district court summarily denied the motion and did not acknowledge his new medical evidence or explain why it did not present extraordinary and compelling circumstances. Nor did it conduct the required 18 USC 3553(a) factor analysis. Because, absent this reasoning, the district court's order is essentially unreviewable, the court vacated the district court's order and remanded to allow the Court to explain the ground(s) for its denial of the motion. Traumann sent lewd text messages to an undercover federal agent posing as a 14-year-old girl. Later, he traveled from Delaware to Pennsylvania to meet up with the "girl" for a sexual encounter where he was arrested. Traumann filed a second motion for compassionate release on Aug. 25, 2023, which is the issue of this appeal. In it he alleged that "his health conditions, especially his diabetes, are not stable" and he is thus at a high risk of complication due to COVID-19. He also referenced lower back pain associated with a ruptured disc. The district court's order does not provide enough elaboration or clarity to allow the Third Circuit to determine whether it abused its discretion. The order undertakes no analysis of Traumann's asserted "extraordinary and compelling reasons." 18 USC 3582(c)(1)(A). Traumann asserted that his diabetes had gotten worse and referenced a new back issue that was not present in his initial motion. The court vacated and remanded.


FSA/404(b)/CCE. The District of Columbia granted in part a FSA 404(b) motion in United States v. Anthony Nugent, 2024 U.S. Dist. LEXIS 181205 (D. D.C. Oct. 3, 2024). Nugent was sentenced to life in prison after a jury found him guilty of drug trafficking and firearms offenses stemming from his participation in a large-scale illegal drug operation that occurred in Washington, D.C. that spanned from May 1983 through March 1991. After serving approximately 34-years in prison, Nugent moved for a reduction in his sentence based on Section 404 of the First Step Act of 2018. Nugent was convicted and sentenced in June 1993 on multiple charges but for purposes of the instant motion the Court looked at the charges for the four counts on which the Government asserts that Mr. Nugent has not yet completed his sentence: (1) Count 4, Continuing Criminal Enterprise (life sentence); (2) Counts 7, 55, Second Degree Murder (15 years to life, concurrent); and (3) Count 57, Using or Carrying a Firearm in Relation to a Drug Trafficking Offense (5 years, consecutive). In United States v. Michael Palmer, 35 F.4th 841, 850 (D.C. Cir. 2022), the D.C. Circuit explained the two-step process for evaluating First Step Act claims that was set forth in United States v. Antoine White, 984 F.3d 76 (D.C. Cir. 2020). "First, under section 404(a), the court must-determine whether a defendant is eligible for relief — that is, whether the movant committed a 'covered offense.'" "Second, under 404(b), a court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” The Government acknowledged the CCE conviction is a "covered offense" but argued the Court cannot resentence defendant to less than a mandatory life sentence due to the quantities of PCP and powder cocaine distributed. Because the Fair Sentencing Act "modified" the statutory penalties of this "[f]ederal criminal statute," and defendant's offense occurred prior to Aug. 3, 2010, the Court found Nugent was eligible for relief under the First Step Act on his conviction for Continuing Criminal Enterprise for which he received a life sentence. The Court acknowledged the D.C. Circuit applies a rebuttable presumption a district judge intends a sentencing package when imposing sentences for multiple counts of conviction. The defendant’s sentence was reduced to time served.


CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The District of Maryland granted a CR.RIS motion in United States v. Maurice Young, 2024 U.S. Dist. LEXIS 180151 (D. Md. Oct. 2, 2024). Young is currently serving a sentence after having been convicted of bank robbery in violation of 18 USC 2113(a) and using, carrying and brandishing a firearm during and in relation to a crime of violence in violation of 18 USC 924(c)(1)(A)(ii). The Court sentenced defendant to 300 months for armed bank robbery (Count 15) and to 144 months of imprisonment for the 924(c) offense (Count 16), to run consecutively for a total term of 444 months (37 years). Relevant here is Section 1B1.13(b)(6) of the Sentencing Guidelines and Section 1B1.13(b)(5) which provides for a reduction of sentence if the defendant presents any other circumstances or combination of circumstances that, when considered by themselves or together with any of the reasons described in Section 1B1.13(b)(1)-(4), "are similar in gravity." USSG 1B1.13(b)(5). The Government did not oppose a reduction of the defendant's sentence to 26-years of imprisonment given the defendant's current age, his age at the expected time of release from imprisonment and the fact that the defendant is serving a substantially lengthier sentence than his co-defendants in this case. the defendant argued, among other things, that the Court should reduce his 37-year sentence of imprisonment because of its significant length. The Court construed the defendant's motion to reduce sentence to be based upon an "unusually long sentence." USSG 1B1.13(b)(6). The court reduced defendant’s sentence to 26-years imprisonment.


CR.RIS/USSG 1B1.13(b)(5). The Northern District of Ohio granted a CR.RIS motion in United States v. Lezjon Mantz, 2024 U.S. Dist. LEXIS 178182 (N.D. Ohio Oct. 1, 2024). On Feb. 2, 2024, Mantz was sentenced to a custody term of 15 months to be followed by 3 years of supervised release following his guilty pleas to the crimes of conspiracy to possess with intent to distribute a controlled substance in violation of 21 USC 841(a)(1) and (b)(1)(C) and 846; and attempted possession with intent to distribute fentanyl in violation of 21 USC 841 (a)(1) and (b)(1)(C) and 846. Defendant filed a motion pursuant to 18 USC 3582(c)(1)(A)(i) for compassionate release. In his motion Mantz sought an order reducing his sentence to time served and directing his immediate placement on supervised release with the condition the first eight months of his supervised release term be spent on either house arrest or at a halfway house. The Government did not oppose defendant's motion to the extent it seeks early placement in a halfway house. The defendant's motion was granted. Mantz stated due to a 1998 misdemeanor conviction that was construed as a sex offense he was designated to FCI Ashland, Kentucky, instead of FCI Morgantown and he was placed in FCI Ashland's sex offender unit. Defendant complained FCI Ashland offers few rehabilitative programs for inmates in the sex offender unit and he has not been able to avail himself of any such programs during his incarceration. Mantz also noted that his brother is in "Stage 5 kidney failure and in desperate need of a kidney transplant." According to defendant, early placement on house arrest or at a halfway house will permit him to be tested to determine if he can serve as a kidney donor to his brother and allow him to return to work. Mantz argued the combination of his brother's serious medical needs and his own placement at a BOP facility where he has few opportunities to participate in rehabilitative programming establishes the requisite extraordinary and compelling reasons necessary to be eligible for compassionate release. The Government agreed that Mantz's "unique circumstances[,]" which include the afore-mentioned serious medical condition of a close family member and the lack of available rehabilitative programs at his facility constitute sufficient "other reasons" to support a compassionate release. The Court agreed with the parties and found Mantz had demonstrated the existence of extraordinary and compelling circumstances warranting a reduction under 1B1.13(b)(5). The defendant's unopposed motion for compassionate release was granted. Defendant's term of imprisonment was reduced to time served as of Oct. 7, 2024.


APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded for resentencing United States v. Joseph Lusk, 2024 U.S. App. LEXIS 25034 (11th Cir. Oct. 3. 2024). Lusk was convicted in Florida state court in 2018 for traveling to meet a minor after soliciting a guardian. Less than a month after his release from prison in 2021 Lusk engaged in sexually explicit conversations with an undercover investigator posing as a 15-year-old girl. He was arrested and charged with attempted enticement of a minor and committing a felony involving a minor while required to register as a sex offender. The Southern District of Florida denied Lusk's motion to dismiss Count 2 which argued that his conduct did not involve an actual minor. Lusk pled guilty to both charges but contested the application of a sentencing enhancement for being a "repeat and dangerous sex offender against minors" based on his prior Florida conviction. The district court applied the enhancement and sentenced Lusk to 355 months' imprisonment followed by a lifetime of supervised release. The Eleventh Circuit held that the district court erred in applying the "repeat and dangerous sex offender against minors" enhancement because the Florida statute under which Lusk was previously convicted is broader than the federal statute, thus not qualifying as a predicate offense. The court vacated Lusk's sentence and remanded for resentencing without the enhancement. The court affirmed Lusk's conviction under 18 USC 2260A citing binding precedent that a conviction under this statute does not require the involvement of an actual minor.


APPEAL/CR.RIS/STASH HOUSE ROBBERY. The Seventh Circuit vacated in part and remanded United States v. Thomas, 2024 U.S. App. LEXIS 24612 (7th Cir. Sept. 30, 2024). Thomas appealed the denial of his motion for compassionate release under 18 USC 3582(c)(1)(A)(i). The court affirmed in part, vacated in part, and remanded for further proceedings. Thomas pled guilty in 2019 to conspiracy to possess with intent to distribute cocaine, 21 USC 846, and possession of a firearm in furtherance of a drug trafficking crime, 18 USC 924(c). He was sentenced to 252 months. In 2023, Thomas moved for a sentence reduction on the grounds that, if sentenced today, he would receive a far lighter penalty. He argued he was convicted based on a "stash house sting," a now disfavored law-enforcement practice. He further contended that his 18 USC 924(c) firearm charge would now be unlawful under United States v. Taylor, 596 U.S. 845, 851 (2022), in which the Supreme Court held that a conviction for attempted Hobbs Act robbery did not qualify as a crime of violence under 924(c)'s elements clause. The district judge rejected the motion concluding the issues were not an appropriate basis for compassionate release basis for compassionate release. Thomas challenged the district judge's conclusion in two ways. First, he points to a recent amendment (Amendment 814) that revised USSG 1B1.13 to expand the list of "extraordinary and compelling reasons" that support a reduction in sentence under 18 USC 3582(c)(1)(A)(i). The pertinent policy statement here, USSG 1B1.13(b)(6) (Nov. 2023), permits a sentence reduction for some defendants whose sentence is "unusually long" and who have served 10 years of that sentence. However, Amendment 814 did not go into effect until November 2023, one month after Thomas filed his motion for compassionate release. Although we have not had occasion to address the issue, the Eleventh Circuit - in a similar case - has declined to give retroactive effect to the application of Amendment 814 to 1B1.13(b)(3)(C) in the context of a 3582(c)(1)(A)(i) motion. Regardless, even if the district judge could have applied the new policy statement, Thomas was ineligible for relief under it, having not yet served at least 10 years of his sentence. USSG 1B1.13(b)(6). He has been in custody since his arrest in Feb. 2014, and he was sentenced in Nov. 2019. So, at the time of his Oct. 2023 motion for compassionate release he was at least several months shy of serving 10 years of his sentence. Second, Thomas  challenges the district judge's application of our decision in VonVader, 58 F.4th 369 (7th Cir. 2023). Von Vader precludes a petitioner from showing an "extraordinary and compelling" circumstance under 3582(c)(1) based on a judicial decision. Von Vader, 58 F.4th at 371 (quoting United States v. Brock, 39 F.4th 462, 466 (7th Cir. 2022)). A fair reading of Thomas's brief shows that a judicial decision is not the basis of his 3582(c)(1) claim. Rather, he points to the fact he was convicted based on a now-disfavored Government practice widely regarded as unjust (even though still legal, since no judicial decision or other law has banned the practice). Von Vader did not preclude the district judge from exercising discretion to determine whether the Government's cessation of a much-criticized practice is an extraordinary and compelling reason justifying relief. We therefore remand this case for the judge, in the first instance, to consider this question.


CR.RIS/REHABILITATION/CCE/RULE 35(b)/MEDICAL The District of New Jersey granted a CR.RIS motion in United States v. Wayne Pray, 2024 U.S. Dist. LEXIS 176962 (D. N.J. Sept. 30, 2024). Pray is a 76-year-old male who has been incarcerated for over 35-years as he serves a life sentence following his conviction in Oct. 1989 for several drug-related crimes. Pray's offenses stem from his time as leader of "The Family," a northern New Jersey criminal organization engaged in the importation, distribution, and sale of cocaine and marijuana in the state and beyond during the 1970s and 1980s. Following a six-month trial in 1989, a jury found Pray guilty on the following charges: Count 1: being a principal administrator of a continuing criminal enterprise ("CCE") involving more than 150 kilograms of cocaine in violation of 21 USC 848(b); Count 2: conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than 100 kilograms of marijuana; Counts 4-6: possession with intent to distribute cocaine; and Count 7: conspiracy to import more than 98 kilograms of cocaine. Pray received a non-parolable life sentence on Counts 1, 2, and 7, an aggregate 50-year concurrent (and non-parolable) sentence on Counts 4, 5, and 6, and an aggregate six-year term of supervised release 'that would go into effect only if' Pray were, 'for some reason, released from imprisonment prior to the expiration of his natural life.'" Pray renewed his efforts for a reduction in sentence pursuant to 18 USC 3582(c)(1)(A)(i) based on "extraordinary and compelling reasons" including his age, duration of incarceration, deteriorating physical condition due to various medical issues, and demonstrated rehabilitation. Pray cites the following medical conditions: severe arthritis in the hips requiring a double hip replacement surgery which has limited his mobility and presents risks of falls and inability to avoid danger within the prison facility; blindness in one eye stemming from glaucoma and cataracts in addition to a detached retina; polycystic kidney disease (with progressive renal insufficiency); persistent elevated PSA and enlarged prostate; pre-diabetes; hypertension; history of syncope; and a past history of heart attack. The Court found that the asserted conditions, when considered in combination present a compelling case for finding that Pray satisfies the "extraordinary and compelling reasons" criteria such that a reduction in sentence is warranted. Pray's exemplary behavior during his extended term of incarceration as identified by various prison officials, further reflects rehabilitation. Sentence reduced to time served.


APPEAL/OBSTRUCTION OF JUSTICE. The Second Circuit remanded United States v. Orelien, 2024 U.S. App. LEXIS 25021 (2d Cir. Oct. 3, 2024). The defendant and a co-conspirator robbed a woman in a Bronx hotel room, taking $4,000 in cash, credit cards, cell phones, and a watch. The victim, a prostitute, had earned the cash through her business. The defendant was convicted of Hobbs Act Robbery and Conspiracy to Commit Hobbs Act Robbery after a jury trial. The Southern District of New York sentenced the defendant to two concurrent 96-month terms of imprisonment. The court also imposed a two-level enhancement for obstruction of justice based on the defendant's alleged false testimony about his drug use at a suppression hearing. The Second Circuit reviewed the challenge to the sufficiency of the evidence regarding the interstate commerce element of the Hobbs Act offenses and the obstruction of justice enhancement. The appellate court affirmed the convictions finding sufficient evidence the robbery affected interstate commerce by depleting the victim's business assets. The court vacated the obstruction of justice enhancement noting the district court did not make a sufficient finding the defendant's false testimony was willful. The case was remanded for further proceedings to determine whether the defendant acted with willful intent to provide false testimony.


APPEAL/RESENTENCE. The Ninth Circuit remanded for resentencing United States v. Derrick Patterson, 2024 U.S. App. LEXIS 24743 (9th Cir. Oct. 1, 2024). Derrick Patterson pled guilty to one count of Hobbs Act robbery and one count of identity theft. Patterson met his victim through Grindr, a dating application, and during their encounter he took the victim’s phone and used it to withdraw money from the victim’s bank accounts. The Central District of California sentenced Patterson to 111 months in prison including a three-level enhancement for hate crime motivation under USSG 3A1.1. The district court rejected Patterson’s argument the enhancement required a finding that he was motivated by hate. Patterson appealed the sentence. The Ninth Circuit agreed with Patterson the language of the enhancement was ambiguous. The court held the enhancement requires a finding beyond a reasonable doubt the defendant was motivated by hate or animus. The court concluded the district court erred by imposing the enhancement without such a finding. The Ninth Circuit vacated Patterson’s sentence and remanded the case for resentencing.


APPEAL/RESTITUTION. The Ninth Circuit remanded United States v. Sam Solakyan, 2024 U.S. App. LEXIS 24621 (9th Cir. Sept. 30, 2024). The case involves Sam Sarkis Solakyan who owned multiple medical-imaging companies. Solakyan conspired with physicians and medical schedulers to route unsuspecting patients to his companies for unnecessary MRI scans and other medical services generating $263 million in claims. The scheme involved bribery and kickbacks to physicians who referred patients to Solakyan’s companies, violating California’s anti-kickback statutes. The Southern District of California presided over the initial trial. Solakyan was charged with conspiracy to commit honest-services mail fraud and health-care fraud, as well as substantive counts of honest-services mail fraud and aiding and abetting. After a seven-day trial the jury found Solakyan guilty on all counts. The district court sentenced him to 60 months in prison and ordered him to pay $27,937,175 in restitution to the affected insurers. Ninth Circuit affirmed Solakyan’s conviction holding that honest-services mail fraud under 18 USC 1341 and 1346 includes bribery and kickback schemes that deprive patients of their right to honest services from their physicians. The court held that actual or intended tangible harm is not an element of honest-services fraud. The indictment was found sufficient in alleging willful misconduct for health-care fraud. The court did not find any abuse of discretion in the jury instructions regarding the mens rea for the conspiracy charges or the use of mails in the fraud scheme. The court vacated the restitution order, remanding the case for further proceedings to determine if the restitution amount should be reduced by the cost of medically necessary MRIs that insurers would have paid for absent the fraud.


ALLEAL/RESENTENCE. The Tenth Circuit vacated and remanded United States v. Harper, 2024 U.S. App. LEXIS 25011 (10th Cir. Oct. 3, 2024). The defendant was tried and convicted of kidnapping and sexually assaulting a 72-year-old woman, E.F., in her home in Tulsa, Oklahoma. The indictment alleged the defendant is an Indian as defined under federal law which was a jurisdictional predicate for the federal charges. The defendant was sentenced to life in prison, and judgment was entered on July 27, 2023. The defendant timely appealed, raising four issues: the admission of a hearsay verification letter to prove his Indian status, the exclusion of expert testimony on trauma and memory, the allowance of unnoticed expert testimony by a forensic nurse, and improper jury instructions regarding kidnapping. The Northern District of Oklahoma admitted a verification letter from the Choctaw Nation of Oklahoma to prove the defendant's Indian status over the defendant's hearsay objection. The court excluded the expert testimony on trauma and memory and allowed the Government’s forensic nurse to provide unnoticed expert testimony and used the Tenth Circuit’s pattern jury instruction for kidnapping, rejecting the defendant’s proposed language. The Tenth Circuit reviewed the case and found merit in the first issue on appeal. The court held the district court erred by admitting the verification letter as it was inadmissible hearsay and did not qualify as a business record. The court determined that this error was not harmless because it negated an essential element of the crimes charged, specifically the defendant's Indian status, which is required for federal jurisdiction. Consequently, the Tenth Circuit reversed the convictions and sentence and remanded the case to the district court to vacate the judgment and conduct further proceedings consistent with its decision.


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