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.
UNTIMELY DEATH. Jose “Pepe” Ruvalcaba was recently killed in a motorcycle accident in California. For those who do not know me, my name is Russell Marks. Pepe was a good friend of mine and the last person I saw when I left prison. I gave Pepe my word that his compassionate release would be pursued to the Supreme Court if necessary. Upon release, I went to work for an attorney. I prepared the appeal for Pepe and the attorney I worked for filed it. The appeal won. United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022). Thus, Pepe was able to spend time with his family and friends and die with dignity outside the prison walls.
CR.RIS/DISPARITY/REHABILITATION/MEDICAL. The District of Maryland granted a CR.RIS motion in United States v. Kirkland, 2024 U.S. Dist. LEXIS 189588 (D. Md. Oct. 18, 2024). Kirkland has been incarcerated since March 15, 1994 when he was 24 years old. He is serving a total sentence of life imprisonment for multiple crimes: conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine in violation of 21 USC 841(b)(1)(A)(ii) and 846; killing, in furtherance of a drug conspiracy in violation of 21 USC 848(e); conspiracy to murder a witness, in violation of 18 USC 371; and two counts of aiding and abetting the murder of a federal witness in violation of 18 USC 1512(a)(1)(A) and (a)(1)(C) and 18 USC 2. Kirkland argued that: (1) COVID-19, (2) changes in the law, (3) his age, and (4) his post-conviction rehabilitation constitute an "extraordinary and compelling" basis for his release. He also stated "Requiring Kirkland to die in jail is 'greater than necessary to serve the purposes' of 18 USC 3553(a)(2)." Kirkland's sentence was a product of the then-mandatory Sentencing Guidelines and under today's sentencing scheme the Court would not have the authority to give him such a long and harsh sentence. The defendant argued that "an unusually long sentence may constitute an extraordinary and compelling reason for compassionate release when (1) the defendant has already served at least 10 years in prison, (2) a change in the law (other than a non-retroactive Sentencing Guidelines amendment) 'would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed,' and (3) the Court has given "full consideration [to] the defendant's individualized circumstances." USSG 1B1.13(b)(6)). Kirkland has served more than 30 years in prison and the defense observed that this is well above "the 10-year requirement," the change in law "is that the sentencing guidelines are no longer binding but advisory," and he points to Kirkland's "young age at the time of his charges." Where appropriate, the district court "must account not only for the circumstances at the time of the original offense but also for significant post-sentencing developments." Courts place significant weight on a defendant's post-sentencing conduct because it "provides the most up-to-date picture" of a defendant's "'history and characteristics.'" The court must "at least weigh the [defendant's] conduct in the years since the[] initial sentencing[]." The defendant "has accepted responsibility for his crime and expressed explicit and repeated remorse." The Government agreed "that Kirkland's service of 30 years in prison has addressed the need for specific deterrence" and that his "childhood circumstances as described in his supplemental brief are mitigating." The defendant "has been a mentor to his fellow inmates since he has been committed to the BOP," and he has "been actively participating in programs and seeking positive change in prison." Kirkland held a leadership role in a drug trafficking organization, and members of that organization were involved in the murders of two individuals. One was a ten-year old child who was doing what children do—playing—when, tragically, he was caught in an exchange of gunfire on a public street. The other victim was a potential government witness. Defendant’s sentence was reduced to 40-years imprisonment.
CR.RIS/REHABILITATION/THREE STRIKES/ACQUITTED CONDUCT/ MEDICAL/FAMILY CIRCUMSTANCES/USSG 1B1.13(b)(6). The Eastern District of New York granted a CR.RIS motion in United States v. Walter Johnson, 2024 U.S. Dist. LEXIS 189175 (E.D. N.Y. Oct. 17, 2024). As of October 24, 2024, Johnson will have been in jail for 28 years because of the sentences the court imposed in 1997. He is now 61 years old. The court sentenced him to three mandatory terms of life in prison under the "Three Strikes" provision of the Violent Crime Control and Law Enforcement Act, which had recently been enacted by Congress. 18 USC 3559(c). The court also exercised its discretion to sentence him to two additional life terms for two cocaine-based convictions because the court considered acquitted conduct. The court stated at the time, "Mr. Johnson, you are a classic example of a person [who] has to be incapacitated so society is protected against you. You have a violent history. You've spent a lot of time in jail, and, when you've been out of jail, you have visited all sorts of harm to the community." The court now believed that his sentences, though lawfully rendered, were excessively harsh. The First Step Act allows the court to reconsider a previously imposed sentence and provide a necessary corrective if warranted. Such is this case. Multiple factors combine to warrant Johnson's release. Johnson received mandatory sentences under the Three Strikes provision because the Government filed a felony information based on his prior convictions for "serious violent felonies." 18 USC 3559(c)(1)(A). It is doubtful it would do so today. He is, apparently, one of only two people serving a mandatory life sentence under this provision in the Second Circuit. Additionally, Johnson committed two of these underlying crimes—two robberies—when he was 19 and 20 years old. "[O]ne cannot ignore the significant role that, because of the 'three strikes' law, [his] youthful transgressions played in his sentencing." Snype, 683 F. Supp. 3d at 360. There has been "increased judicial sensitivity, driven by substantial research, to the role that a criminal defendant's adolescence should play in sentencing." The Court may properly consider the harshness of this type of mandatory life sentence under the Three Strikes provision in evaluating the wisdom of a sentence reduction in light of all of a defendant's individual circumstances. The practice of sentencing defendants based on acquitted conduct is now firmly disfavored. In recently promulgated sentencing guideline amendments, the U.S. Sentencing Commission explained that acquitted conduct ought not be considered in calculating a defendant's guideline range. U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (April 30, 2024) (amended 1B1.3: "Acquitted Conduct. — Relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction"). Johnson's record of rehabilitation is exemplary. In more than 28 years of incarceration, he has kept a perfectly clean record, with zero disciplinary infractions. In a letter of commendation, the warden of FCI Otisville lauded his "outstanding responsibility, support, and diligence in keeping a positive relationship" with herself and the prison's executive staff. The warden likewise praised his "exceptional commitment to participating in programming and recruiting other inmates to do the same." Johnson has also supplied numerous letters and reports from other BOP officials that are similarly laudatory. In 2013, he began serving on the FCI Otisville Reentry Council, despite lacking his own prospects for reentry. He has served as a suicide watch volunteer. He has received more than 100 certificates for completing various courses. Johnson also contends his health, and his 86-year-old mother's health, is an extraordinary and compelling factor. Johnson suffers from numerous medical conditions associated with aging: hypertension, high cholesterol, obesity, sleep apnea, and a heart condition. Johnson has an elderly mother, who has been battling cancer, which he says supports his petition. Defendant's status as the "only available caregiver" may constitute an extraordinary and compelling circumstance, USSG 1B1.13 (b)(3)(C). Sentence reduced to time served.
CR.RIS/FAMILY CIRCUMSTANCES. The Southern District of New York granted a CR.RIS motion in United States v. Santiago Nunez, 2024 U.S. Dist. LEXIS 187985 (S.D. N.Y. Oct. 16, 2024). Nunez who is serving a 32-month sentence moved for a six-month reduction of his term of imprisonment to be substituted by a six-month increase of his term of supervised release under the federal compassionate release statute. On three occasions in early 2023, Nunez sold fentanyl and a fentanyl analogue to an undercover law enforcement officer in the Bronx. Nunez was charged with conspiring to distribute and possess with intent to distribute (i) 400 grams and more of mixtures and substances containing a detectable amount of fentanyl and (ii) 100 grams and more of mixtures and substances containing a detectable amount of para-fluorofentanyl, an analogue of fentanyl, in violation of 21 USC 841(b)(1)(A), 846. The offenses carried a mandatory minimum sentence of 120 months, however the parties and the Probation Office agreed that Nunez was safety-valve eligible. Based on Nunez's safety-valve eligibility, acceptance of responsibility, and criminal history category of I, the parties agreed to an adjusted offense level of 27. The Court found that a variance below the Guidelines range was appropriate, and a sentence of 32 months was appropriate. Nunez moved pro se for compassionate release. He articulated two grounds for relief. First, the mother of Nunez's son, Elaine Camilo Montero, has breast cancer and the effects of her illness and treatment have caused a lapse in care for Nunez's son and the son's half-brother. Second, Nunez has faced uniquely difficult conditions of confinement in MDC, which is "short of staff" and lacking in "basic []or proper Medical/Mental Treatment." As relevant here, USSG 1B1.13(b)(3)(A) provides that the "incapacitation of the caregiver of the defendant's minor child" is an "extraordinary and compelling" reason for a sentence reduction. Section (b)(5) further provides that any "other circumstance or combination of circumstances" that is "similar in gravity to" the enumerated circumstances of the policy statement can constitute an extraordinary and compelling reason for a sentence reduction. USSG 1B1.13(b)(5). The Court found that a sentence reduction was merited based on a combination of circumstances: (1) Camilo Montero's symptoms partially and, at times, entirely incapacitate her, making it impossible for her to provide consistent care for Nunez's son; (2) Nunez's son has a greater than ordinary need for parental support as a result of his learning disability, behavioral health struggles, and tender age; and (3) Nunez has endured unanticipated and uniquely onerous conditions of incarceration. Sentence reduced to time served.
AMENDMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Christopher Prowell, 2024 U.S. Dist. LEXIS 188659 (N.D. Ohio Oct. 17, 2024). Prowell pled guilty to (1) two counts of bank robbery in violation of 18 USC 2113(a) and (f) (Counts One and Five); (2) one count of bank robbery in violation of 18 USC 2113(a), (d), & (f) (Count Six); and (3) three counts of interference with commerce by means of a robbery in violation of 18 USC 1951(a) (Counts Two, Three, and Four). The Court sentenced Prowell to 108 months in prison on Counts One through Six, to run concurrently, but he also has a 33-month revocation sentence to run consecutive to that. Prowell sought a reduction in his sentence because under the Sentencing Guidelines as amended as he would no longer receive two status points within his criminal history calculation. Sentence reduced to 96-months.
AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Anthony Gore, 2024 U.S. Dist. LEXIS 187621 (E.D. Tenn. Oct. 16, 2024). Defendant pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute 50 grams or more of methamphetamine in violation of 21 USC 846 and 841(b)(1)(A). The Court sentenced defendant at the bottom of the guideline range to a term of 151 months imprisonment. Defendant received two status points for committing the offense while under a criminal justice sentence. Sentence reduced to 140 months.
AMENDMENT 821. The District of Massachusetts granted an 821 motion in United States v. Willi Perez Baez, 2024 U.S. Dist. LEXIS 188039 (D. Mass. Oct. 16, 2024). Willi Alexis Perez Baez ("Perez") was indicted on one count of conspiring to possess with intent to distribute 40 grams or more of a substance containing fentanyl in violation of 21 USC 846, and one count of possessing with intent to distribute 40 grams or more of a substance containing fentanyl in violation of 21 USC 841(a)(1) and (b)(1)(B)(vi). The court imposed a sentence of 72 months—15 months lower than the low end of the guideline range. Perez moved to have that sentence reduced to 70 months on the ground that he is eligible for the zero-point offender sentence reduction pursuant to USSG 4C1.1(a)(7), Sentence reduced to 70 months.
AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Harvey Horn, 2024 U.S. Dist. LEXIS 185433 (E.D. Tenn. Oct. 10, 2024). Defendant pled guilty to conspiracy to distribute one kilogram or more of heroin and 400 grams or more of acetyl fentanyl in violation of 21 USC 846, 841(a)(1), 841(b)(1)(A) (Count 1), and conspiracy to commit money laundering in violation of 18 USC 1956(h), 1956(a)(1)(B)(i) (Count 2). At the time of sentencing, defendant received two criminal history points because he committed the instant offense while under a criminal justice sentence. The Court sentenced defendant to 121 months imprisonment. Sentence reduced to 120 months.
APPEAL/922(g)(8)(C)(ii). The Sixth Circuit reversed and remanded United States v. Sherman Combs, 2024 U.S. App. LEXIS 26435 (6th Cir. Oct. 17, 2024). A federal grand jury in the Eastern District of Kentucky charged Sherman Kelvin Combs with possession of a firearm while subject to a domestic-violence restraining order in violation of 18 UDC 922(g)(8) and making a false statement in connection with the acquisition of a firearm in violation of 18 USC 922(a)(6). The district court dismissed Count 1 of the indictment, reasoning that the statute is facially unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The Government appealed that decision. It argued that the district court misapplied Bruen and that Section 922(g)(8) is constitutional because it disarms only the irresponsible, which is consistent with historical tradition. In United States v. Rahimi, 144 S. Ct. 1889 (2024), the Supreme Court upheld the constitutionality of Section 922(g)(8)(C)(i). Finding that Rahimi resolved the constitutionality of Section 922(g)(8)(C)(ii). The court reversed and remanded.
APPEAL/SENTENCE. The Fifth Circuit vacated in part United States v. Dajuan Martin, 2024 U.S. App. LEXIS 25919 (5th Cir. Oct. 17, 2024). Martin was arrested after being seen riding a stolen scooter in New Orleans. During the police pursuit, he discarded a Glock 26, 9mm semi-automatic handgun, which was later recovered with a magazine containing 16 rounds of ammunition. Martin pled guilty to being a felon in possession of a firearm under 18 USC 922(g)(1). The Presentence Investigation Report (PSR) calculated his offense level at 12, with a criminal history category of III, suggesting a sentencing range of 15 to 21 months. However, the Government objected, arguing for a higher base offense level due to the firearm's large capacity magazine. The Eastern District of Louisiana accepted the Government's argument raising Martin's base offense level to 20, resulting in a new sentencing range of 30 to 37 months. Martin was sentenced to 33 months of imprisonment and 3 years of supervised release. The court also imposed conditions for supervised release, including participation in a drug and alcohol treatment program and submission to searches under certain conditions. However, the written judgment included additional requirements not stated during the oral pronouncement. The Fifth Circuit reviewed Martin’s challenge to the district court's application of the Sentencing Guidelines' commentary defining "large capacity magazine" and the discrepancies between the oral pronouncement and the written judgment regarding supervised release conditions. The Fifth Circuit upheld the district court's use of the commentary, finding it consistent with the Guidelines. However, it agreed with Martin that the written judgment improperly broadened the conditions of supervised release. The Fifth Circuit affirmed Martin's sentence in part, vacated it in part, and remanded the case for the district court to amend the written judgment to conform to the oral pronouncement. The court also rejected Martin's constitutional challenge to 18 USC 922(g)(1), citing consistent precedent upholding the statute's constitutionality.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for resentencing United States v. Justin Henry, 2024 U.S. App. LEXIS 26296 (5th Cir. Oct. 17, 2024). Justin Henry was observed by New Orleans Police Department officers entering a stolen vehicle in a shopping center parking lot. When approached by police, Henry fled on foot, discarding a firearm in the process. Henry, a convicted felon, was subsequently charged with possession of a firearm by a felon under 18 USC 922(g)(1). He pleaded guilty to the charge. The Eastern District of Louisiana sentenced Henry, applying a four-level enhancement under USSG 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense, specifically the possession of a stolen vehicle. The court determined that the firearm facilitated or had the potential to facilitate the possession of the stolen vehicle. This enhancement increased Henry’s sentencing range, resulting in a 100-month prison sentence followed by three years of supervised release. Henry argued the district court erred in applying the sentencing enhancement, contending that the Government failed to prove he knew the vehicle was stolen and the firearm facilitated the possession of the stolen vehicle. The Fifth Circuit found that while the district court could reasonably infer Henry knew the vehicle was stolen, there was insufficient evidence to support the finding that the firearm facilitated the possession of the stolen vehicle. The court noted mere proximity of the firearm to the stolen vehicle was not enough to apply the enhancement. The Fifth Circuit affirmed Henry’s conviction but vacated his sentence and remanded the case for resentencing, holding that the district court erred in applying the 2K2.1(b)(6)(B) enhancement without sufficient evidence of facilitation.
APPEAL/MANDAMUS. The Ninth Circuit granted a writ of mandamus in Thomas Creech v. U.S. District Court for the District of Idaho, 2024 U.S. App. LEXIS 26187 (9th Cir. Oct. 16, 2024). Thomas Eugene Creech has been on death row for over four decades for the 1981 murder of fellow inmate David Dale Jensen filed a petition for a writ of mandamus. Creech alleged that the Ada County Prosecutor’s Office introduced fabricated or misleading evidence at his clemency hearing. He sought to recuse U.S. District Judge Amanda K. Brailsford from presiding over his underlying 42 USC 1983 suit, arguing that Judge Brailsford and Ada County Prosecutor Jan Bennetts are close friends, which could affect the judge's impartiality. The District of Idaho denied Creech’s motion to preliminarily enjoin his execution and the Ninth Circuit affirmed. Creech continued to litigate his 1983 claim, alleging prosecutorial misconduct. He then moved to disqualify Judge Brailsford, citing her friendship with Bennetts. Judge Brailsford denied the recusal motion, stating that although she and Bennetts were close during their clerkship they had since lost touch and a reasonable person would not question her impartiality. The Ninth Circuit found that the longstanding friendship between Judge Brailsford and Bennetts, combined with the allegations of prosecutorial misconduct involving Bennetts, could lead a reasonable person to question the judge’s impartiality. The court emphasized that public confidence in the judiciary requires that any appearance of bias be addressed promptly. Consequently, the Ninth Circuit granted the petition for a writ of mandamus and remanded the case for reassignment to a different judge.
APPEAL/PLRA. The District of Columbia Circuit remanded Michael Owlfeather-Gorbey v. Avery, 2023 U.S. App. LEXIS 26330 (D.C. Cir. Oct. 18, 2024). The appellant is a federal prisoner serving a 22-year sentence who has a history of filing numerous lawsuits regarding his prison conditions. In this case, he sought to proceed in forma pauperis (IFP) under the Prison Litigation Reform Act (PLRA) despite having three prior cases dismissed as frivolous, malicious, or for failure to state a claim. He claimed imminent danger of serious physical injury due to worsening glaucoma and alleged that prison officials denied him necessary medical treatment and incited other inmates to assault him. The District of Columbia denied his motion to proceed IFP, finding that he did not demonstrate imminent danger of serious physical injury. The court dismissed his case without prejudice. The appellant then appealed this decision. The District of Columbia Circuit disagreed with the District Court's assessment regarding the appellant's glaucoma, finding that the appellant's allegations of being denied necessary medical treatment for his worsening glaucoma did place him under imminent danger of serious physical injury. Consequently, the court granted the appellant's motion to proceed IFP and reversed the District Court's denial of his motion, allowing his complaint to be docketed. However, the court also found that some of the appellant's claims were frivolous, particularly those against high-ranking officials such as the United States Attorney General and members of the United States Senate Judiciary Committee. These claims were dismissed under the PLRA's mandate to dismiss frivolous claims. The court's decision allowed the appellant to proceed with his claims related to his medical treatment and alleged assaults but dismissed the frivolous claims against the aforementioned officials.
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