The Tom Norrid Law Firm
SAMARITAN PROJECTS LLC
4415 Gladstone Blvd.
Kansas City. MO 64123-1238
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SAMARITAN NEWSLETTER – November 4, 2024
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 Projects newsletter reports every winning published district court and court of appeals case for the week in review. Contacts: Rusty – 417 901 3000 – Eddie 417 818 1938.
NOTE: The validity of the Unusually Long Sentence [USSG 1B1.13(b)(6)] provision has been raised in appeals before the Sixth Circuit in Jason Bricker (24-3286) which case was argued on October 30, 2024.
NOTE: A criminal defendant’s guilty plea does not bar a subsequent constitutional challenge to the statute supporting the conviction. Class v. United States, 583 U.S. 174, 178 (2018).
CR.RIS/RECONSIDERTATION MOTION/FAMILY CIRCUMSTANCES. The Eastern District of Kentucky granted a motion for reconsideration in United States v, John Sadiqullah, 2024 U.S. Dist. LEXIS 198928 (E.D. Ky. Nov. 1, 2024). This matter was before the Court on Sadiqullah's motion for reconsideration of the Court's prior order denying his motion to reduce his sentence under 18 USC 3582(c)(1)(A)(i). A jury found Sadiqullah guilty of two conspiracy counts. The first count was for conspiring to kidnap for ransom a man who owed Sadiqullah money or that man's son in violation of 18 USC 1201(c). The second count was for conspiring to use interstate facilities in the commission of a murder-for-hire in violation of 18 USC 1958. Sadiqullah asserted the following as extraordinary and compelling circumstances: (1) he has a minor son who suffers from autism; (2) his wife was the child's primary caregiver, and she is ill and no longer capable of performing those duties; and (3) Sadiqullah is the only immediate family member who can perform these duties. Sadiqullah is originally from Afghanistan. With his motion he submitted evidence in the form of letters from various U.S. military personnel that he provided crucial support to the U.S. Government during the Afghanistan War. He also submitted evidence that he was employed by the U.S. Government and provided "faithful and valuable service," and that he and his family faced an ongoing serious threat as a result. He has presented evidence that his wife suffered a severe head trauma after being beaten by the Taliban leading to post-traumatic stress disorder, major depressive disorder, generalized anxiety, chronic migraines, and insomnia. Sadiqullah also presented evidence one of his minor sons suffers from autism spectrum disorder (level 3), global development delay, mixed receptive-expressive language disorder, encopresis, and functional urinary incontinence. Complicating Sadiqullah's family situation is the fact his wife does not speak English. Sadiqullah asserts his son's doctor's appointments frequently must be rescheduled because interpreters are not available. Sadiqullah speaks English; he served as an interpreter for U.S. Armed Forces during the Afghanistan War. Sadiqullah demonstrated extraordinary and compelling circumstances warranting his release from prison. He produced evidence that his wife is incapable of caring for at least his minor son who has autism. Sentence reduced to time served.
CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The Middle District of Florida granted in part a CR.RIS motion in United States v. Dewarren Lewis, 2024 U.S. Dist. LEXIS 198430 (M.D. Fla. Oct. 31, 2024). In Jan. 2014, a jury found Lewis guilty of two counts of bank robbery (18 USC 2113(a) and (d)) and two counts of using and carrying a firearm during and in relation to a crime of violence (18 USC 924(c)(1)(A)). On April 24, 2014, the Court sentenced Lewis to concurrent 5-year terms of imprisonment for the bank robbery offenses. The Court also sentenced Lewis to a 5-year term of imprisonment for the first carrying-a-firearm offense and a 25-year term on the second carrying-a-firearm offense which were the mandatory minimum sentences under 18 USC 924(c). As required by 18 USC 924(c), the sentences for carrying a firearm during a crime of violence were ordered to be served consecutive to the sentences for bank robbery and consecutive to one another. The total sentence imposed by the Court was 420 months. Lewis argued because he would now face only a 10-year mandatory minimum for the two counts of carrying a firearm under 924(c) versus the thirty he faced in 2014, the Court should find extraordinary and compelling reasons exist to reduce his sentence to time served. Lewis relied on USSG 1B1.13(b)(6). This section which went into effect on Nov. 1, 2023 provides that an "unusually long sentence" can be an extraordinary and compelling reason" warranting a sentence reduction. An unusually long sentence can qualify as extraordinary and compelling reason so long as "an intervening change in the law has produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed." The Government conceded that Lewis is now eligible for relief under USSG 1B1.13(b)(6). Lewis persuasively argued that his rehabilitation during incarceration adds to the extraordinary and compelling reasons for reducing his sentence. USSG 1B1.13(d). Since Lewis's incarceration 10-years ago, he has earned his GED and "a degree in Microsoft technology from Holmes Community College." Lewis has been "assist[ing] with mentoring The Boys and Girls club in his community, and churches." While Lewis has blemishes on his incarceration record, after "an intense dispute with another inmate, [he] enrolled . . . in a 'Challenge Program' which is a [twenty-four-hour] Therapeutic community that focus[es] on thinking patterns and behavioral modification." After completing over 500 hours in the program, Lewis remained in the community as a mentor until his transfer to a lesser custody level facility. Sentence reduced to 360-months.
CR.RIS/FAMILY CIRCUMSTANCES. The Southern District of Illinois granted a CR.RIS motion in United States v. Colt Lynn, 2024 U.S. Dist. LEXIS 196672 (S.D. Ill. Oct. 29, 2024). On June 24, 2015, Lynn was convicted of one count of Conspiracy to Manufacture Methamphetamine in violation of 18 USC 841(a)(1) (2013), and one count of Conspiracy to Possess a Pseudoephedrine Knowing it Would be Used to Manufacture Methamphetamine, 21 USC 841(c)(2) (2013). On Sept. 30, 2015, Lynn was sentenced to 192-months in prison, Lynn claimed his mother had been recently diagnosed with cancer and that he would be the only available caregiver for her. On Aug. 7, 2024, Lynn's mother was diagnosed with a form of cancer, grade three; for which surgery, radiation, and chemotherapy were recommended. Lynn's mother sent a letter to the Court with the medical information and a letter stating she had no spouse or other caretaker for her. To establish extraordinary and compelling family circumstances warranting compassionate release, a movant may show, inter alia, that their parent is incapacitated and that they would be the only available caregiver. Lynn obtained his GED and has taken a multitude of classes. Lynn has submitted records of those classes. Lynn has kept a stable job within the prison for at least three years without incident and the senior officer specialist confirmed that he has a strong work ethic and will have no trouble finding and maintaining a job after his release. Lynn also presented a letter stating that he would be offered a job at a coal mine upon his release. Sentence reduced to time served.
CR.RIS/DISPARITY/CAREER OFFENDER. The District of Maryland granted a CR.RIS motion in United States v. Alton May, 2024 U.S. Dist. LEXIS 195076 (D. Md. Octo 25, 2024). May is currently serving a 300-month sentence. He has served approximately 155 months of his sentence. May, along with Steven Vondell Williams, demanded money at gunpoint from a Loomis Armored US Inc. employee who was refilling an ATM machine at a 7-Eleven store in Glenarden, Maryland. The Loomis employee complied and gave May and Williams the bag containing the money. May and Williams fled with the money bag to May's residence in Washington, D.C., stopping on the way to dispose of the bag in a dumpster. Upon reaching May's residence, May and Williams discovered a global positioning satellite ("GPS") tracking device mixed in with the money and destroyed the device before fleeing; May fled to New York. The GPS allowed law enforcement to trace the money back to May's residence where they ultimately recovered approximately $30,000 in cash, as well as three handguns and two baseball caps. "District courts in this circuit have universally affirmed that '[t]he fact that [a defendant], if sentenced today for the same conduct, would likely receive a dramatically lower sentence than the one he is currently serving, constitutes an 'extraordinary and compelling' reason justifying potential sentence reduction under 3582(c)(1)(A)(i).'" Still further, "some courts have applied this principle to grant compassionate release to persons who no longer qualify as career offenders." Sentencing disparities "may present extraordinary and compelling circumstances even when they are not decades long." The Court observed that although Hobbs Act robbery involves harm to "person or property," (quoting 18 USC 1951(b)(1)) (emphasis added), the Career Offender definition of "crime of violence" under the Guidelines is limited to use of force against persons. In other words, "Hobbs Act robbery extends to a broader range of conduct-specifically, the use and threat of force against property, as well as persons-than" is encompassed by the definition of "crime of violence" under USSG 4B1.2(a). Therefore, the Court concluded that, under the categorical analysis, Hobbs Act robbery is not a crime of violence under USSG 4B1.1. May was 47 years old at the time of the crime and is currently 60 years old. During his more than 12 years of incarceration, May has had three disciplinary incidents, including one refusal to obey an order in 2014, a refusal of a work or program assignment in 2018, and, most seriously, possessing a dangerous weapon in 2015. He accepted responsibility as to the last and, as a result, lost 41 days of good-time credit. May has also worked while incarcerated and completed 15 official programs, as well as a parenting course. Considering the aforementioned factors, the court was persuaded that May has demonstrated his sentencing disparity presents an extraordinary and compelling reason to justify relief. The defendant’s sentence was reduced to time served.
CR.RIS/MEDICAL. The Southern District of New York granted a CR.RIS motion in United States v. Gregoris Martinez, 2024 U.S. Dist. LEXIS 195601 (S.D. N.Y. Oct. 25, 2024). Martinez was sentenced on June 25, 2021, to a term of 72 months imprisonment. While imprisoned, Martinez undertook efforts to better himself, including participation in the Residential Drug Abuse Program offered by the BOP. However, before he could complete the program, Martinez was diagnosed with an aggressive form of cancer; he was transferred to a BOP medical facility, and his focus shifted to preserving his health. Martinez moved for compassionate release in the form of a reduction in sentence to time served pursuant to 18 USC 3582(c)(1)(A)(i). Martinez was charged with conspiracy to distribute and to possess with the intent to distribute cocaine and heroin in violation of 21 USC 841(a)(1), 841(b)(1)(A), and 846. Martinez explained he had only recently been diagnosed with B Cell non-Hodgkin lymphoma; indeed, the disease has progressed to Stage 3 or 4, "with a very large tumor in Martinez's chest enveloping his aorta and compressing his trachea and superior vena cava." As bases for the relief he sought, Martinez argued that: (i) the BOP had seriously mishandled his medical care, including failing to diagnose and/or properly care for medical issues that extended back to June 2023; (ii) Martinez had experienced serious complications during his medical treatment; (iii) he was unable to provide self-care in his prison setting; (iv) the likelihood that his cancer would return was high; (v) he had been separated from family during his treatment; (vi) his wife's employment would provide him better access to the treatment he needed; and (vii) at the time of his diagnosis, he was on the verge of completing the RDAP program and being released to his home. There are three principal bases on which Martinez sought compassionate release: (i) his serious medical conditions; (ii) his lost opportunity to obtain sentencing credit because of his practical inability to complete the RDAP program; and (iii) the unusually difficult circumstances of his incarceration which included delays in receiving necessary medical treatment and an emergency transfer to a BOP medical facility far from his family. The Court agreed the constellation of facts surrounding the emergence, diagnosis, and treatment of Martinez's very serious medical conditions amounts to extraordinary and compelling reasons warranting compassionate release. The defendant’s sentence was reduced to time served.
APPEAL/2254. The Eleventh Circuit vacated and remanded Michael Cassidy v. Secretary, Florida Department of Corrections, 2024 U.S. App. LEXIS 27304 (11th Cir. Oct. 28, 2024). Two state prisoners, Theresa Batson and Michael Cassidy, filed federal petitions for writs of habeas corpus, arguing their petitions were timely due to amended state court judgments. Batson was convicted of conspiracy and solicitation to commit murder and received a 60-year sentence. After a successful post-conviction relief motion, her judgment was amended to vacate one count but her sentences were marked nunc pro tunc to the original date. Cassidy was convicted of sexual battery and sentenced to 35-years. His judgment was amended to correct a clerical error and later to vacate one count due to ineffective counsel, but the amended judgment did not include a nunc pro tunc designation. The Northern District of Florida dismissed Batson’s petition as untimely ruling her amended sentences designated nunc pro tunc did not restart the statute of limitations. The Southern District of Florida dismissed Cassidy’s petition as untimely concluding that his amended judgment was effectively nunc pro tunc, despite the absence of such a designation. The Eleventh Circuit reviewed these consolidated appeals. The court affirmed the dismissal of Batson’s petition, holding that the nunc pro tunc designation on her amended sentences meant they related back to the original judgment thus not restarting the statute of limitations. However, the court vacated the dismissal of Cassidy’s petition determining that his amended judgment which was not designated nunc pro tunc constituted a new judgment that restarted the statute of limitations. The Eleventh Circuit affirmed the dismissal of Batson’s petition and vacated and remanded the dismissal of Cassidy’s petition for further proceedings.
SUPERVISED RELEASE/TERMINATION. The District of New Mexico granted a motion to terminate supervised release in United States v. Homero Varela, 2024 U.S. Dist. LEXIS 195671 (D. N.M. Oct. 28, 2024). The primary issues are: (i) whether the Court has the power to terminate early Varela's five-year term of supervised release which is a mandatory minimum under 21 USC 841(b)(1)(A), and 21 USC 841(b)(1)(B); and (ii) if the Court has the power to terminate early a mandatory minimum term of supervised release, whether the Court should do so here. Because the Court has the power to terminate early a term of supervised release after completing one year under 18 USC 3583(e), and Varela met 3583(e)'s factors justifying the Court's exercise of that power, the Court granted early termination of supervised release. Varela pled guilty to: (i) Conspiracy to Distribute or Manufacture a Controlled Substance, in violation of 21 USC 841(b)(1)(A) and 21 USC 841(b)(1)(B); (ii) Conspiracy to Launder Money, in violation of 18 USC 1956(h); and (iii) Money Laundering, in violation of 18 USC 1957. The PSR assigned Varela a criminal history category of I, reflecting no prior criminal convictions. The Court sentenced Varela to 135-months. He argued early termination is warranted because he poses no risk to public safety, has no history of violence, and has "demonstrated his rehabilitation and eagerness to move on with his life." Finally, Varela asserted he has met the requisite threshold of one year of supervised release, after which a district court can discretionarily terminate a term of supervised release early.18 USC 3583(e). The primary goal of supervised release is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period of time in prison for punishment or other purposes but still needs supervision and training programs after release. "Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration." United States v. Johnson, 529 U.S. 53, 59 (2000) (citing S.Rep. No. 98-225, at 124). Congress prohibits incarcerating an offender for rehabilitation purposes, but a court may consider an offender's need for rehabilitation in prescribing supervised-release conditions. "Whether to grant a motion to terminate a term of supervised release under 18 USC 3583(e)(1) is a matter of district court discretion."
APPEAL/RESENTENCE. The Tenth Circuit vacated and remanded United States v. Brian Tony, 2024 U.S. App. LEXIS 27465 (10th Cir. Oct. 29, 2024). The defendant was convicted of two counts of witness tampering and one count of voluntary manslaughter. The presentence report recommended grouping all three counts under the U.S. Sentencing Guidelines but the district court declined to do so. The defendant appealed arguing that the Guidelines required all three convictions to be grouped. The District of New Mexico initially grouped the two witness tampering counts under USSG 3D1.2(b) but did not group them with the manslaughter count under 3D1.2(c). The district court utilized uncharged obstructive conduct to enhance the manslaughter count which resulted in a higher offense level and a sentencing range of 168-210 months. The defendant was sentenced to 210 months imprisonment. The Tenth Circuit reviewed the case and found the relevant Guidelines were grievously ambiguous. The court concluded the rule of lenity required the Guidelines to be construed in the defendant's favor. The court vacated the defendant's sentence and remanded for resentencing under an offense level of 31, which corresponds to a lower sentencing range of 151-188 months.
APPEAL/FORFEITURE. The Ninth Circuit vacated and remanded United States v. Younes Nasri, 2024 U.S. App. LEXIS 27400 (9th Cir. Oct. 29, 2024). The Government initiated a civil forfeiture action to recover funds from Younes Nasri, a Canadian citizen residing in Dubai, alleging the funds were ill-gotten gains from criminal activities. Nasri, who was indicted on racketeering and drug conspiracy charges claimed innocent ownership of the assets held in foreign bank accounts. He argued the court lacked jurisdiction over the assets because neither he nor the assets had any ties to the United States. The Southern District of California granted the Government's motion to strike Nasri's claim under the fugitive disentitlement statute, finding that it had in rem jurisdiction over the assets. The court determined that the fugitive disentitlement statute did not violate due process and that Nasri qualified as a fugitive under the statute. Nasri appealed the decision, challenging the court's jurisdiction and the application of the fugitive disentitlement statute. The Ninth Circuit reviewed the case and held that due process requires a court to have control or constructive control over the property in a forfeiture action to establish in rem jurisdiction. The court found that the district court's exercise of in rem jurisdiction over the foreign assets, without sufficient control or possession, violated due process principles. The Ninth Circuit vacated the district court's order and remanded the case for the lower court to assess whether it had control or constructive control over the assets to satisfy due process requirements when asserting in rem jurisdiction.
APPEAL/FLUIPA. The Ninth Circuit remanded Michael Fuqua v. Raak, 2024 U.S. App. LEXIS 27767 (9th Cir. Nov. 1. 2024). Fuqua is a Arizona state prisoner who identifies as a Christian-Israelite who requested a religious dietary accommodation to observe Passover and the Feast of Unleavened Bread. The prison chaplain, Jeffrey Lind, denied this request arguing that Fuqua did not substantiate his request with appropriate documentation and his beliefs were theologically inconsistent. Fuqua claimed this denial forced him to either starve or spend significant money on commissary food, causing him physical and financial hardship. The District of Arizona granted summary judgment in favor of Lind on Fuqua’s First Amendment Free Exercise, Fourteenth Amendment Equal Protection, and Religious Land Use and Institutionalized Persons Act (RLUIPA) claims. The court found Fuqua failed to show a substantial burden on his religious exercise and that Lind had legitimate reasons for denying the request. The court held that RLUIPA only authorizes equitable relief, which was moot in Fuqua’s case. The Ninth Circuit reversed the district court’s summary judgment on Fuqua’s First Amendment and Equal Protection claims finding that a reasonable trier of fact could conclude that Lind’s denial was based on his own theological assessment rather than a neutral procedural rule. This could constitute a substantial burden on Fuqua’s religious exercise and intentional discrimination. The court affirmed the summary judgment on the RLUIPA claim which precludes suits seeking monetary damages under RLUIPA against state officers, and Fuqua’s equitable claims were moot. The case was remanded for further proceedings consistent with the opinion.
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