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SAMARITAN NEWSLETTER – 11-19-2024

The Tom Norrid Law Firm

SAMARITAN PROJECTS LLC 

4415 Gladstone Blvd.

Kansas City. MO 64123-1238

417-236-1179

SAMARITANPROJECTS.COM – Website 


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.



CR.RIS/DISPARITY/REHABILITATION/USSG 1B1.13(b)(6). The District of Maryland granted in part a CR.RIS motion in United States v. Leonard Benjamin, 2024 U.S. Dist. LEXIS 207511 (D. Md. Nov. 15, 2024). Benjamin is currently serving a sentence of 228 months for his involvement in a conspiracy to distribute heroin between 2013 and Feb. 2014. On July 11, 2014, Benjamin pled guilty to Count One of the Superseding Indictment which charged him with conspiring to distribute one kilogram or more of heroin in violation of 21 USC 846. Benjamin was sentenced to 228 months imprisonment. Benjamin sought a reduction in his sentence, or alternatively, transfer to home confinement on the grounds that he has certain underlying medical conditions rendering him more susceptible to complications caused by COVID-19, which he contends presents an extraordinary and compelling reason to grant him compassionate release. Benjamin contended that his rehabilitative efforts, a disparity in sentencing, the length of his sentence, the amount of time served, a change in law, and his lack of danger to others constitute extraordinary and compelling reasons justifying his early release. Benjamin would no longer qualify as a career offender if he were sentenced today for conspiracy to distribute heroin. In Norman, 935 F.3d at 237, the Fourth Circuit held that a 21 USC 846 drug conspiracy conviction no longer constitutes a "controlled substance offense." While the 2023 amendments to USSG 1B1.13, particularly USSG 1B1.13(b)(1)(D), reinforce prior holdings of the Court that a defendant's heightened susceptibility to COVID-19 may constitute an extraordinary and compelling reason for a sentence reduction. Accordingly, for COVID-19 to constitute an "extraordinary and compelling" circumstance, the defendant must prove that he has a "particularized susceptibility" to COVID-19. The Court found that the sentencing disparity between Benjamin's current sentence and the likely sentence under current law is an extraordinary and compelling reason for compassionate release. USSG 1B1.13(b)(6). Benjamin's evidence of commendable post-sentencing rehabilitation weighs in favor of sentence reduction. Further, 18 USC 3553(a)(6) allows for the comparison of a defendant's sentence to his codefendants' sentences to determine if there are any unwarranted sentence disparities. Benjamin's total sentence was reduced from 228 months to 180 months.


CR.RIS/MEDICAL. The District of Idaho granted a CR.RIS motion in United States v. Christopher Briggs, 2024 U.S. Dist. LEXIS 208101 (D. Idaho Nov. 13, 2024). In July 2020, Briggs arranged the sale of approximately 10.5 grams of methamphetamine for $300. He eventually pled guilty to distribution of methamphetamine. In Aug. 2022, he was sentenced to 46 months in prison followed by five years of supervised release. In early 2021, while the criminal proceedings were underway, Briggs was diagnosed with Parkinson's disease. He was only 42 years old. His symptoms quickly grew more severe and in Feb. 2023, doctors determined that he had rapidly progressing Parkinson's. He also suffers from co-morbidities including hypertriglyceridemia (a condition that increases risk of pancreatis, stroke, heart attacks, and heart disease), hypertension, chronic migraines, and diverticulitis. Managing these conditions would be difficult under ideal conditions but has proved virtually impossible in custody. Briggs struggles with mobility even with a wheelchair. Briggs intends to spend his remaining time in an assisted care facility where he can manage his symptoms as well as possible. There is no cure for Parkinson's, and doctors will at best be able to slow his decline. The defendant’s sentence was reduced to time served.


CR.RIS/USSG 1B1.13(b)(6), (b)(5)/DISPARITY/REHABILITATION/YOUTH/ FAMILY CIRCUMSTANCES. The District of Montana granted a CR.RIS motion in United States v. Arcand, 2024 U.S. Dist. LEXIS 204186 (D. Mont. Nov. 8, 2024). Arcand and his codefendant and wife, Bobbi Jo Wing, set fire to their home and garage during Wing's birthday party after a longstanding family disagreement about the home's ownership escalated. Wing and Arcand believed that Wing's cousin, Angel Denny, had left the party earlier in the evening. After Wing and Arcand set the house on fire, they learned that Denny had passed out in a back room. Arcand and others present at the party attempted to rescue Denny. They were unsuccessful, and Denny died in the fire. The Government charged Wing and Arcand with first degree murder in violation of 18 USC 1153(a) and 1111. The Superseding Indictment added a second charge of arson in violation of 18 USC 81. A jury found Wing and Arcand guilty of first degree murder during the commission of arson. The Court sentenced Wing and Arcand to life in prison on Feb. 15, 2006. Arcand raised his unusually long sentence, his youth at the time of the crime, his medical circumstances, his family circumstances, and his significant rehabilitative efforts during his incarceration as grounds supporting a reduction of Arcand's sentence to time served. Section 1B1.13(b)(6) of the USSG provides that extraordinary and compelling reasons may exist where the defendant received an unusually long sentence, the defendant has served at least ten years, and a change in the law has occurred. USSG 1B1.13(b)(6). The change in the law must "produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed." In conjunction with this provision, the Court maintains "broad discretion . . . to consider a wide array of extraordinary and compelling justifications for release." USSG 1B1.13(b)(5). Under the current DOJ policy, Wing and Arcand likely would not have been charged with first degree murder. "[T]here is no doubt that the charging policy of the Department of Justice led to the convictions for felony murder."). The Government's support of Arcand's motion arises in part from the recognition that Wing and Arcand already have served an appropriate sentence for arson resulting in death, rather than first degree murder. Arcand's life imprisonment proves a grossly disparate sentence even for murder when compared to other defendants. For fiscal years 2020-2024, the median sentence length for defendants convicted of murder in the District of Montana was 224 months imprisonment followed by 5 years supervised release. The Court found that the life sentences imposed on Wing and Arcand result in a gross disparity between the sentences they are currently serving and the sentence likely to be imposed today. This gross disparity exists regardless of whether the operative crime of conviction is first degree murder or arson and murder. Section 1B1.13(b)(3)(C) of the USSG provides that extraordinary and compelling reasons exist upon "[t]he incapacitation of the defendant's parent when the defendant would be the only available caregiver for the parent." Arcand notes that his grandmother, Karen Arcand, is elderly and requires daily care and attention. Karen stood in the role of Arcand's parent during his childhood because his parents were alcoholics and unable to take care of him. Arcand argued that his medical conditions constitute extraordinary and compelling reasons for a sentence reduction. Arcand points to his skin problems, chest pain, and sciatica. The Court recognized that Arcand raised serious concerns about adequate medical care for inmates at FCI Sheridan. The Court considered Arcand's youth at the time of the offense and his rehabilitative strides within the context of the 3553(a) factors. USSG 1B1.13(b)(5). Arcand has completed numerous courses including obtaining his GED, a number of college classes, and certificates in mathematics, carpentry, construction, computer skills, electrical, solar installation, and history. Arcand has participated in drug education programming, anger and stress management, parenting classes, a victim impact program, and criminal thinking. The defendant’s sentence was reduced to time served.


CR.RIS/STAY. The Western District of Louisiana entered a stay pending a decision in United States v. Jean in United States v. Anthony Giaimis, 2024 U.S. Dist. LEXIS 20384 (W.D. La. Nov. 7, 2024). The defendants argued that due to new developments in the law, citing United States v. Jean, 108 F.4th 275 (5th Cir. 2024), that by limiting the grounds for compassionate release to extraordinary and compelling reasons, Congress did not limit a sentencing court's ability to consider non-retroactive changes in the law as a factor to consider. Jean at 6. In Jean, the Fifth Circuit addressed the question of whether a sentencing court has the discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amounts to 'extraordinary and compelling reasons' warranting compassionate release. The court answered the question affirmatively. Id. at 4. The Government requested the Court hold in abeyance any ruling in this matter because in Jean, the Fifth Circuit held issuance of the mandate indicating that a poll for rehearing may be pending. On Sept. 18, 2024, the United States filed a Petition for Rehearing En Banc and briefing has been ordered.


CR.RIS/BOP REQUEST/MEDICAL. The district of Nevada granted a CR.RIS on a motion from the Government in United States v. Randall Venerable, 2024 U.S. Dist. LEXIS 203598 (D. Nev. Nov. 7, 2024). On April 2, 2019, Venerable pled guilty to two counts of distribution of methamphetamine, one count of possession with intent to distribute heroin, one count of possession with intent to distribute methamphetamine, one count of possession of a firearm in furtherance of a drug trafficking offense, and one count of possession with intent to distribute cocaine. On July 18, 2019, the Court sentenced Venerable to a 180-month term of imprisonment followed by a five-year term of supervised release. Venerable, age 58, is diagnosed with stage IV high grade soft tissue sarcoma with metastasis to the lung and abdomen. On Aug. 22, 2024, an oncologist noted that he is not a surgical candidate and that based on his aggressive disease process the treatment focus will be palliative in nature and not curative. Venerable remains generally independent

with his Activities of Daily Living and Instrumental Activities of Daily Living and requires a wheelchair. Pursuant to 18 USC 3582(c)(1)(A)(i), the Court, upon motion of the Director of the BOP, may modify a term of imprisonment upon the finding that "extraordinary and compelling reasons" exist to warrant a reduction. Specifically, USSG 1B1.13(b)(1)(A) states there exists an extraordinary and compelling reason to grant relief if "the defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end-of-life trajectory)." On Nov. 6, 2024, the Director of the BOP requested the United States Attorney to file a motion on her behalf to reduce Venerable's term of imprisonment to time-served, stating that Venerable's terminal medical condition constitutes "extraordinary and compelling reasons" warranting the requested reduction. The defendant’s sentence was reduced to time served.


CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The Western District of Virginia granted a CR.RIS motion in United States v. Raul Tronco-Ramirez, 2024 U.S. Dist. LEXIS 203759 (W.D. Va. Nov. 6, 2024). On Oct. 20, 2011, Tronco-Ramirez was charged in a superseding indictment with conspiring to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, and 50 grams or more of methamphetamine (actual), in violation of 21 USC 841(a)(1) and 841(b)(1)(A), all in violation of 21 USC 846 (Count One); possessing with intent to distribute 50 grams or more of methamphetamine (actual) in violation of 21 USC 841(a)(1) and 841(b)(1)(A) (Count Two); on or about June 10, 2010, possessing a firearm, an R&G .22 caliber revolver, in furtherance of a drug-trafficking crime in violation of 18 USC 924(c)(1)(A) (Count Three); and on or about June 11, 2010, possessing a firearm, an R&G .38 caliber revolver, in furtherance of a drug trafficking crime, in violation of 18 USC 924(c)(1)(A) (Count Four). On Oct. 26, 2011, Tronco-Ramirez entered into a Rule 11(c)(1)(C) plea agreement in which he pled guilty to Counts One, Two, and Three of the Indictment. The parties agreed that Tronco-Ramirez would be sentenced to concurrent 240-month sentences on Counts One and Two, and a consecutive term of 60 months on Count Three, for a total term of 300 months. In Tronco-Ramirez's motion for compassionate release he argued that if sentenced today he would not face a 25-year mandatory consecutive sentence on Count Four of the indictment but would face only a 5-year minimum on that count, and that the disparity between the maximum sentence he faced in 2011 and the sentence he would face today for the same conduct creates an "extraordinary and compelling" reason for a sentence reduction. The Government argued that the Commission exceeded its authority when it promulgated USSG 1B1.13(b)(6) and (c). The Government appears to concede that the Commission exercised its delegated authority in promulgating the revised policy statement but argues that the Commission's interpretation of the statute should be set aside because it is unreasonable and conflicts with 3582(c)(1)(A)'s plain text, context, and purpose. In sum, the court finds that 1B1.13(b)(6) and (c) of the guidelines are consistent with 3582(c)(1)(A) and 28 USC 994(t). The Commission did not exceed its authority when it amended the policy statement, and the court applied the Commission's interpretation of what constitutes an extraordinary and compelling circumstance warranting a sentence reduction to Tronco-Ramirez's case. The court found that the 105-month difference between the sentence Tronco-Ramirez received in 2011 and the sentence he likely would receive today for the same conduct to be an "extraordinary and compelling reason" for relief under USSG 1B1.13(b)(6) and (c). The defendant’s sentenced was reduced to 180-months imprisonment.


APPEAL/RESENTENCING. The Fourth Circuit vacated and remanded for resentencing United States v. Miguel Hutchinson, 2024 U.S. App. LEXIS 28615 (4th Cir. Nov. 12, 2024). Hutchinson appealed his convictions and sentence following a jury trial for possession of a firearm as a convicted felon in violation of 18 USC 922(g)(1); possession with intent to distribute marijuana in violation of 21 USC 841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 USC 924(c)(1)(A)(i). On appeal, Hutchinson argued that (1) the district court erred in declining to hold an evidentiary hearing on Hutchinson’s motion to suppress and in denying that motion; (2) the Government made improper, misleading statements during its closing argument; and (3) the court procedurally erred in imposing Hutchinson’s sentence. The court affirmed Hutchinson’s convictions but vacated his sentence and remanded for resentencing. Hutchinson argued that the Government made misleading statements during closing arguments. Specifically, the Government recounted that, when confronted with

officers’ discovery of his firearm, Hutchinson said, effectively, “I’m 33 years old, I’ll go back to the yard, three to five.” “Let’s give him what he wants,” counsel told the jury. Hutchinson—who was facing the possibility of a much longer sentence—asserts that these statements were misleading. “Unquestionably,” a prosecutor’s comments about a defendant’s possible sentence “are improper and may warrant a reversal.” Hutchinson contended that the district court erred at sentencing by failing to address his mitigation arguments and by failing to explain the sentence imposed. Hutchinson argued for a mandatory minimum 60-month sentence based on certain mitigation arguments. The district court imposed a 90-month sentence without explanation. The Government argued that Hutchinson was not harmed because he received a sentence below the Guidelines range, the district court’s failure to provide any explanation whatsoever renders such argument mere speculation. The court reversed and remanded for resentencing.


APPEAL/SAFETY VALVE. The Eleventh Circuit reversed and remanded a safety valve grant in United States v. Navorias Sapp, 2024 U.S. App. LEXIS 29096 (11th Cir. Nov. 15, 2024).  The Government appealed Sapp’s 84-month sentence for possession with intent to distribute 50 grams or more of methamphetamine. It argued that the District Court erred in finding Sapp eligible for safety-valve relief under 18 USC 3553(f) and imposing a sentence below the 15-year statutory mandatory minimum. Considering the Supreme Court’s decision in Pulsifer v. United States, 601 U.S. 124 (2024), the court agreed. The U.S. Supreme Court held that 3553(f)(1) “creates an eligibility checklist” that demands a defendant satisfy each condition before he is eligible for safety-valve relief. Pulsifer, 601 U.S. at 132. The Court concluded that the word “and” joins each criminal-history characteristic in 3553(f)(1) to the introductory phrase “does not have.” See id. at 134–37, 150–53. In other words, a defendant is eligible for safety-valve relief if he does not have more than four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense. Id. at 153. The presence of any of the three criminal-history characteristics in 3553(f)(1) disqualifies a defendant from safety-valve relief.  Under Pulsifer, Sapp is ineligible for safety-valve relief because he has a prior three-point offense. The District Court erred in granting Sapp safety-valve relief and sentencing him below the statutory minimum sentence. The case was remanded for resentencing.


APPEAL/ILLEGAL SEARCH. The Sixth Circuit reversed and remanded United States v. Nathaniel Taylor, 2024 U.S. App. LEXIS 29055 (6th Cir. Nov. 15, 2024). Nathaniel Taylor was stopped by a police officer for speeding on an interstate in Knoxville, Tennessee. During the stop, the officer requested a K-9 unit based on Taylor’s suspicious activities, including his movements in the car, his criminal history, and the presence of multiple air fresheners. The K-9 unit indicated the presence of drugs, leading to a search of Taylor’s vehicle, which uncovered a firearm. As a felon, Taylor was prohibited from possessing a firearm. Taylor was subsequently indicted for being a felon in possession of a firearm and moved to suppress the evidence, arguing that the officer lacked reasonable suspicion to detain him beyond the time necessary to issue a traffic citation. The Eastern District of Tennessee denied Taylor’s motion to suppress. Taylor then conditionally pled guilty, reserving his right to appeal the district court’s ruling on the motion to suppress. The Sixth Circuit reviewed the case and determined that the officer did not have reasonable suspicion to prolong the traffic stop. The court found that the factors cited by the officer, including Taylor’s travel plans, criminal history, air fresheners, and movements, did not collectively amount to reasonable suspicion. The court held that the officer’s extension of the stop to conduct a dog sniff was not justified. Consequently, the Sixth Circuit reversed the district court’s denial of Taylor’s motion to suppress and remanded the case for further proceedings consistent with its opinion.


APPEAL/1983/PLRA. The Eighth Circuit reversed and remanded Tremonti Perry v. Precythe, 2024 U.S. App. LEXIS 29015 (8th Cir. Nov. 15, 2024). Perry who was incarcerated at the Southeast Correctional Center experienced a severe medical emergency which resulted in him being placed in a medically induced coma for a month. Several years after recovering, Perry filed a lawsuit under 42 USC 1983 against the prison's warden, the Missouri Department of Corrections Director, and two medical-care contractors, alleging Eighth Amendment violations due to deliberate indifference to his medical needs. Perry admitted he did not use the prison’s administrative remedy which required filing a complaint within fifteen days of the incident, but argued that his coma made it impossible for him to meet this requirement. The defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Perry had not exhausted his available remedies as required by the Prison Litigation Reform Act (PLRA). They acknowledged that the grievance process was unavailable to Perry during his coma and a reasonable period afterward but contended that Perry should have made a diligent effort to exhaust his claims once he recovered. The district court agreed with the defendants and dismissed the complaint, concluding that Perry could have filed a grievance after his medical conditions resolved. The Eighth Circuit determined that the prison’s administrative grievance process was unavailable to Perry due to his physical incapacity during the coma and the prison’s rules not allowing late filings. The court rejected the defendants' arguments that Perry could have filed an untimely grievance or that the grievance deadline was perpetually renewed due to ongoing medical issues. The court also denied the defendants' motion to supplement the record with new evidence. Consequently, the Eighth Circuit reversed the district court’s dismissal of Perry’s complaint and remanded the case for further proceedings.

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