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Samaritan Newsletter 12-11-23

The Law Office of Tom Norrid 

SAMARITAN PROJECTS LLC  

P.O. Box 9244 

Springfield, MO 65801-9244 

Rusty 417-236-1179 or Lexandria 417-771-0736

SAMARITANPROJECTS.COM – Website  

 

SAMARITAN NEWSLETTER – December 11, 2023 

 

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

 

The “SAMARITAN PROJECTS COMPASSIONATE RELEASE ISSUES AND CITATIONS MANUAL” is available. The Manual contains all the winning issues and supporting cases on compassionate release. To keep it simple, the book is approximately 190 pages and sent priority legal mail. The cost is $75.00. To order, have your outside contact call Eddie at 417 818 1938 or Rusty at 417 901 3000, or BP-199 the Project. 

 

THE PROJECT HAS A NEW ADDRESS: Post Office Box 9244, Springfield, MO 65801-9244. 

 

CR.RIS/MEDICAL. The District of Utah granted a CR.RIS motion in United States v. Sergio Sosa, 2023 U.S. Dist. LEXIS 216483 (D. Utah Dec. 5, 2023). The matter was before the court on Sosa's pro se motion for compassionate release. The court considered the briefing and received input from the United States Probation Office.  Sosa is a 72-year-old man suffering from ongoing health concerns including uncontrolled hypertension, stage 3 chronic kidney disease, elevated prostate specific antigens (PSA) indicative of a heightened risk of prostate cancer, and hyperlipidemia. He sought compassionate release due to his rapidly deteriorating health and the BOP's failure to provide necessary care for his medical conditions. The court granted his motion. Sosa's health is deteriorating. He provided the court with medical records which detail his ongoing health concerns, including uncontrolled hypertension; chronic kidney disease, stage 3; elevated prostate specific antigens (PSA); and hyperlipidemia. Since his self-surrender to the Federal Correctional Complex (FCC) in Florence, Colorado, on April 7, 2023, Sosa's examinations show consistently high blood pressure levels. In an effort to treat his hypertension, medical staff prescribed him Lisinopril and Hydrochlorothiazide. The defendant was hospitalized on May 8, 2023 when his condition appeared to be worsening rapidly and he failed to respond to changes in medication. On May 30, 2023 the defendant was diagnosed with chronic kidney disease that was "likely headed to dialysis. High risk of stroke, heart attack, renal failure." He was referred for a renal ultrasound, the results of which are unknown, and a consultation with a kidney specialist which has not happened. Also on May 30, the defendant's bloodwork showed elevated PSA levels which have been identified as pre-indicators of prostate cancer. The defendant was referred for a consultation with a urologist. At the filing of Sosa's motion no consultation had been completed. The Sentencing Commission's recently adopted amendment to the compassionate release policy statement, which took effect on November 1, 2023 (See 28 USC 994(p)), revised the policy statement making several substantive changes to it. The amendment moved the description of the permissible bases for a reduction in sentence from the Commentary to the text of the policy statement. It expanded the list of specified "extraordinary and compelling reasons" that warrant a reduction in sentence. One of the new subcategories, Medical Circumstances of the Defendant, applies specifically to Sosa. Sentence reduced to time served. 

 

CR/RIS/MEDICAL. The District of Maryland granted in part a CR.RIS motion in United States v. Stanley Richardson, 2023 U.S. Dist. LEXIS 217657 (D. Md. Dec. 7, 2023). Richardson entered a plea of guilty on Aug. 13, 2021 to the offense of possession with intent to distribute 28 grams or more of cocaine base in violation of 21 USC 841. Although the plea was not entered under Fed.R.Crim.P. 11(c)(1)(C), the parties contemplated a sentencing range between 96 months and 120 months of incarceration. In particular, defendant reserved the right to appeal if the Court imposed a sentence greater than 120 months of imprisonment and the Government reserved the right to appeal if the Court imposed a sentence of less than 96 months of imprisonment. The Court applies the law in effect at the time of its decision not the law in effect at the time the Motion was filed. Notably, USSG 1B1.13(c) of the Policy Statement now specifies that, "[e]xcept as provided in subsection (b)(6)," which concerns an "unusually long sentence," "a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) shall not be considered for purposes of determining whether an extraordinary and compelling reason exists under this policy statement." However, "if a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction under [the Policy Statement], a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction." Richardson asserted that his medical conditions which include "obesity, [a] very serious upper respiratory condition, and high blood pressure," provide an extraordinary and compelling reason for release because they leave him especially vulnerable to severe COVID-19. Finally, under 1B1.13(b)(1)(D), relief may be warranted if: (i) the defendant is housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority; (ii) due to personal health risk factors and custodial status, the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency described in clause (i); and (iii) such risk cannot be adequately mitigated in a timely manner. In the court’s view relief was warranted under 1B1.13(b)(1)(D) because defendant's medical conditions place him at increased risk of suffering severe medical complications as a result of exposure to COVID-19. The court reduced the defendant’s sentence to 96 months imprisonment. 

 

APPEAL/CR.RIS. The Eighth Circuit remanded United States v. Robin Sims, 2023 U.S. App. LEXIS 32310 (8th Cir. Dec. 7, 2023). In this case the Eighth Circuit evaluated a decision by the Western District Court of Missouri which had denied Sims's motion for compassionate release from prison under 18 USC 3582(c)(1)(A)(i). In 2015, Sims was convicted of drug trafficking and firearm offenses and was sentenced to 360 months in prison. In 2022, he filed a motion for compassionate release citing changes to the Armed Career Criminal Act since his sentencing and his medical conditions as extraordinary and compelling reasons for a reduction in sentence. The district court denied the motion stating that Sims's arguments did not constitute extraordinary and compelling reasons warranting a sentence reduction. The Court of Appeals found that the district court misunderstood Sims's arguments and the Government's position. Instead of arguing for compassionate release due to an increased risk of contracting COVID-19, Sims had argued that he had contracted COVID-19 in custody, was experiencing ongoing medical complications, and was receiving inadequate medical care. The Government had conceded that Sims had established "extraordinary and compelling" reasons under 18 USC 3582(c)(1)(A)(i) but the district court mistakenly stated the Government had opposed Sims's motion on the basis that he had failed to do so. The Court of Appeals remanded the case back to the district court instructing it to consider the full scope of Sims's argument in support of "extraordinary and compelling" reasons, and if such reasons were found, to consider the factors set forth in 18 USC 3553(a) in light of these reasons. The court emphasized the need for an individualized inquiry in motions for compassionate release. 

 

APPEAL/2255/SENTENCE. The Sixth Circuit vacated and remanded a 2255 appeal in the case of Dockery Cleveland v. United States, 2023 U.S. App. LEXIS 31999 (6th Cir. Dec. 4, 2023). Cleveland appealed the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 USC 2255. The Government concedes reversible error and moved the court to remand with instructions to the district court for resentencing. Cleveland was convicted on conspiracy to possess with the intent to distribute and to distribute cocaine (Count 1), two counts of attempted possession with intent to distribute cocaine-one for October 19, 2015 (Count 2), and one for October 20, 2015 (Count 3). The parties agree Counts 2 and 3 fall into the category of attempt crimes in which a person "purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be"-here, if the fake drugs had still been real cocaine. Model Penal Code § 5.01(1)(a). The court has held that continuous possession of drugs constitutes "a single, indivisible course of conduct," United States v. Foster, 765 F.3d 610, 613 (6th Cir. 2014), such that multiple convictions for possessing the same drugs are prohibited by the Double Jeopardy Clause, see id. at 612. Citing Foster, the Government conceded Cleveland's possession of the fake cocaine over the two-day period likewise constitutes a single continuous course of conduct. Further, the Government conceded that Cleveland's trial counsel was constitutionally ineffective by failing to challenge his conviction and sentence. The Supreme Court has found actual prejudice to support a 2255 motion where a defendant was sentenced concurrently on mutiplicitous crimes and ordered to pay separate assessments for each. Rutledge v. United States, 517 U.S. 292, 301-02 (1996); see Ball v. United States, 470 U.S. 856, 864 (1985); see also Weinberger v. United States, 268 F.3d 346, 351, 352 (6th Cir. 2001) (permitting challenge to a noncustodial aspect of a sentence in a 2255 motion alleging ineffective assistance of counsel because the "Supreme Court and this court have held that challenges that cannot otherwise be reviewed for the first time on a 2255 motion can be reviewed as a part of a successful claim that counsel provided ineffective assistance"). Such is the case here. The Government further "waives the requirement [under 2255] that Cleveland establish a right to be released." The Government's motion is well taken. The court granted the motion to remand, vacated Cleveland's sentence on Count 3, and remanded with instructions that the district court merge Counts 2 and 3. 

 

APPEAL/2255/SENTENCING. The Fifth Circuit vacated and remanded the case United States v. Rolando Villarreal, U.S. App. LEXIS 32118 (5th Cir. Dec. 5, 2023). This case involves Villarreal who pled guilty to being a felon in possession of a firearm. His sentence was enhanced under the Armed Career Criminal Act due to a prior burglary and two prior aggravated assaults. Villarreal challenged the enhancement under 28 USC 2255, arguing that his sentence was improperly enhanced under the ACCA's elements or force clause based on the predicate offense that allowed conviction for reckless conduct a claim subsequently termed a "Borden claim." The Fifth Circuit found that Villarreal did assert a Borden claim in his 2255 motion and that his sentence was "in excess of the maximum authorized by law." This was due to the fact that after the ruling in Borden v. United States the convictions under the relevant aggravated assault statute could not constitute predicate offenses under the ACCA as they do not require the "physical use of force against the person of another." As a result, the Court of Appeals vacated Villarreal’s sentence and remanded the case back to the district court with instructions to resentence Villarreal without consideration of the ACCA. 

 

2255/ACCA/SENTENCE. The Middle District of Pennsylvania granted a 2255 motion based on ineffective assistance of counsel in the case of United States v. Copeland, 2023 U.S. Dist. LEXIS 217411 (E.D. Pa. Dec. 6, 2023).  The court sentenced Copeland to 180 months imprisonment after he pled guilty to possessing a firearm as a convicted felon. Copeland's sentence was based in part on his classification as an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 USC 924(e). Copeland moves to vacate, set aside, or correct his sentence pursuant to 28 USC 2255 based on ineffective assistance of counsel and on due process grounds because his prior robbery convictions under Pennsylvania law do not constitute violent felonies. The court granted Copeland's motion. Copeland robbed several Turkey Hill convenience stores in York County, Pennsylvania, over the course of two weeks in June 2008. He subsequently pled guilty to, inter alia, four counts of robbery in violation of 18 Pa. Cons. Stat. 3701. Copeland's convictions included one count of first-degree robbery under Section 3701(a)(1)(ii) of the robbery statute, two counts of second-degree robbery under Section 3701(a)(1)(iv), and one count of third-degree robbery under Section 3701(a)(1)(v). Copeland raised a due process challenge to his classification as an armed career criminal in light of Borden. In Borden, the Supreme Court held that a criminal offense with a mens rea of recklessness cannot count as a "violent felony" under the ACCA's elements clause. See Borden, 141 S. Ct. at 1821-22; id. at 1835. Copeland contended that his prior robbery convictions under 18 Pa. Cons. Stat. 3701(a)(1)(ii) and (iv) cannot be predicate offenses under the ACCA because they may be committed with a mens rea of recklessness. The court began and ended its analysis with this supplemental claim. When assessing whether a conviction qualifies as an ACCA predicate offense, a court must determine whether the underlying statute is divisible. A statute is divisible when it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Here, it is undisputed that Pennsylvania's robbery statute, 18 Pa. Cons. Stat. 3701(a)(1), is divisible into subsections that "'clearly la[y] out alternative elements' for separate robbery offenses." Because this subsection may be violated with a mens rea of  recklessness, Copeland's two convictions for second-degree robbery cannot count as ACCA predicate offenses. See Borden, 141 S. Ct. at 1821-22; id. at 1835. Accordingly, the court found that Copeland's designation as an armed career criminal violated his right to due process, and he was entitled to be resentenced without regard to the ACCA's enhancements. 

 

APPEAL/SENTENCE/RESTITUTION. The Eighth Circuit remanded the case of United States v. Juanita White Shield, 2023 U.S. App. LEXIS 31867 (8th Cir. Dec. 4, 2023). The Eighth Circuit heard an appeal from the defendant who was convicted of assault with a dangerous weapon and sentenced to 57 months in prison with an order of restitution. White Shield assaulted another woman with a metal bar in a fit of jealousy when she discovered the woman in the truck with her husband.  She appealed the conviction on two grounds. First, she argued the trial court erred in denying her motion for a mistrial after a witness mentioned three times that she was on probation. The court of appeals disagreed stating the trial court had broad discretion to grant or deny a motion for mistrial, and in this case, the reference to the defendant's probation status had minimal, if any, prejudicial effect. The court also noted that the trial court's instruction to the jury to disregard the reference to probation mitigated any potential prejudice. Second, White Shield contested the restitution amount as there was a discrepancy between the oral sentence and the written judgment. The court agreed with this contention clarifying that when there is a conflict between an oral sentence and written judgment the oral sentence prevails. The court of appeals affirmed the conviction and the denial of the motion for mistrial but remanded the case back to the district court to amend the written judgment to align with the oral sentence regarding the restitution amount. 

 

APPEAL/SENTENCE. The Fifth Circuit vacated and remanded the case of United States v. Sterling Robinson, 2023 U.S. App. LEXIS 31972 (5th Cir. Dec. 4, 2023). In this case Robinson was convicted by a jury on one count of possessing a firearm or ammunition as a convicted felon and one count of attempted obstruction of a federal proceeding. He appealed these convictions on the grounds of sufficiency challenges, errors relating to evidence admitted at trial, the trial court's jury instructions, and the prosecutor's remarks during opening and closing arguments. Robinson also appealed his sentence arguing that the district court misunderstood its authority to order that his sentence run concurrently with another federal sentence. The case originated from an incident where Robinson's ex-girlfriend, Candace Anderson, accused him of shooting at her car while her nine-year-old son was inside. After the incident, Robinson repeatedly urged Anderson to change her story during phone calls from jail. The Fifth Circuit affirmed Robinson's convictions stating that there was sufficient evidence for a reasonable jury to conclude that Robinson was guilty beyond a reasonable doubt of the stated charges. The court held that the district court did not abuse its discretion in its admission of evidence, the failure to give an impeachment instruction, or any improper remarks by the prosecutor. However, the court agreed with Robinson's argument that the district court misunderstood its sentencing authority. The district court initially stated that Robinson’s sentence would run concurrently with a sentence imposed upon his revocation of supervised release but later retracted this after the Government pointed out that another judge had ordered the sentences to run consecutively. The appellate court clarified that one district court has no authority to instruct another district court on how to impose its sentence for a different offense in a different case. As a result, the court vacated Robinson’s term of imprisonment and remanded the case for a narrow resentencing limited to the sole issue of whether Robinson’s prison sentence in this case should run concurrently or consecutively with his other federal sentence. 

 

APPEAL/SENTENCE. The Eleventh Circuit vacated and remanded in part for resentencing in United States v. Daniel Crow, 2023 U.S. App. LEXIS 32380 (11th Cir. Dec. 7, 2023). Crow appeals his sentence of 360 months imprisonment for enticement of a minor to engage in sexual activity and production of child pornography. Crow asserted several issues on appeal. After review, the court affirmed in part, and vacated and remanded for resentencing in part. Crow contended the district court erred in failing to group his counts together when calculating his guideline range because his counts involved substantially the same harm under USSG 3D1.2. The Government concedes error on this issue. Offenses “shall be grouped” for guideline offense level calculation purposes when they “involve substantially the same harm.” USSG 3D1.2. Subsection (d) specifically precludes the grouping of a “production of child pornography” offense under that subsection. However, offenses need only meet the criteria of one subsection of 

3D1.2 to qualify for grouping as “substantially the same harm.” See 3D1.2(d) (“Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection”). The district court erred in failing to group Crow’s counts. The court affirmed the district court’s imposition of enhancements for pattern of activity, distribution, and use of a computer. The court vacated and remanded for resentencing because the district court erred in failing to group Crow’s counts. 

 

APPEAL/SENTENCE. The Second Circuit remanded for resentencing in the case of United States v. Robert Chaires, 2023 U.S. App. LEXIS 32329 (2d Cir. Dec. 7, 2023). The Second Circuit heard an appeal from Chaires who challenged the procedural and substantive reasonableness of his 120-month sentence handed down in the Northern District of New York. Chaires plead guilty to two counts of unlawfully distributing cocaine base and contended the district court erred in determining his two prior state-court narcotics convictions as predicate offenses for the career offender enhancement under USSG 4B1.1. The Court of Appeals agreed with Chaires and held that the district court indeed erred in its determination. The district court had based its decision on an intervening decision in United States v. Minter which showed that Chaires's prior convictions were brought under a state provision that is categorically broader than the federal predicate definition in section 4B1.2(b). This meant that the convictions could not serve as a 4B1.1 predicate offense which made the district court's enhancement of Chaires's Guidelines range erroneous. Following this decision, the Court of Appeals remanded the case to the district court for resentencing. 

 

APPEAL/SENTENCE/ORAL PRONOUNCEMENT. The Fourth Circuit vacated and remanded in part the case United States, Johnny Vang, 2023 U.S. App. LEXIS 32370 (4th Cir. Dec. 7, 2023). Vang pled guilty pursuant to a plea agreement to receiving and attempting to receive child pornography in violation of 18 USC 2252A(a)(2)(B), (b)(1). The district court sentenced Vang to 168 months imprisonment and a supervised release term of life. The court also imposed a $35,000 assessment on Vang. Vang’s counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) stating there were no meritorious grounds for appeal but raising as an issue whether the 168-month prison term is substantively unreasonable. Vang filed a pro se supplemental brief in which he suggests that the prosecuting attorney engaged in misconduct at the sentencing hearing and that his sentence is unreasonable. After conducting review pursuant to Anders the court ordered supplemental briefing to address the potentially meritorious issues of whether there is reversible error in this case under United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and United States v. Singletary, 984 F.3d 341 (4th Cir. 2021), and whether the district court reversibly erred in imposing the $35,000 assessment. In his supplemental brief, Vang’s counsel argued that the district court erred in imposing the $35,000 assessment because—contrary to the requirements of 18 USC 2259A(c) and 18 USC 3572—it failed to consider the amount of restitution it ordered and to identify sentencing factors supporting imposition of an assessment at the statutory maximum. Counsel also argued that the district court erred in imposing on him several discretionary conditions of supervised release because it failed to provide a sufficient explanation for them. The court reviewed the record and found no improper conduct on the part of the prosecution that prejudiced Vang. The court remanded in part to the district court with instructions to correct the written judgment to conform with the court’s oral pronouncement leaving the remainder of Vang’s sentence undisturbed. 

 

APPEAL/DISCOVERY/SEALING. The Ninth Circuit remanded the case of United States v. Duane Ehmer, 2023 U.S. App. LEXIS 32383 (9th Cir. Dec. 7, 2023). In this case the Ninth Circuit affirmed the convictions and sentences of four defendants who were involved in the January 2016 occupation of the Malheur National Wildlife Refuge in eastern Oregon. The defendants were charged with various offenses including conspiracy to impede officers of the United States, possession of firearms in a federal facility, and depredation of government property. The court rejected the defendants contentions that the district court erred in the jury selection process and that they were entitled to a jury trial for the misdemeanor offenses charged. The court also held that the evidence was sufficient to support the defendants misdemeanor and felony convictions. Furthermore, the court rejected the defendants arguments that their Sixth Amendment right to a jury trial was violated. The Ninth Circuit remanded the case back to the district court to resolve certain issues related to the sealing and discovery of materials. The court's ruling is significant as it addressed the rights of the accused in the context of jury selection and the conduct of the trial. 

 

APPEAL/FTCA. The First Circuit reversed and remanded the case of Elvin  

Torres-Estrada v. Carlos Cases, 2023 U.S. App. LEXIS 32226 (1st Cir. Dec. 6, 2023). Torres-Estrada brought this claim against several Federal Bureau of Investigation agents and the United States under the Federal Tort Claims Act and Bivens, alleging violations of his constitutional and statutory rights. The district court dismissed his complaint arguing that some of his claims were not filed within the required time frame and that the FTCA's discretionary function exception stripped the court of jurisdiction over his other claims. Torres-Estrada appealed the dismissal arguing that his claims are timely and that the discretionary function exception does not apply, and even if it does, it does not cover the alleged misconduct of the FBI. The First Circuit held that the district court erred in its interpretation of the discretionary function exception. The court explained that this exception does not serve as a bar to FTCA tort claims that plausibly allege constitutional violations. In addition, at least two of Torres-Estrada's claims could be subject to the "continuing violation" doctrine, which means the district court erred in dismissing his claims as untimely without considering this doctrine. Given that new facts that have emerged throughout the litigation, the court granted Torres-Estrada leave to amend his complaint. Therefore, the court affirmed in part, reversed in part, and remanded the case for further proceedings. The background facts of the case are that Torres-Estrada was detained at the Metropolitan Detention Center in Guaynabo, Puerto Rico, pending prosecution for drug and money laundering offenses. During this time, he was investigated by the FBI as a potential suspect in the murder of a correctional officer at the MDC. Torres-Estrada alleged that the FBI violated his rights through various actions including the use of informants to elicit incriminating statements about the murder subjecting him to invasive body searches, and maintaining records which falsely linking him to the murder. 

 

APPEAL/1983/DELIBERT INDIFFERENCE. The Fourth Circuit reversed and remanded the case of Charles Short v. J.D. Hartman, 2023 U.S. App. LEXIS 32521 (4th Cir. Dec. 9, 2023). In this case the Fourth Circuit reversed and remanded a district court's dismissal of claims brought by Charles Willis Short, the husband and estate administrator of Victoria Christine Short, who died by suicide while in custody at the Davie County Detention Center. Mr. Short filed a lawsuit under 42 USC 1983 against several employees of the Davie County Sheriff’s Department, alleging violations of the Fourteenth Amendment for deliberate indifference to Ms. Short’s risk of suicide. The district court dismissed all of Mr. Short's claims, applying a subjective standard for determining deliberate indifference. The Fourth Circuit disagreed with the lower court's application of the subjective standard, relying on the Supreme Court's decision in Kingsley v. Hendrickson, which established an objective standard for determining deliberate indifference in cases involving pretrial detainees. The court decided that pretrial detainees can state a Fourteenth Amendment claim for deliberate indifference to an excessive risk of harm on an objective standard, finding that the allegations in the complaint were sufficient to state a claim under any standard. Therefore, the court reversed the district court’s dismissal of the claims and remanded the case for further proceedings. 

 

APPEAL/IMMIGRATION. The Sixth Circuit remanded the case of Ana Sebestian-Sebestian v. Garland, 2023 U.S. App. LEXIS 32541 (6th Cir. Dec. 8, 2023). Sebastian-Sebastian petitioned for review of the Board of Immigration Appeals’ denial of her application for asylum and withholding of removal under the Immigration and Nationality Act as well as protection under the Convention Against Torture. She also challenged the Board’s decision under the Due Process Clause of the Fifth Amendment. In its denial of asylum and withholding of removal under the INA, the Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argued that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, the court granted Sebastian-Sebastian’s petition for review in part, denied in part, and vacated the Board’s denial of her application for asylum and withholding of removal, and remanded the case to the Board for reconsideration consistent with the court’s opinion. 

 

FIFTH CIRCUIT HOLDS 18 U.S.C. 922(g) TO BE CONSTITUTIONAL. 

APPEAL/922(g)/CONSTITUTIIONALITY. The Fifth Circuit held 922(g) to be constitutional in United States v. Derrick Jones, 2023 U.S. App. LEXIS 31009 (5th Cir. Dec. 8, 2023). Derrick Durrell Jones, a convicted felon, pled guilty to possession of a firearm and appealed his conviction to the Fifth Circuit. Jones argued that the law under which he was convicted, 18 USC 922(g)(1), was unconstitutional because it violated the Commerce Clause and the Second Amendment. Addressing the Commerce Clause argument, the court stated that their circuit precedent has consistently upheld the constitutionality of 922(g)(1), and that Jones did not presented any Supreme Court decisions that had expressly overruled this. In response to the Second Amendment argument, the court noted that Jones' challenge came in light of a new test for assessing the constitutionality of a statute under the Second Amendment as set forth by the Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. However, the court pointed out that it had previously held that Section 922(g)(1) did not violate the Second Amendment and a concurring opinion in Bruen had stated that the decision should not cast doubt on prohibitions on the possession of firearms by felons. The court also observed that there was no binding precedent holding that 922(g)(1) was unconstitutional, and that two other federal circuits have reached conflicting conclusions on the issue. (Range v. Attorney General, 69 F.4th 96, 98–99 (3d Cir. 2023) (en banc) (rejecting the Government’s argument that statements  in Heller, McDonald,  and Bruen seemingly  approved  of  felon disarmament  and holding that the defendant remained one  of  the  people protected by the Second Amendment given his particular felony conviction and had a right to purchase a hunting rifle and shotgun for self-defense); United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023) (holding that “[t]he longstanding prohibition on possession of firearms by felons is constitutional”)). Given these considerations, the court concluded that Jones had failed to demonstrate that the district court’s application of 922(g)(1) constituted clear or obvious error, and thus the Fifth Circuit affirmed the decision of the lower court.  


APPEAL/SEARCH. The Third Circuit reversed and remanded the case of United States v. Jamar Hunter, 2023 U.S. App. LEXIS 32075 (3d Cir. Dec. 5, 2023).  A traffic stop conducted by Pennsylvania State Trooper Galen Clemons resulted in the arrest of Hunter after a loaded Glock-45 semi-automatic handgun was discovered in Hunter's waistband. This discovery followed a routine license and warrant check and an additional computerized criminal history check on Hunter and his passenger, Deshaun Davis. Hunter was later indicted for possession of a firearm as a convicted felon. Hunter moved to suppress the firearm evidence claiming that the computerized criminal history check extended the traffic stop beyond its constitutional authority. The Eastern District of Pennsylvania granted Hunter's motion to suppress. The court reasoned that the computerized criminal history check was unrelated to the traffic stop's mission and, without reasonable suspicion, prolonged the stop, therefore violating the Fourth Amendment. The Third Circuit reversed the District Court’s decision, finding that the lower court had applied a subjective standard of review thereby erring as a matter of law. The appellate court held that the criminal history check, which lasted approximately two minutes, was an objectively reasonable safety precaution related to the mission of the traffic stop under Rodriguez v. United States, 575 U.S. 348 (2015) and the Fourth Amendment. The Court of Appeals found the check to be a negligibly burdensome officer safety precaution that fell within the stop's mission. The case was remanded for further proceedings consistent with the opinion. 

 


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