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SAMARITAN NEWSLETTER – 4-2-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179


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 published 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.

 

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.

 

FINES AND RESTITUTION. 18 U.S.C. 3613(b):

(b) Termination of Liability.—The liability to pay a fine shall terminate the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person fined, or upon the death of the individual fined. The liability to pay restitution shall terminate on the date that is the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person ordered to pay restitution. In the event of the death of the person ordered to pay restitution, the individual’s estate will be held responsible for any unpaid balance of the restitution amount, and the lien provided in subsection (c) of this section shall continue until the estate receives a written release of that liability.

 

CR.RIS/REHABILITATION/MENTOR. The Southern District of New York granted a CR.RIS motion in part in United States v. Carl Van Putten, 2024 U.S. Dist. LEXIS 56091 (S.D. N.Y. Mar. 27, 2024). The defendant is a 50-year-old inmate who was convicted of murder while engaged in a narcotics conspiracy in 2006 and received a life sentence in which he has now served 19 years. He brought this motion to reduce his sentence on compassionate release grounds pursuant to 18 USC 3582(c)(1)(A), arguing that extraordinary and compelling reasons exist to warrant a reduction. Specifically, the defendant asserted the following bases as sufficient to garner a reduced sentence: Judge Peter K. Leisure's (the "Sentencing Court") reliance on its mistaken belief regarding the frequency of life sentences for federal defendants convicted of murder, the harshness of his sentence as compared to both federal murder defendants nationwide and the other participants in the murder, legal developments that now reduce the penalties for crack cocaine-related offenses, the law's changed perspective of how younger age affects criminal responsibility, and his rehabilitation efforts while in prison. The defendant established extraordinary and compelling reasons that warranted a sentence reduction. Taken together, the following circumstances suffice as extraordinary and compelling reasons: the Sentencing Court's reliance upon its mistaken belief regarding the frequency of life sentences; defendant's especially harsh sentence as compared to his accomplices' sentences; defendant's rehabilitation while incarcerated despite serving a life sentence without any promise of release; and defendant's young age at the time of the crime. Further, a reduction is consistent with the policy statement 1B1.13, including, but not limited to, that defendant is not a danger to the safety of any other person or the community as provided in 18 USC 3142(g), and the sentencing factors provided in 18 USC 3553(a) weigh in favor of a reduction. The defendant has also taken up mentorship and invests his time and efforts in helping others to better themselves. He provides academic tutoring to fellow inmates hoping to obtain a GED, acts as a role model to others by speaking to them about how to remain positive and use their time productively to improve themselves and further their education, and advises younger inmates on issues facing them while in prison and encourages them to make positive choices. Defendant’s life sentence reduced to 30-years imprisonment.

 

APPEAL/2254/IAC/BATSON. The Sixth Circuit reversed and remanded LaFayette Upshaw v. Stephenson, 2024 U.S. App. LEXIS 7326 (6th Cir. Mar. 28, 2024). In the case under review Upshaw was convicted of crimes associated with two separate incidents occurring on the same day: a gas station robbery and a home invasion. Following exhaustion of state court remedies, Upshaw sought habeas relief in federal court upon which the district court granted relief on claims of ineffective assistance of counsel and violation of the Batson rule. The ineffective assistance of counsel claim was based on trial counsel's failure to investigate potential alibi witnesses. The Batson rule violation claim was derived from the State’s use of peremptory challenges to strike six Black jurors. The Warden appealed the district court's decision but the Sixth Circuit affirmed the lower court's ruling. The court found that the trial counsel's failure to investigate potential alibi witnesses and to request an adjournment to rectify the situation was unreasonable and prejudicial to Upshaw constituting ineffective assistance of counsel. The court also found that the State's failure to provide race-neutral reasons for striking certain jurors coupled with the trial court's failure to properly evaluate the State's justifications constituted a violation of the Batson rule. The court held that even a single racially motivated peremptory strike requires relief. The court concluded that both of these errors entitled Upshaw to habeas relief.

 

APPEAL/2254/EVIDENTIARY HEARING. The Third Circuit reversed and remanded Khamal Fooks v. Superintendent Smithfield SCI, 2024 U.S. App. LEXIS 7067 (3d Cir. Mar. 26, 2024). This case arose from Khamal Fooks' claim that his attorney misled him about the parole eligibility related to his plea agreement. Fooks had plead guilty to third-degree murder, conspiracy, and carrying an unlicensed gun in a Pennsylvania state court. He later alleged his lawyer incorrectly assured him he would be eligible for parole after ten years when in reality he had to serve at least twenty. His allegations, if true, would demonstrate that his lawyer’s advice was ineffective. Both the state and the federal district courts dismissed his claims without providing an opportunity for an evidentiary hearing. Fooks appealed this decision to the Third Circuit. The Circuit Court found that Fooks' allegations, if proven, would indeed establish ineffective assistance of counsel thereby warranting habeas relief. The Circuit Court held the district court erred in not affording Fooks an evidentiary hearing to substantiate his allegations. The court emphasized the importance of giving petitioners a fair chance to prove their allegations and remanded the case for an evidentiary hearing. The court did not rule on Fooks' entitlement to relief instead emphasizing the need for a fair opportunity to present evidence supporting his claims.

 

APPEAL/SENTENCE. The Ninth Circuit vacated and remanded United States v. Jose Jimenez-Chaidez, 2024 U.S. App. LEXIS 6077 (9th Cir. Mar. 25, 2024). The Ninth Circuit affirmed Jose Jimenez-Chaidez's conviction for knowingly importing cocaine and methamphetamine, vacated his sentence, and remanded the case for resentencing. The court's decision had several key components. First, it approved the lower court's decision to admit evidence of Jimenez's prior drug smuggling activities as it demonstrated his knowledge and intent and was not unduly prejudicial. Second, the court found no abuse of discretion by the district court in allowing an FBI agent to testify as a lay witness about extracting data from a cellphone, holding that specialized knowledge was not required for this testimony. The court did, however, find error in the district court's failure to make an explicit reliability finding regarding an expert's testimony about the value of the drugs found in Jimenez's vehicle. Nevertheless, it determined this error was harmless. Lastly, the court vacated Jimenez's sentence and remanded for resentencing in line with recent authority guiding the process for conducting a mitigating role inquiry under USSG 3B1.2. The court clarified that the relevant comparison for this inquiry is to other participants in the defendant's crime not to typical defendants who commit similar crimes.

 

AMENDMENT 821. The District of Alaska granted an 821 motion in United States v. Spresim Alimi, 2024 U.S. Dist. LEXIS 57186 (D. Alaska Mar. 29, 2024). On July 7, 2016, Alimi plead guilty plea to Possession with Intent to Distribute Oxycodone in violation of 21 USC 841(a)(1) and (b)(1)(C). On Jan. 8, 2018, the Court sentenced Alimi to a term of 136 months. Sentence reduced to 135 months.

 

AMENDMENT 821. The District of South Dakota granted an 821 motion in United States v. Walter Jandreau, 2024 U.S. Dist. LEXIS 55091 (D. S.D. Mar. 25, 2024). On Dec. 2, 2019, the court sentenced Jandreau to 210 months in prison for sexual exploitation of a child in violation of 18 USC 2251(a) and 2251(c). The defendant was under a criminal justice sentence. The defendant’s sentence was reduced to 188 months. He asserted he was eligible for a two-point reduction in his criminal history points and a one-level reduction in his criminal history category.

 

AMENDMENT 821. The Southern District of Florida granted an 821 motion in United States v. Joselito Carreno, 2024 U.S. Dist. LEXIS 54877 (S.D. Fla. Mar. 25, 2024). On Jan.19, 2023, Sarmiento Carreno was sentenced to a term of 60 months after pleading guilty to one count of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States in violation of 46 USC 70503(a)(1) and 70506(b). Sarmiento's case revealed he was eligible for a sentence reduction pursuant to Amendment 821. Sarmiento qualifies for the adjustment for zero-point offenders because he meets all the criteria. The defendant’s sentence was reduced to 57 months.

 

AMENDMENT 821. The Eastern District of Tennessee granted an 821 motion in United States v. Summer Fann, 2024 U.S. Dist. LEXIS 55144 (E.D. Tenn. Mar. 27, 2024). Defendant plead guilty to one count of possessing a firearm as a convicted felon in violation of 18 USC 922(g)(1) and one count of stealing mail in violation of 18 USC 1708 and 2. The court assessed six criminal history points and added two "status points" for committing the instant offenses while under an existing criminal justice sentence. The Court imposed a sentence of 50 months. The defendant’s sentence was reduced to time served.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Cedis Martin, 2024 U.S. Dist. LEXIS 54445 (N.D. Ohio Mar. 27, 2024). Martin plead guilty to one count of conspiracy to possess with intent to distribute heroin, cocaine, cocaine base, and fentanyl, in violation of 21 USC 841(a)(1), 841(b)(1)(B), 846, & 21 USC 851; and one count of interstate travel in aid of drug trafficking in violation of 18 USC 1952(a)(3). The Court sentenced the defendant to 166 months with status points for being under a criminal justice sentence at the time the instant offense occurred. The defendant’s sentence was reduced to 154 months.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Emanuel Sanders, 2024 U.S. Dist. LEXIS 53250 (N.D. Ohio Mar. 26, 2024). Sanders was sentenced to 56 months for felon in possession of a firearm and ammunition in violation of 18 UDC 922(g)(1), 924(a)(2). At Sanders' sentencing, the Court found Sanders had a total offense level of 19 and a Criminal History Category IV, giving him a sentencing guideline range of 46 to 57 months. Sanders had seven total history points, two of which were status points because he was under a criminal justice sentence at the time of the instant offense. The defendant’s sentence was reduced to 44-months.

 

AMENDMENT 821. The Northern District of Ohio granted an 821 motion in United States v. Demetrius Jones, 2024 U.S. Dist. LEXIS 51954 (N.D. Ohio Mar. 25, 2024). The defendant plead guilty to two counts of distribution of carfentanil. Jones had eight total criminal history points, two of which were status points due to his being under a criminal justice sentence at the time of the instant offense. Jones’s sentence was reduced from 74 to 60 months.

 

AMENDMENT 821. The Western District of New York granted an 821 motion in United States v. Michael Elder, 2024 U.S. Dist. LEXIS 54167 (W.D. N.Y. Mar. 26, 2024). Elder's total offense level was calculated to be a level 34 and his criminal history category was determined to be III. With a TOL of 34 and CHC of III, Elder's guideline range of imprisonment was determined to be 188 months to 235 months. The Court imposed a sentence of 210 months for firearms and bank robbery offenses. The defendant’s sentence was reduced from 210 months to 187 months.  

 

AMENDMENT 821. The Western District of New York granted an 821 motion in United States v. Esteban Ramos-Cruz, 2024 U.S. Dist. LEXIS 52841 (W.D. N.Y. Mar. 25. 2024). Ramos-Cruz was convicted of RICO murder and sentenced to 360 months. The defendant’s sentence was reduced to 262 months.

 

APPEAL/1983/EXCESSIVE FORCE. The Tenth Circuit reversed and remanded Samuel Dartez v. Peters, 2024 U.S. App. LEXIS 7069 (10th Cir. Mar. 26, 2024). This case involved the interpretation of an offer of judgment in a lawsuit where a prisoner, Samuel Lee Dartez, II, sued state officers for excessive force under 42 USC 1983. The state officers offered a judgment of $60,000 “plus reasonable attorneys’ fees and costs allowed by law, if any.” The district court interpreted this offer as allowing attorneys’ fees exceeding the statutory cap and waiving the plaintiff's obligation to contribute to these fees. On appeal the Tenth Circuit affirmed the district court's interpretation. The court determined that the offer of judgment was ambiguous in its language pertaining to the statutory cap on attorney fees and the requirement for the plaintiff to contribute to those fees. The ambiguity was resolved against the defendants who had drafted the offer and found the defendants had waived the statutory cap and the plaintiff's contribution requirement. In Dartez's cross-appeal he argued the district court wrongly applied a statutory cap on hourly rates. The Tenth Circuit agreed, reversing the district court's application of the cap, and remanding for recalculation of the fee award without this cap. The court did not address Dartez's arguments that the statutory limitations on fees did not apply due to his obtaining non-monetary relief and because he received an agreed settlement amount rather than a monetary judgment.

 

APPEAL/1983/WRONGFUL DEATH. The Eleventh Circuit vacated and remanded Mair Acosta v. Miami-Dade County, 2024 U.S. App. LEXIS 7382 (11th Cir. Mar. 28, 2024). This case involves Maria Acosta who sued six Miami-Dade officers involved in the arrest of her son, Maykel Barrera, who died after the encounter. Acosta alleged federal excessive-force claims and state wrongful-death claims. The district court granted summary judgment to the officers and Acosta appealed. The Eleventh Circuit held that the district court erred in granting summary judgment to five of the six officers on Acosta’s excessive-force claims and to all of the officers on Acosta’s wrongful-death claims. The Court of Appeals found that viewing the facts in the light most favorable to Acosta the officers used excessive force when they tased and kicked Barrera while he was subdued on the ground and no longer resisting arrest violating clearly established Fourth Amendment rights. Furthermore, the court vacated the summary judgment on Acosta’s wrongful-death claim concluding that there was enough evidence for the case to go to trial. The court ruled that the district court erred in emphasizing Acosta’s lack of expert evidence directed to the cause of Barrera’s death since she did not have to present expert testimony to show causation.

 

APPEAL/IMMIGRATION. The First Circuit remanded Amgad Khalil v. Garland, 2024 U.S. App. LEXIS ______ No. 23-1443 (1st Cir. Mar. 29, 2024).  In a case involving an Egyptian petitioner, the First Circuit reviewed the denial of the petitioner's claim for asylum, withholding of removal, and protection under the Convention Against Torture by the Board of Immigration Appeals. The petitioner is a Coptic Christian and Egyptian citizen and he claimed he experienced persecution based on his religion. He was beaten and subjected to demands for conversion to Islam after he refused to alter a sensitive medical test result relating to a Muslim religious leader's family. The Court found that the BIA failed to correctly apply the "one central reason" test for motive in asylum claims. The Appellate Court ruled that the petitioner's religion was at least one central reason for his persecution. The Court also held that the BIA applied the wrong standard of review to the IJ’s conclusion on the petitioner’s CAT claim. The Court, however, upheld the BIA's conclusion that the petitioner's experiences of verbal harassment and rock-throwing did not rise to the level of persecution. The case was remanded for further proceedings consistent with the Court's opinion.

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