SAMARITAN NEWSLETTER – November 14, 2024

Attorney Tom Norrid

SAMARITAN PROJECTS LLC 

Post Office Box 9244

Springfield, Mo 65801

Corrlinks: attorneytnorridnews@gmail.com

Corrlinks: samaritanprojects@gmail.com

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.

18 USC 924(c) – USSG 1B1.13(b)(6). Most of the district courts in the Seventh Circuit that have addressed the conflict between Thacker and the (b)(6) amendment have agreed that United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), and its progeny control and that 1B1.13(b)(6) is invalid insofar as it purports to allow the 924(c) amendment to serve as a basis for a sentence reduction under 18 USC 3582(c). United States v. Black, 715 F. Supp. 3d 1069, 1079 (N.D. Ill. 2024) ("The Court reads Seventh Circuit precedent to forbid interpreting 3582(c)(1)(A) to permit a nonretroactive sentencing amendment to constitute or contribute to 'extraordinary and compelling reasons' for a sentence reduction, so the Court is bound to reject [defendant's] argument."); United States v. O'Neill, 2024 U.S. Dist. LEXIS 92405, 2024 WL 2369102, at 22 (E.D. Wis. May 23, 2024) (“1B1.13(b)(6) is manifestly contrary to the statutory scheme set forth in 994(t) and 3582(c)(1)(A), and . . . the Commission exceeded its statutory authority by adding the subsection"); United States v. Williams, 2024 U.S. Dist. LEXIS 133318, 2024 WL 3567498, at 7 (C.D. Ill. July 29, 2024) ("1.13(b)(6) is not binding as it was promulgated outside the Commission's grant of authority"); United States v. Duncan, 2024 U.S. Dist. LEXIS 186931, 2024 WL 4471420, at *7 (N.D. Ind. Oct. 11, 2024) (collecting cases). THE BLACK CASE WAS ARGUED BEFORE THE 7th CIRCUIT ON 11/7/24. THE PANEL WAS: KENNETH RIPPLE, DAVID HAMILTON, AND THOMAS KIRSCH.

CR.RIS/DISPARITY/USSG 1B1.13(b)(6), (b)(5)/MEDICAL/REHABILITATION/ YOUTH. The District of Montana granted a CR.RIS motion in United States v. Bobbi Wing, 2024 U.S. Dist. LEXIS 204187 (D. Mont. Nov. 8, 2024). Wing argued that extraordinary and compelling reasons warrant a reduction in her sentence, including her long sentence, her youth at the time of the offense, her rheumatoid arthritis, and her rehabilitative strides. Wing and her codefendant and husband, Kenneth Arcand, 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. 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. 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). The Government acknowledged that at the time of Wing's offense, the Department of Justice's policy, known as the "most serious readily provable charge," required the Government to pursue conviction for the "most serious crime that could be proven beyond a reasonable doubt." The DOJ also directed the Government to pursue statutory enhancements and obtain the most substantial sentence available. Later, the DOJ rescinded this policy and instead directed that charging decision be "made in the context of an individualized assessment" of the defendant and the facts of the case. Since this policy change, life sentences have become rare even for defendants convicted of murder. For defendants convicted of arson and murder in the District of Montana from 2020-2024, the average sentence length is 135 months imprisonment, and the median sentence length is 140 months imprisonment. 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. Wing pointed to her diagnosis of rheumatoid arthritis, which causes her chronic pain, swelling, and stiffness. Section 1B1.13(b)(5) of the USSG provides that extraordinary and compelling reasons may exist when a defendant "presents any other circumstance or combination of circumstances" that are "similar in gravity" to the other enumerated extraordinary and compelling reasons. The Court considered Wing's youth at the time of the offense and her rehabilitative strides within the context of the 3553(a) factors. During her incarceration, Wing has completed numerous courses including film studies, mathematics, anger management, women's relationships, life communications skills, suicide watch, and drug education. Wing has taken leadership roles in the Choices Program and the Celebrate Recovery Program and participated extensively in suicide prevention programs. Sentence reduced to time served.

CR.RIS/DISPARITY/MEDICAL/REHABILITATION/USSG 1B1.13(b)(5). The Middle District of Tennessee granted in part a CR.RIS motion in United States v. Montez Hall, No. 10-cr-163, 2024 U.S. Dist. LEXIS ____ (M.D. Tenn. Oct. 31, 2024). Hall sought early release based upon his medical condition, extraordinary rehabilitation efforts, sentencing disparities with his co-defendants, and his age at the time of the offense. He has served approximately 6 years of his 30-year sentence because his federal sentence was imposed consecutive to a lengthy state sentence he was serving for another crime. The defendant and several other members of his Bloods gang murdered the girlfriend of a rival gang member by shooting into her car while she was stopped at a stop sign. The defendant was almost 19 years old at the time of this offense, and a year later he participated in another murder, was found guilty at trial of facilitating second degree murder, and received a 12-year state sentence. This court imposed a 240-month sentence on that count because of the defendant’s young age at the time of the offense, his sincere remorse, and his post-offense rehabilitation. The defendant received a mandatory consecutive sentence of 120 months on the second count for a total sentence of 360 months. The defendant medical issues are obesity with a BMI of 42.3, heart issues, and hyperlipidemia - and some of these put him at increased risk of serious illness, should he contract the coronavirus. The defendant had embarked upon his journey of rehabilitation by the time this court sentenced him, and he has continued on that journey during his incarceration. Taking into account all of these factors, pursuant to USSG 1B1.13(b)(5), the court found that the defendant had established extraordinary and compelling reasons for a sentence reduction, but not for release. The court reduced defendant’s sentence eight years to 22-years imprisonment. THE PROJECT PREPARED THIS MOTION.

FSA/404(b)/MURDER. The Northern District of Oklahoma granted a FSA motion in United States v. Marlin Mack, 2024 U.S. Dist. LEXIS 201878 (N.D. Okla. Nov. 6, 2024). Mack's filed a motion for reduction of sentence under 18 USC 3582(c)(1)(B) and 404(b) of the First Step Act of 2018. In 2002, a jury found Mack guilty of conspiracy to possess with intent to distribute cocaine, marijuana, and cocaine base, in violation of 21 USC 846 (count one); knowingly and intentionally possessing with intent to distribute cocaine base in violation of 21 USC 841(a)(1) (count two); laundering of monetary instruments in violation of 18 USC 1956(h) (count four); and knowingly and intentionally possessing with intent to distribute marijuana in violation of 21 USC 841(a)(1) (count five). Mack was sentenced to two terms of life imprisonment (counts one and two) and two terms of twenty years imprisonment (counts four and five). Several witnesses testified that Mack murdered two men that he claimed stole cocaine from him. Mack was sentenced in state court to serve two terms of life imprisonment without the possibility of parole following his convictions. Even if a defendant is eligible for relief, "the 2018 FSA places two limitations on the court's ability to entertain a 2018 FSA motion." A court shall not entertain a 2018 FSA motion "if (1) an offender's sentence for the covered offense was previously imposed or reduced in accordance with section 2 or 3 of the 2010 FSA, or (2) the court has already denied a previous 2018 FSA motion 'after a complete review of the motion on the merits.'" Mack contended that a reduction in sentence is warranted because: (1) "[o]ut of all involved in this case [he] ha[s] served the longest period of incarceration with the least amount of cocaine and no prior felony conviction"; (2) he has served approximately twenty-three years in prison; (3) he is "a Persian Gulf Vet," a characteristic or personal circumstance that was not previously considered; (4) at least one trial witness recanted his trial testimony; (5) he has gone ninety-nine months (roughly eight years) without a disciplinary violation; (6) if he were "sentenced today [the] cross reference of murder would not apply," under Alleyne v. United States, 570 U.S. 99 (2013), because "a mandatory life [sentence that] comes into play only by judicial factfinding by preponderance of evidence cannot stand"; (7) plaintiff's account of the relevant facts, as well as the factual account in the PSR, suggests that he played a larger role in the conspiracy than the trial evidence supports; (8) the "murders are irrelevant to conspiracy and inadmissible" and should not set his base offense level; (9) he has served the statutory maximum as to counts four and five and "that itself is a unwarranted disparity"; (10) he "will still be in state custody no threat to public" if a reduction is granted; and (11) he has "gone to great lengths for rehabilitation." Mack's rehabilitation, as well as other intervening changes in law and the facts he identifies to support his motion are relevant. The court reduced the count one sentence to 70 years imprisonment and the count two sentence was reduced to 40 years imprisonment to be served concurrently.

CR.RIS/DISPARITY/USSG 1B1.13(b)(6). The Middle District of Florida granted a CR.RIS motion in United States v. Carl St. Preux, 2024 U.S. Dist. LEXIS 202377 (M.D. Fla. Nov. 6, 2024). In 2007 a jury found St. Preux guilty of conspiracy to distribute five or more kilograms of cocaine and 50 or more grams of cocaine base under 21 USC 841(a)(1), 841(b)(1)(A), and 846. At the time of St. Preux's sentencing, he had two prior "serious drug felony convictions" (from 1995 and 1998) that increased the minimum mandatory sentence from ten years to life under 841(b)(1)(A)(ii). The Court sentenced him to life imprisonment. Congress enacted the First Step Act, which, inter alia, reduces the mandatory minimum sentence for a conviction under 841(b)(1)(A) where the defendant has a prior conviction for a serious drug (or violent) felony. St. Preux argued that if he were sentenced today he would have only one qualifying prior conviction, lowering the mandatory minimum sentence he would be subject to from life to fifteen years. Preux argued that he is serving an "unusually long sentence," which the United States Sentencing Commission defines as an "extraordinary and compelling reason" for a sentence reduction. In seeking a sentence reduction, St. Preux relied on USSG 1B1.13(b)(6). First, St. Preux's life sentence is "unusually long." United States v. Johnson, 2024 WL 4224520, at *5 (M.D. Fla. Sept. 18, 2024) (collecting cases finding that a life sentence is unusually long). Second, St. Preux has served eighteen years of his sentence. And third, "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." Here, all three conditions are satisfied. St. Preux has completed over thirty BOP courses during his incarceration, including drug education. These courses have permitted St. Preux to gain "employable skills." Sentence reduced to time served.

CR.RIS/USSG 1B1.13(b)(6). The Northern District of Georgia granted a CR.RIS motion in United States v. Carlos de la Puenta, 2024 U.S. Dist. LEXIS 201818 (N.D. Ga. Nov. 6, 2024). In 1998, de la Puenta was convicted of conspiracy to possess cocaine with the intent to distribute in violation of 21 USC 841 and 846. Prior to his sentencing, the Government filed an information under 21 USC 851 alerting the Court de la Puenta's had three prior state-law drug convictions. While his sentencing guideline range was 360 months to life in prison, the 851 enhancement carried a mandatory life sentence, for which de la Puenta was sentenced and that he is currently serving. At 66 years old, and having served almost 30 years in prison, he argued that a recent change in law renders him eligible for release. The Government maintains its position that the Commission exceeded its authority by allowing courts to consider nonretroactive changes in law. Section 1B1.13(b)(6) of the Sentencing Guidelines sets forth three dispositive factors for a change in law to qualify as an extraordinary and compelling reason for a sentence reduction. First, the sentence must be unusually long. Second, the defendant must have served at least ten years of that sentence. And finally, there must be a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed. Today, de la Puenta's guideline range would be 360 months to life. And though the life sentence that de la Puenta is currently serving is still within the current guideline range (albeit the highest end of it), the Court found it was highly unlikely that de la Puenta would have received a life sentence for a non-violent drug offense today. Since entering federal prison, he has received zero citations for violence. There is no reason to believe de la Puenta poses a threat, violent or otherwise to any individual or to the community at large. The defendant will be scheduled for resentencing.

CR.RIS/FAMILY CIRCUMSTANCES. The District of Connecticut granted a CR.RIS motion in United States v. Luis Pitt, 2024 U.S. Dist. LEXIS 200868 (D. Conn. Nov. 5, 2024). Pitt moved pursuant to 18 USC 3582(c)(1)(A)(i) for an order of compassionate release from confinement in light of, inter alia, the recent passing of the mother of Pitt's young child and the deteriorating health of Pitt's mother who needs significant and substantial at-home care. Pitt was convicted of committing a Violent Crime in Aid of Racketeering and Brandishing a Firearm in Furtherance of a Crime of Violence. He was sentenced on Jan. 30, 2020, to a total effective sentence of 144 months incarceration, 84 months of which represented a consecutive mandatory minimum sentence for the firearm offense. Pitt sought compassionate release principally in light of two significant circumstances. First, Pitt cites the death of Cassandra Brodeur, his partner and the mother of Pitt's six-year-old son, Mayson. On Oct. 21, 2023, Ms. Brodeur passed away unexpectedly at only 36 years of age. As a result, Mayson is now in the care of Ms. Brodeur's mother, who is available to care for Mayson but is "not fully equipped to take on the responsibility of raising a grieving child alone." Pitt argued that his presence is "necessary to provide essential support to Mayson and his grandparents," and will otherwise mitigate the psychological harm to Mayson resulting from Pitt's incarceration. Additionally, Pitt sought release on the basis of his mother's serious, life-threatening medical circumstances. In Jan. 2024, Pitt's mother suffered a cerebral aneurism and pulmonary embolism which required several months of hospitalization and left her "incapacitated and in need of caregiving support." The Court had concerns regarding whether Pitt, a previously avowed and active member of the Latin Kings, a violent and criminal street gang, continued to pose a threat to the community, but reduced his sentence to time served.

CR.RIS/FAMILY CIRCUMSTANCES. The District of Colorado granted a CR.RIS motion in United States v. Colleen Loris, 2024 U.S. Dist. LEXIS 201422 (D. Colo. Nov. 5, 2024). In 2007, Loris pled guilty to conspiracy to distribute 500 grams or more of a substance containing methamphetamine in violation of 21 USC 846, 841(a)(1), and 841(b)(1)(A). Loris was sentenced to 60 months imprisonment to be followed by five years of supervised release. In Feb. 2011, Loris completed her custodial sentence and supervised release began. In July 2012, jurisdiction was transferred to this Court. In April 2013, the Court found Loris to be in violation of her supervised release and consequently sentenced her to eight months imprisonment followed by three years of additional supervised release. Loris was released from custody in March 2014. In June 2014, Loris was charged in Gilpin County, Colorado, with manslaughter, intent to distribute a controlled substance, and criminal possession of a weapon. Loris was convicted and sentenced to 32 years imprisonment. Based on these offenses in Feb. 2016, the Court again found Loris to be in violation of her supervised release. The Court sentenced Loris to 30 months imprisonment with 18 months concurrent and 12 months consecutive to the 32-year sentence imposed by the Gilpin County Court. Loris asked the Court to "reduce her [federal revocation] sentence to time served or, at a minimum, order that her 30-month federal sentence run concurrent to her state court sentence for Gilpin County case number 14CR 59." Loris argued that "extraordinary and compelling reasons" warrant a reduction in her sentence because (1) she has a disabled adult child who requires a guardian and caregiver and (2) she herself suffers from a number of medical conditions. In the summer of 2017, while Loris was in the custody of the Colorado Department of Corrections ("CDOC"), she began complaining of chest and abdominal pain, difficulty breathing, and night sweats. In Sept. 2017, Loris was transferred to a medical facility in Aurora, Colorado, where she was diagnosed with metastatic lymphoma that had spread to her spleen, pancreas, and other organs. The Sentencing Commission specifically cites "metastatic solid-tumor cancer" as an example of a qualifying terminal illness that requires long-term specialized care that is not being provided. Sentence reduced to time served

CR.RIS/CAREER OFFENDER/USSG 1B1.13.(b)(6)/YOUTH. The Western District of North Carolina granted in part a CR.RIS motion in United States v. Lorenzo Mason, 2024 U.S. Dist. LEXIS 200251 (W.D. N.C. Nov. 4, 2024). In Feb. 2008, Mason who is a documented member of the Blood Nation gang, was found to be carrying a loaded gun and eight rocks of crack during a traffic stop. During the stop the defendant kept his hand in his right pocket, tried to walk away from officers, and briefly struggled with officers as they attempted to get control of his right hand before handcuffing him. Officers found the gun in his right pocket. The defendant was 21 years old at the time of the stop, already had prior felony convictions for conspiracy to discharge a weapon into occupied property and possession with intent to sell cocaine. The defendant was sentenced to 262 months imprisonment. For compassionate release grounds defendant argued he is entitled to release in light of his unusually long sentence, the fact that he would no longer be considered a career offender, his youth at the time of his offense, and his efforts at rehabilitation. The court held defendant's current sentence of 262 months is "unusually long" and amounts to an exceptional and compelling circumstance supporting a reduction in his sentence. USSG 1B1.13(b)(6). While incarcerated the defendant incurred seven disciplinary infractions, including infractions for possessing a dangerous weapon, interfering with staff, possessing a hazardous tool, abuse of phone privileges, and refusing to obey an order. Notably, however, the defendant has not incurred any disciplinary infractions since 2020, and he has completed 60 educational courses, including obtaining his GED. This improvement in the defendant's behavior over time suggests that he has made some commendable efforts to rehabilitate himself while incarcerated. The Court found that the disparity between the defendant's current sentence and the sentence he would likely receive today counsels in favor of reducing his sentence. Sentence reduced to 226 months imprisonment.

CR.RIS/MEDICAL. The District of Colorado granted a CR.RIS motion in United States v. James Huber, 2024 U.S. Dist. LEXIS 200231 (D. Colo. Nov. 4, 2024). Huber is serving a sentence of 40 years imprisonment for four armed bank robberies occurring between March 2002 and Feb. 2004 in Colorado, North Carolina, and Nebraska. Huber was apprehended on Feb. 11, 2004, during his attempted robbery in Lincoln, Nebraska, and has been in custody since. He is now 60 years old. Huber sought compassionate release for three reasons: his (1) "[d]eteriorating medical condition"; (2) diagnosis of military service-related post-traumatic stress disorder ("PTSD"); and (3) "[g]ood conduct as an inmate." The Government conceded that "Huber's many health issues could constitute 'extraordinary and compelling circumstances' justifying his compassionate release." Sentence reduced to time served.

CR.RIS/CAREER OFFENDER/MEDICAL. The District of Maryland granted a CR.RIS motion in United States v. Donte Robinson, 2024 U.S. Dist. LEXIS 201827 (D. Md. Nov. 6, 2024). Robinson argued that he was sentenced as a career offender, a designation that would no longer apply, and that various health conditions render him more susceptible to the Covid virus. The Government filed an information charging Robinson with possession with intent to distribute 5 kilograms of cocaine (Count One), citing 21 USC 841(a), and Hobbs Act robbery (Count Two). Robinson pled guilty: He waived indictment for the 841(a) charge but pled guilty to conspiracy to distribute 5 kilograms or more of cocaine, a violation of 846, not 841, and Hobbs Act robbery. Defendant was sentenced to 168 months on Count One and 120 months on Count Two, concurrent. He was convicted by his guilty plea of a conspiracy charge, which no longer qualifies as a controlled substance offense. Robinson has served almost ten years with no infractions and has participated in many rehabilitative programs while incarcerated. Sentence reduced to time served.

CR/RIS/FAMILY CIRCUMSTANCES/DISPARITY/USSG1B1.13(b)(6). The Western District of North Carolina granted in part a CR.RIS motion in United States v. Roger Dale Charles, 2024 U.S. Dist. LEXIS 202428 (W.D. N.C. Nov. 6, 2024). Defendant was charged in a with possession with the intent to distribute cocaine base in violation of 21 USC 841(a)(1) and (a)(2) (Count One); use and possession of firearms in furtherance of a drug trafficking crime in violation of 18 USC 924(c)(1) (Count Two); and (3) knowing possession of firearms having been previously convicted of a crime punishable by imprisonment for a term exceeding one year in violation of 18 USC 922(g) (Count Three). The Government filed an information pursuant to 21 USC 851, notifying the Court and the defendant the Government intended to seek an enhanced penalty based on the Defendant's prior felony drug offenses. The defendant proceeded to a jury trial and a jury found the defendant guilty of the drug-trafficking offense set forth in Count One and the felon-in-possession offense set forth in Count Three; the jury acquitted him of the 924(c) offense set forth in Count Two. The jury also found that at least 50 grams of crack cocaine were attributable to the defendant. The probation office also found that the defendant was both a career offender and an armed career criminal. The defendant was sentenced to 360 months imprisonment on Counts One and Three with such terms to run concurrently. The defendant asserted he suffers from medical circumstances warranting compassionate release; that he is serving an unusually long sentence; and that his wife is awaiting a heart transplant and needs a caregiver for herself and her seven-year-old child. Defendant contends he is entitled to release because the BOP is not providing him with Wellbutrin, a medication prescribed by his "mental health" doctor. Defendant argued he "could" care for his wife, who is awaiting a heart transplant, and her seven-year-old daughter if he were released. Defendant argued he would receive a significantly shorter sentence for his crimes if he were sentenced today. USSG 1B1.13(b)(6) provides that a Court may grant compassionate release, in the event of an "unusually long sentence," where a defendant has served at least ten years of his sentence and there has been a change in the law that would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed. The Government's arguments that non-retroactive changes in sentencing laws cannot support a request for compassionate release are unavailing. Defendant's performance while incarcerated has been abysmal. The defendant has committed more than 60 disciplinary infractions beginning in 2005 and continuing through this year. Many of these infractions involve violence, including possessing dangerous weapons, assaulting others, often causing serious injuries, fighting, and threatening to harm others, while others involve possessing intoxicating substances. His record of infractions while in prison makes clear that he continues to pose a threat to the community. The Court exercised its broad discretion and reduced defendant's sentence by four years to a term of 324 months.

CR.RIS/REHABILITATION/USSG 1B1.13(b)(6). The Northern District of Georgia granted a CR.RIS motion in United States v. Omar Garcia-Valenzuela, 2024 U.S. Dist. LEXIS 201392 (N.D. Ga. Oct. 31, 2024). On Oct. 6, 2010, Garcia-Valenzuela was indicted in the Northern District of Georgia for possession with intent to distribute at least 500 grams of methamphetamine in violation of 21 USC 841(a)(1), 841(b)(1)(A)(viii), and 851 (Count 1) and illegal reentry in violation of 8 USC 1326(a) and (b)(2) (Count 2). Garcia-Valenzuela was sentenced to 240 months imprisonment to be followed by ten years of supervised release. Garcia-Valenzuela is subject to an ICE detainer. The Federal Defender submitted a formal request for compassionate release with the BOP on Garcia-Valenzuela's behalf. The letter requested relief under the amended Policy Statement and specifically identified 1B1.13(b)(6) as well as post-sentencing rehabilitation as the basis for the Motion.  The primary basis for Garcia-Valenzuela's motion is that if sentenced today the mandatory minimum sentence under the current version of 21 USC 841(b)(1)(A) and 851 would drop from 20 years in prison to 15 years. The Court has determined that a "change in the law" for purposes of 1B1.13(b)(6) may include intervening developments in the law (i.e., decisional law) that inform sentencing in the federal courts. A 20-year sentence is an unusually long sentence under most circumstances. In addition, Garcia-Valenzuela has served more than 10 years of his sentence. The Court found that the initial eligibility criteria of 1B1.13(b)(6) are met and turned to the gross disparity inquiry. Garcia-Valenzuela demonstrated a commitment to rehabilitation. Garcia-Valenzuela has earned his GED and successfully completed 17 different educational and/or vocational courses while incarcerated. Garcia-Valenzuela's disciplinary record consists of four total incidents, including, being in an unauthorized area and flushing tobacco down the toilet in 2012 - no weapons, no fighting, no cell phones, no drugs or alcohol. Sentence reduced to time served.

APPEAL/RESTITUTION. The Seventh Circuit reversed and remanded Welby Cox v. Department of Justice, 2024 U.S. App. LEXIS 27813 (7th Cir. Oct. 31, 2024). Welby Cox is a former federal prisoner who sued the United States Department of Justice and the United States Attorney for the Southern District of Indiana. The district court screened and dismissed the complaint and Cox’s motion for a preliminary injunction which contained allegations about the conditions of Cox’s confinement, the propriety of his past incarceration, and the collection of his restitution debt via the Treasury Offset Program, for failure to state a claim. Because Cox’s allegations about the collection of his restitution debt through the Treasury Offset Program state a claim the court reversed and remanded.

APPEAL/FSA/404(b). The Eleventh Circuit vacated and remanded United States v. Richard Vieux, 2024 U.S. App. LEXIS 28299 (11th Cir. Nov. 7, 2024). This appeal required the Eleventh Circuit to address the intersection of the First Step Act’s sentence reduction provisions and the imposition of an unlawful general sentence. Richard Vieux contended that his conviction for possession with intent to distribute cocaine is a “covered offense” under the Act and seeks a reduced sentence. The District Court denied his request finding that the record did not establish his eligibility. But because the District Court imposed a general sentence for multiple counts, the court vacated and remanded his sentence to allow the District Court to clarify the sentence it imposed. Only then can the District Court properly determine whether Vieux’s conviction qualifies for relief under the Act. In 2022, Vieux moved pro se for a sentence reduction under 404 of the First Step Act. He argued that count 11 was a “covered offense” because it involved crack cocaine. The District Court acknowledged that it considered Vieux’s possession of crack cocaine at the time of his May 15, 1995, arrest in determining his base offense, but noted that crack cocaine was not the basis for the offense in his indictment. The District Court denied the motion, finding that Vieux failed to demonstrate that count 11 involved crack cocaine and concluding that he was ineligible for relief under 404.

APPEAL/ALLOCUTION/RESENTENCE. The Eleventh Circuit vacated and remanded United States v. Harris, 2024 U.S. App. LEXIS 28297 (11th Cir. Nov. 7, 2024). Harris appealed his 18-month sentence which the district court imposed upon revoking his supervised release. Harris argued that the district court plainly erred by violating his right to allocution when it refused his request to make a statement before imposing his sentence. In response, the Government agreed that the district court plainly erred in failing to personally address Harris before pronouncing the sentence, and, thus, that the case should be remanded for resentencing. The court vacated and remanded for resentencing. The right of allocution is “the right of the defendant to personally make a final plea on his own behalf to the sentencer before the imposition of sentence.” Under Fed. R. Crim. P. 32.1(b)(2)(E), this right extends to revocation of supervised release hearings. Where a district court denies a defendant his right to allocution before imposing a sentence, and the possibility of a lower sentence exists, it commits plain error.

APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded United States v. Leon Prater, 2024 U.S. App. LEXIS 28287 (4th Cir. Nov. 7, 2024). Prater appealed his 18-month revocation sentence. Counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning whether Prater’s revocation sentence is plainly unreasonable. Prater was advised of his right to file a pro se supplemental brief, but he did not do so. After reviewing the record, we ordered supplemental briefing to address: (1) whether the district court correctly concluded that Prater’s violation for new criminal conduct qualified as a Grade A violation; and (2) whether the district court considered Prater’s nonfrivolous arguments for a lesser sentence. Because Prater’s revocation sentence is plainly procedurally unreasonable the court vacated the sentence and remanded for resentencing. Thus, “where a court entirely fails to mention a party’s nonfrivolous arguments in favor of a particular sentence, or where the court fails to provide at least some reason why those arguments are unpersuasive, even the relaxed procedural requirements for revocation sentences are not satisfied.” Prater’s counsel presented four nonfrivolous arguments for a sentence of time served: (1) Prater had been on work release while serving his state sentence and had maintained steady employment; (2) Prater completed numerous self-improvement courses during his incarceration; (3) Prater had a solid release plan with community support; and (4) the most serious violation reflected the same conduct for which Prater had been sentenced in state court. Counsel supported these arguments with multiple exhibits, and Prater followed up with a compelling allocution. For its part, the Government asked the district court to impose a sentence of 18 months’ imprisonment with no supervised release to follow. The district court did not engage with Prater or counsel during the brief revocation hearing or give any indication that it was seriously considering their detailed arguments for a sentence of time served.