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. Rusty – 417 901 3000 – Eddie 417 818 1938.
APPEAL/CR.RIS/STACKING. The Eleventh Circuit affirmed in United States v. Orestes Hernandez, 2024 U.S. App. LEXIS 16581 (11th Cir. July 8, 2024). This case presents an interesting question of statutory interpretation that has divided our sister circuits. Section 403(a) of the First Step Act of 2018 prohibits district courts from engaging in one particular form of (what some have called) sentence “stacking.” Specifically, and as relevant here, under 403(a), if a defendant is charged in the same indictment with multiple counts of possessing a firearm in furtherance of a crime of violence in violation of 18 USC 924(c), and he doesn’t have a previous 924(c) conviction that has become final, the second and ensuing counts will carry only 5-year consecutive mandatory sentences, rather than the much higher consecutive mandatories that would have attached under preexisting law. See First Step Act of 2018, Pub. L. No. 115-391, 403(a), 132 Stat. 5194, 5221–22. Significantly for our purposes, 403(b) then provides that 403(a)’s modified stacking rule applies to pre-Act convictions—but only “if a sentence for the offense has not been imposed as of [the] date of enactment.” Id. 403(b). The court must decide whether a criminal sentence that was pronounced before the First Step Act’s effective date but thereafter vacated counts as “a sentence” that “has … been imposed” within the meaning of 403(b)—in essence, whether 403(b) refers to the
historical fact of a sentence’s imposition, in which case the answer to the question as we’ve framed it is yes, or to the legal effect of that sentence, in which case the answer is no. Compare, e.g., United States v. Duffey, 92 F.4th 304, 309 (5th Cir. 2024) (yes), cert. granted, 2024 WL 3259688 (U.S. July 2, 2024), and United States v. Jackson, 995 F.3d 522, 525–26 (6th Cir. 2021) (yes), with, e.g., United States v. Mitchell, 38 F.4th 382, 389 (3d Cir. 2022) (no), and United States v. Merrell, 37 F.4th 571, 577 (9th Cir. 2022) (no). The court held that 403(b)’s text and context make clear that a sentence that was pronounced pre-Act but thereafter vacated does qualify as “a sentence” that “has … been imposed” for 403(b) purposes. If that’s not the result that Congress intended, it is of course free to amend the statute.
CR.RIS/MEDICAL/MENTAL HEALTH. The District of Oregon granted a CR.RIS motion in United States v. Ashley Siclovan, 2024 U.S. Dist. LEXIS 121860 (D. Or. July 11, 2024).On July 12, 2018, this Court sentenced the defendant to 130 months for Possession with Intent to Distribute Methamphetamine, 21 USC 841(a)(1) and 841(b)(1)(A)(viii), and Possession with Intent to Distribute Heroin, 21 USC 841(a)(1) and 841(b)(1)(C). The defendant has continuously pursued acceptance into the Residential Drug Abuse Program ("RDAP"). The BOP, however, has denied the defendant residential treatment on the basis that defendant lacks a documented substance abuse disorder. Defendant cites his need for mental health treatment as an extraordinary and compelling circumstance. In particular the defendant argued that his Tourette's syndrome, anxiety, obsessive compulsive disorder, and adjustment disorder are medical conditions requiring long-term or specialized care. Because BOP is not providing proper care for these conditions, the defendant argued he is at risk of serious deterioration in health. Given defendant's lengthy incarceration for the entirety of the pandemic and his inability to access vital substance abuse and mental health treatment the Court found that a sentence of time served with conditions of supervised release including up to 120 days at the NWRRC witha requirement that he be assessed for dual diagnosis residential treatment was warranted under the 18 USC 3553(a) sentencing factors.
CR.RIS/MEDICAL. The Western District of North Carolina granted in part a CR.RIS motion in United States v. David Hagen, 2024 U.S. Dist. LEXIS 121352 (W.D. N.C. July 9, 2024). In May 2009 a jury convicted Hagen of conspiracy to commit securities fraud in violation of 18 USC 371; conspiracy to commit mail fraud and wire fraud in violation of 18 USC1349; and conspiracy to commit money laundering in violation of 18 USC 1956. The defendant participated in "a so-called 'pump-and-dump' securities fraud scheme in which he and his co-conspirators acquired control of a company known as GTXGlobal made successful efforts to artificially increase its stock price and then sold the stock at a higher price bringing in proceeds of approximately $27 million. The court sentenced himto consecutive sentences on each count of for an aggregate sentence of 540 months imprisonment. The defendant pointed to his "uncontrolled hypertension, disorders of the circulatory system, periapical abscess with and without sinus involvement, severe degenerative joint disorder in the lumbar spine, probable prostate cancer, and abnormal blood chemistry." The court held that a 300-month sentence would be a suitable reduction in sentence to balance defendant's needs due to deteriorating health against the need to protect the public. The 3553(a) factors support a reduction in his sentence to 300 months.
CR.RIS/FAMILY CIRCUMSTANCES. The Eastern District of California granted a CR.RIS motion in United States v. Amanda Nash, 2024 U.S. Dist. LEXIS 122166 (E.D. Calif. July 11, 2024). Nash sought relief under 18 USC 3582(c)(1)(A) based upon the extraordinary and compelling reasons of the needs of her minor child, the short duration of her remaining sentence and the current assessment that she poses a low risk of recidivism. The Government filed a notice of its non-opposition to the granting of the defendant's motion for compassionate release. In light of the Government's statement of non-opposition, the court granted defendant's motion and her current sentence was reduced to time served with the defendant beingreleased forthwith.
CR.RIS/AMENDMENT 782/FAMILY CIRCUMSTANCES/USSG 1B1.13(b)(6). The District of Nebraska granted a CR.RIS/782 Amendment motion in United States v. Shannon Williams, 2024 U.S. Dist. LEXIS 121728 (D. Neb. July 11, 2024). A Superseding Indictment charged Williams with conspiring to distribute 1,000 kilograms or more of marijuana ("Count I") in violation of 21 USC 841(a)(1), and (b)(1)(A)(vii), and 846, and conspiring to launder money ("Count II") in violation of 18 USC 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h). The Court sentenced Williams to 480 months on Count I and 240 months on Count II to run concurrently.Williams moved pursuant to 3582(c)(1)(A) to have the Court reduce his sentence to 240 months on Count I and 192 months on Count II. He asserted that extraordinary and compelling circumstances warrant relief including the fact that (1) he "is serving an unusually long sentence" and (2) "the caregiver of [his] minor child has become incapacitated." The intervening "significant rehabilitation" Williams "has undergone in prison" also supports a reduction he claims. Williams argued the 3553(a) factors supported the requested reduction because "he is no longer a risk to the community" and the reduced of sentence "would [still] adequately reflect the seriousness of his offense."Williams demonstrated his eligibility under USSG 1B1.13(b)(6)which permits consideration of changes in the law. The Court found Williams had demonstrated "extraordinary and compelling reasons" for a sentence reduction based on his unique circumstances. 18 USC 3582(c)(1)(A)(i). In considering those circumstances as well as the 3553(a) factors and the Court concluded a further 60-month reduction to Williams's sentence on Count I is appropriate. The resulting 372-month sentence sufficiently accounts for the changes in law relevant to Williams's sentence and his efforts at rehabilitation along withhis experiences while incarcerated.
AMENDMENT 821. The District of South Dakota granted an821 motion in United States v. Tahlon Ducheneaux. 2024 U.S. Dist. LEXIS 122230 (D. S.D. July 10, 2024). On June 27, 2022the Court sentenced Tahlon Ducheneaux to 62-months of
imprisonment for ex-felon being in possession of a firearm. At the time of sentencing, Ducheneaux was in Criminal History Category V with a guideline range of 70 to 87 months. The retroactive change to 4A1.1(e) of the U.S. Sentencing Commission's Guidelines Manual has the effect of placing Ducheneaux in Criminal History Category IV, where his guideline range would have been 57 to 71 months. The court reduced his sentence to 60-months.
AMENDMENT 821. The District of Nebraska granted an 821 motion in United States v. Teodoro Castillorincon, 2024 U.S. Dist. LEXIS 119653 (D. Neb. July 8, 2024). On June 26, 2023, the defendant was sentenced to 135-months following his conviction for conspiracy to distribute and possess with intent to distribute 50 grams or more of a methamphetamine (actual) in violation of 21 USC 846. The Court reduced the defendant’s sentence to 120-months imprisonment.
APPEAL/2254/COMPETENCY. The Ninth Circuit vacated and remanded Delaney Marks v. Davis, 2024 U.S. App. LEXIS 16559 (9th Cir. July 8, 2024). The case involves Delaney Marks who was convicted of murder and sentenced to death in California in 1994. Marks appealed his conviction arguing that he was incompetent to stand trial and that he is intellectually disabled making him ineligible for the death penalty. The Ninth Circuit affirmed in part and vacated in part the district court’s judgment denying Marks's federal habeas petition. Marks's claim that he was incompetent to stand trial was denied. The court found that although Marks presented substantial evidence of incompetence, there was a reasonable basis in the record for the California Supreme Court to deny this claim. However, the court held that the district court erred by denying relief on Marks's claim that he is intellectually disabled and thus ineligible for the death penalty. Marks has shown that the California Supreme Court’s rejection of this claim was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The court also held that the district court properly denied relief on Marks's claim that the judge adjudicating his Atkins claim was biased against him. The California Supreme Court reasonably could have concluded that the judge did not display a deep-seated favoritism or antagonism that would make fair judgment impossible. The court affirmed the district court's denial of relief on Marks's claims of ineffective assistance of counsel. The California Supreme Court reasonably could have concluded that a second competency hearing would have reached the same conclusion as a jury which had already found Marks competent in sum, the court vacated the district court’s denial of Marks’s Atkins claim and remanded for de novo review of that claim. The court otherwise affirmed the district court's decision.
APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded United States v. Deion Brown, 2024 U.S. App. LEXIS 16555 (11th Cir. July 8, 2024). Deion Brown appealed his 188-month sentence imposed after he plead guilty to being a felon in possession of a firearm and sentenced pursuant to the ACCA. 18 USC 922(g)(1), 924(e). Over Brown’s and the Government’s objections at sentencing, the district court enhanced Brown’s sentence under the Armed Career Criminal Act after ruling that his prior Florida convictions for selling and possessing cocaine in 2016 qualified as “serious drug offenses” under the Act. Id. 924(e). Brown moved for summary reversal and argued that his 2016 state drug convictions are not “serious drug offenses” because he committed those offenses when the Florida drug schedules defined cocaine more broadly than the federal drug schedules by including ioflupane. The Government does not oppose Brown’s motion. The court vacated and remanded for resentencing. Summary disposition is appropriate. At the time of Brown’s federal sentencing in 2023, the court’s precedent made clear, and the Supreme Court has since confirmed while this appeal was stayed, that his prior cocaine-related state convictions did not qualify as serious drug offenses under the Act. See United States v. Jackson, 55 F.4th 846 (11th Cir. 2022) (“Jackson II”), aff’d sub nom. Brown v. United States, 144 S. Ct. 1195 (2024). The district court relied on seven Florida convictions from March 2017 for selling or possessing cocaine between August and October 2016. As we recognized in Jackson II, the federal definition of cocaine encompassed ioflupane only until 2015, but the Florida definition of cocaine continued to cover ioflupane until July 2017. See 55 F.4th at 851 & n.3; see also Fla. Laws ch. 2017–110. The court held in Jackson II, more than six months before Brown’s sentencing, that the definition of a “serious drug offense” under the Act “incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.” Id. at 849; see also Brown, 144 S. Ct. at 1201, 1210 (affirming Jackson II and holding that a prior state drug offense counts as a predicate offense “only if the State’s definition of the drug in question matches the definition under federal law” at the time of that state offense) (quotation marks omitted, alteration adopted). Brown’s prior state convictions for selling and possessing cocaine do not qualify as “serious drug offenses” under the Act because the federal and state drug definitions of cocaine did not categorically match at the time of the state crimes. See Brown, 144 S. Ct. at 1197, 1201, 1210.
APPEAL/RESENTENCE. The Eighth Circuit vacated and remanded United States v. Norman Thurber, 2024 U.S. App. LEXIS 16524 (8th Cir. July 8, 2024). The case involves Norman Thurber who was convicted of six counts of production of child pornography. The charges stemmed from videos found on Thurber's cell phone, which depicted him engaging in sexual acts with a minor female. Thurber was sentenced to 20 years imprisonment on each count with the sentences running concurrently. Thurber appealed challenging various trial rulings, the sufficiency of the evidence, and the district court's imposition of standard conditions of supervised release in the written judgment that it did not orally pronounce at sentencing. The district court ruled that Thurber was not entitled to present mistake of age as an affirmative defense citing Eighth Circuit precedent. The court allowed Thurber to introduce evidence that the minor represented herself to be 18 years old, but only insofar as it was evidence that she was actually 18 years old, as age was an element of the offense. The jury returned a guilty verdict on all counts. The Eighth Circuit affirmed Thurber’s convictions but vacated the portion of the judgment imposing the standard conditions of supervised release and remanded to the district court for resentencing limited to the standard conditions. The court found that the district court did not err in refusing to allow Thurber to introduce additional portions of the text message exchange between him and the minor. The court also held that the district court did not err in denying Thurber the opportunity to present a mistake-of-age defense.
APPEAL/RESENTENCE. The Third Circuit vacated and remanded for resentencing United States v. Robert Haggerty, 2024 U.S. App. LEXIS 16634 (3d Cir. July 9, 2024). The case involves Robert Haggerty a first-time offender who was indicted on three counts of receiving a visual depiction of a minor engaging in sexually explicit conduct as well as one count of possessing such depictions. Haggerty admitted to communicating with undercover detectives posing as underage girls using online messaging platforms. A search of Haggerty's house and truck yielded two tablets containing a total of 97 still images and 9 videos of child sexual abuse material. The District Court applied multiple Guideline enhancements at sentencing, including a five-level enhancement under USSG2G2.2(b)(7) which provides for a graduated enhancement scheme based on the number of "images" involved in a child-exploitation offense. Haggerty objected to the application of a five-level, number-of-images enhancement, arguing that the Guideline is unambiguous and does not include videos. The District Court overruled Haggerty’s objection and applied the five-level enhancement, calculating a total offense level of 32, which yielded an advisory Guideline range of 121 to 151 months in prison. The Third Circuit held that "image," in the moving picture or video context, unambiguously means "frame." Deference to the Commentary’s 75-images rule is therefore unwarranted. Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply. The court vacated the District Court’s sentencing order and remanded for resentencing in a manner consistent with its holding.
APPEAL/SENTENCE. The Seventh Circuit vacated and remanded United States v. Anthony Carr, 2024 U.S. App. LEXIS 16560 (7th Cir. July 8, 2024). The case involvedAnthony Carr who was convicted for being a felon in possession of a firearm. His offense level and sentencing range were increased due to his three prior convictions in Illinois for armed robbery which the district court treated as a crime of violence. Carr argued that this was an error, contending that he could have been convicted as an aider and abettor to robbery rather than a principal and thus his conviction was not for a crime of violence. The Seventh Circuit rejected Carr's argument. The court held that each of Carr’s Illinois convictions was for armed robbery, and the pertinent elements of that offense matched those of generic robbery. The court found that the abstract possibility that Carr could have been convicted as an aider and abettor rather than a principal was irrelevant. The court also noted that although Illinois articulates its “common-design” iteration of accomplice liability in broad terms, it was not convinced that Illinois was an outlier in the way it applies common-design liability. Carr also requested a sentence reduction to account for the time he spent in custody prior to his federal sentencing. The district court declined to entertain this request leading to Carr's appeal. The Court of Appeals vacated and remanded the sentence for the limited purpose of reconsidering Carr’s request for a sentencing reduction.
APPEAL/ACQUITTAL. The Tenth Circuit reversed and remanded United States v. Feng Tao, 2024 U.S. App. LEXIS 16956 (10th Cir. July 11, 2024). Feng Tao, a tenured professor at the University of Kansas (KU) was involved in a federally funded research while secretly developing a relationship with Fuzhou University in China. Tao was charged with ten federal crimes, including making false statements and wire fraud. A jury convicted him of making a materially false statement to his employer, KU, in violation of 18 USC 1001(a)(2), by failing to disclose his relationship with Fuzhou University on an institutional-responsibilities form. The District of Kansas initially denied Tao's motions to dismiss the indictment. At trial, the jury found Tao guilty on three wire-fraud counts and one false-statement count but acquitted him on the other four counts. Post-trial, the district court acquitted Tao on the wire-fraud counts leaving only the false-statement conviction. Tao was sentenced to time served and two years of supervised release. The Tenth Circuit reviewed the case and found that the Government provided insufficient evidence to prove that Tao's false statement was material to any decision made by the Department of Energy (DOE) or the National Science Foundation (NSF). The court noted that the funding decisions by these agencies were made before Tao submitted the false form, and no proposals were pending at the time. Additionally, the court found no evidence that Tao's relationship with Fuzhou University created a disclosable financial interest under the NSF's conflict policy. Consequently, the Tenth Circuit reversed Tao's conviction and remanded the case for the district court to enter a judgment of acquittal.
APPEAL/BATSON ISSUE. The Seventh Circuit remanded United States v. Kentrevion Watkins, 2024 U.S. App. LEXIS 16826 (7th Cir. July 8, 2024). The case involves fourteen members of the Bomb Squad, a street gang, who were charged with violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), among other crimes. One member plead guilty while the remaining defendants were convicted by a jury. The defendants appealed their convictions, arguing that the district judge violated Batson v. Kentucky when selecting the jury. The court of appeals retained jurisdiction of the appeal and ordered a limited remand to allow the district court to make supplemental findings on this issue. The court of appeals found no reversible error in the remaining arguments raised by the defendants and affirmed their convictions. The Bomb Squad was a street gang that used violence to protect its reputation, territory, and drug sales. The gang members were charged with numerous crimes, including murder, attempted murder, drug trafficking, and multiple robberies. The defendants argued that the district judge violated Batson v. Kentucky when selecting the jury, which prohibits a prosecutor from using a peremptory challenge to strike a prospective juror because of their race. The court of appeals ordered a limited remand to allow the district court to make supplemental findings on the Batson issue. The court of appeals found no reversible error in the remaining arguments raised by the defendants and affirmed their convictions. The court of appeals also noted that if the district court orders a new trial, much of its opinion would become moot. However, it addressed the remaining issues raised by the defendants in the interest of judicial economy.
APPEAL/SPEEDY TRIAL ACT. The Third Circuit reversed the district court in United States v. Reginald Hopkins, 2024 U.S. App. LEXIS 16628 (3d Cir. July 9, 2024). The case involves the Government's appeal against the District Court's dismissal of one of two counts in an indictment against Reginald Hopkins. Hopkins was initially arrested on state firearms charges, and while awaiting his state preliminary hearing, a federal grand jury indicted him on charges of distributing cocaine base and being a felon in possession of firearms and ammunition. The state charges were subsequently withdrawn. Hopkins moved to dismiss the federal indictment, invoking a so-called "ruse exception" to the Speedy Trial Act (STA), arguing that his rights under the Act had been violated because he had been federally indicted over four months after his arrest by state authorities and because he had not been brought to trial within 70 days of that state arrest. The District Court held two evidentiary hearings and eventually dismissed one count of the indictment, the felon-in-possession charge, based on the ruse exception. The Government appealed this decision, arguing that the STA contains no such ruse exception. The Third Circuit agreed with the Government concluding that a ruse exception premised on a state arrest is inconsistent with the text of the STA and that there are sound policy reasons for declining to adopt a ruse exception. The Court reversed the order of the District Court and reinstated the dismissed count of the indictment.
APPEAL/SPEEDY TRIAL ACT. The Seventh Circuit reversed and remanded United States v. Refugio Avila, 2024 U.S. App. LEXIS 16694 (7th Cir. July 9, 2024). The case involves Refugio Avila who was found with a loaded handgun during a traffic stop. Avila is a known member of the Satan's Disciple gang whowas in a vehicle with his girlfriend when they were stopped by Chicago police officers conducting proactive policing. The officers observed several traffic violations and initiated a stop. During the stop the officers conducted three pat-downs on Avila, discovering a loaded handgun during the third pat-down. Avila was charged with being a felon in possession of a firearm. Avila filed a motion to suppress the firearm and a motion to dismiss the indictment, alleging violations of the Speedy Trial Act. The district court denied both motions. Avila entered a conditional plea to the felony charge while reserving his right to challenge the district court's denial of his motions. The Seventh Circuit affirmed the district court's ruling on the motion to suppress, finding that the officers had reasonable suspicion to stop the vehicle and to frisk Avila, and the stop was not unlawfully prolonged. However, the court found that the district court erred in denying Avila's motion to dismiss the indictment. The court concluded that the district court had improperly excluded over 300 days from the Speedy Trial Act's seventy-day clock, violating the Act. The court reversed the district court's denial of Avila's motion to dismiss the indictment and remanded the case for further proceedings.
APPEAL/1983/SUMMARY JUDGMENT. The Fourth Circuit reversed and remanded Johnnie Simmons v. Whitaker, 2024 U.S. App. LEXIS 16553 (4th Cir. July 8, 2024). The case involves Johnnie Simmons who filed a pro se action against Hampton Roads Regional Jail correctional officers R. Whitaker, Benjamin Hull, and Derrick Brown. Simmons claimed that during an incident on Feb. 8, 2019, Officer Whitaker choked him, which was caught on videotape. The district court granted summary judgment to Officers Hull and Brown finding that their conduct did not violate the Eighth Amendment. Simmons appealed the decision. The district court had dismissed Officer Whitaker from the case due to lack of service. Officers Hull and Brown filed motions for summary judgment arguing that the video footage and multiple officer affidavits established that Simmons could not prevail on his 42 USC 1983 bystander liability claims. The district court granted summary judgment for the defendants crediting the video and the officers’ version of the event. The Fourth Circuit found that the district court erred in its summary judgment analysis. The court held that the video evidence did not blatantly contradict Simmons's account, and the district court improperly ignored material admissible evidence in Simmons’s affidavit. The court also found that the district court applied the wrong legal standard using the Eighth Amendment standard instead of the Fourteenth Amendment standard applicable to pre-trial detainees. The court affirmed in part, reversed in part, and remanded in part the district court's decision.
APPEAL/IMMIGRATION. The Fourth Circuit vacated and remanded Raymond Azumah v. U.S. Citizenship and Immigration Services, 2024 U.S. App. LEXIS 16684 (4th Cir. July 9, 2024). The case involves Raymond Sefakor Yao Azumah, a Ghanaian national who was admitted to the United States as a lawful permanent resident in 2010. After a trip to Ghana in 2014, Azumah was deemed inadmissible due to an intervening embezzlement conviction. Despite this, the Government paroled Azumah into the country and initiated removal proceedings against him. These proceedings were later dismissed and Azumah applied for citizenship. However, the United States Citizenship and Immigration Services denied his application arguing that Azumah was statutorily ineligible because he was not “lawfully admitted for permanent residence” upon his return to the United States in 2014. The district court affirmed this denial. The Fourth Circuit disagreed with the lower court's decision. The court noted that Azumah was indeed “lawfully admitted for permanent residence” at all relevant times including 2010, 2014, and when he sought citizenship, because he had the status of a legal permanent resident of the United States. The court did not interpret the agency regulation to impose upon Azumah the additional burden of showing that he was “lawfully admitted” rather than paroled when he returned to the United States in 2014. Therefore, the court vacated the judgment of the district court and remanded for further proceedings consistent with this opinion.
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