Tom Norrid Law Firm
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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.
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CR.RIS/REHABILITATION/STACKING/USSG 1B1.13(b)(6). The District of Nevada granted in part a CR.RIS motion in United States v. Jason Wiley, 2024 U.S. Dist. LEXIS 155228 (D. Nev. Aug. 29, 2024). Wiley was convicted by a jury of various crimes related to a string of armed robberies he and others committed. He was sentenced to over 237 years in prison. Later, one of the counts was overturned and the First Step Act reduced the mandatory minimum sentence for some gun crimes so the court decided to resentence Wiley. The court resentenced him to 69 years and one month in prison primarily based on the mandatory, consecutive minimum sentences for his 9 gunconvictions. He has served nearly 14 years. Wiley moved for a reduction of his sentence under 18 USC 3582(c)(1). The compassionate-release provision of 18 USC 3582(c)(1)(A)(i) allows a court to reduce a sentence based on "extraordinary and compelling reasons." Wiley has taken great steps to rehabilitate himself. He has completed a number of classes, including vocational training, and has obtained his GED. He has a clean disciplinary record. "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC 994(t). Wiley's sentence is incredibly long, especially given that less than $3,000 was stolen and no one was injured in the robberies. In 2023, the average sentence for all defendants convicted of gun crimes under 924(c) was 145 months. The average federal murder sentence is approximately 20 years less than one-third of Wiley's sentence. Courts have "found that unfairly long sentences may constitute an extraordinary and compelling reason for early release." The court reduced defendant’s sentence to 300-months.
CR.RIS/REHABILITATION/DISPARITY/MEDICAL/USSG1B1.13(b)(5). The Eastern District of Virginia granted a CR.RIS motion in United States v. David Watson, 2024 U.S. Dist. LEXIS 155080 (E.D. Va. Aug. 28, 2024). In 1991, when Watson was 19 years old, he was involved in a fatal shooting and sentenced to 30 years in prison which he served at Lorton Reformatory (the "D.C. sentence."). In 1994, while Watson, then in his early 20s, was incarcerated at Lorton Reformatory, he was convicted of two separate assaults for which he received a 75-month aggregate federal sentence which he began serving only recently following his completion of his 30-year D.C. sentence. As described in his presentence report, the first assault in 1994 occurred after a correctional officer denied Watson's request to speak again to his visitor. Watson became verbally abusive to the officer giving direction after he was told to submit to a strip search. When the Officer motioned for another officer to enter the room, Watson placed his hand on the Officer face, the second officer stepped between the men, and Watson then struck the Officer in the face. A jury found Watson guilty of violating 22-505(a) of the D.C. Code. The second assault occurred shortly thereafter while Watson was still incarcerated at Lorton. While correctional officers were speaking to Watson after removing him from his cell for being verbally "difficult" with them, two of Watson's co-defendants from his D.C. case began acting out in their cells. In that regard, these other inmates (1) chased and attacked several officers, (2) threw various objects at officers, (3) inflicted multiple stab wounds on an officer using a shank, and (4) set a fire. A correctional officer suffered injuries although nothing in the 1995 PSR explains any action or conduct undertaken by Watson that could have caused those injuries, and Watson's role as described in the presentence report ended with a verbal dispute with the officers. A jury again found Watson guilty of violating D.C. Code 22-505(a). In support of the motion, Watson originally argued that (1) his age, race, and chronic medical conditions made him particularly susceptible to COVID-19 and that his incarceration at Allenwood USP exposed him to a particularized risk of contracting the virus; and (2) he no longer qualifies as a career offender and his sentence as such was imposed under an unconstitutional mandatory sentencing scheme. He also recharacterized his medical circumstances as extraordinary and compelling reasons independent of the COVID-19 context. Watson argued (1) that his medical circumstances qualify as extraordinary and compelling reasons for compassionate release under USSG1B1.13(b)(1)(B) or, alternatively, under 1B1.13(b)(1)(C) because he has severe and chronic medical conditions the BOP is not equipped to handle; and (2) that a retroactive change in law in combination with a mistake at sentencing, warrants a sentence reduction should the Court agree that Watson has presented extraordinary and compelling circumstances. The parties agree that 1B1.13(b)(6), the "Unusually Long Sentence" category of extraordinary and compelling reasons cannot independently be the basis for his motion since despite now having completed his prior 30-year sentence, Watson has not served at least 10 years of his present term of imprisonment for the federal sentence. Watson's age at the time of his offense conduct, his childhood upbringing and family circumstances, and the amount of time he has already served in prison weigh in his favor. Watson has demonstrated a commitment to rehabilitation. He has maintained consistent employment at each of his facilities in various roles, including his employment with UNICOR, and his quality of work has been affirmed by at least one supervisor. He has also spent 952 hours in BOP programming, including classes aimed at preparing for the work force, successful reentry, and personal development, and has spent nearly 100 additional hours in educational courses and vocational training since transferring from Allenwood. He has been awarded certificates for completing special psychological rehabilitation programs. Inmates have written letters in support of Watson's character, mentorship, and positive impact on their prison experiences. Moreover, his disciplinary record has been "completely clear" since 2014, despite being confined to some of the most dangerous prisons in the country. The Court considered Watson's medical circumstances, his significant time served since his offense conduct, changes in law leading to a sentencing disparity between his original sentence and that which he would receive if sentenced today, his age at the time of his offense conduct, the amount of time served since sentencing, his significant post-sentence rehabilitation efforts, his strong reentry plan, and his family support, along with the stated goals of the Sentencing Commission. The totality of these circumstances provided extraordinary and compelling "Other Reasons" for a sentence reduction that are "similar in gravity" to the others enumerated in the applicable Sentencing Guidelines. USSG 1B1.13(b)(5). For these same reasons, this Court concluded that Watson is not "a danger to the safety of any other person or to the community, as provided in 18 USC 3142(g)." USSG 1B1.13(a)(2). Sentence reduced to 33-months.
CR.RIS/REHABILITATION/FAMILY CIRCUMSTANCES/USSG 1B1.13(b)(5). The Western District of Washington granted a CR.RIS motion in United States v. David Cain, 2024 U.S. Dist. LEXIS 153717 (W.D. Wash. Aug. 27, 2024). Cain was indicted for Armed Bank Robbery and one count of Using Firearm During Bank Robbery, specifically, brandishing, in violation of 18 USC 924(c)(1)(A)(ii). The defendant requested the Court to reduce his sentence due to extraordinary and compelling reasons based on a combination of the following: (1) he was young when he received his 31-year sentence and has successfully rehabilitated, having already served 85% of the total sentence; (2) in his federal case he pled to a more serious charge than contained in the information and the Government failed to recommend the lower sentence as promised in the plea agreement; and (3) his parents are elderly and suffer from health issues such that they are not able to manage their cattle farm, and no other caregiver exists. Cain sought a sentence reduction based on the "other reasons" catch-all provision found in USSG 1B1.13(b)(5). This subsection is applicable "if the defendant presents any other circumstances or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4) are similar in gravity to those described in paragraphs (1) through (4)." Cain was 23 years old at the time he committed his crimes. He was sentenced to a cumulative sentence of 31 years. Cain has served over 22 years of that sentence and 85% of his sentence (based on his projected release date). Cain has engaged in rehabilitative programming while in state prison such as courses in stress management, cognitive behavioral change, a 21-week redemption self-awareness class, and substance abuse. When one combines Cain's age at the time he committed his crimes, the unusually long sentence imposed, the amount of the sentence he has served, Cain's rehabilitative efforts over the years, and add to that the fact that the Government failed to adhere to its obligation under the plea agreement, that Cain likely had a claim for ineffective assistance of counsel, and that Cain has aging parents, Cain's circumstances are similar in gravity to the age of defendant circumstances contained in 1B1.13(b)(2). Sentence reduced to time served.
CR.RIS/REHABILITATION/DISPARITY/USSG 1B1.13(b)(6). The Western District of Texas granted a CR.RIS motion in United States v. Benito Velez, 2024 U.S. Dist. LEXIS 154696 (W.D. Tex. Aug. 28, 2024). Velez has served over 20-years of a lifetime sentence for conspiracy to possess with intent to distribute marijuana and money laundering. He moved the Court to grant his request for compassionate release arguing he is serving an "unusually long sentence," which constitutes an "extraordinary and compelling" reason for relief under 18 USC 3582(c)(1)(A)(i). The Court agreed. Velez argued he is serving an "unusually long sentence" and thus merits relief under this prong. To prevail on this claim, Velez must show (1) he received an unusually long sentence, (2) a change in law, (3) this change would produce a gross disparity between the sentence he is currently serving and the sentence likely to be imposed at the time the motion was filed. USSG 1B1.13(b)(6). Velez must show a "change in the law" since he was sentenced. Velez highlighted two examples of such changes: (1) Alleyne v. United States, 570 U.S. 99 (2013), which held that any fact used to determine a mandatory minimum must be found by a jury beyond a reasonable doubt and (2) United States v. Booker, 543 U.S. 220 (2005), which held that the Sentencing Guidelines were no longer mandatory. The Court found that Alleyne and Booker constituted changes in law under the Sentencing Commission's policy guidelines. Finally, to show that the length of his sentence is an "extraordinary and compelling reason" for relief, Velez must show that the change in law would "produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed." Since Velez was sentenced, subsequent case law has provided more robust procedural safeguards for defendants in his position. Alleyne required that any fact used to determine a mandatory minimum must be found by a jury beyond a reasonable doubt. 570 U.S. at 108. And Haines held that, "for purposes of statutory minimums at sentencing, the relevant quantity is the quantity attributable to the individual defendant" instead of the "quantity attributable to the entire conspiracy." 803 F.3d 713, 739, 742 (5th Cir. 2015); U.S. v. Williams, 2021 U.S. Dist. LEXIS 216129 (D. D.C. 2021) ("Although permissible at the time, today [Defendant] could not face a mandatory life without parole sentence based on a conspiracy-wide drug finding gleaned from a Presentence Report."). Velez was sentenced before either Alleyne or Haines was decided, he lacked access to these procedural safeguards. The quantity of marijuana attributable to him was decided not by a jury but by Probation. Because the quantity of marijuana involved in the conspiracy determined Velez's life sentence, the Court found that even a small difference in how that quantity was calculated could lead to a "gross disparity" in the sentence he is currently serving and the sentence he would receive today. Sentence reduced to time served.
CR.RIS/DISPARITY/REHABILITATION/USSG 1B1.13(b)(6). The Southern District of New York granted a CR.RIS motion in United States v. Thelonious Monk, 2024 U.S. Dist. LEXIS 152672 (S.D. N.Y. Aug. 26, 2024). In March 2010, Monk and 24 other defendants were indicted for their participation in a drug trafficking organization that distributed large quantities of cocaine and crack in New York. Monk was charged with conspiracy to distribute and possession with intent to distribute more than 5 kilograms of cocaine and more than 280 grams of crack in violation of 21 USC 812, 841(a)(1), 841(b)(1)(A), and 846 (Count One). He was also charged with three counts of using a phone to facilitate a drug conspiracy in violation of 21 USC 843(b) (Counts Two, Three, and Four). In July 2011, the Government filed a 851 information noting Monk had a previous conviction for a felony drug offense. The Court sentenced Monk to the mandatory minimum of 240 months in prison on Count One and 96 months in prison on each of Counts Two, Three, and Four, all to be served concurrently. Monk moved for compassionate release based in part on a change in law under the First Step Act of 2018. Although the change is not retroactive, section 401 of the Act "reduced from twenty years to fifteen years the mandatory minimum sentence for offenses under 21 USC 841(b)(1)(A) committed after a prior conviction for a 'serious drug felony.' "The Court concluded that there are extraordinary and compelling reasons for a sentence reduction because the conditions of USSG 1B1.13(b)(6) are all satisfied. First, Monk has served more than ten years of his term of imprisonment. A 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." Monk's arguments—concerning harsh conditions of confinement and his rehabilitation—lend additional support to that conclusion. There is no doubt pandemic-related measures "led to increased prisoner isolation and fewer program opportunities for inmates," which "created harsher than usual conditions of confinement." The Court agreed that "pandemic-induced conditions of confinement can constitute 'extraordinary and compelling' circumstances warranting compassionate release, particularly for defendants who have (i) served long sentences and (ii) been detained for the entirety of the pandemic." A variety of circumstances may serve as evidence of rehabilitation, including "[a] clean disciplinary history, participation in educational programs, and employment." Evidence of remorse and rehabilitation—which the Government does not challenge—provides additional support for the Court's conclusion that extraordinary and compelling circumstances warrant a sentence reduction. The Court found that Monk's "unusually long sentence"—both on its own and in combination with harsh conditions of confinement and his rehabilitation—was an extraordinary and compelling reason for a sentence reduction and reduced his sentence to time served.
CR.RIS/DISPARITY/USSG 1B1.13(b)(6)/REHABILITATION. The Southern District of New York granted in part a CR.RIS motion in United States v. Norberto Martinez, 2024 U.S. Dist. LEXIS 154870 (S.D. N.Y. Aug. 28, 2024). In 2006, Martinez was convicted on 7 drug trafficking counts involving heroin possession, distribution, and importation, as well as 2 counts of using a weapon in relation to a drug trafficking crime in connection with his role as the leader of a large-scale heroin organization. The court sentenced Martinez to life imprisonment for Counts One through Seven, plus 84 months' imprisonment on Count Eight to run consecutive to the life imprisonment term. Martinez argued the newly added "unusually long sentence" provision in the Guidelines adds support to his extraordinary and compelling reasons justifying release. Martinez has served over 20 years; and changes pursuant to Amendments 782 and 821, when considered together, produce a gross disparity between Martinez's current sentence and the sentence likely to be imposed now. Specifically, Martinez asserted if he were to be sentenced today his Guidelines range would be 324 to 405 months as opposed to the original range of 360 months to life imprisonment. Martinez argued his transformative rehabilitation which includes 50 educational and vocational courses and only one non-violent disciplinary infraction since his sentencing in 2006, in combination with other circumstances, constitute extraordinary and compelling reasons warranting a sentence reduction. The other circumstances supporting his release include his minimum recidivism risk, the more punitive-than-normal incarceration he faced due to COVID-19, the disparity between his original sentence and the sentence he would likely receive at the time of this motion, and the disparity between his sentence and that of his co-defendant brother. Thus, the court may consider his more than 20 years of imprisonment as part of its analysis of whether his original sentence is unusually long, constituting an extraordinary and compelling reason. The court found that Martinez's record of rehabilitation over the years weighs strongly in favor of finding that extraordinary and compelling reasons exist to reconsider his sentence. The court found that Martinez's post-conviction rehabilitation, low recidivism risk level, harsher-than-intended punishment due to COVID-19 lockdowns and restrictions, more than two decades of imprisonment, and the disparity between his sentence and that of his co-defendant, when taken together, accumulate to extraordinary and compelling reasons that justify a moderate sentence reduction. Sentence reduced to 360-months.
APPEAL/CR.RIS/3582(c)(2). The Fourth Circuit remanded United States v. Aston McCrea, 2024 U.S. App. LEXIS 21665 (4th Cir. Aug. 27, 2024). McCrea appealed the district court’s order denying his motion for a sentence reduction under 18 USC 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. The court concluded the district court correctly determined that McCrea is ineligible for relief under Amendment 782, which reduced by two the offense levels assigned to drug quantities because his Guidelines range was based on his status as a career offender not on the drug quantities attributable to him. Accordingly, the Court affirmed the district court’s order. After reviewing the record, however, the court discovered a procedural irregularity that warranted remand to the district court for further proceedings. In his initial motion McCrea sought relief under 3582(c)(2) and Amendment 782 and the motion was docketed as such. However, in its order directing the Federal Public Defender and the Government to respond the court construed this motion as a motion for compassionate release under 18 USC 3582(c)(1)(A), stating that McCrea had argued he would no longer be deemed a career offender if sentenced today. The FPD responded that McCrea was ineligible for relief under Amendment 782 because he was sentenced as a career offender. The Government agreed McCrea was ineligible for relief under Amendment 782 but labeled its submission as a response to McCrea’s motion for compassionate release. McCrea argued for the first time that he would not be deemed a career offender if sentenced today and that this qualified as an extraordinary and compelling reason for his early release under 3582(c)(1)(A) as did the BOP’s alleged failure to apply certain credits to his sentence. The district court entered its order denying McCrea’s motion for a sentence reduction under 3582(c)(2) and Amendment 782. Before noting his appeal McCrea submitted an exhibit to demonstrates he had exhausted his administrative remedies by requesting compassionate release from the Warden on the same grounds identified in his reply. McCrea moved for reconsideration, explaining that he had filed a motion for a sentence reduction under 3582(c)(2) and a motion for compassionate release under 3582(c)(1)(A). Due to this procedural confusion the district court did not consider McCrea’s arguments for compassionate release. The court construed McCrea’s “reply” as a motion for compassionate release and remanded to the district court for further proceedings on that motion.
APPEAL/18 USC 922(g)(3) UNCONSTITUTIONAL. The Fifth Circuit held 18 USC 922(g)(3) to be unconstitutional in United States v. Paola Connelly, 2024 U.S. App. LEXIS 21866 (5th Cir. Aug. 28, 2024). Paola Connelly is a non-violent marijuana user who was charged after El Paso police responded to a "shots fired" call at her home. Her husband, John, was found firing a shotgun at a neighbor's door and was arrested. Paola admitted to occasionally using marijuana for sleep and anxiety. A search of their home revealed drug paraphernalia and several firearms including a pistol owned by Paola. She was charged with violating 18 USC 922(g)(3) for possessing firearms as an unlawful user of a controlled substance and 18 USC 922(d)(3) for providing firearms to an unlawful user. The Western District of Texas denied Paola's motion to dismiss the charges. However, after the Fifth Circuit's decision in United States v. Rahimi, the District Court reconsidered and found that 922(g)(3) and 922(d)(3) were facially unconstitutional and 922(g)(3) was unconstitutional as applied to Paola under the Second Amendment. The Government appealed. The Fifth Circuit held that while historical and traditional regulations may support some limits on a presently intoxicated person's right to carry a weapon they do not support disarming a sober person based solely on past substance usage. The court affirmed the District Court's dismissal of the charges against Paola as applied to her but reversed the facial challenges to 922(g)(3) and 922(d)(3). The court concluded that there are circumstances where these statutes could be constitutionally applied such as banning presently intoxicated individuals from carrying firearms.
APPEAL/CAREER OFFENDER/RESENTENCING. The Eleventh Circuit vacated and remanded United Sates v. Thomas Sheely, 2024 U.S. App. LEXIS 22144 (11th Cir. Aug. 30, 2024). Sheely appealed his conviction and 105-month sentence for possession of a firearm and ammunition as a convicted felon in violation of 18 USC 922(g)(1). On appeal, he argued his conviction under 922(g)(1) violates the Second Amendment in light of the Supreme Court’s decision in New York State Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). He also asserted the district court erroneously overruled his objection to the use of his prior state convictions for attempted robbery and manslaughter to support a base offense level that was six points higher than he contended it should have been, as those convictions don’t count as “crimes of violence” as defined in USSG 4B1.2. Under the court’s prior-panel-precedent rule, it concluded that Sheely’s conviction under 922(g)(1) does not violate the Second Amendment, so the court rejected his challenge on that basis. But the court agreed Sheely that neither of the prior convictions the district court relied on in imposing the career-offender enhancement qualify as “crimes of violence” as USSG 4B1.2 defines the term. The court vacated the sentence and remanded for resentencing.
APPEAL/SEARCH/GOOD FAITH. The First Circuit vacated and remanded United States v. Carlos Gonzalez, 2024 U.S. Dist. LEXIS 21524 (1st Cir. Aug. 26, 2024). Gonzalez's residence was searched by the Government for evidence of an illegal pill-making operation. Gonzalez moved to suppress the evidence found during the search arguing the search warrant was based on stale information and lacked probable cause. The district court agreed finding the facts supporting the search warrant were too old and that the affidavit was so bare bones that no reasonable officer could have relied on it. The court noted that the mastermind of the operation had moved out months earlier, there was little suspicious activity afterward, and the equipment was portable. The District of Massachusetts granted Gonzalez's motion to suppress the evidence. The court concluded the information in the affidavit was too stale to support probable cause and the connection between the residence and any recent criminal activity was extremely thin. The court also determined that the good-faith exception did not apply because the affidavit was too conclusory and lacked sufficient detail to justify reliance on the warrant. The First Circuit reviewed the case. The court decided to bypass the probable-cause determination and focused on whether a reasonable officer could have relied on the warrant in good faith. The court found that a reasonable officer could have believed that the pill-making operation was still ongoing at the residence, given the long-standing nature of the operation, the continued ownership of the house by the mastermind, and the involvement of Gonzalez and his girlfriend. The court vacated the district court's ruling on the motion to suppress and remanded the case for further proceedings.
APPEAL/2254/IAC. The Sixth Circuit reversed and remanded Kayla Ayers v. Ohio Department of Rehabilitation & Correction, 2024 U.S. App. LEXIS 21522 (6th Cir. Aug. 26, 2024). In 2012, Kayla Ayers was convicted by an Ohio jury of aggravated arson and child endangerment following a fire in her basement. In 2019, Ayers obtained an expert report suggesting the prosecution's key witness, a fire inspector, was unqualified. Ayers argued her trial counsel was ineffective for not investigating the fire inspector's qualifications or retaining an arson expert to challenge his testimony. The Northern District of Ohio dismissed Ayers's habeas corpus petition as time-barred concluding that she failed to exercise due diligence in obtaining the expert report sooner. The court found that Ayers could have discovered the factual basis for her claim within the statutory period. The Sixth Circuit reversed the district court's decision. The appellate court held the expert report which questioned the fire inspector's qualifications and methods, constituted the factual predicate for Ayers's ineffective-assistance claim. The court determined that Ayers, an indigent prisoner, could not have discovered this information without the assistance of the Ohio Innocence Project, which secured the expert report in 2019. The court concluded Ayers exercised due diligence under the circumstances and filed her habeas petition within one year of obtaining the report. The case was remanded for further proceedings consistent with the opinion.
APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded United States v. Alexander LeSzczynski, 2024 U.S. App. LEXIS 21517 (11th Cir. Aug. 26, 2024). LeSzczynski appealed his sentence of 210 months imposed after he entered an open plea of guilty to murder-for-hire in violation of 18 USC 1958(a) and obstruction of justice in violation of 18 USC 1503(a). He argued the district court plainly erred in calculating his criminal history score for purposes of the sentencing guidelines by including in the calculation his prior sentences for fraud in the Middle District of Florida because those offenses were part of his current offense conduct. The court held the case in abeyance pending the resolution of LeSzczynski’s separate appeal of those prior fraud convictions. The court ultimately vacated the fraud convictions concluding the district court erred as a matter of law in denying LeSzczynski’s motion to withdraw his guilty plea in that case. The court agreed LeSzczynski’s guideline range in the present case must be recalculated. See USSG 4A1.2, cmt. (n.6) (2023) (stating that “[s]entences resulting from convictions that . . . have been reversed or vacated because of errors of law . . . are not to be counted”); Molina-Martinez v. United States, 578 U.S. 189, 198 (2016) (holding that for purposes of plain error review, “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error”). The court vacated his sentence and remanded for further proceedings
APPEAL/RESENTENCE. The Tenth Circuit reversed and remanded for resentencing United States v. Arthur Aragon, 2024 U.S. Dist. LEXIS 21351 (10th Cir. Aug. 23, 2024). Aragon was indicted for unlawfully possessing an incendiary device, specifically a Molotov cocktail, which he threw onto his neighbor's property. This act was part of a series of harassments against his neighbors, including threats and property damage. Despite the Molotov cocktail causing a fireball it did not result in significant damage or meet the threshold for felony arson under New Mexico law. The District of New Mexico applied a four-level sentencing enhancement under 2K2.1(b)(6)(B). The court reasoned Aragon's use of the Molotov cocktail had the potential to facilitate a felony offense, specifically arson, even though the actual damage did not meet the felony threshold. Aragon was sentenced to 46 months, and he appealed the enhancement. The Tenth Circuit found that the district court misapplied USSG 2K2.1(b)(6)(B). The enhancement requires either the use of a firearm to facilitate an actual felony offense or the possession of a firearm with the potential to facilitate a committed felony offense. The court clarified that the guideline does not apply to potential felony offenses that were not committed. Since Aragon did not commit felony arson the enhancement was improperly applied. The Tenth Circuit reversed the district court's decision and remanded the case for resentencing without the enhancement.
APPEAL/SEVERANCE. The Third Circuit vacated and remanded United States v. Cornelius Green, 2024 U.S. App. LEXIS 21609 (3d Cir. Aug. 27, 2024). Green was a member of the Infamous Ryders motorcycle club who was involved in an incident where Ishmael Snowell declined membership in the club was allegedly kidnapped. Green, along with co-defendant William Murphy and Steven Wong, met Snowell at the club's clubhouse. A fight ensued between Snowell and Murphy with Green refereeing. Wong discovered photos of money on Snowell’s phone and demanded to know its location. Snowellclaimed the money was at his aunt’s house in Reading, Pennsylvania. Murphy drove Snowell and Green, who was armed, to the house. Testimonies diverged on whether Murphy and Snowell could have escaped during a stop at a gas station. Upon arrival they searched for the money and Snowell claimed Wong ordered Green to shoot him. Snowell attempted to escape leading to a fight with Green which ended when neighbors called the police. The grand jury indicted Green, Murphy, and Wong for kidnapping and robbery. Green moved to sever his trial from Murphy and Wong but the District Court denied the motion. Wong’s trial was later severed due to a change in attorneys and he was acquitted. During the joint trial of Green and Murphy, Murphy testified that Wong coerced him into the kidnapping and that Green threatened Snowell with a gun. Green renewed his motion to sever arguing Murphy’s defense was antagonistic to his own, but the District Court denied it. The Third Circuit found that Green and Murphy presented mutually antagonistic defenses which prejudiced Green’s right to a fair trial. The court held the District Court abused its discretion in denying Green’s motion to sever. The Third Circuit reversed the denial of the motion to sever, vacated Green’s conviction and sentence, and remanded for further proceedings.
APPEAL/FINE. The Eleventh Circuit vacated and remanded United States v. Winston Green, 2024 U.S. App. LEXIS 21672 (11th Cir. Aug. 27, 2024). Green pled guilty to possessing a firearm as a convicted felon in violation of 18 USC 922(g)(1). He was sentenced to 60 months. He appealed his sentence arguing the district court clearly erred in imposing a $6,000 fine. The Government agreed with Green that the district court erred. The court agreed with Green as well. Because the record does not provide sufficient evidence for the court to assess whether Green’s fine was appropriate, the court vacated Green’s sentence and remanded to the district court.
APPEAL/1983/EIGHTH AMENDMENT. The Fifth Circuit vacated and remanded Bobby Stevenson v. Toce, 2024 U.S. Dist. LEXIS 21295 (5th Cir. Aug. 22, 2024). Bobby Stevenson is a prisoner at the Louisiana State Penitentiary who claims he was forced to labor in the prison’s agricultural fields despite severe ankle pain caused by two broken surgical screws. He alleged two prison physicians, Dr. Randy Lavespere and Dr. Paul M. Tocé, refused to fix the screws or relieve him from field labor. Stevenson asserted the broken screws caused him tremendous pain and secondary injurie and the physicians ignored his complaints and medical recommendations for surgery. The Middle District of Louisiana reviewed the case. The magistrate judge allowed Stevenson to file an amended complaint and recommended denying the defendants' motion to dismiss which argued for qualified immunity. The district court accepted this recommendation and denied the motion, leading to the current appeal. The Fifth Circuit found Stevenson sufficiently alleged the defendants violated his Eighth Amendment rights by ignoring his severe medical needs and forcing him to work despite his condition. The court determined the defendants had fair warning from existing case law that their actions were unconstitutional. The Fifth Circuit affirmed the district court’s denial of the motion to dismiss and rejected the defendants' claim of qualified immunity.
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