The Tom Norrid Law Firm
SAMARITAN PROJECTS LLC
4415 Gladstone Blvd.
Kansas City. MO 64123-1238
417-236-1179
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 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.
CR.RIS/REHABILITATION/CHANGE IN THE LAW. The Eastern District of California granted a CR.RIS motion in United States v. Eduardo Pineda, 2024 U.S. Dist. LEXIS 186167 (E.D. Calif. Oct. 11, 2024). When the defendant pled guilty his 21 USC 841(b)(1)(A) conviction required a mandatory life sentence. But the First Step Act of 2018 eliminated that mandatory life requirement. As a result the defendant would be sentenced to less time if he were sentenced today. The Government acknowledged this change in federal law in its opposition and agreed that this Court is allowed to consider it in exercising its discretion to reduce a sentence. Defendant's rehabilitation efforts during his almost 28 years in custody weigh in favor of release. In particular, he has received his GED and taken other classes to develop skills and manage emotions. The Government argued defendant's disciplinary violations demonstrate that he is not rehabilitated. Defendant admitted he has made mistakes, such as fighting, possessing a dangerous weapon, and possessing drugs/alcohol. But viewing his prison record as a whole, the Court found that the steps he has taken towards self-reflection and rehabilitation paint a more accurate picture and far outweigh his missteps. Defendant submitted plans to return to Mexico where he would reside with family members who are ready to welcome him. Given his rehabilitation and reentry plan, the Court found that defendant will not endanger the community if released. Sentence reduced to time served.
CR.RIS/REHABILITATION/FAMILY CIRCUMSTANCES. The Middle District of Alabama granted a CR.RIS motion in United States v. Marnail Washington, 2024 U.S. Dist. LEXIS 184785 (M.D. Ala. Oct. 8, 2024). The court noted that a defendant charged today with the same offenses as Washington would receive a much lower sentence than Washington did due to changes to 18 USC 924(c) passed by Congress after Washington was sentenced. As a result, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" weighs particularly heavily in favor of a sentence reduction in this case. 18 USC 3553(a)(6). The court found that extraordinary and compelling reasons warrant a reduction of sentence. Washington argued that he is entitled to a sentence reduction under USSG 1B1.13(b)(3)(C) which provides that extraordinary and compelling reasons exist based on "the incapacitation of the defendant's parent when the defendant would be the only available caregiver for the parent." The Government conceded, and the court agreed, that Washington is eligible for a sentence reduction under this provision based on his mother's incapacitation and lack of other caregivers. Washington was in his early twenties when he was sent to prison but he is now 43 years old, far more mature, and therefore less likely to commit crimes. Washington pointed out that the Bureau of Prisons has determined that he has a low risk of re-offending with an act of violence and a low risk of recidivism in general. But more importantly he has been an exceptional prisoner who has made the most of his lengthy incarceration by participating in extensive rehabilitative programming and who has impressed correctional staff with his positive attitude and hard work. Sentence reduced to time served.
CR.RIS/DISPARITY/CAREER OFFENDER/USSG 1B1.13(b)(6). The Middle District of North Carolina granted in part a CR.RIS motion in United States v. Cordell Berry, 2024 U.S. Dist. LEXIS 185228 (M.D. N.C. Oct. 10, 2024). Berry filed a renewed motion for compassionate release under 18 USC 3582(c)(1)(A). In Dec. 2023, the Court denied the motion as to the defendant's request for a time-served sentence. Berry requested the court to reduce his sentence from 646 months to 298 months. Two significant changes in the law have resulted in a gross disparity between Berry's sentence as imposed and one that would likely be imposed under current law. Under the new Sentencing Commission Policy Statement, this gross disparity constitutes an extraordinary and compelling circumstance. In light of this extraordinary and compelling circumstance and after weighing the 18 USC 3553(a) factors the Court granted the motion in part and reduced Berry's sentence to 314 months. Berry was convicted of two armed bank robberies and was sentenced to 646 months in prison: 262 months on each armed bank robbery count to run concurrently; 84 months on the first 924(c) count to run consecutively to the armed bank robbery counts; and 300 months on the second 924(c) count to run consecutively to the armed bank robbery counts and the first 924(c) count. This aggregate 646-month sentence included 384 months on "stacked" 924(c) convictions for brandishing a firearm during the two bank robberies and was statutorily required. Since the Sentencing Commission amended the policy statement on Nov. 1, 2023, USSG 1B1.13, courts continue to disagree on whether non-retroactive changes in law can constitute extraordinary and compelling circumstances. United States v. Jean, 108 F.4th 275, 281-82 (5th Cir. 2024) (holding that non-retroactive changes in law can contribute to a finding of extraordinary and compelling reasons for compassionate release) and the law in the Fourth Circuit is that non-retroactive changes can be extraordinary and compelling circumstances. The policy statement allows courts to find extraordinary and compelling circumstances based on non-retroactive changes in law when three requirements are satisfied. USSG 1B1.13(b)(6). Berry has demonstrated all three. First, Mr. Berry is serving an unusually long sentence. The sentencing judge noted that the 646 to 741 months guideline was "a range that I have not seen before" and that he had only imposed an "occasional life sentence." Berry has served 19 years of his sentence, almost double the 10-year requirement in the policy statement. Third, two intervening changes in law have produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed. The defendant's motion for a sentence reduction was granted and his sentence was reduced to 314 months.
CR.RIS/DISPARITY. The District of Maryland granted a CR.RIS motion in United States v. Jeremy Montgomery, 2024 U.S. Dist. LEXIS 183348 (D. Md. Oct. 8, 2024). Montgomery is serving a 144-month sentence for possession of a firearm in furtherance of a drug trafficking crime. This followed a guilty plea under Rule 11(c)(1)(C) that included an agreed upon recommendation of 144 months which the court accepted. Montgomery filed a motion for compassionate release which the court denied in May 2021. In Feb. 2022, Montgomery filed another motion to vacate under 28 USC 2255 relying on the expungement of one of his past criminal convictions. Briefing on a motion for retroactive application of sentencing guidelines related to the disparity of crack versus powder cocaine was completed in May 2024. The court construes the motion as a motion for compassionate release for extraordinary and compelling reasons due to sentencing disparity and the court accepts for purposes of this case only the disparity between the sentences for crack and powder cocaine as such a reason. Considering the 18 USC 3553(a) factors the court noted Montgomery has a serious criminal record and committed a serious offense. At this point Montgomery has completed the majority of his sentence, sufficient for deterrence; has demonstrated substantial efforts toward rehabilitation; and has remained infraction-free throughout his incarceration. The risk of recidivism appears low. The court found that a reduction in sentence under 18 USC 3582(c)(1)(A)(i) was warranted. Sentence reduced to time served.
CR.RIS/DISPARITY. The District of Maryland granted in part a CR.RIS motion in United States v. Antoin Garrison, 2024 U.S. Dist. LEXIS 184238 (D. Md. Oct. 7, 2024). On Oct. 23, 2012, a federal grand jury returned a superseding indictment charging Antoin Garrison with possession of ammunition by a convicted person (Count One); possession of a firearm by a convicted person (Count Two); possession of cocaine with the intent to distribute (Count Three); possession of a firearm by a convicted person (Count Four); and possession of a firearm in furtherance of a drug trafficking crime (Count Five). On May 21, 2013, following a jury trial, Garrison was convicted on all counts. Because he had three prior convictions for serious drug offenses he qualified for an enhanced sentence under the Armed Career Criminal Act, 18 USC 924(e)(1). On Jan. 28, 2014, he was sentenced to the mandatory minimum of 180 months concurrent on each of Counts One, Two, Three, and Four; he also received a consecutive sentence of 60 months on Count Five for a total term of 240 months. Garrison's primary argument for compassionate release centers on his contention that if he were sentenced today he would not qualify for an ACCA enhancement. He bases this contention on United States v. Hope, 28 F.4th 487 (4th Cir. 2022), which held that because the federal statute's definition of marijuana at the time of federal sentencing was not a categorical match for the state's definition of marijuana at the time of the state convictions (federal law excluded hemp, South Carolina law did not), the prior South Carolina convictions did not qualify as serious drug offenses and Hope was not subject to an ACCA enhancement. The court agreed Garrison's prior state cocaine convictions, if he were sentenced today, would not qualify as "serious drug offenses" under the ACCA. Garrison is now 56 years old with no disciplinary infractions in the past five years. He has a release plan and the promise of family support. The risk of recidivism appears to be relatively low. Garrison's sentence was reduced by three years, from 20 to 17 years. Specifically, his sentence on Counts One through Four was reduced to 144 months, followed by a consecutive 60 months on Count Five, for a total of 204 months.
CR/RIS/MEDICAL. The District of South Dakota granted a CR.RIS motion in United States v. Gilbert Crow Eagle, 2024 U.S. Dist. LEXIS 182759 (D. S.D. Oct. 3, 2024). In March 2012 a jury found Crow Eagle guilty of two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact of a child. Crow Eagle's victims were his two nieces, D.O. and S.O., and the offenses had occurred approximately 13 to 21 years before the jury trial. When S.O. was around eight or nine years old Crow Eagle rubbed her vaginal area over her clothes. Several years later when D.O. was around six to seven years old Crow Eagle rubbed her vaginal area over her clothes numerous times and had sexual intercourse with her. During the trial three other women testified that Crow Eagle had sexually abused them in similar ways. Crow Eagle's sister testified that he had sexually abused her more times than she could remember beginning when she was six or seven and continuing until she was eighteen. Another of Crow Eagle's nieces testified that he sexually abused her over twenty times starting when she was seven years old. Still another of Crow Eagle's nieces testified that he attempted to sexually assault her when she was eleven years old. At the time of sentencing, Crow Eagle was 58 years old and in poor health. He was dependent on oxygen and suffered from chronic health conditions including COPD, coronary artery disease, and other lung issues. Based on his age and life expectancy, Crow Eagle made a motion for downward departure and/or variance from the sentencing guidelines and argued that his criminal history was overstated. Because of the testimony that Crow Eagle was a serial sexual offender whose abusive sexual acts began in his teen years the Court declined to place Crow Eagle in a lower criminal history category than what the presentence investigation report calculated. The Court denied Crow Eagle's motion for downward departure or variance, denied the Government's request for consecutive sentences, and imposed a total sentence of 192 months, or approximately 16 years, followed by five years of supervised release. A doctor reported that Crow Eagle had a number of chronic progressive diseases for which full recovery is not expected. Since Crow Eagle's first motion was denied, he has experienced several new medical issues, and he is on at least 20 different medications and prescriptions for his various conditions. Crow Eagle is now 71 years old. He exceeds both the age requirement for 1B1.13(b)(3) and the average life expectancy of an American Indian male. Thus, Crow Eagle's age weighs in favor of granting compassionate release. Crow Eagle suffers from several chronic diseases and ailments including, but not limited to, coronary artery disease, COPD, stroke, asthma, hypertension, hyperlipidemia, chronic headaches, chronic knee pain, breathing difficulties, and glaucoma. Crow Eagle's numerous chronic diseases at this time satisfy the threshold showing of "serious deterioration in physical or mental health because of the aging process." Sentence reduced to time served.
AMENDMENT 821. The Southern District of Indiana granted a 821 motion in United States v. Lance Hatcher, 2024 U.S. Dist. LEXIS 181645 (S.D. Ind. Oct. 4, 2024). Hatcher was charged with conspiracy to distribute controlled substances. He was given two points because he committed the offense underlying this case while on probation. Hatcher was sentenced to a below-guidelines term of 300 months imprisonment. Sentence reduced to 292-months.
APPEAL/2255/924(j)(1). The Ninth Circuit remanded United States v. Reginald Elmore, 2024 U.S. App. LEXIS 25359 (9th Cir. Oct. 8, 2024). Reginald Elmore was convicted in 2019 for using or possessing a firearm during a murder in aid of racketeering violating 18 USC 924(j)(1). The predicate crime for this conviction was a VICAR (Violent Crimes in Aid of Racketeering) murder under 18 USC 1959(a)(1), which itself required a violation of state or federal law. Elmore challenged his conviction under 28 USC 2255, arguing that the VICAR murder did not qualify as a crime of violence under the elements clause of 924(c)(3)(A). The Northern District of California denied Elmore’s motion to vacate his conviction. The court held that VICAR murder is categorically a crime of violence under the elements clause and thus a valid predicate for Elmore’s 924(j)(1) conviction. The court did not address the Government’s procedural arguments and granted a certificate of appealability on the issue of the proper mode of analysis for determining whether a VICAR offense constitutes a crime of violence. The Ninth Circuit reviewed the case and reversed the district court’s decision. The Ninth Circuit held that the VICAR statute is divisible requiring the application of the modified categorical approach to determine the elements of Elmore’s charged VICAR offense. The court concluded that Elmore was charged with VICAR murder predicated on California murder. The Ninth Circuit determined that courts should look through to the elements of the state-level predicate violation to decide if the VICAR offense constitutes a crime of violence under 924(c)(3)(A). The case was remanded to the district court to consider whether California murder involves the requisite force to be a valid predicate for a 924(j)(1) conviction and to address the Government’s procedural arguments.
APPEAL/2254. The Eleventh Circuit vacated and remanded Joseph Williams v. Warden, GDCP, 2024 U.S. App. LEXIS 24333 (11th Cir. Oct. 8, 2024). Williams appealed the district court’s denial of his petition for a writ of habeas corpus. The court granted a Certificate of Appealability (COA) as to the following claims: (1) Whether the district court violated Williams’s due process rights by dismissing Claims 1(a)–1(c), 1(h)–1(m), 1(o), 1(r), 1(t), 1(x), 1(y), 1(aa)–1(dd), 1(ff), 1(gg), 1(ii), 1(jj), 1(ll), 1(oo), 1(qq)–1(ss), 1(uu)–1(aaa), 1(ccc)–1(ggg), and 1(iii) without giving Williams notice of its intent to dismiss these claims or an opportunity to respond. (2) Whether the district court violated Williams’s due process rights by denying him leave to amend Claims 1(i), 1(j), 1(k), 1(l), 1(r), 1(t), 1(x), 1(aa), 1(bb), 1(ll), 1(qq), 1(xx), 1(iii), and Claim 2 after the court dismissed them as insufficiently pled under Rule 2(c) of the Rules Governing Section 2254 Proceedings. After careful review and with the benefit of oral argument the court found that the district court violated the Supreme Court’s directive in Day v. McDonough, 547 U.S. 198, 210 (2006) that a habeas petitioner is entitled to notice and opportunity to be heard before sua sponte dismissal of his petition. Williams’s due process rights were violated because the district court failed to give him notice and afford him an opportunity to respond before sua sponte dismissing thirty-five of his claims. Thus, the court vacated and remanded to the district court to provide Williams with notice and opportunity
to address whether he sufficiently pled those thirty-five claims.
APPEAL/2241/JAIL CREDIT. The Seventh Circuit reversed and remanded Matthew Borowski v. Dan Sproul, 2024 U.S. App. LEXIS 25245 (7th Cir. Oct. 3, 2024). Matthew Borowski filed a petition for a writ of habeas corpus arguing that the Bureau of Prisons miscalculated his federal prison sentence by failing to credit him for time he spent in state custody. The district judge denied the petition, reasoning that the Bureau committed no such error and that, even if it had, Borowski had received a below-guidelines sentence to account for that time. Because the Bureau’s failure to credit Borowski is inconsistent with the plain language in 18 USC 3585(b), the court reversed and remanded.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for resentencing United States v. Leatrice De Bruhi-Daniels, 2024 U.S. App. LEXIS _____, No. 18-cr-188 (5th Cir. Oct. 11, 2024). A federal agent stationed in Dubai, Leatrice De Bruhl-Daniels, developed a romantic relationship with a Syrian national, Nadal Diya, who was under investigation for suspected ties to terrorism. Despite warnings from her colleagues, De Bruhl-Daniels disclosed confidential information to Diya, including details about an ongoing counterterrorism investigation. She later lied to federal investigators about these disclosures. Following a jury trial in the Southern District of Texas, De Bruhl-Daniels was convicted on twelve counts related to her conduct and sentenced to 108 months in prison. She appealed four of her convictions and her overall sentence, arguing that her false statements did not involve international terrorism under 18 USC 1001(a), that the statute’s sentencing enhancement was unconstitutionally vague, and that her conduct did not fall under the scope of 18 USC 1512(c)(2). The Fifth Circuit affirmed De Bruhl-Daniels' conviction on Count 24, finding sufficient evidence that her false statements involved international terrorism, thus justifying the enhanced sentence under 1001(a). The court also held that the statute was not unconstitutionally vague. However, the court vacated her convictions on Counts 15, 36, and 37, which were based on obstructing an official proceeding, citing the Supreme Court’s recent decision in Fischer v. United States. The court determined that her conduct did not fall within the scope of 1512(c)(2) as it did not involve tampering with evidence. As a result, the Fifth Circuit vacated De Bruhl-Daniels' sentence and remanded the case for resentencing based on the remaining convictions.
APPEAL/RESENTENCE. The Eleventh Circuit vacated and remanded for resentencing United States v. Quantez Cooper, 2024 U.S. App. LEXIS 25366 (11th Cir. Oct. 8, 2024). Cooper appealed his sentence for conspiracy to distribute and possess with intent to distribute methamphetamine and heroin. He argued and the Government agreed that the district court improperly calculated the sentencing guidelines in his case. After review, the court agreed with the parties. The court vacated Cooper’s sentence and remanded for resentencing. Both parties assert, and the court agreed, that the district court’s calculation of the sentencing guidelines was erroneous. In Dupree, which was decided prior to Cooper’s sentencing, the court held that “inchoate” offenses, such as the conspiracy to which Cooper pleaded guilty, were not “controlled substance offenses” for the purposes of USSG 4B1.1. Yet the district court accepted the PSI’s assessment that the instant offense qualified as a controlled substance offense for purposes of the career offender enhancement. The district court thus plainly erred in determining that Cooper qualified as a career offender.
APPEAL/2241/FSA TIME CREDITS – BAD DECISION. The Second Circuit held in Charles Giovinco v. Pullen, 2024 U.S. App. LEXIS 25348 (2d Cir. Oct. 8, 2024). In 2008, Charles Anthony Giovinco pled guilty to enticement of a minor and possession of child pornography. He received concurrent sentences of 235 months for enticement and 120 months for possession. The First Step Act of 2018 (FSA) allows eligible prisoners to earn time credits for participating in certain programs, but excludes those serving sentences for specific offenses, including possession of child pornography. Giovinco argued that he should be eligible for FSA time credits after completing the sentence for the ineligible offense. The Bureau of Prisons (BOP) denied his request, stating that his entire term of imprisonment must be considered as a single, aggregated sentence, making him ineligible for FSA time credits. Giovinco filed a habeas petition, which the District of Connecticut denied, deferring to the BOP's interpretation. The Second Circuit held that under 18 USC 3584(c), multiple terms of imprisonment must be treated as a single, aggregate term for administrative purposes, including the administration of FSA time credits. Therefore, a prisoner serving any part of an aggregated sentence for an ineligible offense is not eligible to earn FSA time credits. The court affirmed the district court's judgment, agreeing that the BOP correctly aggregated Giovinco's sentences and determined his ineligibility for FSA time credits.
Comments