The Tom Norrid Law Firm
SAMARITAN PROJECTS LLC
P.O Box 9244
Springfield, MO 65801
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 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.
CR.RIS/FAMILY CIRCUMSTANCES. The Southern District of New York granted a CR.RIS motion in United States v. Jackson, 2024 U.S. Dist. LEXIS 211101 (S.D. N.Y. Nov. 19, 2024). On Aug. 25, 2021, Jackson was charged in a one-count indictment with conspiring to distribute and possess with intent to distribute 280 grams and more of mixtures and substances containing a detectable amount of cocaine base, known colloquially as "crack cocaine," in violation of 21 USC 841(a)(1), 841(b)(1)(A), and 846. Jackson was sentenced to a below-guidelines custodial term of 27 months. Jackson advanced three reasons as "extraordinary and compelling" circumstances warranting the requested reduction: (1) his incarceration has been more punitive than the Court intended; (2) he has served more than 70% of his federal sentence; and (3) Jackson's partner, the sole caretaker of their two children, is suffering from a medical condition with symptoms that continue to worsen, which makes caring for their two young children increasingly difficult. The Court was persuaded that Jackson's family circumstances as detailed in his initial Motion papers, rise to the level of an "extraordinary and compelling reason" consistent with the Sentencing Commission policy guidance. Jackson's partner represents that her health issues are worsening, that these issues pose difficulties in caring for their two children, and that the lack of available alternative caregivers has prevented her from seeking the medical treatment that she needs to improve her condition. Sentence reduced to time served.
CR.RIS/REHABILITATION/TIME SERVED/DISPARITY/USSG 1B1.13(b)(6). The District of Maryland granted in part a CR.RIS motion in United States v. Leonard Benjamin, 2024 U.S. Dist. LEXIS 207511 (D. Md. Nov. 15, 2024). Benjamin is currently serving a sentence of 228 months for his involvement in a conspiracy to distribute heroin in the Baltimore, Maryland area between 2013 and Feb. 2014. Benjamin pled guilty to Count One of the Superseding Indictment which charged him with conspiring to distribute one kilogram or more of heroin in violation of 21 USC 846. Consistent with the plea agreement, the Court sentenced Benjamin to 228 months. Benjamin contends that his rehabilitative efforts, a disparity in sentencing, the length of his sentence, the amount of time served, a change in law, and his lack of danger to others establish extraordinary and compelling reasons justifying his early release. Benjamin stated he has served over 10 years of his sentence and that a change in law produced a gross disparity between the sentence he is serving and the sentencing he would receive today aligns with 1B1.13(b)(6). He has served more than 10 years of his sentence the timing requirement of 1B1.13(b)(6) is met. Benjamin would no longer qualify as a career offender if he were sentenced today for conspiracy to distribute heroin. The Fourth Circuit held that a 21 USC 846 drug conspiracy conviction no longer constitutes a "controlled substance offense" within the meaning of USSG 4B1.2(b). Benjamin's evidence of commendable post-sentencing rehabilitation weighs in favor of sentence reduction. While Benjamin's behavior while incarcerated has not been perfect, he has demonstrated an unwavering commitment to bettering himself, taking advantage of educational and rehabilitative courses and, for over two years, consistently holding a job while incarcerated, where he receives positive evaluations. Further, 18 USC 3553(a)(6) allows for the comparison of a defendant's sentence to his codefendants' sentences to determine if there are any unwarranted sentence disparities. Benjamin's total sentence was reduced from 228 months to 180 months imprisonment.
APPEAL/FSA/404(b). The Eleventh Circuit vacated and remanded United States v. Charles Baker, 2024 U.S. App. LEXIS 29674 (11th Cir. Nov. 21, 2924). Baker who proceeded pro se in the district appealed the denial of his “Motion to Modify a Term of Imprisonment, Pursuant to 18 U.S.C. § 3582(c)(1)(B).” The court treated his motion as a motion for a sentence reduction under 18 USC 3582(c)(2) based on retroactive Sentencing Guidelines Amendments and denied because it found Baker was ineligible for a sentence reduction under Amendment 821. Baker argued that the district court erred by construing his motion solely as a request for a sentence reduction under 3582(c)(2), and its failing to also consider his request for a sentence reduction under Section 404 of the First Step Act of 2018. Section 2(a) of the Fair Sentencing Act of 2010, amended 21 USC 841(b)(1) to reduce sentencing disparities between defendants convicted of offenses involving powder cocaine and crack cocaine. However, those amendments did not apply retroactively. Section 404 of the First Step Act allows a court to impose a reduced sentence as if the Fair Sentencing Act were in effect at the time the covered offense was committed. First Step Act 404(b). Here, the district court abused its discretion by construing Baker’s motion solely as requesting a sentence reduction under 3582(c)(2) instead of also a request for a sentence reduction under Section 404 of the First Step Act. In his motion, Baker described the Fair Sentencing Act, which was made retroactively applicable by Section 404 of the First Step Act. He also expressly stated that he was seeking a sentence reduction pursuant to the First Step Act, and distinguished his request or relief under the First Step Act from a 3582(c)(2) motion and asked the court to consider the 3553(a) factors. The case was reversed and remanded to the district court.
APPEAL/RESENTENCE. The Third Circuit vacated and remanded United States v. Jose Soto, 2024 U.S. App. LEXIS 28468 (3d Cir. Nov. 20, 2024). Jose Soto was convicted by a jury of conspiracy to commit bank robbery, two counts of bank robbery, and two counts of using and carrying a firearm during a crime of violence. At sentencing, the district court set his offense level at 29 and sentenced him to 289 months in federal prison, including two mandatory and consecutive seven-year terms. The offense level included a two-level enhancement for obstruction of justice based on allegations that Soto improperly interacted with jurors, a witness's brother, and victims. The District of New Jersey imposed the obstruction of justice enhancement based on three incidents: Soto stepping onto an elevator with jurors and asking one to press a button, interacting with a testifying witness's brother, and greeting victims at the courthouse. Soto's counsel argued that these interactions were not intended to obstruct justice, and that Soto had not been instructed to avoid such interactions. The district court, however, focused on the consequences of Soto's conduct rather than his intent, leading to the enhancement.
The Third Circuit reviewed the case and found that the district court's application of the obstruction of justice enhancement was not supported by adequate evidence. The appellate court noted that the district court did not explicitly adopt the findings of the presentence report and that the record lacked sufficient evidence to support the allegations of obstruction. The court emphasized that the enhancement requires a willful intent to obstruct justice, which was not demonstrated by Soto's actions. Consequently, the Third Circuit vacated the sentence and remanded the case for resentencing without the obstruction of justice enhancement.
APPEAL/RESENTENCE. The Fourth Circuit vacated and remanded United States v. David Chang, 2024 U.S. App. LEXIS 29484 (4th Cir. Nov. 20, 2024). David Chang participated in a drug-trafficking conspiracy from March to Oct. 2021, supplying large quantities of cocaine from California to Harold Campbell, a mid-level distributor in Virginia Beach, Virginia. After an investigation, Chang and Campbell were indicted for conspiracy to distribute cocaine, which carries a mandatory minimum sentence of five years imprisonment and four years supervised release. Both plead guilty, and Chang was initially sentenced to 72 months imprisonment and four years supervised release. The Eastern District of Virginia found Chang eligible for the safety valve under 18 USC 3553(f) but erroneously applied the statutory minimum sentence. On appeal, the Fourth Circuit vacated the sentence and remanded for resentencing. At the resentencing, the district court imposed a sentence of 69 months’ imprisonment and ten years’ supervised release, citing Chang’s significant role in the drug conspiracy and his criminal history. The Fourth Circuit reviewed the case and found that the increased term of supervised release, despite a slight reduction in imprisonment, constituted a harsher sentence. The court held that this harsher sentence raised a presumption of vindictiveness under North Carolina v. Pearce, which was not adequately rebutted by the district court. Consequently, the Fourth Circuit vacated Chang’s sentence and remanded for resentencing, emphasizing the need to avoid any appearance of vindictiveness in the sentencing process.
APPEAL/RESTITUTION. The Sixth Circuit vacated and remanded United States v. Joseph Gray, 2024 U.S. App. LEXIS 28917 (6th Cir. Nov. 20, 2024). Joseph Scott Gray, a decorated U.S. Army veteran, was convicted of defrauding the Department of Veterans Affairs (VA) by lying about his health to obtain benefits. After leaving the military in 2003, Gray falsely claimed severe disabilities to receive increased benefits, including "individual unemployability" and "aid and attendance" benefits. His fraudulent activities were exposed when investigators videotaped him performing daily activities without assistance, contradicting his claims of severe disability. The Western District of Michigan convicted Gray of several fraud-related offenses. The jury found him guilty, and the district court sentenced him to five years in prison and ordered him to pay $264,631 in restitution, covering benefits received from 2004 onward. Gray appealed, challenging the exclusion of an expert witness, the calculation of his criminal history score, the reasonableness of his sentence, and the restitution order. The Sixth Circuit upheld the exclusion of Gray's expert witness, Dr. Ennis Berker, as the proposed testimony was deemed irrelevant to the issues at trial. The court also found no procedural error in the calculation of Gray's criminal history score and deemed the five-year sentence substantively reasonable, considering the severity and duration of his fraudulent conduct. However, the court vacated the restitution order, ruling that it should not cover losses before Jan. 2015, as the indictment only charged Gray with a conspiracy beginning in 2015. The case was remanded for recalculation of the restitution amount limited to the period specified in the indictment.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for resentencing United States v. Edgar Minor, 2024 U.S. App. LEXIS 29530 (5th Cir. Nov. 20, 2024). Edgar Hermosillo Minor pled guilty to four drug charges in 2022, including importing and possessing methamphetamine and fentanyl with intent to distribute. His presentence report calculated a base offense level of 34, adjusted for his minimal role and acceptance of responsibility, but added five levels due to a career-offender enhancement based on three prior federal marijuana-related convictions from 2000 and 2010. This enhancement placed him in a sentencing range of 262 to 327 months, whereas without it, the range would have been 121 to 151 months. Minor objected to the enhancement, arguing that a 2018 amendment to the Controlled Substances Act (CSA) excluded hemp from the definition of marijuana, making his prior convictions no longer qualify as "controlled substance offenses." The district court overruled his objection and applied the enhancement and sentenced him to 180 months. The Western District of Texas overruled Minor's objection and applied the career-offender enhancement based on the CSA's definition of marijuana at the time of his prior convictions. Despite this, the court imposed a downward variance, sentencing Minor to 180 months, which he timely appealed. The Fifth Circuit held that the CSA's definition of "controlled substance" in effect at the time of sentencing for the current offense should be used to determine whether prior convictions qualify for the career-offender enhancement. The court found that the district court erred by applying the enhancement based on the outdated definition of marijuana. The court also concluded that the error was not harmless, as the district court did not explicitly state that it would impose the same sentence regardless of the correct Guidelines range. Consequently, the Fifth Circuit reversed the district court's decision and remanded the case for resentencing.
APPEAL/RESENTENCE/ACCA/ERLINGER. The Eleventh Circuit vacated and remanded United States v. Erik Barner, 2024 U.S. App. LEXIS 29493 (11th Cir. Nov. 20, 2024). Erik Barner is a federal prisoner proceeding with counsel who filed a motion for summary reversal arguing that Erlinger v. United States, 602 U.S. 821 (2024), clearly establishes that the district court erred in applying the Armed Career Criminal Act (“ACCA”) over both parties objections. He contends that, pursuant to Erlinger, the ACCA could not apply unless the Government proved to the jury, or he admitted, that the prior offenses were committed on occasions different from one another, which the Government did not show and he did not admit. The Government does not oppose his motion for summary reversal. In Erlinger, the Supreme Court held that judicial factfinding by a preponderance of evidence that a defendant has three ACCA predicate convictions committed on different occasions violates the Fifth Amendment’s guarantee of due process of law and the Sixth Amendment’s guarantee to a jury trial. 602 U.S. at 833-35. The Court held that this finding must be made by a jury beyond a reasonable doubt or freely admitted by the defendant in a guilty plea. In explaining its reasoning, the Court noted that its decision was “as nearly on all fours with Apprendi . . . as any [the
Court] might imagine.” Id. at 835. The Court emphasized that the ACCA’s different-occasions inquiry can be “intensely factual” and noted that, while judges may use Shepard documents—that is, documents like “judicial records, plea agreements, and colloquies between a judge and the defendant”—for the limited function of
“determining the fact of a prior conviction and the then-existing elements of that offense,” judges may not use Shepard documents to determine whether the “past offenses differed enough in time, location, character, and purpose to have transpired on different occasions.” Id. at 826-28, 838-41. The Court explained that “no particular lapse of time or distance between offenses automatically separates a single occasion from distinct ones.” Id. at 841. The Court also noted that “in many cases the occasions inquiry will be straightforward,” such as when “a defendant’s past offenses [are] different enough and separated by enough time and space,” though the Court stressed that this finding must still be made by a jury rather than a judge. Id. at 841-43.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for re-sentencing United States v. Edgar Minor, 2024 U.S. App. LEXIS 29530 (5th Cir. Nov. 20, 2024). Edgar Hermosillo Minor plead guilty to four drug charges in 2022, including importing and possessing methamphetamine and fentanyl with intent to distribute. His pre-sentence report calculated a base offense level of 34, adjusted for his minimal role and acceptance of responsibility, but added five levels due to a career-offender enhancement based on three prior federal marijuana-related convictions from 2000 and 2010. This enhancement placed him in a sentencing range of 262 to 327 months, whereas without it, the range would have been 121 to 151 months. Minor objected to the enhancement, arguing that a 2018 amendment to the Controlled Substances Act (CSA) excluded hemp from the definition of marijuana, making his prior convictions no longer qualify as "controlled substance offenses." The district court overruled his objection and applied the enhancement and sentenced him to 180 months. The Western District of Texas overruled Minor's objection and applied the career-offender enhancement based on the CSA's definition of marijuana at the time of his prior convictions. Despite this, the court imposed a downward variance, sentencing Minor to 180 months, which he timely appealed. The Fifth Circuit held that the CSA's definition of "controlled substance" in effect at the time of sentencing for the current offense should be used to determine whether prior convictions qualify for the career-offender enhancement. The court found that the district court erred by applying the enhancement based on the outdated definition of marijuana. The court also concluded that the error was not harmless, as the district court did not explicitly state that it would impose the same sentence regardless of the correct Guidelines range. Consequently, the Fifth Circuit reversed the district court's decision and remanded the case for re-sentencing.
APPEAL/SUPPRESSION. The Tenth Circuit reversed and remanded United States v. Santiago Martinez, 2024 U.S. App. LEXIS 29310 (10th Cir. Nov. 19, 2024). In the early hours of November 13, 2021, DeAnna Suazo was found dead outside her home on the Taos Pueblo, New Mexico, under her running vehicle, showing signs of being run over. Her boyfriend, Santiago Martinez, after a failed polygraph test, admitted to pushing Suazo to the ground and running her over. Martinez was indicted for second-degree murder in Indian Country. Several pretrial motions were adjudicated, leading to three separate appeals. The District of New Mexico granted Martinez's motion to suppress his post-polygraph statements to the FBI, ruling that he should have been re-Mirandized before the post-polygraph interview. The court also ruled inadmissible certain text messages between Suazo and Martinez, which the Government argued were not hearsay but showed their effect on Martinez. Additionally, the court excluded witness testimony of a prior incident where Martinez allegedly assaulted Suazo, ruling it inadmissible under Rule 404(b). The Tenth Circuit reviewed the case. The court reversed the district court's suppression of Martinez's post-polygraph statements, holding that the initial Miranda waiver was valid and did not require re-advisement before the post-polygraph interview. The court also reversed the exclusion of the text messages, agreeing with the Government that they were not offered for the truth of the matter asserted but to show their effect on Martinez. Lastly, the court reversed and remanded the exclusion of the prior assault testimony for reconsideration, given the changed evidentiary landscape with the admissibility of Martinez's statements. The case was remanded for further proceedings consistent with the appellate court's opinion.
APPEAL/REMOVE JUROR. The Fourth Circuit vacated and remanded United States v. Russell Laffitte, 2024 U.S. App. LEXIS 28934 (4th Cir. Nov. 20, 2024). The case involves Russell Lucius Laffitte who was convicted of bank and wire fraud in the District of South Carolina. The Government alleged that between 2006 and 2021, Laffitte, as CEO of Palmetto State Bank, conspired with Alex Murdaugh, a disbarred attorney, to defraud Murdaugh’s clients. Laffitte was accused of using his position to access settlement accounts, collecting fees, and extending unsecured loans to Murdaugh, resulting in nearly two million dollars being stolen from the accounts. Laffitte was charged with conspiracy to commit wire and bank fraud, bank fraud, wire fraud, and misapplication of bank funds. During the trial, the Government presented fifteen witnesses and Laffitte called eight witnesses and testified in his own defense. After the jury began deliberations, the court received notes from jurors indicating issues, including one juror needing medication and another feeling pressured. The district court decided to remove two jurors, Juror No. 88 and Juror No. 93, and replaced them with alternates. The jury then returned a guilty verdict on all counts. Laffitte appealed arguing that the removal of the jurors violated his Fifth Amendment right to be present, and his Sixth Amendment right to an impartial jury. The Fourth Circuit Court of Appeals reviewed the case and found that the removal of Juror No. 88 violated Laffitte’s Sixth Amendment right because there was a reasonable and substantial possibility that her removal was related to her views on the case. The court also found that the removal violated Laffitte’s Fifth Amendment right to be present, as he was not present during the in camera interview when the decision to remove Juror No. 88 was made. The court concluded that these errors were not harmless and vacated Laffitte’s convictions and sentence, remanding the case for a new trial.
APPEAL/JURY INSTRUCTIONS. The Fifth Circuit vacated and remanded for resentencing United States v. Parvez Qureshi, 2024 U.S. App. LEXIS 29526 (5th Cir. Nov. 20, 2024). Parvez Qureshi was convicted by a jury of one count of conspiracy to distribute controlled substances and four counts of distribution of controlled substances. Qureshi, a physician, had partnered with Rubeena Ayesha, an Advanced Practice Registered Nurse, to operate a pain management clinic. The clinic saw a high volume of patients, many of whom paid cash for prescriptions of controlled substances like Norco and Oxycodone. The Government alleged that Qureshi pre-signed blank prescriptions, which Ayesha used to prescribe these substances when Qureshi was not present. The Southern District of Texas initially tried Qureshi, resulting in a mistrial. In a subsequent trial, Qureshi was convicted on all counts. He was sentenced to 60-months for each count, to run concurrently. Qureshi appealed, arguing that the jury instructions were erroneous in light of the Supreme Court's decision in Ruan v. United States, which clarified the mens rea requirement for convictions under 21 USC 841. The Fifth Circuit found that the jury instructions for the substantive counts under 21 USC 841(a)(1) were erroneous because they did not require the jury to find that Qureshi knew he was acting in an unauthorized manner. This omission was not harmless, as Qureshi's knowledge was a contested issue at trial. However, the court held that the conspiracy instruction under 21 USC 846 was not erroneous, as it required the jury to find that Qureshi knew the purpose of the agreement was to distribute controlled substances without authorization. The Fifth Circuit vacated Qureshi's convictions for the four substantive counts and remanded for a new trial on those counts. The court affirmed Qureshi's conspiracy conviction, but vacated his sentence on all counts and remanded for re-sentencing on the conspiracy count.
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