The Law Office of Tom Norrid
SAMARITAN PROJECTS LLC
P.O. Box 9244
Springfield, MO 65801-9244
417-236-1179 – 417-818-1938
The SAMARITAN-PROJECT prepares post-conviction and compassionate release motions under the direction of Attorney Tom Norrid. The Project retrieves documents at reasonable prices. The Project newsletter reports every winning published district court and court of appeals case for the week in review.
CR.RIS/FAMILY CIRCUMSTANCES. The Southern District of New York granted a CR.RIS motion in United States v. Christian Costea, 2024 U.S. Dist. LEXIS 225813 (S.D. N.Y. Dec. 13, 2024). Costea pled guilty to conspiracy to commit money laundering in violation of 18 USC 1956(h) in Oct. 2022, and was sentenced in April 2023 to 26 months imprisonment to be followed by two years of supervised release. Costea voluntarily surrendered in Feb. 2024 and was initially designated to FCI Otisville. In Oct. 2024, he was transferred to a Residential Reentry Management Center. The Government noted that according to the Federal Bureau of Prison's ("BOP") website Costea's expected release date is Oct. 11, 2025. Costea argued that extraordinary and compelling circumstances warrant the conversion of the remainder of his sentence to a term of incarceration due to (1) the advanced age and declining health of his parents, and (2) the death of Costea's wife, who served as the primary caretaker of their 18-year-old and 16-year-old sons. The relevant Sentencing Guidelines policy statement, Section 1B1.13, provides that extraordinary and compelling reasons exist due to "[t]he incapacitation of the defendant's parent when the defendant would be the only available caregiver for the parent[,]" or due to "[t]he death or incapacitation of the caregiver of the defendant's minor child." USSG 1B1.13(b)(3)(A) & (B). Costea's Motion wass granted. His custodial sentence was reduced to time served, and an additional special period of supervised release was imposed pursuant to 18 USC 3582(c)(1)(A), through his currently-scheduled sentence expiration date of Oct. 11, 2025.
APPEAL/CR.RIS/AMENDMENT 821. The First Circuit vacated and remanded United States v. Anthony Harris, 2024 U.S. App. LEXIS 31382 (1st Cir. Dec. 4, 2024). Harris appealed from the district court's denial of his motion captioned Motion for Compassionate Release or Reduction of Sentence Pursuant to 18 USC 3582(c)(1)(A). When opposing the motion the Government offered arguments primarily focused on the question whether sentencing relief pursuant to 18 USC 3582(c)(2) and Amendment 821 to the sentencing guidelines might be in order. More specifically the Government argued Harris was ineligible for sentencing relief because the district court had deemed him a career offender at sentencing; this argument would have been directly relevant for purposes of determining eligibility for sentencing relief under Amendment 821 but did not speak directly to Harris’s eligibility for compassionate release relief. USSG 4C1.1 ("Adjustment for Certain Zero-Point Offenders"). The district court denied relief because Harris's "sentence included an enhancement for possessing a firearm precluding him from being a zero-point offender." The district court's stated reasoning suggests the district court construed Harris's motion as one pursuant to 3582(c)(2) and Amendment 821. Harris filed a notice of appeal an opening brief arguing the district court mistakenly construed his original motion as one pursuant to 3582(c)(2) and Amendment 821, when the motion properly should have been construed as a motion for compassionate release pursuant to 3582(c)(1)(A)(i) and related provisions. The Government filed a motion seeking summary vacatur and remand, agreeing with Harris's position his original motion should have been construed as one seeking compassionate release. The court granted the Government's motion and vacated the district court's order of March 8, 2024, and remanded for further consideration of appellant's motion under the appropriate rubric.
CR.RIS/MEDICAL. The Southern District of New York granted a CR.RIS motion in United States v. Salvatore Tagliaferro, 2024 U.S. Dist. LEXIS 223755 (S.D. N.Y. Dec. 11, 2024). The defendant was initially charged in a five-count indictment. Count One charged him with conspiracy to commit embezzlement of Union assets and honest services wire fraud in violation of 18 USC 371. Count Two charged defendant with conversion of Union assets in violation of 29 USC 501(c) and 18 USC 2. Count Three charged defendant with honest services wire fraud in violation of 18 USC 1343, 1346, and 2. Count Four charged defendant with witness tampering in violation of 18 USC 1512(b)(1) and 2. Count Five charged defendant with obstruction of justice in violation of 18 USC 1512(b)(2)(A) and 2. The Court sentenced defendant to a below Guidelines sentence of 60 months imprisonment. The defendant has served approximately 34 months, or over 50% of his 60-month sentence. Assuming maximum good-time credit his expected release date is June 5, 2025. The defendant argued extraordinary circumstances exist because he suffers from "multiple serious and potentially fatal health conditions," including "out-of-control hypertension," "a documented history of sleep apnea," and "acid reflux," and because he needs to be released to help care for his "special-needs son who struggles with autism." The defendant's condition of high blood pressure is not routine as he has early onset cardiovascular disease. At age 43, in 2007, defendant had heart surgery in which a stent was placed in his artery. Upon reporting to the BOP the defendant brought his CPAP machine but he was not allowed to bring it into the institution. Although he immediately began the process to obtain a CPAP machine, he did not receive one until Oct. of 2023 - more than a year later. Although the Court is not a doctor, the persistence of the defendant's admittedly astronomical blood pressure demonstrates that the BOP is not adequately treating his condition. In the Court's view the risk of defendant's untreated high blood pressure is exacerbated by his family history. Accordingly, the Court found that the defendant had established extraordinary and compelling reasons for release. Sentence reduced to time served.
CR.RIS/DISPARITY. The Southern District of Texas granted a CR.RIS motion in United States v. Ernesto Rico-Elizondo, 2024 U.S. Dist. LEXIS 221985 (S.D. Tex. Dec. 6, 2024). On June 25, 2013, the Court sentenced defendant to 240 months imprisonment on his conviction under 21 USC 841(b)(1) for possession of methamphetamine with intent to distribute. As relevant here, 1B1.13(b)(6) provides for a sentence reduction based on extraordinary and compelling circumstances where: (i) the defendant has served at least 10 years of his sentence; (ii) a non-retroactive 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"; and (iii) the defendant's individualized circumstances support a sentence reduction. See United States v. Jean, 108 F.4th 275, 289-90 (5th Cir. 2024). Defendant has served more than ten years of his sentence so he satisfies the first prong of 1B1.13(b)(6). Jean, 108 F.4th at 289-90. The next prong is whether defendant has demonstrated that a change in law produced a gross disparity between the sentence defendant is serving and the sentence likely to be imposed when his motion was filed. See id. at 290. The Court was satisfied that a gross disparity exists between the previously controlling statutory minimum and the sentence the Court would have imposed at the time defendant filed his motion. Defendant premises his motion on the First Step Act of 2018's effect on the mandatory minimum applicable to his sentence. He argued that due to the Act, his prior marijuana felony offense would no longer trigger a 20-year mandatory minimum. At sentencing, the 20-year mandatory minimum applied because of defendant's prior marijuana offense. See First Step Act, Section 401. Significantly, the First Step Act struck the term "felony drug offense" from 21 USC 841(b)(1)(A)'s enhanced statutory minimum provision and substituted "serious drug felony" in its place. Defendant only served six months on his prior felony marijuana offense, so he is correct that it would no longer qualify as a "serious drug felony" after passage of the First Step Act. The defendant’s sentence was reduced to 176-months.
CR.RIS/DEMENTIA. The Southern District of New York granted a CR.RIS motion in United States v. Jose Tavarez. 2024 U.S. Dist. LEXIS 221487 (S.D. N.Y. Dec. 6, 2024). In the spring 2022, Tavarez was arrested after law enforcement seized fentanyl, fentanyl analogue and heroin from both his apartment and a confidential source who received narcotics from him. Tavarez admitted that the narcotics were his and eventually pled guilty, pursuant to a plea agreement, to one count of conspiracy to distribute and possess with intent to distribute 40 grams or more of fentanyl, 10 grams or more of fentanyl analogue and 100 grams or more of heroin, in violation of 21 USC 841(b)(1)(B) and 846. The Court sentenced Tavarez in Feb. 2023. At the time, Tavarez was 70-years old and suffering from hypertension, diabetes and herniated disks, and had recently been diagnosed with "possible senior dementia." The court sentenced him to the mandatory minimum term of 60 months in light of the weighty mitigating circumstances posed by his age and poor health. According to the Bureau of Prisons website, Tavarez is scheduled to complete his term of incarceration on July 4, 2026. Upon his release, he will be transferred into ICE custody and deported to the Dominican Republic. Section 1B1.13 provides that extraordinary and compelling reasons exist when a defendant is suffering from a terminal illness such as "advanced dementia," has physical, cognitive or age-related impairments that "substantially diminish[]" his ability to provide self-care while incarcerated, or presents "any other [similar] circumstance." USSG 1B1.13(b)(1)(A)-(B), (b)(5). According to Tavarez, his dementia has progressed and he is experiencing severe pain. He continues to suffer from diabetes, hypertension and an enlarged prostate, and will never make a full recovery from his ailments. The Court agreed with Tavarez that he has demonstrated "extraordinary and compelling reasons" under section 3582(c)(1)(A)(i). Tavarez's dementia and other medical conditions meet that criteria. His sentence was reduced to time served and he will be transferred into ICE custody for deportation to the Dominican Republic.
APPEAL/2255/DAVIS/18 USC 924(c). The District of Columbia reversed and remanded United States v. Bryan Burwell, 2024 U.S. App. LEXIS 31086 (D.C. Cir. Dec. 9, 2024). Bryan Burwell and Aaron Perkins were involved in a series of bank robberies and were convicted in the United States District Court for the District of Columbia. They were sentenced to lengthy prison terms, including mandatory minimum sentences for firearms-related convictions under 18 USC 924(c), which mandates enhanced penalties for using a firearm during a crime of violence. Burwell and Perkins argued that their convictions under 924(c) were erroneous because federal bank robbery under 18 USC 2113(a) is not categorically a crime of violence. The District Court denied their post-conviction motions, which challenged the application of 924(c) based on the Supreme Court's decision in United States v. Davis, which invalidated the residual clause of 924(c) as unconstitutionally vague. Burwell and Perkins appealed, arguing that bank robbery by extortion does not involve the use or threat of force and thus cannot be considered a crime of violence under the elements clause of 924(c). The District of Columbia Circuit held that 18 USC 2113(a) is indivisible regarding the means of committing bank robbery—by force and violence, intimidation, or extortion. The court concluded that extortion, as a means of committing bank robbery, does not necessarily involve the use or threat of force. Therefore, bank robbery under 2113(a) does not qualify as a crime of violence under 924(c). Consequently, the court vacated Burwell's and Perkins's 924(c) convictions and remanded the case to the District Court to determine whether to release them immediately.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for resentencing
United States v. Keith Ashley, 2024 U.S. App. LEXIS 31625 (5th Cir. Dec. 12, 2024). Ashley is a licensed financial advisor was charged and convicted on 17 counts of violating federal law, including mail and wire fraud, Hobbs Act robbery, and bank theft. He operated a Ponzi scheme and allegedly murdered one of his clients to steal funds from the client’s bank account and benefit from the client’s life insurance proceeds. The district court sentenced Ashley to 240 months imprisonment for each of 15 counts of wire and mail fraud and imposed life sentences for his convictions of Hobbs Act robbery and bank theft. In the Eastern District of Texas, Ashley was found guilty on all counts presented. He filed motions for continuance and severance, which were denied by the district court. The jury found Ashley guilty on all counts, and the district court sentenced him accordingly. Ashley then appealed, challenging the sufficiency of the evidence for most of his convictions, the reasonableness of his sentence, and the denial of his motions for continuance and severance. The Fifth Circuit reviewed the case. The Government conceded that there was insufficient evidence to convict Ashley of five counts and that the life-sentence enhancement for his conviction of bank theft did not apply. The Fifth Circuit agreed affirming some of Ashley’s convictions vacating others, and remanding the case for resentencing and further proceedings. Specifically, the court affirmed Ashley’s convictions on Counts 1, 3, 14, and 19, vacated his convictions on Counts 2, 4, 5, 6, 9, 10, 11, 12, 13, 15, 16, and 18, and remanded for resentencing. The court also addressed Ashley’s challenges to the procedural and substantive reasonableness of his sentence and the cumulative error doctrine but found no reversible error in those respects.
APPEAL/RESENTENCE. The Fifth Circuit vacated and remanded for resentencing United States v. Juan Vega-Santos, 2024 U.S. App. LEXIS 30922 (5th Cir. Dec. 6, 2024). In June 2022, Juan Jose Vega-Santos was charged with illegal reentry into the United States following removal under 8 U.S.C. § 1326(a)–(b). He pled guilty without a plea agreement. The district court sentenced him to 60 months in prison, an upward variance from the advisory guidelines range, and imposed three years of supervised release with special conditions, including a requirement to undergo a psychosexual evaluation and participate in sex offender treatment if recommended by an evaluator. The Western District of Texas imposed the special condition as part of Vega-Santos's supervised release due to his prior felony conviction for sexual intercourse with a minor. Vega-Santos did not challenge this condition in the district court. On appeal, he argued that the condition constituted an unlawful delegation of the district court’s sentencing authority and was impermissibly ambiguous. The Fifth Circuit held that the special condition requiring Vega-Santos to participate in sex offender treatment if recommended by an evaluator constituted an unlawful delegation of judicial authority. The court noted that the imposition of a sentence, including the terms and conditions of supervised release, is a core judicial function that cannot be delegated. The court found that the district court's error was clear or obvious and affected Vega-Santos's substantial rights. The error also seriously affected the fairness, integrity, or public reputation of judicial proceedings. Consequently, the Fifth Circuit vacated the special condition and remanded the case to the district court for resentencing consistent with its opinion.
APPEAL/FEDERAL TORT CLAIM. The Fourth Circuit vacated and remanded Burl Washington v. Federal Bureau of Prisons. 2024 U.S. App. LEXIS 31451 (4th Cir. Dec. 11, 2024). Burl Washington brought an action against the United States and the Federal Bureau of Prisons (“BOP”), alleging violations of the Federal Tort Claims Act (“FTCA”), Section 504 of the Rehabilitation Act, and the Eighth Amendment. In his complaint, Washington alleged that BOP officials failed to adequately treat and provide accommodations for his serious medical condition (open-angle glaucoma) and attendant disability (legal blindness). The matter proceeded to a five-day bench trial, after which the district court rejected all of Washington’s claims. On appeal, he contends that certain portions of the district court’s decision regarding his FTCA and Section 504 claims were factually and legally erroneous. The court affirmed in part, vacated in part, and remanded for further proceedings consistent with this decision.
APPEAL/1983. The Seventh Circuit vacated and remanded Adam Titus v. David Gomez, 2024 U.S. App. LEXIS 30422 (7th Cir. Dec. 3, 2024). Adam Titus who is a state prisoner in Illinois sued several prison officials under the Eighth Amendment for subjecting him to a prolonged stay in a cell with an unsanitary and inoperable toilet and sink. 42 USC 1983. The district court screened Titus’s amended complaint, 28 USC 1915A, and dismissed it with prejudice for failure to state a claim. On appeal, Titus asserted that he alleged sufficient facts to state a violation of his constitutional rights. The Seventh Circuit agreed and vacated and remanded for further proceedings.
APPEAL/PLRA. The Seventh Circuit vacated and remanded Kevin Smith v. Officer Foster, 2024 U.S. App. LEXIS 30978 (7th Cir. Dec. 5, 2024). The Prison Litigation Reform Act requires that prisoners who seek to sue correctional officials first exhaust all available administrative remedies. 42 USC 1997e(a). Kevin Smith who is an Indiana prisoner swears (and the defendants dispute) that he filed a grievance alleging that the defendants violated his Eighth Amendment rights. He also swears that the prison blocked his attempt at an administrative appeal. Without holding a hearing the district court entered summary judgment for the defendants, finding that Smith failed to exhaust available administrative remedies. Because the court should have held a hearing to determine what administrative remedies were available to Smith. and if he exhausted the remedies, the Seventh Circuit vacated and remanded.
APPEAL/A983/EXCESSIVE FORCE. The Eighth Circuit reversed and remanded Matthew Cartia v. Beeman, 2024 U.S. App. LEXIS 31211 (8th Cir. Dec. 10, 2024). Matthew Cartia and Autumn Adams were arrested by officers when they attempted to interfere with a police investigation at Cartia's parents' house. The officers claimed that Cartia and Adams were interfering with their work, leading to a confrontation where Cartia was handcuffed and taken down using a "hip-toss" maneuver. Adams was also arrested after she tried to intervene. Both Cartia and Adams alleged that the officers used excessive force during and after their arrests, including claims that Cartia was struck and choked by the officers. The Eastern District of Missouri granted summary judgment in favor of the defendants, including the officers and Lincoln County. The magistrate judge concluded that the officers were entitled to qualified immunity and that Lincoln County was not liable under Monell for the officers' actions. The Eighth Circuit affirmed the grant of summary judgment for some claims but reversed it for others. The court held that the officers were entitled to qualified immunity for most of their actions, including the initial takedown and restraint of Cartia, as well as the force used against Adams. However, the court found that there were genuine issues of material fact regarding the excessive force claims against Officers Beeman and Gugliano for allegedly striking and choking Cartia after he was subdued. These claims were remanded for further proceedings. The court also found that the state law claims of assault and battery and negligence against these officers should proceed to trial, as there was sufficient evidence to suggest they may have acted with malice or bad faith. The court affirmed the dismissal of the remaining claims.
IMMIGRATION. The Eighth Circuit vacated and remanded Quito-Guachichulca v. Garland, 2024 U.S. App. LEXIS 23-1069 (8th Cir. Dec. 9, 2024). Simon Quito-Guachichulca, a lawful permanent resident, pled guilty to third-degree criminal sexual conduct under Minnesota law. Following his conviction the Government initiated removal proceedings arguing that his crime was an "aggravated felony" under federal law, making him deportable. Initially, the Government classified the crime as a "crime of violence," but the Supreme Court's decision in Sessions v. Dimaya rendered that classification impermissibly vague. Consequently, the Eighth Circuit vacated the removal order and remanded the case to the Board of Immigration Appeals (BIA) for reconsideration. On remand, the Government reclassified Quito's crime as "rape," another type of "aggravated felony." Both an immigration judge and the BIA agreed with this classification. Quito then petitioned for review, arguing that the government’s change in theory violated the doctrine of res judicata. The Eighth Circuit found that res judicata did not apply because there was no final judgment on the merits due to the vacated order. The Eighth Circuit reviewed whether Minnesota’s third-degree criminal sexual conduct statute fits the federal definition of "rape" under immigration law. The court applied the categorical approach, examining the statutory elements rather than Quito's actual conduct. The court determined that the federal definition of "rape" in 1996 did not include digital or mechanical penetration, which is covered under Minnesota’s statute. Therefore, the court concluded that there was a categorical mismatch between the state and federal definitions. The Eighth Circuit granted Quito's petition for review, vacated the BIA's order, and remanded the case for further proceedings, holding that Minnesota’s third-degree criminal sexual conduct does not qualify as "rape" under federal immigration law.
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