U. S. Supreme Court Happenings and Favorable Federal Circuit Opinions for the Week of February 24-28, 2025--

U. S. Supreme Court Happenings– Week Ending February 28, 2025 –

The U. S. Supreme Court was back in action with oral arguments this week after nearly a month off, and today's action starts a lengthy new order list running 58 pages. On the very first page of today's order list, the Supreme Court addresses two Eleventh Circuit criminal cases (Whitaker and Rambo) that involved constitutional challenges to the federal prohibition of gun possession by felons in this way: “The judgments are vacated, and the cases are remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of United States v. Rahimi, 602 U.S. 680 (2024).” Both Whitaker and Rambo were resolved by the Eleventh Circuit after the Supreme Court's Rahimi ruling; the Eleventh Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a Second Amendment challenge to the federal felon-in-possession charge.

Appeals by Oklahoma death row defendant Richard Glossip has now produced two notable opinions from the US Supreme Court. A decade ago as reported here, in a 5-4 ruling in favor of the state in Glossip v. Gross, 576 U.S. 863 (2015), the Supreme Court rejected Glossips's claims that using midazolam in lethal injection protocols violated the Eighth Amendment. On Tuesday, in Glossip v. Oklahoma, No. 22-7466 (S. Ct. Feb. 25, 2025), the Supreme Court reversed Glossip's conviction and remanded for a new trial based on its conclusion that prosecutors violated its constitutional obligation to correct false testimony.

Favorable Federal Circuit Opinions for the Week of February 24-28, 2025 –

3rd Circuit

United States v. Ashe, (No. 24-1027)(3rd Cir. February 27,,2025)– On December 21, 2023, Ashe pleaded guilty to being a felon in possession of a firearm after officers observed a handgun in his sweatshirt pocket during a traffic stop. At the sentencing hearing, both the government and the defense argued that Ashe’s sentence should be calculated using a total offense level of 12. The District Court, however, disagreed and found a total offense level of 17, applying an enhancement arising from Ashe’s possession of an AK- style pistol (the “AK Pistol”) found in the trunk of Ashe’s car more than six months after Ashe was incarcerated and his car was impounded. The District Court found that a preponderance of the evidence supported Ashe’s constructive possession of the AK Pistol, finding compelling that it was found in Ashe’s trunk and that Ashe had a history of felon-in-possession charges. Having found that Ashe possessed the AK Pistol, the District Court applied an enhancement for possession of a semiautomatic firearm capable of accepting a large capacity magazine and sentenced him to 37 months of imprisonment. Because the District Court applied this enhancement without sufficient evidence that Ashe possessed the AK Pistol, the Court vacated his sentence and remanded this case for resentencing absent the enhanced base offense level.

4th Circuit

United States v. Parham, (No. 23-4249)(4th Cir. February 26, 2025)– Parham appealed the 84-month sentence the district court imposed after he pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argued that the district court erred in calculating his Sentencing Guidelines range because it incorrectly concluded that his prior conviction for Virginia common law robbery (“Virginia robbery”), under Va. Code § 18.2-58 (1978), qualified as a conviction for crime of violence for purposes of a sentencing enhancement under the U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A), 4B1.2(a). He argued that our court’s precedent established that Virginia robbery can be committed by threatening to accuse the victim of having engaged in sodomy, and therefore disqualifies it as a crime of violence because it criminalizes conduct broader than generic robbery. The Court agreed with Parham and reversed the judgment of the district court, vacated Parham’s sentence, and remanded to the district court for resentencing. Parham also argued that his prior conviction under Virginia’s use of a firearm during the commission of a robbery (“Virginia use of a firearm”), under Va. Code § 18.2-53.1 (1994), is not a crime of violence. The Court was not satisfied that the district court directly addressed this issue, it instructed the district court to consider the issue in the first instance on remand.

Valladares v. Ray (Warden), (No. 23-6932)(4th Cir. February 25, 2025)– The First Step Act established a system of mandatory time credits for incarcerated individuals who participate in recidivism reduction programming, with limited exceptions. One such exception, 18 U.S.C. § 3632(d)(4)(D)(lviii), makes ineligible those convicted of specific drug offenses where death resulted. This case addresses whether a conviction of a death-resulting enhancement is required for the exception to apply, or if it is enough that the facts show that a death did result. Because the Court found that Valladares was not convicted of the death-resulting enhancement, this hinges on whether a conviction of that enhancement is required for (lviii) to apply, even if the facts show that a death did result. The unambiguous statutory language establishes that (lviii) only applies when a defendant is convicted of the death-resulting enhancement. The Court therefore reversed the district court’s denial of Valladares’ petition.

10th Circuit

United States v. Brown, (No. 23-7041)(10th Cir. February 25, 2025)– Brown, while under the influence of methamphetamine, busted into a locked bathroom and stabbed his friend, Damion Martin, in the back of his skull. Martin was embracing Defendant’s sister, Lacie Watson, who was naked except for a shower curtain she had wrapped around her body. Brown was unaware Martin and Watson had a prior intimate relationship. What Defendant did know, however, was that Watson had just yelled at Martin to “get the fuck out” of the bathroom. Seconds later, Brown entered the bathroom and stabbed Martin twice, killing him. When Watson asked why he stabbed Martin, he exclaimed, “He was going to kill you, Lacie.” After the stabbing, Brown told three other people Martin had threatened to rape Watson. The government tried Brown on one count of First-Degree Murder in Indian Country, in violation of 18 U.S.C. §§ 1111(a), 1151 and 1153. He requested jury instructions on defense of another and the lesser-included offense of involuntary manslaughter. The district court refused to instruct the jury on defense of another, holding there was insufficient evidence his claim was objectively reasonable. But the court also omitted, without explanation, Brown requested involuntary manslaughter instruction raising the theory of imperfect defense of another. He argued this omission was plainly erroneous. The Court agreed because a defendant is entitled to a jury instruction on imperfect defense of another and the corresponding lesser-included offense of involuntary manslaughter if he tenders such an instruction and produced sufficient evidence that he subjectively believed deadly force was necessary to prevent death or great bodily harm to another, notwithstanding the fact that his belief was objectively unreasonable. Brown met that standard here and the Court reversed Brown’s conviction and remanded for a new trial.

United States v. Davis, (No. 24-5018)(10th Cir. February 25, 2025)– Davis, pled guilty to failing to register under 18 U.S.C. § 2250(a), and was sentenced to an above-guidelines sentence of 87 months’ imprisonment followed by 10 years’ supervised release. In a prior appeal, this Court granted a joint motion to remand to the district court for resentencing to (1) allow Davis to allocute prior to imposing an upward variance and (2) to make specific findings concerning a special condition of supervised release. On remand, the district court allowed Davis to allocute and struck the special condition. III R. 14, 28. The court again varied upward and imposed a sentence of 87 months’ imprisonment and 10 years’ supervised release. Davis appealed, challenging a two-point addition to his criminal history score pursuant to U.S.S.G. § 4A1.1(b) based on a misdemeanor conviction for consumption of liquor by a minor. The Court remanded for the district court to vacate Davis’s sentence and resentence him without the two-point addition.

COMMENT:

Based on the recent executive order of President Trump, Alert2020 believes that anyone who was convicted of being a felon in possession of a firearm and has a non-drug and non -violent predicate prior conviction should opt to have us look at their case to see if they may be able to challenge their § 922(g) conviction.

In light of the recent En Banc Third Circuit decisions in Range and Daniels, and the recent decisions in Sixth, Eighth and Ninth Circuit, we suggest that anyone with a non-violent non-drug conviction where they were charged under § 922(g) should opt for the quick lookup we are extending this offer through February of 2025. In addition, the First, Fourth, Ninth, and Tenth Circuits have determined that district courts may consider § 403(a)’s non-retroactive changes in combination with other factors presented by an incarcerated person. These Circuits effectively allow district courts to consider an incarcerated person’s stacked charges as an extraordinary and compelling reason, so long as they present another factor that may warrant compassionate release. In order to conduct the lookup, we will need an outside contact’s name and telephone number, where you went to court, and your case number. We will get in touch with your contact and let them know if you have any potential relief available from the above remedies. Our case evaluation telephone number for the above is (832) 346-0220.

For the last 30 years, we have been very successful on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate Release Motions, Earned Time Credits, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons and other specialized motions to mention a few avenues for relief we cover. The WCE is an excellent low-cost tool to see what can be done for you at any stage of the proceedings. It is thorough and detailed from day one of your case to present with our recommendations of any remedies available to you to gain relief.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.