We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A REMARKABLE ORDER, A “HOLLOWAY” EASTER EGG

A fascinating order from Judge David Larimer in the Western District of New York is focusing attention on an overlooked section of the First Step Act.

First, the order: thirteen years ago, Chad Marks took a drug count and two 18 USC 924(c) counts to trial. Had he pled guilty like his co-defendants, he would be home now. But he rolled the dice and lost, and Judge Larimer was forced by statute to hammer him with 40 years, a mandatory minimum of 10 for the drugs, 5 for the first 924(c) and 25 for the second 924(c). 

Over 13 years, the Judge said in his Order, Chad has gained a college degree and completed over 100 programs. Now Chad has asked the judge to ask the U.S. Attorney to agree to let the judge vacate one of the 924(c) convictions, which would cut Chad to 15 years and get him immediate release. The Judge’s Order, citing Chad’s “extraordinary accomplishments,” asks the Government to “carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions. This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of ‘stacking’.”

You may remember the Holloway decision of a few years ago, where EDNY Judge Gleeson convinced the U.S. Attorney to consent to an otherwise unauthorized court order cutting an inmate’s sentence, because of the inmate’s prison accomplishments and the harshness of the mandatory minimums. I wrote about it at the time, referring to the decision as a “black swan” and calling out some hopemongers who were trying to fleece inmates of money to prepare their own “Holloway” motions. Holloway had a cold fusion problem: it was elegant, even beautiful, but it was not replicable. Instead, a Holloway motion would only work when the court and the U.S. Attorney agreed to ignore the strict procedural rules against granting the remedy the inmate sought.

Holloway was a grand conspiracy among the players – defendant, judge and prosecutor – to let the defendant out of prison. I praised its wisdom and creativity, even while lamenting that it would hardly work anywhere else in the nation, where jurists like Judge Gleeson, U.S. Attorneys like Loretta Lynch, and defendants like Francois Holloway were not in the same courtroom at the same time.

But First Step may have changed all of that, in a way Congress probably neither noticed or intended. Everyone knows that the Act changed compassionate release to let a prisoner take his or her request under 18 USC 3582(c)(1) to court if the Federal Bureau of Prisons either turns it down or (as happens more often) fails to act on it within 30 days. But what went unnoticed in all the talk about dying inmates is this: there is more than one way to get a sentence modified under 3582(c)(1).

In computer software and media, an Easter egg is an intentional inside joke, hidden message or image, or feature hidden in a program. The Easter egg in compassionate release is subsection 3582(c)(1)(A)(i) permits sentence reduction for any “extraordinary and compelling” reason, not just illness. Traditionally, inmates have been referred by the BOP for acts of heroism. I knew of one UNICOR worker referred under (c)(1)(A)(i) who save the life of his BOP staff supervisor when the man collapsed of a heart attack. But “compelling and extraordinary” has hardly ever been used, because the BOP had to propose it to the court, and the BOP did not care to do so.

That has changed. As Ohio State law professor Doug Berman noted last week in his Sentencing Law and Policy blog when writing about the Chad Marks’ case, “I [use] the term “extraordinary and compelling” in this post because I do not think the federal judge here has to rely on the U.S. Attorney to do justice in this case now that the First Step Act has changed the process around judicial consideration of sentence modifications under 18 USC 3582(c)(1)(A)(i)… [The] Act now provides that an inmate can bring a request to “modify a term of imprisonment” directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that “extraordinary and compelling reasons warrant such a reduction.” This is what gets described often as the “compassionate release” provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find “extraordinary and compelling reasons warrant such a reduction.” As I read this new Marks Order, I think Judge Larimer has already essentially made such a finding.”

I know of one inmate who already is using his case history and BOP record in asking a court for a (c)(1)(A)(i) sentence modification. I do not think, generally speaking, such a motion will work unless the judge already is unhappy with the length of a mandatory sentence. But that will hardly stop the shadier “paralegal” shops from trying to sell people Holloway motions upgraded to (c)(1)(A)(i)s.

Order, United States v. Marks, Case No. 03-CR-6033 (WDNY Mar 14, 2019)

Sentencing Law and Policy, Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case (Mar 19)

– Thomas L. Root