Tag Archives: 3582(c)(1)

A Trio of Sentencing Cases – Update for May 22, 2019

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

2-0-1 ON SENTENCING ACTIONS LAST WEEK

Three separate proceedings on sentencing or sentence reduction came to our attention last week, unrelated except for the possibilities they represent.

colostomy190523First, Steve Gass asked his court for a compassionate release. While doing 106 months for six bank robberies (Mr. Gass preferred using a note rather than a gun in each of them), Steve was diagnosed with a malignant tumor located in his rectal wall. The tumor was successfully removed, but along with it, he lost his rectum and anus. The procedure left him dependent on a colostomy bag and subject to what the Court euphemistically called “special hygiene requirements” and heightened medical monitoring. (Having had a colostomy bag for six terrible weeks once, I have some sense of those “special” requirements – a gas mask and a gasoline-powered power washer are on the list).

While Steve had beaten the cancer, he argued, his current condition is nevertheless “both serious and difficult to manage in a prison setting, marked neither by enhanced sanitary conditions appropriate for colostomy-dependent patients or heightened monitoring necessary to prevent secondary effects of infection or recurrence of a malignancy.” Clearly, the tumor did not affect Steve’s remarkable capacity for understatement.

The government, being the caring and benevolent organism that it is, argued that Steve had “recovered” from colorectal cancer, so his colostomy condition – which he could and would have to manage for the rest of his life – cannot qualify as the kind of “extraordinary and compelling” reason for a reduction anticipated by 18 USC § 3582(c)(1)(A)(i).

compassion160124The district court, recognizing the government’s disingenuous argument for being the same substance that fills Steve’s colostomy bag – ruled that Steve had “shown that his physical and medical condition substantially diminishes his ability to provide self-care within the environment of a correctional facility. And this is not a condition that [he] will ever recover from — he will be device dependent and subject to enhanced hygiene and monitoring requirements for the rest of his life.” The court, with a gift for understatement the equal of Steve’s, thus held that the permanent colostomy was extraordinary and compelling enough.

Still, the court did not shorten Steve’s sentence. Rather, it creatively resentenced Steve to the time remaining on his sentence, but ordered Steve to home confinement for the remaining 28 months or so he had to serve. The decision showcases how the sentence reduction power can be employed with precision to fashion modifications that address the prisoner’s situation without simply letting recipients out to run amok

*     *     *

gunknot181009In the 6th Circuit, Dave Warren got a statutory maximum 120-month sentence for being a felon in possession of a gun in violation of 18 USC § 922(g)(1). Both he and the government sought a sentence somewhere within his 51-63 month Guidelines range. But the judge was convinced that Dave’s criminal history made him “a high risk offender… an individual that must be deterred. 51 to 63 months… considering the danger this individual poses to the community, is nowhere in my view close to what is required.”

Last week, the 6th Circuit reversed the sentence. The appeals court noted that “because the Guidelines already account for a defendant’s criminal history, imposing an extreme variance based on that same criminal history is inconsistent with the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct…”

“We do not mean to imply that only a sentence in or around that range will avoid disparities with other similar defendants,” the Court wrote. “But we do not see how the sentence imposed here avoids them.” Because the district court’s discussion of whether its 120-month sentence avoided unwarranted sentencing disparities depended only on criminal history factors already addressed by the Guidelines, the 6th said, the district court relied “on a problem common to all” defendants within the same criminal history category Dave fell into – that is, that they all have an extensive criminal history – and thus did not provide “a sufficiently compelling reason to justify imposing the greatest possible deviation from the Guidelines-recommended sentence in this case.”

*     *     *

Robber160229Finally, I recently reported on a remarkable “Holloway”-type motion in Chad Marks’ case. Chad was convicted of a couple of bank robberies, but unlike Steve Gass, Chad did carry a gun. Under 18 USC § 924(c), using or carrying a gun during a crime of violence or drug deal adds a mandatory five years onto your sentence. If you are convicted of a second 924(c) offense, the minimum additional sentence is 25 years. Unfortunately, the statute was poorly written, so that if you carry a gun to a bank robbery on Monday, and then do it again on Tuesday, you will be sentenced for the robberies, and then have a mandatory 30 years added to the end of the sentence, five years for Monday’s gun, and 25 years for Tuesday’s gun.

Congress always meant that the second offense’s 25 years should apply only after conviction for the first one, but it did not get around to fixing the statute until last year’s First Step Act adopted Sec. 403. But to satisfy the troglodytes in the Senate (yes, Sen. Tom Cotton, R-Arkansas, I mean you), the change the law was not made retroactive.

grad190524Chad has served 20 years, during which time he has gone from a nihilistic young miscreant to a college-educated inmate teacher and mentor. The federal judge who sentenced Chad 20 years ago recognizes that post-conviction procedure is so restricted that the court can do nothing, but he asked in an order that the U.S. Attorney “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.”

Since then, Chad Marks’ appointed counsel has filed a lengthy recitation of the defendant’s extraordinary BOP record. Despite this, and despite the fact that over two months have elapsed since the judge’s request to the U.S. Attorney, the government has not seen fit to say as much as one word about the matter.

Order, United States v. Gass, Case No. 10-60125-CR (SDFL Apr. 30, 2019)

United States v. Warren, 2019 U.S. App. LEXIS 14005 (6th Cir. May 10, 2019)

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

– Thomas L. Root

Will First Step Let the Holloway Black Swan Swim Again? – Update for March 26, 2019

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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.

hammer160509First, 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’.”

blackswan170206You 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).

easteregg190326In 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.”

falsehope170510I 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