Tag Archives: holloway

The “Hollowayers” Work To Produce Another Hit – Update for April 5, 2024

Leave a comment

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

‘HOLLOWAY PROJECT’ BATTLES DOJ ON COMPASSIONATE RELEASE

honeymooner240405Longer ago than I care to recall (I was not yet in kindergarten), Jackie Gleason rocketed to fame as one of the creators and star of “The Honeymooners.” Now, about seven decades later, John Gleeson is the star of his own production – no comedy here – leading what may soon bear a dramatic fight to peel away what he calls the injustice of “stacked” mandatory federal prison sentences.

I was saddened to see Judge Gleeson give up his lifetime appointment on the federal bench eight years ago for white-shoe Wall Street law firm Debevoise & Plimpton. I could hardly blame him: D&P reportedly started him at well above minimum wage (even California minimum wage). But I selfishly wanted him to stay on as an Eastern District of New York judge for no other reason than his cerebral and compassionate approach to federal sentencing. I figured that Debevoise probably didn’t do a lot of court-appointed federal defense work, and we thus had probably seen the last of Judge Gleeson’s fresh and intelligent approach to sentencing.

What did I know? Eight years later, Judge Gleeson not only sits on the U.S. Sentencing Commission, he’s leading a D&P Initiative that could soon face off with the Department of Justice at the Supreme Court.

gleesonB160314Bloomberg Law reports that Judge Gleeson is the driving force behind “The Holloway Project,” a pro bono program that represents prisoners convicted of multiple 18 USC § 924(c) offenses prior to the passage of the First Step Act. The Project’s goal is to reduce the sentences for clients they believe have been rehabilitated after decades in prison.

The project is named for Francois Holloway, who Gleeson himself sentenced to 57 years in a robbery/gun case but later reduced by convincing the U.S. Attorney for EDNY at the time, Loretta Lynch, not to get in the way.

(Parenthetically, the Holloway resentencing spawned a cottage industry of low-brow post-conviction consultants who were hawking “Holloway motions” to prisoners. I heard from a lot of people asking how to file Holloway motions, only to be disappointed when I told them that all they had to do was get the U.S. Attorney and their judge to agree that they should be let out. The universal response: “The prosecutor will never agree to that!”   No kidding. It was hardly Judge Gleeson’s fault that bottom-feeders tried to bilk inmate families on the basis of the Judge’s extraordinary effort on Francois’s behalf, but the Holloway case  was a true Black Swan.)

blackswan170206Back to today: As a Sentencing Commission member, Judge Gleeson championed the adoption of USSG § 1B1.13(b)(6), a subsection of the new Guidelines policy statement on sentence reduction motions (commonly if inaccurately called “compassionate release” motions). which defines overly long sentences where the law has changed as an extraordinary and compelling basis for an 18 USC § 3582(c)(1) sentence reduction. Subsection (b)(6) defines when a nonretroactive change in the law that would reduce a current sentence dramatically if it were retroactive could constitute an “extraordinary and compelling” reason for a sentence reduction under 18 USC § 3582(c)(1)(A).

Subsection (b)(6) is important to compassionate release for the same reason all of USSG § 1B1.13(b)(6) is important. Section 3582(c)(1)(A) authorizes a judge to grant a sentence reduction when three conditions are met:

•  the reduction must be for “extraordinary and compelling reasons.”

•  the reduction must be consistent with applicable Sentencing Commission policy statements.

•  the reduction must be “consistent” (whatever that means) with the sentencing factors of 18 USC § 3553(a).

When Congress enacted § 3582 as part of the Sentence Reform Act of 1984, it stipulated that rehabilitation alone was not an extraordinary and compelling reason for a sentence reduction. As for what might be, Congress did not say. Instead, it delegated to the Sentencing Commission the authority and duty to define exactly what situations constitute “extraordinary and compelling reasons” under the statute.

Guideline 1B1.13 is the Commission’s response, listing by my count 17 situations that are extraordinary and compelling. Of focus to Judge Gleeson’s team is USSG § 1B1.13(b)(6), which says

Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change 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 after full consideration of the defendant’s individualized circumstances.

Before the new 1B1.13 was adopted last year, some Circuits ruled that judges – who remain free to consider other factors as being “extraordinary and compelling” – could consider changes in the law as a basis for compassionate release. Others flatly refused to approve such bases for compassionate release. When the Circuit split reached the Supreme Court a year ago, the DOJ urged SCOTUS to wait to consider the issue until the USSC adopted its new policy statement as Congress required.

Now that the Commission has adopted new rules, DOJ is arguing in multiple cases that the Commission exceeded its authority by making the change.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said University of Chicago law professor Erica Zunkel.

A February Northern District of Georgia court decision complained the DOJ had “contradicted itself” by arguing that the Commission doesn’t have the power to answer questions it once urged the Commission to answer:

The DOJ has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question? This argument lacks merit.

The issue is currently before other district and appeals courts. Gleeson and others expect it will reach the Supreme Court.

moonalice240405When it does, expect Debevoise to be there. Unfortunately, Judge Gleeson himself will not be: as a member of the Sentencing Commission, he will recuse himself from participating in a case arguing the Commission’s authority.

To the moon, DOJ! To the moon!

Bloomberg Law, Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court (March 21, 2024)

United States v. Allen, Case No. 1:09-cr-320, 2024 U.S.Dist. LEXIS 28049 (NDGa, February 12, 2024)

– Thomas L. Root

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

Leave a comment

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

Leave a comment

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

A Midsummer Night’s Scheme – Update for May 10, 2017

Leave a comment

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

LISAStatHeader2small
JUNE 22 AIN’T NUTHIN BUT A NUMBER

We take a necessary break from our breathless coverage of current events (Comey fired! Republic in Jeopardy!) to address a substantial question that the readers of our email federal prisoner newsletter have been sending for the past few weeks.

habeas170510First, a little background: Contrary to popular belief, the writ of habeas corpus was not created by the Magna Carta Libertatum, but rather derived from the Assize of Clarendon, a decree of Henry II a hundred years after the Battle of Hastings. Habeas corpus (literally, “you have the body”) is an extraordinary writ through which a person can report an unlawful detention or imprisonment and request that the court order the custodian of the person, usually a prison official, bring the prisoner to court to determine if the detention is lawful. William Blackstone, in his classic Commentaries on the Laws of England (1838) described habeas corpus as “the great and efficacious writ, in all manner of illegal confinement.”

By the time the U.S. Constitution was written in 1789, the notion that everyone enjoyed the right to seek a writ of habeas corpus was so ingrained in society that the Constitution’s framers did not see the need to express it, but rather merely to provide that habeas corpus could be suspended only under limited circumstances.

The fact that the right exists does not mean that Congress cannot control it. For federal prisoners, the law provides two methods of exercise. A prisoner may vindicate his or her right to habeas corpus by filing a motion under 28 USC 2255 challenging the legality of his or her conviction or sentence. A habeas corpus action challenging the conditions of confinement – inedible food, abysmal medical care and the like – is brought through 28 USC 2241. There are many asterisks, exceptions and conditions attached to the election of which statute to use, which we won’t go into here. Suffice it to say, we’re talking about the most popular means of continuing to attack one’s conviction and sentence even after losing on appeal – and that’s 28 USC 2255.

corso170112Likewise, we won’t get into all the reasons that Congress has tried its level best to strangle 28 USC 2255 to within an inch of constitutionality. It has, the latest being the strangely named “Antiterrorism and Effective Death Penalty Act of 1996.” The AEDPA put strict limitations on when a 2255 motion may be filed, and what gyrations a prisoner must endure if he or she wants to file a second one. Of significance to new prisoners is that they have one year from the date their conviction becomes final to file their 2255 motion.

Sometimes there is a change in the law, a Supreme Court holding that some statute or another is unconstitutional. A good example was the Court’s Johnson v. United States decision in 2015, holding that a portion of the Armed Career Criminal Act was unconstitutionally vague. Suddenly, a lot of guys doing serious time for ACCA violations found that they had been convicted unconstitutionally. So what happens to Ira Inmate, who has never filed a 2255 motion but is way beyond his one-year deadline for filing.

The AEDPA made limited provision for situations like Ira’s. If a prisoner comes upon evidence that could not have been reasonably discovered before trial, or if a Supreme Court case recognizes a new right, and the Court makes the decision retroactive to cases on collateral review (that is, habeas corpus), the one-year period runs anew. Cases announcing substantive rules – changes that modify the range of conduct or class of people punished by the criminal law – generally are retroactive. Likewise, watershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding, will also have retroactive effect.

The Supreme Court never announces that a decision changing substantive rules or a watershed change in criminal procedural rules is retroactive at the time the decision is rendered. Instead, it waits for a subsequent case directing addressing the retroactivity issue. In the case of Johnson, it required almost 10 months for the Supreme Court to take up the issue of its retroactivity.

falsehope170510As Elvis succinctly put it, “I said all that to say all this…” There are people out there who make a business selling hope to inmates. Hope is a good thing, provided there’s some reasonable basis for it. But we’ve written about the hopemongers before, people who will tell a prisoner anything to get him or her (or the family) to part with money, and sadly enough, we expect we’ll be writing about again.

The latest from the people who brought you “Holloway motions” is an urgent cry that “[t]he Mathis deadline is June 22, 2017 for those of you that believe you have Mathis/Holt/Hinkle/Tanksley claims should not hesitate in getting your free lookup.”

Please look past the run-on sentence to the meat of this breathless assertion. June 22 is the 1-year anniversary (minus one day) of Mathis v. United States. The other decisions – Holt v. United States, United States v. Hinkle, and United States v. Tanksley – are all appellate decisions that applied the procedural instructions of Mathis to decide that one prior state conviction or another no longer qualifies as an ACCA enhancement.

crisis170510Obama advisor Raum Emanuel famously said, “You never let a serious crisis go to waste.” The hopemongers might add to that the suggestion that if there is no serious crisis to latch onto, create one.

The plain facts are these: Mathis is not a substantive change in the law, that is, a case which interpreted any statute to make conduct that was once considered illegal to no longer be illegal. Rather, it was a case about criminal procedure, how to parse statutes to determine whether convictions under them counted as crimes of violence or controlled substance offenses. Every district court that has reached the question has concluded that Mathis is not retroactive. Obviously, the Supreme Court has never considered the question.

As for the other cases the hopemongers have mentioned, Holt, Hinkle and Tanksley, each is a decision of a circuit court of appeals, not the Supreme Court, and thus has no application to the 2255 deadline.

All of this means that neither Mathis nor any of the other mentioned cases has triggered the one-year period for filing a 2255 motion. The clock does not run out on June 22nd, because the clock never started.

Puck won't be busy on Midsummer's Night writing 2255 motions...
Puck won’t be busy on Midsummer’s Night writing 2255 motions…

But June 22nd makes a great “serious crisis” for the hopemongers, and there’s little doubt that they’re making regular runs to the bank, depositing money that inmates and their families will never see again. And the hopemongers will no doubt write some post-conviction schlock for their customers, and that schlock will be dutifully filed. It will then dutifully be bounced by the courts, and become part of the 92% of prisoner filings rejected by the federal courts in this fiscal year.

There are ways, according to each prisoner’s situation, that may enable him or her to raise issue based on an application of Mathis. But the method must be tailored to the inmate’s situation, and in an unfortunately high number of cases, nothing at all may work. To be sure, a cookie-cutter approach based on a phony deadline won’t work for anyone.

A lot of things happened on June 22nd in history. This year, we know for sure it will be the first full day of summer, the day after St. John’s Day. But that’s all. It will not be the expiration of a 1-year 28 USC 2255 deadline for Mathis, because a clock that doesn’t start won’t stop, either. 

– Thomas L. Root

LISAStatHeader2small