NACDL - National Association of Criminal Defense Lawyers

Motion for Compassionate Release 

Argument: Requesting reduction to time-served for defendant who has served 27 or his 35-year sentence driving primarily by stacked 924(c)s. Extraordinary and compelling reasons include the significant disparity between his current sentence and likely sentence today on stacked 924(c)s; the lengthy mandatory sentence he is currently serving; the disparity in sentence with his co-defendants; and his extensive rehabiliation.  

Order (Nov. 22, 2021)

Motion (Nov. 8, 2021)

Argument: Mr. Gregory was sentenced to a mandatory 32 years on two stacked 924(c)s convictions stemming from the robberies of two Oklahoma pharmacies. NACDL pro bono attorneys filed a compassionate release motion on Mr. Gregory’s behalf arguing that a reduced sentence is appropriate because, if sentenced today, Mr. Gregory’s mandatory minimum would be only 14 years.  Only two after the motion was filed, the district court reduced Mr. Gregory’s sentence to time-served, finding extraordinary and compelling reasons due to his conviction at a relatively young age (26), the disparity between his sentence and those sentenced for similar crimes after the FSA, his rehabilitation efforts, and the environment he would enter upon release.  The court also noted that Mr. Gregory was a victim of drug addiction, which motivated the robberies: “While the Court obviously does not excuse what he did, there is no doubt that Mr. Gregory, like so many others in this country, was, at least in part, a victim of his addiction to opioid pain killers. This addiction was the main force that drove him to rob two pharmacies at gunpoint.” Due to the work of his pro bono attorneys, Mr. Gregory was able to spend his first Thanksgiving in 15 years at home with his family. 

Motion (June 23, 2021)

Goverment Response (Aug. 12, 2021)

Reply (Aug. 27, 2021)

Notice of Supplemental Authority (Oct. 14, 2021)

Order Granting Release (Oct. 29, 2021)

Argument: At the age of 25, Mr. Richardson and others committed several bank robberies.  Mr. Richardson was convicted of two bank robbery offenses and two § 924(c) offenses resulting in a combined sentence of 405 months, or almost 34 years prison. Due to the First Step Acts changes in the § 924(c) stacking provision, were he sentenced today, Mr. Richardson would likely receive only a 189-month sentence.  In its Order, the Court noted that Mr. Richardson had served more than 210 months in prison, where he had successfully completed numerous education programs and work assignments. The court also relied on Mr. Richardson’s lack of a serious criminal history, relative youth at the time of his offenses, his release plan to a stable home, and the 18-year disparity between the § 924(c) sentence he originally received and the sentence he would receive today.  The court then reduced Mr. Richardson’s sentence from 405 months to time-served plus 14 days.  Instead of a release date of 2035, Mr. Richardson will soon be home with his family.  

Memorandum and Order 

Argument: Reducing sentence for defendant with a 2041 release date to time-served for a combination of reasons: a newly diagnosed serious cardiac condition with poor stats for 5-year survival, 924(c) unstacking, recent cooperation, and COVID risk. Also a post-vaccination COVID grant (although the vaccination status is only mentioned in the motions). Notably, this case is a lesson in persistence. The counsel or record filed, lost, appealed, won post-Maumau, got an expert, re-filed in the district court, briefed it all some more, and voila—the client is home) 

Order Granting Compassionate Release 

Argument: Reducing sentence for defendant with a 2041 release date to time-served for a combination of reasons: a newly diagnosed serious cardiac condition with poor stats for 5-year survival, 924(c) unstacking, recent cooperation, and COVID risk. Also a post-vaccination COVID grant (although the vaccination status is only mentioned in the motions). Notably, this case is a lesson in persistence. The counsel or record filed, lost, appealed, won post-Maumau, got an expert, re-filed in the district court, briefed it all some more, and the client is home. 

Motion to Extend Time to File Reply Brief

Motion to File Reply Brief in Excess of Word Limit

Reply (April 10, 2021)

Order (June 25, 2021)

Argument: Mr. Curry was originally sentenced to life in prison in 2006 after a jury convicted of multiple drug counts and convictions under 18 U.S.C. § 924(c). After two resentencings, Mr. Curry was still subject to a 41 ½ year sentence, driven primarily by two stacked § 924(c) convictions in his case. His release date was projected as 2041 when Mr. Curry would be 65 years old. Judge had previously denied pre-McCoy. 

Post McCoy, volunteers with NACDL's Excessive Sentence Project filed a CR Reply (gov. had already responded to pro se motion) arguing that First Step Act’s changes to the § 924(c) stacking penalty would result in Mr. Curry receiving a much lower sentence today for the same convictions.  Court granted motion, citing the “gross disparity” between the sentence Mr. Curry originally received and the sentence he would receive today along with his extensive rehabilitation while incarcerated.  The district court reduced Mr. Curry’s sentence from 500 months to 240 months.  Release date will now be 2022.

Motion (Apr. 30, 2021)

Order (June 2, 2021)

Argument: Davis, along with three co-defendants (Whitener/Cecil Jackson/Orrin Jackson) are the first "excessive sentence” compassionate release wins out of the Western District of North Carolina.  Each defendant's sentence was reduced to time-served after being convicted in 1990 of stacked § 924c counts, with sentences ranging from 660 to 1,620 months. Looking at factors such as their youth at the time of the convictions, their rehabilitation efforts in BOP, and family and community support, as well as the FSA changes to 924c sentencing, the court reduced their sentences to time served.

Motion (July 17, 2020)

Gov Response (Sept. 4, 2020)

Reply (Sept. 29, 2020)

Def’s Notice of Filing Supp Authority (Feb. 15, 2021)

Opinion & Order (Apr. 14, 2021)

Argument: 20-year-old involved in robbery and carjacking which led to a hostage situation and a shootout with police sentenced to 481 months. 

There is no doubt that there is a gross disparity between the sentence Rahim received in 2005 and the sentence he would receive today after the passage of the First Step Act. To quantify that more precisely, he faces 18 additional years in prison as a result of the second § 924(c) charge that would not be permissible today. This difference is an extraordinary and compelling reason to provide the relief sought by Rahim.

3553(a) factors also supported relief: young at time of offense; grew up around violence; was working as an EMT; significant rehabilitation in prison. 

U.S. v. Maumau 20-4056 (10th Cir. April 1, 2021) appealed from No. 2:08-CR-00758-TC-11 (D. Utah)

Argument: Joining the Second, Fourth, Sixth and Seventh Circuits in affirming a district court's grant of compassionate release based upon a more expansive reading of "extraordinary and compelling reasons" – here, the First Step Act's elimination of § 924(c)’s stacking provision.

Opinion and Order granting compassionate release. 

Argument: Stacked 924(c) case.  Originally sentenced to 55 years on multiple armed bank robbery and 924c counts.  “The court finds that defendant’s health concerns, his multiple accomplishments in prison and significant rehabilitation efforts, and his strong family and community support, including offers of employment, are sufficient, when considered in combination, to constitute an extraordinary reason for compassionate release.”   Notably, court would not consider the non-retroactive change in 924(c) statute as an extraordinary and compelling reason, “[h]owever, at the discretion of the court, this change in the law can be considered later in addressing whether a reduction in sentence in warranted under the sentencing factors in §3553(a).”

Amended Order Granting Motion for Modification of Term of Imprisonment

Argument: Compassionate Release granted for a stacked 924(c) client. “Based on Walden’s seemingly exceptional personal growth, the severity of his Sentence relative to [his cofedendant]’s and modern sentencing laws, and his age and criminal history at the time of the offenses, the Court concludes that Walden has demonstrated extraordinary and compelling reasons that could justify reducing the Sentence…The Court thus concludes that requiring Walden to remain in prison pursuant to the Sentence until 2056 would not accomplish the objectives identified by Congress in § 3553.”

Memorandum Opinion. 

Argument: Paul Kratsas had a mandatory life sentence imposed in 1993. His case differs from those with stacked § 924(c) sentences because, today, a life sentence could still be imposed. Importantly, the sentencing judge “lamented his duty to impose the mandatory life sentence and stated that, if sentencing pursuant to the then mandatory Guidelines, which were 360 months to life, he would impose a sentence of 360 months and not life.” One of the “original prosecutors, now in private practice, support[ed] the request for immediate release.” Judge Chasanow found that those factors as well as Kratsas’ “current dangerousness and the § 3553(a) factors support[ed] granting release.”

Order granting motion for compassionate release. 

Argument: Judge Lawson held that: (1) Mr. McDonel’s mandatory 100-year sentence for multiple firearm brandishing 924(c) offenses constituted extraordinary and compelling circumstance allowing sentence reduction, and (2) statutory sentencing factors supported sentence reduction.

Order Granting Compassionate Release 

Argument: Finding a disproportionately long sentence to be an extraordinary and compelling reason for release.

"The sentence in this case is, save one other, the most lopsided and disproportionately severe sentence the Court has had to mete out in more than 20 years on the bench. The changes in the law and their potential mitigating effect on McDonel’s sentence easily qualify as extraordinary and compelling reasons to afford relief when considered with the other factors discussed below." 

Order granting motion for compassionate release. 

Argument: Mounir Nafkha moved for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the Court to reduce his nearly 73-year sentence to time served, due in large part to four consecutively “stacked” counts under 18 U.S.C. § 924(c). Judge Campbell held that that  “constitute[s] extraordinary and compelling reasons for his early release.”

Order granting motion for compassionate release. 

Argument: Ivy Gaines was found guilty on 18 counts, including 8 924(c) counts, and sentenced to 182 years. Judge Zilly granted the motion for reduction at the re-sentencing hearing on Feb. 4^th reducing the sentence to a total of 20 years, “close to time served.” In the sentencing transcript. Judge Zilly notes that:

“some of the recommendations and some of the positions the U.S. Attorney’s Office has taken in this case are troubling.” As well as this: “a sentence of 182 years, 56 years, or even 30 years, in my opinion, doe not give respect for the law. These sentences are far greater and typically given for more serious crimes. You could murder someone in the State of Washington, or in a federal jurisdiction where they have federal law, and you probably wouldn’t get a 56-year sentence.”

Addendum to Motion (Aug. 6, 2020)

Motion for Reconsideration (Nov. 6, 2020) 

Order (Dec. 17, 2020)

Argument: Motion for reconsideration; court had previously denied motion in October based on lack of medical condition; no grating MRF due to sentencing disparity based on 924(c) stacking. Discussion is relatively light – Owen was originally a co-defendant of McCoy (whose case was heard by the 4th Cir.)

Order granting sentence reduction. 

Argument: David Lyle was convicted at trial of 8 counts, including four 924(c) counts, and sentenced to a total sentence of 1,141 months’ imprisonment. Lyle sought relief on two separate and independent grounds: directly based on retroactive application of the First Step Act’s amendments to 924(c), and under compassionate release on the argument that the discrepancy constituted an “extraordinary and compelling circumstance.” The court resentenced Lyle to a final total of 493 months.

Regarding the original sentence:

“The Court followed the law in effect at the time. Nevertheless, since that time, Congress has recognized that perhaps it either went too far or more likely that it never intended § 924(c) to be interpreted as it was. That being the case, the Court finds that there is no compelling reason not to grant Lyle's motion and there are many compelling factors in its favor.”

Order

Argument: Stewart was convicted after trial of bank robbery and two counts of § 924(c) and sentenced to nearly 42 years. He had served 13 years (and, including a MDNC case, a total of 28 years) at time 3582(c)(1)(A) motion filed.

Court found following intervening changes in law to be ECR: guidelines are no longer mandatory (Booker); second 924(c) charge would carry only 5-year consecutive sentence, not 20 years; Stewart would not be a career offender today because predicate NC offense does not qualify under Simmons. Court notes it is not "correcting" a sentence; rather it is considering "changes in sentencing law—even nonretroactive ones—in assessing whether a defendant has shown extraordinary and compelling reasons warrant a reduction in his sentence." Court also notes Stewart's age (56) and Stewart's hypertension, and the rampant COVID outbreak at Ft. Dix.

Memorandum Opinion and Order

Argument: Both medical issues and 924(c) stacking were factors. Sentencing court noted at the time that stacking was unjust, but was mandatory. FSA passed while resentencing appeal was pending – 7th Cir. found that provisions did not apply because they were not retroactive. Change in law and disparity between Sparkman’s sentence and that of more-culpable codefendants who did receive the benefit of amendments to 924(c) were relevant.

Opinion and Order.

Argument: Andre Curtis was convicted at trial of 8 robbery counts and 8 924(c) counts. He was sentenced to 2,271 months (189 years) and had served 238 months (19.8 years) at the time of the decision. In 2015, the court asked BOP to move for compassionate release to resentence Curtis, indicating it would have “imposed a sentence… of more than twenty years but less than life.” The US Attorney for N.D. Oklahoma agreed that the original sentence was excessive. BOP denied Curtis’s request in January 2016, essentially on the argument that compassionate release did not provide a second-look mechanism. Citing several other cases, the court finds the change in law re: 924(c)s to be extraordinary and compelling.

Order granting motion for compassionate release.

Argument: Anthony Jones pleaded guilty to several counts, including five 924(c) counts. He was sentenced to 357 months, which the court reduced to time served in granting his motion, a total reduction of 15 months.

On retroactivity:  “It cannot be denied that FSA § 403reflects a “legislative rejection” of stacking and a “legislative declaration of what level of punishment is adequate” for violations of 18 U.S.C. § 924(c). Redd, 444 F.Supp.3d at 723-24. Though the statute did not provide automatic relief to defendants like Mr. Jones, it has in no uncertain terms established that sentences like Mr. Jones's “unfair and unnecessary.” Id.”

On finality of sentencing:

“The Court likewise rejects the Government's objection that reducing a defendant's sentence based on subsequent legal changes would “undermine the finality of sentences.” Opp. at 9. Although “the principle of finality” is indisputably “essential to the operation of our criminal justice system,” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), it is not without exceptions. As the Ninth Circuit has explained, sentence reductions under 18 U.S.C. § 3582(c) are “acts of lenity”; as such, they “are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.” United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017). In other words, 18 U.S.C. § 3582(c) represents Congress's judgment that the generic interest in finality must give way in certain individual cases.”

Opinion and Order Granting Motion to Sentence Reduction 

Argument: Leon Ford Jr. was sentenced to 483 months for four counts, including two 924(c) counts. Motion based on diabetes and other health issues, as well as amendments to 924(c). Ford was also sentenced before the decisions in Booker and Dean that affected sentencing. Sentence reduced to time served (equivalent of 24 years with good time). Court noted and was “mindful” of sentencing disparity despite government concession that health issues and COVID alone constituted extraordinary and compelling reason. “[W]hile the sentencing disparities that result from the First Step Act’s amendment to 924(c) do not necessarily constitute extraordinary and compelling reasons warranting a sentence reduction, the Court is mindful of this factor in this case.”

Memorandum and Order.

Argument: Cornelius Graham pleaded guilty to six counts, including two 924(c) counts for a total sentence of 488 months. His scheduled release date was September 2023. Graham moved for compassionate release on the grounds that his sentence after the First Step Act’s changes to the law would have been only 308 months, entitling him to be released in June 2020. He further argued that his age and medical circumstances placed him at high risk for COVID-19. The court explicitly did not consider or rely on the COVID-19 arguments in granting compassionate release. The court reduced the original sentence to 308 months.

Memorandum 

Argument: Craig Scott was serving a sentence of over 87 months on three counts of robbery and one count of conspiracy, plus a consecutive 45 years for three 924(c) counts. The court commuted his sentence to time served (“almost 25 years”) on the basis that the change in law regarding stacked 924(c)s was an extraordinary and compelling reason.

“Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A).” See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with the reasoning of these courts.”

Memorandum Opinion

Argument: Timothy Arey was convicted at trial of seven counts, including three 924(c) counts. He was sentenced to 952 months, which was later reduced to 895 months under 18 U.S.C. § 3582(c)(2). Arey moved for compassionate release citing “a combination of his ‘age, health conditions and unduly harsh stacked 924(c) convictions) in addition to the pandemic. The court specifically held in a section of its opinion that “the dramatic change to §924(c) sentences constitutes an extraordinary and compelling reason,” while holding that the COVID-19 pandemic is not. Accordingly, stacked 924(c)s were the only basis here. Arey’s term was reduced to 390 months, and the court modified his sentence without reducing it to time served.

Memorandum and Order granting compassionate release

Argument: Deric Brown pled guilty to seven counts of robbery and two 924(c) counts. The court granted a reduction of 624 months to 408 months – from the old mandatory minimum to the new one, based on the disparity in sentencing and Brown’s “complete 180-degree change in attitude and conduct.”

Walking through factors in favor of relief:

“If Brown had been sentenced today rather than in 2002, there is no question that he would have received 408 months’ imprisonment, rather than 624 months. This is an 18-year difference on a mandatory, consecutive term. Moreover, Brown's sentences for the predicate offenses may have been lower, resulting in a lower sentence overall. Dean v. United States, 137 S. Ct. 1170, 1176–77 (2017) (permitting sentencing courts to consider mandatory minimum sentences imposed under § 924(c) when determining the appropriate sentence for a predicate offense). This disparity is significant, as demonstrated not only by Congress's decision to amend the statute to clarify its intent, but also by the pure fact of it: 18 years is a long time to remain incarcerated; indeed, it is nearly as long as Brown has already been incarcerated. Finally, the reason for the disparity is simply that the original statute was interpreted a certain way—ultimately, in a way that led to “unfair and unnecessary” sentences. Redd, 2020 WL 1248493, at *6. There is no penological justification at play, here.” At *4.

Memorandum and Order granting compassionate release. 

Argument: Daniel Brown pleaded guilty to four counts, including two 924(c) counts for a total sentence of 510 months. The sentencing judge indicated at the time that the stacked 924(c)s yielded a sentence “far greater than necessary to achieve the ends of justice.” A codefendant was sentenced to only 170 months and released prior to the compassionate release motion. A prior compassionate release motion citing rehabilitation and the draconian sentence had been denied “at th[at] juncture.” The court granted this second motion, citing Brown’s frequent letters to the court, his unsuccessful pursuit of executive clemency, the increased amount of time Brown had served, the COVID-19 pandemic, then in its early stages, and Brown’s risk factors for COVID-19. No cases had been confirmed in Brown’s facility at the time of the court’s grant of compassionate release.

On the First Step Act’s changes to allow defendants to move for compassionate release on their own behalf:

“The Act listed these changes under the title of “Increasing the Use and Transparency of Compassionate Release.” § 603(b), 132 Stat. at 5239. That title is “especially valuable” here. Yates, 135 S. Ct. at 1090. The Court assumes the BOP Director faithfully executes the narrowly drawn policy and program statements related to compassionate release. Therefore, the only way direct motions to district courts would increase the use of compassionate release is to allow district judges to consider the vast variety of reasons that may be ‘extraordinary and compelling.’”

Memorandum and Opinion.

Argument: Haynes had served almost 27 years of a 46.5-year sentence for various offenses, including conspiracy to commit bank robbery, four counts of robbery. “A full 40 of those years are the mandatory consecutive terms for the two additional 18 U.S.C § 924(c) counts (“stacked” under then-current law) that the government charged in a superseding indictment only when Haynes declined a plea offer and exercised his right to trial.”

The Court reduced Hayes’ sentence to time-served, citing as ECR, “the brutal impact of Haynes's original sentence, its drastic severity as compared to codefendant Rivers's ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes's exercise of his constitutional right to trial” and “ the FSA’ elimination of the § 924(c) sentencing weaponry that prosecutors employed to require that sentence. . . ”

Memorandum Granting Compassionate Release 

Argument: In Feb. 2000, a jury convicted R.V. Young of five counts of bank robbery, 18 U.S.C. § 2113(a) & (d), and five counts of using a firearm during a crime of violence, 18 U.S.C. § 924(c)). All told, Young was sentenced to 1,107 months (92.25 years) imprisonment. Judge Trauger held that: (1) the “drastic change” effected by the First Step Act's amendment of the statute that authorized a longer sentence for a second conviction than a first for using a firearm during a crime of violence itself constituted an extraordinary and compelling reason to reduce Young’s sentence; (2) Young’s age, health conditions, and 19 years in prison constituted extraordinary and compelling reasons to reduce his sentence; and (3) that a hearing was required for the district court to consider the relevant sentencing factors to determine the appropriate sentence.

Order granting motion for compassionate release after reconsideration. 

Argument: Order granting motion for compassionate release after reconsideration. 

An order granting compassionate release on a motion for reconsideration. The prior motion included both arguments based on modifications to 924(c) and daughter’s recent hospitalization. Reconsideration and compassionate release were granted based on 924(c) modifications alone. Discussion of 924(c) in the original denial limited to noting amendment was not retroactive. Original sentence was 351 months, reduced to 151 months.

Holding that sentencing disparity alone can be “extraordinary and compelling”:

“Notably, the only rationale offered by the government for opposing the relief sought is the contention that Congress did not specify that Section 403 of the FSA should apply retroactively. See Dkt. 230, at 2 (citing, e.g., United States v. Drayton, No. CR 10-20018-01-KHV, 2019 WL 464872, at *2 (D. Kan. Feb. 6, 2019)). However, this simply establishes that a defendant sentenced before the FSA is not automatically entitled to resentencing; it does not mean that the court may not or should not consider the effect of a radically changed sentence for purposes of applying § 3582(c)(1)(A).”

Supplement to Pro Se CR Motion (Apr. 22, 2021)

Response (May 24, 2021)

Reply (June 1, 2021)

Def's Notice of Supp Authority (June 2, 2021)

Order (June 8, 2021)

Argument: Sloan was originally sentenced to Life plus 540 months after trial on several crack conspiracy and gun counts, Sentence was later reduced to 235 months on drug counts and remained at 540 months on 3 stacked 924(c)s. Sloan has now served 30 years and has 34 years remaining.  Defense argues ECR exists because of following intervening changes in law:

1)  DOJ's Robinson Memo "adopting practice of basing each Section 924(c) in an indictment upon a separate predicate offense";

2) pre-Booker, so guidelines were mandatory at time of sentencing

3) SCOTUS prohibited mandatory LWOP for juvenile offenders as client was between 15-20 during conspiracy and is 48 years old now. 

4) SCOTUS decided Dean v. US, stating district courts can and should consider the mandatory consecutive nature of 924(c) sentences 

5) Prior to FSA changing the 924(c) stacking provisions, which would not result in a 180-month sentence, rather thana 540-month sentence

The Court found ECR existed because Sloan’s original 540-month sentence based on stacked § 924(c)s would result in a 180-month sentence today.  Other supporting factors include strong evidence of rehabilitation (47 programs and work assessments, earned GED, two minor infractions in 30 years of prison); he was juvenile when he committed the crimes and 22 when sentenced; and his strong support network and community. Court reduces sentence to time-served plus 14 days. 

Memorandum Opinion granting sentence reduction 

Argument: Derrick Redd was sentenced to 603 months based on three stacked 924(c)s and robbery offenses. Court held that: (1) Mr. Redd had exhausted his administrative remedies; (2) extraordinary and compelling reasons existed to warrant reduction in his sentence; (3) reduction in Mr. Redd’s sentence was consistent with applicable policy statements; and (4) reduction of his sentence from 45 years to 15 years was appropriate.