10-cv-02930-JLK (D. Colo.)

Filed by pro bono counsel at Morrison & Foerster LLP, this lawsuit sought to invalidate Colorado Revised Statute § 16-7-301(4), which required a defendant to meet with a prosecutor before being assigned counsel. In Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008), the U.S. Supreme Court held that a defendant’s right to counsel under the Sixth Amendment to the United States Constitution attaches at “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.”

Order granting motion for compassionate release 

Argument: Grant based on § 851, reducing 300-month meth sentence to time served, a 10-year reduction. Client received an 851 he would no longer be eligible for, plus signs of dementia (documented by family letter although not in BOP records), age, and some discussion of the fact that the case involved entrapment in the government’s undercover-enhanced case, even though jury still convicted.

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 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).”

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 (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. 

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.

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.

10th Circuit Opinion Reversed and Remanded on Jurisdiction in U.S. v. McGee

Argument: Reversing and remanding a district court's determination of its lack of jurisdiction to consider a compassionate release motion based on a broader reading of "extraordinary and compelling reasons."

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.

Emergency Motion for Compassionate Release (April 23, 2021)

Order Granting Compassionate Release (April 27, 2021)

Argument: Maloney had been serving his partially concurrent 64-month sentence in the Arkansas Department of Corrections and was about to be paroled to serve the remaining 36-month consecutive portion in BOP. On Christmas Eve, Mr. Maloney was on life support at the VA hospital in Little Rock suffering acute COVID-19 and pneumonia. At 39-years old, he was not supposed to be at high risk for complications. But, he ended up in a coma, on a ventilator, and suffered severe lung damage. As the defense expert, a pulmonologist from Johns Hopkins, explained: Mr. Maloney’s COVID-19-related complications were so severe that any new lung infection would kill him.”

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellee/Cross-Appellant and Urging Reversal. 

Argument: Mr. Sumpter was convicted of several sexual misconduct offenses and one count of aggravated kidnapping. The kidnapping conviction added 186 months to his sentence. Mr. Sumpter’s convictions were affirmed on direct appeal and his state post-conviction motion was unsuccessful. Kansas has appealed to the 10th Circuit. The aggravated kidnapping conviction and sentence were vacated by the United States District Court in Kansas when the court partially granted the 2254 petition and concluded Mr. Sumpter had been denied effective assistance of counsel as to the kidnapping conviction. Mr. Sumpter was convicted of forcefully confining the accuser, yet trial counsel failed to assert the defense, long established in Kansas case law, that the alleged forced confinement was not independent of the offense of attempted rape. The defendant followed the accuser to her car and attempted to sexually assault her in the car before the victim was able to force him out of the car. Defense counsel thus should have argued that there was no forced confinement independent of the alleged attempted sexual assault. The amicus brief argues that the failure of counsel to present this long-recognized defense to the kidnapping charge resulted in an unconstitutional application of the Kansas kidnapping statute. Mr. Sumpter was convicted of kidnapping without any determination that the alleged forceful confinement was independent of the attempted sexual assault. Therefore, the district court order vacating the kidnapping conviction should be affirmed.

Amicus Brief in support of Petitioner-Appellee and Cross-Appellant by National Association of Criminal Defense Lawyers.

Argument: Mr. Sumpter was convicted of several sexual misconduct offenses and one count of aggravated kidnapping. The kidnapping conviction added 186 months to his sentence. Mr. Sumpter’s convictions were affirmed on direct appeal and his state post-conviction motion was unsuccessful. Kansas has appealed to the 10^th Circuit. The aggravated kidnapping conviction and sentence were vacated by the United States District Court in Kansas when the court partially granted the 2254 petition and concluded Mr. Sumpter had been denied effective assistance of counsel as to the kidnapping conviction. Mr. Sumpter was convicted of forcefully confining the accuser, yet trial counsel failed to assert the defense, long established in Kansas case law, that the alleged forced confinement was not independent of the offense of attempted rape. The defendant followed the accuser to her car and attempted to sexually assault her in the car before the victim was able to force him out of the car. Defense counsel thus should have argued that there was no forced confinement independent of the alleged attempted sexual assault. The amicus brief argues that the failure of counsel to present this long-recognized defense to the kidnapping charge resulted in an unconstitutional application of the Kansas kidnapping statute.  Mr. Sumpter was convicted of kidnapping without any determination that the alleged forceful confinement was independent of the attempted sexual assault. Therefore, the district court order vacating the kidnapping conviction should be affirmed.

Amicus Brief in support of Defendant-Appellant’s petition for rehearing en banc by the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies.

Argument: In a split decision, the Tenth Circuit (per Ebel, J.) affirmed on plain error review a conviction under 18 U.S.C. § 922(g)(5) (illegal or unlawful alien in possession of a firearm) notwithstanding the fact that during the plea colloquy the judge failed to inform the defendant of two essential elements of the crime:  (1) he had to know his status as a prohibited person; and (2) he was illegally or unlawfully in the United States. There’s a spirited dissent by Judge Bacharach. Although the panel concluded Mr. Perez’s constitutional rights were violated due to these failings when he accepted the plea agreement, the majority nevertheless decided Mr. Perez had not established plain error. The amicus brief argues that the majority erred in not finding plain error pointing out that the evidence of Mr. Perez’s knowledge of his prohibited status was weak and that there was ample record support for this potential defense. The majority instead engaged in speculation about why Mr. Perez accepted the plea agreement (to avoid mandatory minimum charges) when the meagre factual record suggested instead that Mr. Perez did not accept the plea agreement to avoid these charges. Rather, the record is clear that Mr. Perez sought to avoid the trial penalty and to transfer out of the onerous conditions of pretrial detention, which he had suffered for more than 18 months. As a result of the plain error in this case, Mr. Perez is entitled to have his conviction vacated.