NACDL supports the Commission’s proposed amendment to §1B1.13, with some suggested modifications, and supports Option 3 to (b)(6). After reviewing the Commission’s recent hearings on this proposed amendment as well as the submitted written testimony, NACDL focuses its comments on proposals (b)(5), (b)(6), and (b)(4).

Amended Motion (Nov. 19, 2020)

Order (July 28, 2021)

Argument: Hernandez had a great COVID argument and a great excessive sentence argument, but both were foreclosed by Seventh Circuit opinions (Broadfield and Thacker) before court could rule.  Instead, district court relied on remaining issues--changing attitudes about marijuana--as the extraordinary and compelling reasons and granted a reduction time-served. 

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 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.

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.”

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.

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 

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.”

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 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.

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. 

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.  

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.)

Memorandum Order 

Argument:  Originally sentenced to life imprisonment dictated by an 851 enhancement.  Even during his 2004 sentencing, the sentencing judge had said he would have imposed a lesser sentence if he had the authority to do so.  The court found ECR to reduce Mr. Nicholson’s sentence based on the disparity between the sentence he received and the one he would receive today following Section 401 of the FSA.  Alternatively, the court held that it had the authority to reduce Mr. Nicholson’s sentence under Section 404 (crack retroactivity) of the First Step Act by applying current 851 law.