NACDL’s Trial Penalty Clemency Project seeks to recruit volunteers to assist federal prisoners seeking commutations. 

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.)

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 after reconsideration. 

Argument: An order granting compassionate release on a motion for reconsideration. Prior motion included both argument based on modifications to 924(c) and daughter’s recent hospitalization. Reconsideration and compassionate release granted based on 924(c) modifications alone. Discussion of 924(c) in 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 to reduce sentence. 

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.

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: 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 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.

Opinion and Order granting 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).”

Recording of Second Chance Stories: Returning to Freedom, a webinar hosted by NACDL for Second Chance Month 2022. 

NACDL’s Return to Freedom Project helps those serving overly harsh sentences seek relief by partnering with partner organizations to recruit, train, and support pro bono volunteers to secure clemency, compassionate release, or expungement.  

Watch attorneys and clients paired through NACDL's Return to Freedom Project recount finding out that they had secured a second chance at freedom.

Kenneth Charles "Charlie" Fragoso describes the day he found out that he was granted clemency after over 30 years of incarceration. His attorney, Professor Katie Tinto, worked through the Trial Penalty Clemency Project, an initiative of NACDL's Return to Freedom Project, to secure his release. 

Brendan O'Toole volunteered as a pro-bono attorney through the Virginia Redemption Project, an initiative of NACDL's Return to Freedom Project. Brendan recounts telling his client, Sincere, that he was granted a conditional pardon and was going home after 24 years of incarceration. 

On January 12, 2022, Sincere B. Allah was granted a conditional pardon by Governor Ralph Northam after 24 years of incarceration. Sincere and his attorney were paired through the Virginia Redemption Project, an initiative of NACDL's Return to Freedom Project.