The Holloway Doctrine and First Step Act: Federal Judge Issues Order Urging Government to Dismiss One of Two 18 U.S.C. §924(c) Stacking Convictions
by Chad Marks
February 4, 2003, forever changed my life. That’s when, at the age of 24, the federal government charged me with numerous federal offenses related to my involvement in a crack-cocaine conspiracy case.
Specifically, the Government charged me with conspiracy to distribute 50 grams or more of cocaine base. I also was charged with two 18 U.S.C. § 924(c) counts, which are a triple threat. First those charges carry mandatory sentences that, in reality, take a degree of discretion out of sentencing. Second, they result in draconian enhancements for “second or subsequent convictions,” which can come in the same indictment as the first § 924(c) count. Third, the mandatory sentences required by § 924(c) at the time of my trial were mandatorily consecutive to one another and to all other sentences in the case. This is commonly referred to as “stacking.”
The drug conspiracy charge came with a 10-year mandatory minimum sentence. The first § 924(c) count subjected me to five additional years, and the second brought with it 25 more years.
There was a plea offer made that could have resulted in as few as 10 years if I would simply admit my guilt and assist law enforcement in the prosecution of others. I elected to proceed to trial. At the conclusion of trial, the jury returned a verdict of guilty on all counts, and I was now facing a 40-year mandatory minimum term of imprisonment. When there is a plea offer made and a defendant chooses a trial over pleading, he is usually subjected to what is called “the trial penalty.” The trial penalty in my case increased my sentencing exposure from a likely 10- to 12-year sentence to 40 years.
Constrained by the law, U.S. District Court Judge David G. Larimer was required to impose the 40-year term of imprisonment. This was the hardest thing I ever faced in life. Once sentenced, I was sent to serve my time at United States Penitentiary Big Sandy in Inez, Kentucky. That prison was rife with difficulties, including violence.
There was no middle ground at U.S.P. Big Sandy. It was a prison with two roads—one of negativity and one of trying to better myself through the education department. I came to the realization that all journeys in life for good or evil begin with a single step—when we choose the path, we choose the destination. Faced with that choice, I chose to take the road toward bettering myself.
Over the next 12 years, I began to educate myself. I completed nearly 100 rehabilitative programs, earned a college degree, assisted in writing a reentry-based program for prisoners at the prison I was housed at, learned the law and applied it to helping others with their court pleadings, and began helping others around me learn to read and write. I never knew if I would ever get out of prison, but I had a sincere desire to become a better person and help others. This was the path I chose for myself.
The Holloway Doctrine
Then came the First Step Act. President Trump signed the legislation into law on December 21, 2018. That law eliminated the stacking provisions of 18 U.S.C. § 924(c). The only problem was that sentencing reform did not apply retroactively. Rather than giving up, I began to research the law and scour the Federal Bureau of Prisons’ Program Statements dealing with release for compelling and extraordinary circumstances.
This research led me to what the Honorable Judge Gleeson did in the Eastern District of New York in United States v. Holloway, 68 F.Supp. 3d 310 (E.D.N.Y. 2014), in a § 924(c) stacking case. Using Rule 60(b) of the Federal Rules of Civil Procedure, Francois Holloway filed a motion to reopen his § 2255 proceeding.
The motion triggered a review by Judge Gleeson, the sentencing judge, who was disturbed by the harshness of the mandatory sentence. He asked the U.S. Attorney’s Office to open the case and agree to vacate two of the three § 924(c) convictions in order for Holloway to face a “more just sentencing.” Then-U.S. Attorney Loretta Lynch agreed with Judge Gleeson’s vacatur of two of the three § 924(c) convictions.
This paved the way for Judge Gleeson to do justice by resentencing Holloway on the remaining § 924(c) conviction, granting him a second chance and reclaim his life. Holloway’s 57-year sentence was reduced to time served, allowing him to be reunited with his family. Notably, in requesting that the U.S. Attorney’s Office agree to the resentencing proposal, Judge Gleeson stressed Holloway’s efforts to better himself while in prison.
This has come to be known as the Holloway Doctrine. Essentially, it recognizes that courts have the discretion, inherent in our system of justice, to reduce a sentence in the interests of fairness “even after all appeals and collateral attacks have been exhausted and there is neither a claim of innocence nor any defect in the conviction or sentence.” Holloway. But the Holloway Doctrine “has effect only if the Government agrees to a reduced sentence.” Acuna v. United States, 2016 U.S. Dist. LEXIS 90998 (D. Haw. 2016). Not all courts recognize the doctrine. The court in United States v. Horton, 2016 U.S. Dist. LEXIS 78611 (E.D.N.C. 2016), opined that the Holloway Doctrine is not so much a doctrine but rather “a single case carrying no precedential weight on this court.”
Despite the Horton court’s view, other courts indeed recognize the Holloway Doctrine as do other U.S. Attorney’s Offices. In the Eastern District of Oklahoma, Luis Anthony Rivera was originally sentenced to life plus 80 years in prison. Based on his extraordinary accomplishments in prison, the Government moved to open his case, allowing Rivera to be released from prison.
Weldon Angelos, like myself, had been arrested at age 24 and sentenced to 55 years in a § 924(c) stacking case. The Government in an act of compassion and justice opened his case, allowing a federal judge in Utah to resentence him. Angelos was released after serving 11 years of his 55-year sentence.
Notably, Judge Jan E. Dubois in the Eastern District of Pennsylvania has acknowledged and adopted the Holloway Doctrine in United States v. Ezell, 2015 U.S. Dist. LEXIS 109814 (E.D. Pa. 2015), and United States v. Trader, 2015 U.S. Dist. LEXIS 109287 (E.D. Pa. 2015).
Judge Larimer’s Order
Armed with these cases and the intent of the First Step Act, in February 2019, I filed a pro se motion. That motion requested the Court, with the consent of the Government, to reduce my sentence to a more fair and just sentence pursuant to the Holloway Doctrine and in line with the intentions of the First Step Act’s dictates with regard to the clarification of 18 U.S.C. § 924(c)’s stacking provisions.
On March 14, 2019, U.S. District Court Judge David G. Larimer issued an Order requesting the U.S. Attorney to exercise his discretion to agree to an order vacating one of the § 924(c) convictions. United States v. Marks, 5:03-cr-06033 DGL, Dkt. 493. In that Order, Judge Larimer referenced the changes in the First Step Act, writing about the sentence he was forced to impose,
“This type of sentence, under the then terms of Section 924 (c) for multiple firearms established in the same indictment has been frequently criticized as unwarranted and excessive. The provision is often colloquially referred to as “stacking.”
In part, because of this criticism, with bipartisan support, Congress, within the last several months, has recognized the inequities and harsh consequences of the stacking provisions and has eliminated it under circumstances like those in my case as part of the First Step Act, which was enacted December 21, 2018. If convicted now, I would not be penalized for going to trial with the possibility of a 30-year consecutive sentence.
Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that I would benefit directly because the changes to § 924(c) do not appear to be retroactive. One option now is for those in the system to say Mr. Marks, “too bad, the changes don’t apply to you, so you must serve the lengthy remainder of your 40-year term and perhaps die in jail.”
In urging the Government to dismiss one of the § 924(c) counts, Judge Larimer went on to say, “So, what to do? Does this defendant Chad Marks, deserve this remedy? In my more than 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated. Marks’ acts and accomplishments while incarcerated for the last decade are truly extraordinary. Marks has obtained a college degree, participated in about 100 rehabilitative programs, has received numerous awards and citations, is engaged as a GED teacher and has mentored other inmates. Marks has recounted many of these accomplishments in his motion (Dkt. #491, page 7). The record reflects extraordinary accomplishments.
Extraordinary cases require extraordinary care and sometimes extraordinary relief. I urge all to review Judge Gleeson’s thoughtful decision in the Holloway case. The criminal ‘justice’ system is about justice and fairness ultimately. Chad Marks was convicted of serious crimes, but I believe that Marks is not a danger and is not now the person convicted of these charges in 2008….”
There Is Hope
For those sentenced under grotesque federal mandatory minimum sentences, relief is possible. That relief, however, does not come easy. 18 U.S.C. § 3553 states, in pertinent part, “that one of the factors to be taken into consideration in imposing sentence is that the sentence should ‘provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.’”
There are those who have used their time wisely in an effort to better themselves. In some cases, those achievements are extraordinary, and relief is deserving.
A close reading of the Federal Bureau of Prisons’ Program Statement 5050.50 outlines that a court can reduce a sentence under 18 U.S.C. § 3582(C)(1)(A) in particularly extraordinary or compelling circumstances, which could not reasonably have been foreseen by the court at the time of sentencing.
When I was sentenced, no one could have foreseen me earning a college degree; learning the law; completing nearly 100 rehabilitative programs; teaching men how to read and write; motivating other prisoners to become better men, fathers, and leaders; and achieving several other positive things while in prison. On my sentencing day, through the hurt, pain, and disappointment, I could not see such accomplishments in my future either. Life, Liberty, and the Pursuit of Happiness is within reach of those who make a sincere effort at becoming a person who appreciates those three things that the Founding Fathers held so dear. Hard work, personal improvement, and a well drafted motion under 18 U.S.C. § 3582 might just be your key to a second chance at freedom.
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