« Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation | Main | "The Injustice of Marijuana Arrests" »

July 28, 2014

US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice

VACATEweb-master675Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...

At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing.  By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts.  He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway.  Some will satisfy the criteria for Department of Justice support, while others will not.  In any event, there’s no good reason why all of them must end up in the clemency bottleneck.  Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced.  Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

Download Holloway Memo FILED 7-28-14

July 28, 2014 at 10:50 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice:


I read Judge Gleeson's order which resulted in the Government's acquiescence. It is a breathtaking example of bullying. The threat is clear: agree to allow the Court to vacate now (the easy way), or the Court will vacate after forcing the Government to bust their hump with litigation and appeals.
The suggestion that other judges adopt similar strategies is unconscionable.

Posted by: Wayne-O | Jul 28, 2014 11:50:05 PM


What is unconscionable about it? It seems to me exactly correct...everyone else got six years and he got 57, for what? For going to trial, that's what. The real bullies here are the prosecutors who don't like being bullied back. Who can dish it out but can't take it.

Posted by: Daniel | Jul 29, 2014 1:20:33 AM

Good on the Prosecution here. There's no doubt a significant sentence is appropriate, but the mandatory time just pushes it into the absurd.

I know a case recently where a man sent solicitous (presumably obscene) texts to a 14 or 15 year old. Over a period of one night, he racked up something like 30 texts. He pled guilty to eight. The problem is there's a mandatory 5 years. In fairness to the law, the Judge could have ran them concurrently. However, he did not and sentenced the defendant to 40 years mandatory. The same Judge then encountered a man who hired someone to commit a murder and sentenced that man to 25 years.

Posted by: Erik M | Jul 29, 2014 6:46:55 AM

Holloway's lawyer admitted that Holloway committed the violent crime of carjacking. Nonetheless, Holloway rolled the dice at trial to try to be found not guilty of the crime THAT HE COMMITTED, and was made aware of the consequences. He lost his gamble, and felt the full brunt of his true acts and we are to have sympathy and compassion for this and give him the benefit of a lower sentence that he could have received for just admitting THE CRIME THAT HE COMMITTED from the beginning?

Posted by: Kelly | Jul 29, 2014 12:23:43 PM

"give him the benefit of a lower sentence that he could have received for just admitting THE CRIME THAT HE COMMITTED from the beginning?"

Yes. Why is that such a shocking proposition? The burden of proof is supposed to be on the prosecution not on the defendant. If a person has right to the trial that right is inherently undermined when there is a penalty for exercising that right.

Posted by: Daniel | Jul 29, 2014 12:45:55 PM

Wayne-O, I don't think you read the order. If you did, you would have seen that Holloway's appeal was over (conviction and sentence affirmed by the Second Circuit and the Supreme Court), his post-conviction habeas (2255) motion was DENIED by Judge Gleeson, and the Second Circuit refused to allow that denial to be appealed. (page 11). The case was over.

If the Government had done nothing, Holloway would have simply done his 57 years. There would not have been any further litigation and appeals to "bust a hump" over.

Judge Gleeson did not have the power to vacate, or to do anything. Except ask. (Not bully, not threaten, just ask.) The whole point made throughout his order is that when he did ask, the prosecutor--who didn't have to do anything-- undertook the effort to re-examine the case and do the right thing.

Posted by: Def. Atty | Jul 29, 2014 4:06:56 PM

So, Kelly, your position on charge stacking, absurdly punitive MMs and draconian trial penalties is what...rules are rules?

You think these spectacularly coercive techniques are only applied to those who clearly committed the crimes as charged? (of course we don't know if they are or not because all but a scant few defendants end up caving under the onslaught...regardless of whether they are guilty, wrongly accused or innocent)

Posted by: John K | Jul 29, 2014 5:26:39 PM

Def. Atty:

Of course I read it. Carefully. From page 5:

"In the absence of a government agreement to reopen the sentencing, I will

address the pending application to reopen Holloway’s collateral challenge to his conviction.

The extraordinary trial penalty in this case may warrant further briefing on the constitutional

issues raised by such a use of prosecutorial power. In addition, though I long ago rejected a

claim of ineffective assistance of counsel based on trial counsel’s admission in his opening

statement that Holloway in fact robbed the three victims of their cars,

I may direct a closer inspection of that issue as well. "

I can respect that you may have a different characterization of this language. I stick by mine.

Posted by: Wayne-O | Jul 29, 2014 7:44:52 PM

John K.

I wouldn't even consider this classic charge stacking as I understand that the sentence resulted from charging multiple discrete offenses, not numerous violations stemming from a single act.

The only real injustice I see is that his cohorts got such short terms, not that Holloway got 57 years.

Posted by: Soronel Haetir | Jul 30, 2014 12:46:19 AM


Maybe that's right. Maybe it is an injustice that the others got such short sentences. But you cannot be blind to the reasons why that happened. The people who got short sentences were people who played ball with the prosecutor and the person who got the long sentence was the one who exercised their constitutional right to a trial. Doesn't that bother you at all? It seems to me that not only must a just result be achieved it must be achieved by a just process. Otherwise it all collapses into the ends justify the means and then all rules and laws are just a trick and a sham on the powerful on the powerless.

Posted by: Daniel | Jul 30, 2014 2:30:03 AM


Given that I have repeatedly stated I believe that execution is generally the appropriate outcome for crimes like theft of $250 and that execution would only bother me for thefts in the low tens of dollars I am not at all bothered by the guy who chose to go to trial getting a significantly longer term. By the time you are talking about armed robbery as compared with simple theft society should be able to protect itself by expelling the guilty. To me, all of them are so worthy of execution that the difference in actual sentences is of only mild curiosity.

Posted by: Soronel Haetir | Jul 30, 2014 10:57:33 AM

What's the opposite of a great humanitarian?

Setting aside the notions of mercy and compassion (which should be easy for Soronel since he apparently has none of either) how about the question of competence. The significant number of innocence-project exonerations of death-row inmates suggests at the very least the system simply isn't to be trusted to kill the right people.

Or does that not matter either?

Posted by: JohnK | Jul 31, 2014 12:14:46 PM

I wish somebody who actually values liberty and loves his own life would explain to me how 11 years in prison is a light sentence? Before reacting too quickly, keep in mind Holloway wasn't the one carrying the gun.

In fact it appears Holloway was actually crushed by the system for committing two police-state crimes not mentioned publicly or included in the charging documents: 1. being the guy who wasn't among the first to take a plea deal and 2. putting the state to the annoyance of a trial.

Posted by: JohnK | Jul 31, 2014 12:29:01 PM


You found and read that earlier order with more care than I read the first sentence of your post. We're talking about different orders.

I assumed you were speaking of the order linked with this blog post, which doesn't contain the language you cite. With further digging, I found and read the earlier order you've quoted.

I agree that we disagree on characterization. But now at least I see the order of which you spoke, and the point you were making. I take back my first sentence and its tone.

Posted by: Def. Atty | Jul 31, 2014 12:41:36 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB