Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case

I learned last night of a remarkable new four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019) (available for download below).  Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being sentenced many years ago to 40 mandatory prison years due to extreme recidivist stacking § 924(c) firearm charges. 

As informed readers know, the FIRST STEP Act eliminated the provisions of federal law that had required multiple § 924(c) firearm mandatory-minimum sentences to be stacked to include recidivist 25-year terms.  But it did not make this change retroactively applicable to offenders like Mr. Marks' who were subject to its severe terms in prior years.  This new order by US District Judge David Larimer speaks to this reality, and here is part of what it has to say:

Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that Marks would benefit directly because the changes to Section 924(c) do not appear to be retroactive. One option now is for those in the system to say to Mr. Marks, “too bad, the changes don’t apply to you and you must serve the lengthy remainder of your 40-year term, and perhaps die in jail.”

Chad Marks has now filed a pro se motion (Dkt. #491) requesting this Court, in part, to request the United States Attorney for the Western District of New York, James P. Kennedy, Jr., to consent to vacating one of Marks’ Section 924(c) convictions, which would, in effect, remove the draconian, mandatory 25-year consecutive sentence.

Admittedly, this is not a typical request. Marks makes this request, though, relying on several cases from other districts throughout the country where the U.S. Attorney did precisely what Marks seeks here. Marks relies principally on the case of U.S. v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). That thoughtful opinion is annexed to Marks’ motion as Exhibit A. In the Holloway case, the defendant was convicted of three Section 924(c) violations for three separate car jackings over a two-day period. He received a mandatory sentence of 57 years. In Holloway, District Judge John Gleeson remarked that such a stacking sentence “would be laughable if only there weren’t real people on the receiving end of them.”

Prosecutors spend their days seeking convictions and appropriate sentences. What is sought here is different, but in his decision in Holloway, Judge Gleeson praised the U.S. Attorney for the Eastern District of New York for agreeing to vacate a prior conviction in that particular and unusual case. He noted that prosecutors can and should use their vast power to remedy injustices in an appropriate case.

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, which involved a rather small-scale drug case.  All of Marks’ co-defendants have completed their sentences.

I request that the United States Attorney for the Western District of New York, James P. Kennedy, Jr., carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions.  This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of “stacking.”

To facilitate that review, I request that Marks’ appointed counsel, Jillian S. Harrington, Esq. provide a filing listing in detail the many, many accomplishments, awards and other matters involving Marks while he has been incarcerated. In addition, counsel should list the scores of rehabilitative programs that Marks successfully completed.  Marks has described many of his accomplishments in his pending motion, but I leave it to counsel to provide a detailed supplement to assist the U.S. Attorney’s review as well as this Court’s.

Download 3-18-19 LARIMER ORDER

I am so very pleased to see this federal judge enter this formal order urging the US Attorney to vacate a charge in order to do justice in this extraordinary and compelling case.  However, I keep using the term "extraordinary and compelling" in this post because I do not think the federal judge here has to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A).

As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction." This is what gets described often as the "compassionate release" provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find "extraordinary and compelling reasons warrant such a reduction." As I read this new Marks order, I think Judge Larimer has already essentially made such a finding.

That all said, even though I think Judge Larimer has authority to do justice for Mr. Marks without awaiting action by the local US Attorney, I still think it strategically wise to see the prosecution's involvement in his effort to do justice. With the buy-in by the local prosecutor and vacating of a one of Mr. Marks' 924(c) convictions, there would likely be no appeal and likely no impediment to a Mr. Marks getting released in short order. If Judge Larimer were to act on his own using § 3582(C)(1)(A), however, the feds could possibly appeal and seek to block any early release.