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April 21, 2020

Chad Marks, high-profile "prison lawyer" subject to extreme stacked 924(c) term, gets his sentence reduced from 40 to 20 years via § 3582(c)(1)(A)

Readers may recall this post from last year about a remarkable four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019).  I am happy to have an update to this story.  First some background, then the latest chapter.

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 federally sentenced years ago to 40 mandatory prison years due to stacked § 924(c) firearm charges.  The March 2019 order by US District Judge David Larimer, which reviewed the unfairness of Marks' sentence and his extraordinary good works in prison, urged the local federal prosecutor to "carefully consider exercising his discretion to agree to an order vacating one of Marks two Section 924(c) convictions" in light of congressional modifications of this provision in the FIRST STEP Act.

At the time of the March 2019 order in the Marks case, I noted that Judge Larimer did not "have 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)."  Reading the March 2019 Marks order, it seemed to me that Judge Larimer had already essentially concluded that Chad Marks had  established "extraordinary and compelling reasons" to warrant a sentencing reduction under § 3582(c)(1)(A).

Fast forward just over 13 months, and now we have a new order in US v. Marks, No. 03-CR-6033L, 2020 WL 1908911 (WDNY April 20, 2020) (available for download below).  This order now runs 39 pages, and here are a few highlights:

The United States Attorney never formally responded to the Court’s Order and suggestion, but the Government’s position is crystal clear from its filings and steadfast opposition to Marks’s motion.  Given the Government’s continued, unyielding characterization of Marks as “a dangerous and violent man,” (Dkt. #503 at 1), and “a liar, perjurer and an obstructer of justice,” id. at 2, who “remains a criminal,” id., and its position that Marks “is not entitled to and does not deserve any more mercy,” id. at 23, it is obvious that the Government will never consent to vacating one of Marks’s § 924(c) convictions, or to any other relief for Marks.  It seems highly unlikely that the Government ever took seriously this Court’s request that it “carefully consider” doing so.

Be that as it may, that avenue of relief is thus foreclosed in this case.  Absent the Government’s consent (or some other independent ground), this Court has no authority to vacate any of Marks’s convictions....  But that does not necessarily mean that Marks is barred from all relief.  In addition to his pro se motion to reduce his sentence, he has also filed a motion, through counsel, to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(I). (Dkt. #498.)  That motion is based in large part on the First Step Act of 2018, which is discussed below....

There is growing authority from district courts throughout the country that find extraordinary and compelling circumstances under circumstances very similar to Marks’s.  First, Marks was subject to the “stacking” of offenses under 18 U.S.C. § 924(c)(1)(C)....  Congress has also stated that “rehabilitation ... alone” may not be considered an extraordinary and compelling reason for reduction of sentence. While that clearly forecloses relief based solely on a defendant’s efforts toward rehabilitation, it implies that rehabilitation is a factor that a court may consider, in conjunction with other relevant circumstances....

[The Government's argument] puts Marks in a “Catch-22” situation.  If he had spent his free time in prison doing little but visiting the weight room, or sitting in his cell reading comic books, the Government would likely point to that as evidence of his incorrigibility or indolence.  Yet having taken consistent, years-long efforts to better his life and the lives of those around him, Marks finds himself accused of a cynical attempt to play on the Court’s sympathies.  The Government is apparently unwilling even to consider the possibility that Marks’s efforts have been sincere.  In the Government’s view, there is no place for redemption.  I do not share that view....

Furthermore, the mere fact that some self-interest may have been involved is hardly remarkable, and is not a reason to disregard Marks’s accomplishments since then. Whatever motives may have initially prompted Marks to undertake rehabilitative efforts, the fact is that he has followed that path for many years, by all appearances to the benefit of himself and others.  If actions speak louder than words, then Marks’s actions have spoken volumes.  To ignore those efforts would only serve to discourage prisoners from making any efforts at rehabilitation, which is presumably not what Congress had in mind when it gave prisoners the ability to seek direct relief from the courts.

It is undisputed that at one point in this case, during plea negotiations, the Government floated the idea of a straight 20-year plea....  Clearly, then, at one time the Government was open to the idea of Marks being released from prison after twenty years.  As explained above, I see no reason why Marks is more dangerous now than he was then.  The evidence before the Court indicates quite the contrary.  The Court is not suggesting that a defendant can refuse a plea offer, and then years later, having received a stiffer sentence than what he was offered, retroactively “accept” the offer.  The point is that the Government’s prior willingness to consider a 20-year plea deal undercuts its present argument that Marks is too dangerous to be released before the end of his current 40-year sentence....

Having weighed the relevant circumstances, in light of the evidence and the law, I conclude that the appropriate relief here is to reduce Marks’s sentence to an aggregate term of twenty years’ imprisonment, followed by an eight-year term of supervised release.... In reaching this conclusion, the Court notes that even twenty years is more than that imposed on Marks’s codefendants, who received sentences of 13 years (Richard Ross, Dkt. #142), 15 years and one month (Nathan Brown, Dkt. #256), and 12 years and seven months (Tommy Hardy, Dkt. #276).  None of those codefendants were minor participants in the offense.  I recognize that those defendants pleaded guilty, while Marks elected to proceed to trial. The point is that his sentence remains a hefty one, and for all the reasons stated above, in my discretion, I find that it is appropriate here.

Download W.D.N.Y. 03-cr-06033 dckt 000536_000 filed 2020-04-20

Though I am quite pleased to see Judge Larimer exercise his discretion to cut two excessive decades off Chad Marks' prison term, I am still put off just a bit by the fact that the court here decided that the arbitrary round number of "20 years" originally proposed by federal prosecutors was the "right" sentence now.  Especially since it appears none of Marks' co-defendants got more than 15.1 years, it still seems that the court is essentially indicating that five extra years in prison for exercising the right to go to trial is fitting even after it is clear that those five extra years are not needed for the defendant's rehabilitation.  For all the virtues of this opinion, it still closes with a not-so-subtle conclusion that it is proper for this defendant to be given an extra half-decade in prison for exercising his constitutional right to put the government to its burden of proof.

That all said, because of time already served and good time credits, I think the new 20-year term for Chad Marks still means he should be released from federak prison relative soon (rather than in the year 2037, as the BOP inmate locator says as of this writing).  Congrats to both Chad and to his lawyers (including, according to a footnote in this new opinion, former federal Judge John Gleeson).

Some (of many) prior related posts on (COVID-free) sentence reductions:

April 21, 2020 at 10:02 AM | Permalink


Doug: I received a copy of Chad's Judge's Order late Monday afternoon and spent about 30 minutes reading and considering it. I don't think that the 20 years has to do with the "trial penalty", even though no co-defendant received a sentence of longer than 15.1 years. The Judge pointed out that the Government had once offered Chad a 20-year plea bargain, which his attorney seems to have turned down out of hand, without ever mentioning it to Chad. Indeed, Chad had a separate Motion pending about the ineffective assistance of counsel at plea bargaining, which the Judge addressed by a separate Order (probably found it moot, in light of his decision on the 3582 Motion). I think the 20 years (which the Judge knows will get Chad out of prison immediately or very soon) was to discourage and deter the Government from trying to appeal his decision; and if the Government does appeal, give an appellate court pause in considering reversing the Judge's well-written and well-reasoned decision. Interestingly, Chad is incarcerated here in Lexington, Ky., at FMC -Lexington. I have offered to pick Chad up from prison, buy him a good meal, and deliver him to either the bus station or the airport. Although many would buy Chad a plane ticket home to western New York, I don't think he will have sufficient I.D. to get thru a TSA check point and get on a plane. Because our local Court Clerk's Office is closed due to the Coronavirus, I couldn't even get Chad an official walking I.D. or Driver's License at this time. Unless someone will fly Chad home in a private plane, it looks like he will get stuck using that BOP bus ticket from Lexington to New York.

Posted by: James Gormley | Apr 21, 2020 12:20:37 PM

I think the 20 year sentence might also have something to do with the fact that the judge did not want Marks to have "over-served" his sentence once the CR was granted. That could create a host of issues that judges tend to try and avoid.....

Posted by: Zachary Newland | Apr 21, 2020 12:47:30 PM

I am sure plenty of factors went into the judge's decision to reduce the sentence to 20 years. But he said this, right after reviewing co-defendant sentences and explaining why he reached the 20-year conclusion: "I recognize that those defendants pleaded guilty, while Marks elected to proceed to trial." In this context, the judge's discussion is tantamount to a statement that "Marks should still get a longer sentence because he elected to proceed to trial." We are so comfortable with the trial penalty, we barely notice when it is highlighted even decades later.

Posted by: Doug B. | Apr 21, 2020 3:14:58 PM

I have seen the issue that Zachary Newland is describing before in the 2255 habeas corpus case I helped litigate for 5 years to get my friend Ali Sawaf, M.D. out of Federal prison, based upon ineffective assistance of counsel at plea bargaining. See, Ali H. Sawaf v. United States, No. 13-5620 (6th Cir. June 30, 2014). During plea bargaining in 2000, Dr. Sawaf's young, inexperienced attorney told him to turn down the Government's 41-month plea offer, because he believed he could defend that case based upon entrapment. The attorney never gave Dr. Sawaf any estimate of how long a sentence he might receive if he was convicted at trial, as the law requires when counsel is advising a client about a plea offer. After Dr. Sawaf was convicted at trial, he was shocked to be sentenced to the 20 year statutory maximum under 21 U.S.C. section 841(b)(1)(C). For strange reasons, Dr. Sawaf ended up having 3 direct appeals to the Sixth Circuit, which took more than 9 years. Along the way his sentence was vacated and remanded twice, but Judge Karen Caldwell continued to reimpose 20 year sentences. Subsequently, she sat on Dr. Sawaf's 2255 Motion for 3.5 years, ultimately denying it. It took us 1.5 more years to get her reversed by the 6th Circuit, and she was furious. Although applicable Supreme Court precedents required her to order the Government to re-offer the initial plea bargain of 41 months, she refused to do it. Instead, the Judge re-sentenced Dr. Sawaf to "time served", 13.5 years (instead of 41 months), because she did not want the Government to be exposed to a claim by Dr. Sawaf that he had spent 9.5+ years too long in prison. Because she refused to order the Government to re-offer the 41-month plea deal, Dr. Sawaf (now 78 years old) also could not collect 9.5 years in back Social Security payments, worth more than $200,000. His subsequent 2255 Motion was denied and he was also denied a Certificate of Appealability. Under Kentucky law,. Dr. Sawaf had no legal recourse against his former criminal defense lawyer, for two reasons. First, the statute of limitations had run on his claims, because under Ky. law, the one year SOL begins to run in criminal cases at the end of the defendant's direct appeals, and is not extended for habeas corpus proceedings. Second, under Ky. law, a criminal defendant can only recover damages against a defense attorney if he can show that he is "actually innocent" of the crimes; damages cannot be claimed, as a matter of law, for sentencing mistakes made by the attorney, even though Dr. Sawaf spent an extra 9.5 years in prison because of his attorney's mistakes. That attorney, whose name is not stated in the Sixth Circuit's opinion, later became a Circuit Judge in Harlan County, Ky., but was subsequently removed from office by the Kentucky Supreme Court, for reasons described in a 63 page published opinion. He still has a law license and practices in Southeastern Kentucky.

Posted by: James Gormley | Apr 22, 2020 8:57:57 AM

As of Wednesday, Chad's BOP release date has been updated to reflect his new Order of Judgment and Commitment. It shows a current release date of June 4, 2020, about 6 weeks from now.

Posted by: James Gormley | Apr 22, 2020 2:38:02 PM

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