by Chad Marks

On a cold February 2003 night, my life was shattered. That is when I was arrested and charged with a crack cocaine conspiracy along with two § 924(c) counts. My mandatory minimum sentence could be no lower than 40 years. And after a three-week trial, that is exactly what I was sentenced to at 24 years old.

I was sent to USP Big Sandy in Kentucky, where I immediately began going to the law library and working on my appeal. With the assistance of attorney Jillian Harrington, I was successful on my appeal in part. The case was remanded to the district court for a hearing related to ineffective assistance of counsel that occurred during the plea-bargaining stage. After the hearings, my request for relief was denied. A new appeal on that issue was also rejected. At that point, my 40-year sentence was looking like my reality for the next four decades.

This was a prospect that I could not accept. This is when my game plan changed — I decided that my days would now be spent in the law library. Researching the law became easy for me, and in time, I would read some very helpful opinions from former Federal Judge John Gleeson. They gave me hope that I might someday obtain relief. The most significant was United States v. Holloway, 2014 U.S. Dist. LEXIS 102707 (E.D.N.Y. 2014). In that opinion, Judge Gleeson, the former federal prosecutor who prosecuted infamous crime boss John Gotti, urged then-U.S. Attorney Loretta Lynch to reopen Holloway’s case, dropping some of the stacked § 924(c) counts so that he could impose a more just sentence. At first, Lynch balked at the prospect, but with more urging from Judge Gleeson, she did just that. Judge Gleeson was now empowered to impose a new sentence that would allow Holloway a second chance to reclaim his life — which he did.

Immediately upon discovering that revelatory opinion, I began to write my own Holloway-based motion and sent it off to the court in 2016.

After filing my motion pro se, I reached out to Holloway’s attorney, Harlan Protass, for help. I outlined my institutional record and all of the rehabilitative programs that I had completed.

Within a week, I received a letter from Mr. Protass that said he had sent my letter to someone who might be able to help, and that if that person decided to help, I would hear back from him.

He never said who the person was, but three weeks later, I found out when a letter arrived from Judge Gleeson, who had stepped down from the bench and was again practicing law.

Judge Gleeson and his team began reviewing my case. By the end of that review, he advised me that while he was unable to help me at that time, he encouraged me to keep working and to look into college. He commented that he might help down the road. Shortly after receiving that letter, I enrolled in a correspondence-degree program and began work on earning a degree. Then came the latest denial from my judge on my Holloway motion. That denial seemed to indicate that the judge was proud of my accomplishments, but he simply did not have the power to reopen the case absent the prosecution’s consent. Unlike Holloway’s case, there was no consent from the prosecution but instead a harsh response.

Two years later, the First Step Act was signed into law. The legislation came with four criminal justice reform aspects. One of those sought to eliminate the overly harsh sentences for stacked § 924(c) offenses. The only problem was that the changes were not going to be retroactive. I read each and every word of the First Step Act. Slowly, I realized that there was a jewel inside the bill. A gem that could restore those who deserved a second chance to reclaim their lives.

I debated with myself whether I should file a 404 motion or a Holloway motion asking that the court resentence me with respect to the crack cocaine charge. My belief was that the 404 motion would give the court the opportunity to revisit the whole sentence, as my original sentence was based on a sentencing package. If the crack cocaine sentence changed, I was under the impression the whole sentence could be reopened under the sentencing package doctrine.

The other alternative was to file a Holloway motion again in hopes that the changes in law would prompt the Government to reopen the case if my sentencing judge were inclined to resentence me.

My decision was to try the Holloway option first. In early 2019, I wrote and filed a pro se Holloway motion outlining the changes in the First Step Act to stacked 18 U.S.C. § 924(c).

Then in March, much like Judge Gleeson, my sentencing Judge David G. Larimer issued a decision asking the Government to reopen my case and dismiss one of the § 924(c) counts, which would allow him to impose a more just sentence. (See prior CLN coverage).

Attorney Harrington, at the direction of Judge Larimer, filed a new pleading outlining my accomplishments and the reasons why the Government should reopen my case. Shon Hopwood and Jillian Harrington reached outto the Government on my behalf, seeking a resolution consistent with the judge’s order. The Government never responded. As months passed by with no answer, I began to wonder what would happen, whether I would obtain relief. With the judge’s decision, it felt like my liberty was within reach, but as the months passed by with nothing from the Government, I began to worry. This prompted me again to contact Mr. Gleeson for help in May 2019.

Mr. Gleeson and his team took over my representation. They, too, reached out to the Government with no response. This is when we began to discuss other options, such as filing a motion under 18 U.S.C. § 3582, asking the judge to grant relief absent the Government’s consent.

The First Step Act amended 18 U.S.C. § 3582 (c)(1)(A) to allow courts to modify sentences not only upon motion of the Director of the Bureau of Prisons but also upon “motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the BOP to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility.” The law allows a court to modify a defendant’s sentence if it finds on either the BOP’s or the defendant’s motion that “extraordinary and compelling reasons warrant such a reduction” and is consistent with applicable policy statements issued by the Sentencing Commission. United States v. Daniel Lynn Brown, Jr., 4:05-cr-00227-RP (S.D. Iowa).

The only way I could find relief through the § 3582 avenue and the First Step Act was to demonstrate that “extraordinary and compelling reasons” for a reduction in sentence were present. The policy statement regarding compassionate release sets forth three specific reasons that are considered “extraordinary and compelling,” as well as a catch-all provision recognizing as “extraordinary and compelling” any other reason “[a]s determined by the Director of the Bureau of Prisons.” US Sentencing Guidelines 1B1.13 (D) cmt. n.1.

That policy statement has not yet been amended since the First Step Act, and some of that policy statement contradicts 18 U.S.C. § 3582(c)(1)(A). United States v. Overcash, 2019 WL 1472104 (W.D.N.C. 2019). Prior to the First Step Act, we knew that the BOP would have to determine any extraordinary and compelling reasons for a sentence reduction — because only the BOP could bring the motion for a reduction of sentence under § 3582 (c)(1)(A). But, with the First Step Act, courts are now empowered to determine what are extraordinary and compelling circumstances that could support a reduced sentence. The title of the section of the First Step Act that amends 18 U.S.C. § 3582 is “Increasing the Use and Transparency of Compassionate Release.” That title supports the reading that U.S.S.G. § 1B1.13 cmt. nt.1 (D) is not applicable when a defendant requests relief under § 3582 (c)(1)(A), as amended, because it no longer explains an appropriate use of that statute. If the director of the BOP were still the sole determiner of what constitutes an extraordinary and compelling reason for a reduction in sentence, motions under § 3582 would necessarily be an exercise in futility. That would undermine the explicit purpose of the amendments.

Congress had never limited or defined what constitutes an extraordinary and compelling reason warranting a reduction in sentence. The First Step Act did something groundbreaking — it allows the people in the best position to judge to do just that. Federal sentencing judges were now given back the power to do what they were intended to do — make sound judgments based on the facts, law, and circumstances of each individual defendant. A growing number of courts have concluded that in the absence of a policy statement “the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1 (A)-(C) warrant granting relief.” United States v. Cantu, 423 F. Supp. 3d 345 (S.D. Tex. 2019); United States v. Fox, 2019 WL 3046086 (D. Me. 2019) (“I treat the previous BOP discretion to identify other extraordinary and compelling reasons as assigned now to the courts.”).

With the law at hand, we filed our § 3582 motion, arguing that there were “extraordinary and compelling reasons” for the court to reduce my sentence. The first extraordinary and compelling reason for a reduction in sentence was that both Congress and President Trump determined that stacked sentences under § 924 (c) were not only outrageous, but they also were indefensibly unjust. Although the First Step Act did not make the § 924 (c) changes retroactive, that did not foreclose other avenues of relief for those with such sentences. In conjunction with our argument that the changes to § 924 (c) being extraordinary, we also argued that my rehabilitation was also an extraordinary and compelling reason that the court could consider.

Extraordinary and Compelling

Since my incarceration, I earned a college degree, completed over 100 rehabilitative programs, taught leadership classes, facilitated Alternative to Violence Project Seminars, volunteered as a suicide-prevention companion, and helped the men around me learn to read and write. We believed that all of these accomplishments constituted an extraordinary and compelling reason that the court could consider in light of the § 924(c) changes. While rehabilitation alone cannot constitute an extraordinary and compelling reason, it is one of the factors in conjunction with § 924(c) changes that can constitute extraordinary and compelling reasons for a reduction in sentence. We believed that my record demonstrated extraordinary and compelling reasons to support a reduction in sentence.

18 U.S.C. § 3142 (g) and U.S.S.G. 1B1.13(2) also make it clear that a court must decide whether I present a danger to the safety of any other person or to the community. In our motion, we argued that I was not a threat to the community and others, outlining that I had not been convicted of any crime involving violence. My conviction was for a crime involving low-level sales of narcotics, and my lengthy sentence was not based in any way on the dangerousness of my criminal conduct or the need to incapacitate me. Instead, my lengthy sentence was the result of a sentence enhancement that the Government invoked solely because I proceeded to trial, i.e., I was subjected to the so-called “trial penalty.”

In demonstrating to the court that I was not a danger, we also outlined the evolution of my character over the last 16 and half years that I have been incarcerated, which we argued precludes a finding that I would pose a danger to the community. The facts we argued demonstrated that I would be an asset to the community rather than a danger.

Once a court determines that a person is no longer a danger to the community, the court must assess the factors outlined in 18 U.S.C. § 3553(a) that direct courts to impose a punishment that is sufficient, but not greater than necessary, to achieve the goals of sentencing.

Those factors include (1) the nature and circumstances of the offense and the history and characteristics of the defendant and (2) the need for the sentences imposed to:

(A) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.

Our argument was that the § 3553(a) factors weigh strongly in favor of a sentence of time served. The record demonstrates that I have dedicated myself to the rehabilitation of myself and others and that I had personify the objectives of § 3553(a)(2). The time that I had served, we argued, was more than sufficient to achieve the objectives of my sentence and incarceration, including to deter similar conduct.

We also highlighted the fact that all of my codefendants had already been released, some many years ago. This demonstrated the disparity between my sentence and those involved in the same conduct as me.

The Government strenuously objected to our request for resentencing.

But October 18, 2019, brought joy and renewed hope when at 7:00 p.m. I had learned that Judge Larimer, earlier in the day, issued a decision ordering argument on the motions in the form of a sentencing hearing. As part of that order, he also ordered that the probation department amend my original presentence report with the applicable Guidelines together with the changes made to 18 U.S.C. § 924(c) by the First Step Act.

A second chance to possibly reclaim my life came through the First Step Act — my hope was that the judge would see me as worthy of his compassion. And that the law allowed him the power to reduce my grotesque 40-year term.

During the hearings, the Government attempted to paint me as a horrible, irredeemable person. In part of their attempt, they called a Special Investigation Officer (“SIS”) as a witness who testified falsely.

On April 20, 2020, Judge Larimer rejected the Government’s position. He found that the First Step Act permitted him to reduce my sentence. He also found that I was worthy of a second chance to reclaim my life. United States v. Marks, 2020 U.S. Dist. LEXIS 68828 (W.D.N.Y. 2020).

Judge Larimer, in his 39-page decision, found the SIS Officer’s direct testimony was lacking in credibility. At one point, he wrote, “This suggests, once again, an orchestrated effort to manufacture adverse information against Marks, no matter how speculative and conjectural.”

At the end of the day, the Department of Justice is supposed to be just what its name says — but in far too many cases, they are the Department of Prosecutions. My case is a textbook example of that.

However, I am a firm believer that justice is possible if we never give up the fight. On June 4, 2020, I am scheduled to find that justice by finishing up my long walk to freedom. 

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