Federal Judge Overturns Long Sentence

Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose

Judge John Gleeson of Federal District Court in Brooklyn has spoken out against mandatory sentences that he believes are unduly harsh, like Francois Holloway’s 57-year term.                         Credit            Michael Appleton for The New York Times                    
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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.”

Sentencing experts characterized Judge Gleeson’s effort as exceptional, saying it could be a blueprint for judges who want to revisit sentences that are legally required but, in their view, unjustifiably long.

“The normal attitude has been, ‘This is terrible, but the law is the law,’ ” said Douglas A. Berman, a sentencing expert at Ohio State University, referring to severe sentences. Rather than “waiting for Congress to act or waiting for the president to grant massive clemency,” he said, Judge Gleeson appears to believe that this is a problem that federal prosecutors and judges “not only ought to be tackling, but are better positioned to tackle.”

The judge’s effort reflects a softening national view of sentencing, moving away from what is now generally perceived as an over-incarceration problem stemming from the crime wave of the 1980s and ’90s. Some nonviolent drug offenders are getting more lenient treatment, and some 50,000 people in prison for those sorts of offenses may have their sentences reconsidered, in the most sweeping sentencing reform in decades.

But people like Mr. Holloway, who committed violent crimes, have basically been overlooked.

“No one is saying Mr. Holloway didn’t do what he was convicted of doing,” said Harlan J. Protass, who was appointed in May as his lawyer. “No one’s saying there was legal error along the way. This is sort of a case of mercy.”

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.)

Mr. Holloway went to prison, where he was scheduled to remain until 2045. His appeal in his case, based on how prosecutors had to prove intent under the carjacking law, went to the United States Supreme Court, which affirmed, in a divided vote, his conviction and his sentence.

Last year, Judge Gleeson appealed to Ms. Lynch, pointing out that even the sentencing commission, which coordinates federal sentencing policy, told Congress in 2011 that stacking is “excessively severe and unjust.”

Mr. Protass, Mr. Holloway’s lawyer, discovered two precedents where prosecutors had agreed to drop convictions that prompted stacked sentences, which he used to help persuade the government to vacate the two convictions.

In Montana, a woman named Marion Hungerford accompanied her boyfriend, who was armed, on a spree of seven robberies, holding up casinos and convenience stores. Described in court papers as being “profoundly mentally disabled,” Ms. Hungerford was sentenced in 2005 to a 159-year sentence, 155 of which came from the legally mandated stacked gun charges. After she fought the sentence from prison, and with urging from the judge, the government agreed in 2010 to drop six of those seven gun convictions, and she was resentenced to 93 months.

In another Montana case, a medical marijuana distributor who owned guns was convicted of four counts of possessing a firearm during drug trafficking, along with other charges, which meant an 80-year sentence on the stacked gun charges alone. After the jury verdict but before sentencing, a federal judge pushed prosecutors and the defense to hold a settlement conference, where prosecutors agreed to drop three of those counts. Saying some mandatory minimums were “unfair and absurd,” that judge, Dana L. Christensen, sentenced the defendant, Christopher Williams, to five years.

But Ms. Lynch, the federal prosecutor, declined to vacate the convictions, suggesting that Mr. Holloway could ask for clemency.

In May, Judge Gleeson urged Ms. Lynch to reconsider. Clemency “is not a realistic avenue to justice for Holloway,” the judge wrote, because the Justice Department is prioritizing clemency for nonviolent offenders. He cited Mr. Holloway’s family, his clean disciplinary record and his participation in prison programs as evidence of his rehabilitation and his prospect of a normal post-prison life.

Ms. Lynch acquiesced.

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.”

Although Mr. Holloway’s federal prison time should be finished on Tuesday, he still owes New York State a minimum of nine more months before he is eligible for parole, stemming from a 1991 drug-selling conviction (he was transferred to federal custody in the carjacking case before he finished that sentence). That means he will most likely be transferred to a New York prison or jail until next year.

Judge Gleeson, though, seemed to feel he had moved the needle.

“There are no floodgates to worry about; the authority exercised in this case will be used only as often as the Department of Justice itself chooses to exercise it, which will no doubt be sparingly,” he wrote in his opinion. “But the misuse of prosecutorial power over the past 25 years has resulted in a significant number of federal inmates who are serving grotesquely severe sentences.”

Written by

Ray Lopez has practiced since 1990, with prior experience as a Hillsborough County assistant State attorney and lawyer for the Tampa Police Department. He handles all criminal charges, from traffic violations and misdemeanors to serious felonies and federal drug charges. He practices in all state and federal courts of the Tampa Bay area and throughout Florida, as well as criminal appeals, juvenile court, administrative hearings, and civil forfeiture proceedings.

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