United States v. Marks, 03-CR-6033L

Decision Date20 April 2020
Docket Number03-CR-6033L
Citation455 F.Supp.3d 17
Parties UNITED STATES of America, Plaintiff, v. Chad MARKS, Defendant.
CourtU.S. District Court — Western District of New York

Joseph M. Guerra, III, U.S. Attorney's Office, Buffalo, NY, Robert Marangola, Everardo A. Rodriguez, U.S. Attorney's Office, Rochester, NY, for Plaintiff.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

In 2006, defendant Chad Marks was convicted after a jury trial on various charges involving drug and firearms offenses. He was sentenced principally to a forty-year term of imprisonment.

Since his conviction, Marks has filed several motions seeking either to overturn his conviction or to reduce his sentence. Principally, he has moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(I). (Dkt. #498.)

BACKGROUND

I. Procedural Background

This case began with the filing of a criminal complaint in February 2003. Indictments were later filed, and Marks was charged, along with three codefendants, with various drug and firearms offenses.

All of Marks's codefendants eventually entered into plea deals, and pleaded guilty to some of the charges against them, in exchange for some benefit at sentencing.

Although Marks engaged in "protracted plea negotiations" with the Government, United States v. Marks , 561 Fed.Appx. 42, 43 (2d Cir. 2014), he and the Government never reached a plea agreement. At one point, the Government offered Marks a deal with a 20-year sentence, which, though objectively lengthy, was well below the maximum sentence that Marks was facing. That offer, and another alleged offer, became the subject of later litigation, mostly concerning the communication, or lack thereof, among Marks, his then-attorney, and the Government.1

But as stated, Marks and the Government never entered into a plea agreement. Marks went to trial in 2006, and was convicted by a jury on seven counts. (Dkt. #255).

The Court sentenced Marks principally to a term of forty years imprisonment. The forty-year sentence was the minimum permitted under the sentencing statutes then in effect. Much of that was due to the "stacking" of multiple mandatory sentences for violations of 18 U.S.C. § 924(c), relating to possession of a firearm in furtherance of a drug trafficking crime. See United States v. Rivera-Ruperto , 852 F.3d 1, 25 (1st Cir. 2017) (explaining "stacking") (Torruella, C.J., dissenting).

In February 2019, Marks filed a pro se motion (Dkt. #491) to reduce his sentence, based largely on a decision from the Eastern District of New York, United States v. Holloway , 68 F.Supp.3d 310 (E.D.N.Y. 2014). In Holloway , the district court granted relief to a defendant who had been sentenced in 1996 to a mandatory term of 57 years under § 924(c), for three separate carjackings over a two-day period.

In 1999, defendant Holloway brought a collateral attack against his sentence under 28 U.S.C. § 2255, which the district court denied. In 2012, he filed a motion to reopen his § 2255 proceeding under Fed. R. Civ. P. 60(b). "Recognizing that there were good reasons to revisit Holloway's excessive sentence [as described in detail by the court] but no legal avenues or bases for vacating it," then-District Judge John Gleeson2 (who later retired from the bench and is now representing Marks) issued an order requesting that the United States Attorney "consider exercising her discretion to agree to an order vacating two or more of Holloway's 18 U.S.C. § 924(c) convictions." Id. at 314. In so doing, the court stated that "cases like Holloway's produce sentences that would be laughable if only there weren't real people on the receiving end of them." Id. at 312.

The Government in Holloway ultimately agreed not to oppose the defendant's motion to vacate two of his convictions. The court afterwards entered an amended judgment to that effect, and reduced the defendant's term to about 30 years from the original 57-year term. Id. at 314-15 ; United States v. Holloway , No. 95 Crim. 78 (E.D.N.Y. Aug. 7, 2014) (Dkt. #259) (Amended Judgment). In doing so, the court expressly "applaud[ed]" the prosecutor's exercise of her discretion, id. at 311, observing that while "[i]t is easy to be a tough prosecutor," in the sense that "[p]rosecutors are almost never criticized" for being too "tough," the prosecutor in Holloway had "the wisdom and courage" to help remedy an injustice. Id. at 316.

In the case at bar, this Court issued an Order on March 14, 2019 (Dkt. #493), citing Holloway and requesting the United States Attorney for the Western District of New York to "carefully consider exercising his discretion to agree to an order vacating one of Marks' two Section 924(c) convictions," so as to avoid "the mandatory 25-year term [on the second conviction] that is now contrary to the present provisions of the statute," i.e. , § 924(c), as amended by the First Step Act. Id. at 4.

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. See United States v. Barnett , No. 90-cr-913, 2020 WL 137162, at *4 (Jan. 13, 2020) (stating that " Holloway does not create an independent avenue for relief," and that because "the Government does not consent to Holloway relief in this case, ... Barnett's claim fails"), appeal filed , (2d Cir. Feb. 10, 2020); United States v. Vallejo , No. 02-CR-1188, 2019 WL 2717107, at *3 (E.D.N.Y. June 28, 2019) ("the Court does not have the discretion to vacate his conviction or sentence pursuant to Holloway without the Government's consent"); Acuna v. United States , No. 07-cr-00615, 2016 WL 3747531, at * 3 (D. Haw. July 8, 2016) ("The Government's approval is an essential element in granting relief under the Holloway decision"). While the Court agrees with much of the reasoning underlying the Holloway decision, the Court's present decision does not rest upon Holloway .

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.

DISCUSSION
I. First Step Act

Since Marks's conviction, the legal landscape has changed in significant ways, as the result of Congressional action. Most notably, in December 2018, the President signed into law the First Step Act of 2018 ("FSA" or "Act"). That "act was the culmination of several years of congressional debate about what Congress might do to reduce the size of the federal prison population while also creating mechanisms to maintain public safety." Congressional Research Service, "The First Step Act of 2018: An Overview" (Mar. 4, 2019), available at https://crsreports.congress.gov.

The FSA effected a number of changes in several areas, including federal sentencing law. For one, the Act eliminated the so-called "stacking" provision of 18 U.S.C. § 924(c)(1)(C), under which a defendant convicted of multiple § 924(c) charges at the same time was subject to higher mandatory minimum penalties for each subsequent count, even if he had no prior § 924(c) convictions. Instead of automatically triggering a 25-year sentence for a second, but concurrently imposed § 924(c) conviction, the FSA requires the existence of a prior § 924(c) conviction "that has become final," before "stacking" can occur. 18 U.S.C. § 924(c)(1)(C)(I) ; United States v. Jackson , Crim. No. 99-15, 2019 WL 6245759, at *5 (S.D.W.Va. Nov. 21, 2019).

The FSA also made certain provisions of the Fair Sentencing Act of 2010 retroactive to the effective date of the latter act, i.e. , August 3, 2010, so that currently incarcerated offenders who received longer sentences for possession of crack cocaine than they would have received if sentenced for possession of the same amount of powder cocaine before the enactment of the Fair Sentencing Act can submit a petition in federal court to have their sentences reduced. See First Step Act § 404 (authorizing a defendant to file a motion in the sentencing court to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed").

Otherwise, however, the First Step Act does not provide for retroactive relief. For all offenses other than those falling within the ambit of sections 2 and 3 of the Fair Sentencing Act, the sentencing reform provisions of the FSA benefit only individuals who were convicted following the effective date of the Act, i.e. , December 21, 2018. See First Step Act §§ 401(c), 402(b), 403(b); United States v. Contreras , 332 F.R.D. 712, 713 (D.N.Mex. 2019). Thus, the changes made regarding the "stacking" of § 924(c) offenses are not retroactive. See Baugh v. United States , No. 16-cv-2628, 2020 WL 409728, at *5 n.5 (M.D.Tenn. Jan. 24, 2020), appeal filed , No. 20-5313 (6th Cir. Apr. 20, 2020).

Another major change brought about by the First Step Act involves the availability of so-called "compassionate release." Prior to the enactment of the FSA, a court could revisit a...

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