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Posted: May 22, 2014

Sentencing Issues

In Halloway v. United States, No. 01-CV-1017 (E.D.N.Y. May 14, 2014), Judge John Gleeson pressured the government to agree to reopen the sentencing of a defendant who had rejected a plea bargain of 130-147 months for stealing three cars at gunpoint and after losing at trial was sentenced to 57 years in prison. The disparity in the terms offered by the plea bargain and the post-conviction sentencing resulted from a practice known as “stacking,” whereby the defendant received the consecutive mandatory minimum penalties for all three violations of 18 U.S.C. § 924(c) for gun possession. As noted in the opinion, the Sentencing Commission has asked Congress to amend Section 924(c) to eliminate the practice of stacking, so that increased mandatory minimums apply only to prior convictions as opposed to multiple violations of the same statute in the same indictment.

Judge Gleeson noted that this almost 20-year-old case illustrates some of the problems that have “plagued” the federal criminal justice system: “(1) the excessive severity of sentences, (2) racial disparity in sentencing, and (3) prosecutors’ use of ultraharsh mandatory minimum provisions to annihilate a defendant who dare to go to trial.” Slip op. 1. Judge Gleeson cited statistical studies finding that black men like defendant have long been disproportionately subjected to stacking of Section 924(c) counts. Turning to the defendant in this case, Judge Gleeson noted that during his 19-year imprisonment in Florida (which has kept him from seeing his five children and eight grandchildren whom he’s never seen), defendant has tried to better himself by completing numerous wellness and educational programs.

A year earlier, Judge Gleeson had requested the United States Attorney to consider exercising discretion and agree to an order vacating two or more of defendant’s Section 924(c) convictions so that he could be resentenced. The government declined, but suggested that defendant might be eligible for a presidential pardon. In response, Judge Gleeson noted that DOJ policy regarding clemency applications disqualifies inmates who have committed crimes of violence, which made it unlikely that defendant could receive executive clemency.

In conclusion, Judge Gleeson renewed his request to the United States Attorney to reconsider its decision not to agree to vacate two or more of defendant’s convictions. Should the government again refuse to agree to reopen the sentencing, Judge Gleeson indicated that he may take matters into his own hands by addressing defendant’s pending application to reopen his collateral challenge to his conviction as the “extraordinary” penalty in this case “may warrant further briefing on the constitutional issues raised by such a use of prosecutorial power.” Slip op. 5. Judge Gleeson also noted that although he had earlier rejected a claim of ineffective assistance of counsel, he “may direct a closer inspection of that issue as well” should the government not reconsider its decision not to reopen defendant’s sentencing. Id.

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