An Examination of Several "Stacked 924c" Cases

All, while we were covering the pandemic there were several significant "Stacked 924" cases that were published. I wanted to take some time and cover some of these cases because there are things in them that might be relevant to you as you consider filing a motion to reduce your sentence under 18 USC 3582 as well

Stacked 924 Relief Case #1: United States vs. O’Bryan, No. 96-10076-03-JTM

O’Bryan had been sentenced to 351 months of imprisonment including sentences for possessing a firearm during a crime of violence pursuant to 18 USC 924. The court indicated that his sentence was largely based on the pre-FSA approach of stacked 924(c) offenses under 18 USC 924(c) The court noted that if O’Bryan ad been sentenced today that he would have been facing ten years imprisonment rather than 25.

The government argued that congress did not specify that Section 403 of the FSA to be applied retroactively. Citing Maumau, the District of Kansas stated “However, this simply establishes that a defendant sentenced before the FSA is not automatically entitled to resentencing; it does not mean that the court may not or should not consider the effect of a radically changed sentence for purposes of applying § 3582(c)(1)(A). That is, the fact that the FSA changes in § 924(c) were not explicitly retroactive is “relevant [but] ultimately has little bearing” on whether the court is empowered to act under Section 3582, because “[i]t is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.” United States v. Maumau, No. 08-00758-TC-11, 2020 WL 806121, at *7 (D. Utah Feb. 18, 2020).

The court went on to say (citing all of it for its importance):  

“Previously, the Bureau of Prisons had sole discretion to determine whether the circumstances of a case warranted a shortened sentence. The FSA altered Section 3582 by providing for judicial review of this decision in some cases. In the wake of the First Step Act, numerous courts have recognized the court can determine whether extraordinary and compelling reasons exist to modify a sentence — and may do so under the “catch all” provision similar to that recognized in U.S.S.G. Manual § 1B1.13 n.1(D), that is, “an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)” relating to prisoner health or family relations. See Maumau, 2020 WL 806121, at *3 (citing cases).
In Maumau, the court concluded that the drastic reduction in § 924(c) sentences with its elimination of stacking did provide an extraordinary and compelling reason, which—in combination with other circumstances in the case—warranted a modification of the defendant’s sentence. Similarly, in United States v. Urkevich, No. 03-37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019), the court granted a defendant’s motion on similar grounds, noting “specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed.” See also United States v. Brown, 411 F. Supp. 3d 446, 453 (S.D. Iowa 2019) (“district court assessing a compassionate release motion may still consider the resulting sentencing disparity” caused by the FSA in § 924(c) cases).”

The court determined that O’Bryan’s crimes were serious but they would be appropriately punished by 60 months on each 924(c) offense along with the other offenses running consecutively and ordered probation to prepare said judgment. No. 96-10076-03-JTM

Stacked 924 relief case #2 United States v. Young, Middle District of Tennessee, 2:00-cr-00002-1

Young was found guilty of 5 counts of armed bank robbery and 5 counts of possessing a firearm during a crime of violence pursuant to 18 USC 924(c). He was found guilty on all counts and was sentenced to 87 months on each bank robbery conviction to run concurrently on each other bank robbery conviction and his state time. The court then imposed a five years sentence on the first 924(c) and twenty years on each additional 924(c) count. (this was at a time when the time for each additional count was 20 years instead of 25).

In 2019 Young filed a 3582 motion alleging, among other things, that Young should receive Stacked 924 relief because he would have been subject to a shorter mandatory sentence of 25 years rather than 85 on those convictions, that Young is now 72 years old and suffers from numerous chronic physical ailments and that young had a mid-life crisis and sudden crack cocaine addiction.

The court noted that while congress never defined what “extraordinary and compelling reasons” were for a 3582 reduction, the legislative history of the Comprehensive Crime Control Act of 1983 provided some clues. Specifically,

“The Committee believes that there may be unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances. These would include cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense of which the defender was convicted have been later amended to provide a shorter term of imprisonment.”

The court noted that in November 2018, the Sentencing Commission expanded guidelines and noted that “consistent with the text and legislative history of § 3582(c), the Commission included subdivision (D), a “catch-all” provision acknowledging the possibility of “extraordinary and compelling reason[s] other than, or in combination with, the reasons described in subdivisions (A) through (C),” but the catch-all provision was still tied to BOP endorsement.” This was before the enactment of the FIRST STEP Act.

The court noted that “federal judges are no longer constrained by the BOP Director’s determination of what constitutes extraordinary and compelling reasons for a sentence reduction…Accordingly, the district courts themselves have the power to determine what constitute extraordinary and compelling reasons for compassionate release.”

The court went on to note that “the drastic change effected by the First Step Act’s amendment of § 924(c)constitutes an extraordinary and compelling reason for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)[.]” The court also noted that the defendant’s age and deteriorating health are not on their own extraordinary and compelling circumstances that warrant a reduction. Similarly, application note 3 to USSG 1B1.13 indicates that “rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason” for post judgment reduction in sentence.

Regarding the 3553(a) factors, the court indicated that “a downward adjustment may be made even if it results in continued incarceration.” As a result of this the court decided to schedule a hearing where the parties may both present arguments about what would be an appropriate sentence.

United States vs. Young, 2:00-cr-00002-1

Conclusion

I know that many of you are seeking to file a motion to reduce the harsh mandatory minimum sentence that was imposed on your case. There are many things that you can do but I implore you to seek an attorney to reduce your harsh sentence.