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    • Brief

    Oregon v. Aranda

    Brief of the Oregon Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Respondent.

    Argument: If OEC 609 is construed to permit all felony convictions without weighing the risk of unfair prejudice, the rule violates federal due process. The indiscriminate admission of even unfairly prejudicial convictions runs counter to common law traditions that require “fundamental fairness” and generally bar the use of propensity evidence.

    Barring the use of OEC 403 prior to admitting felony convictions also burdens the exercise of Oregon defendants’ constitutional trial rights. First, it forces defendants to choose between the right to the right to testify and an impartial jury. Relatedly, the per se admission of prior felony convictions against defendants tends to produce a chilling effect on the right to testify because if they take the stand, they will be unfairly prejudiced. The Supreme Court has made clear, “[t]he right to testify on one’s own behalf at a criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock v. Arkansas, 483 US 44, 51, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Faretta v. California, 422 US 806, 817, n 15, 95 S Ct 2525, 45 L Ed 2d 562 (1975)). Second, the threat of per se prior conviction impeachment also impermissibly burdens the right to trial because it both distorts the strength of the government’s case and adds to the coercive nature of the plea-bargaining system of criminal adjudication.

    • Brief

    United States v. Vaughn, No. 4:00CR126-CVE, ECF 1282 (N.D. Okla. July 1, 2021)

    Motion and Memorandum (July 1, 2021)

    Order (July 9, 2021)

    Argument: Mr. Vaughn had been convicted of a federal drug conspiracy for working as a “middle man” for several months in a cocaine and marijuana drug conspiracy.  After turning down a 10-year plea offer, he was convicted at trial and sentenced to mandatory life based on two § 851 prior convictions.  Jason argued that one of Mr. Vaughn’s § 851 priors would not qualify today and, regardless, the most serious mandatory minimum he could face today would be 25 years.  Jason also noted that, due to changes in the law, Mr. Vaughn could not be sentenced as a career offender today either.  After Jason was able to get the government on board, the court agreed, reducing the client’s sentence from LIFE to 25 years.  The court found ECR existed because of:

    1) the sentence disparity created by the change to § 851 in the First Step Act;

    2) the fact that the mandatory minimum deprived the sentencing judge of any discretion (including running Mr. Vaughn’s state sentence concurrent to his federal sentence), and

    3) the disparity between Mr. Vaughn’s sentence compared to co-defendants of greater culpability. 

    To add to this heavy lift, Jason also had to navigate a complicated state/federal concurrent sentencing issue.  The government was not on board with Mr. Vaughn’s concurrent sentencing request, but Jason did a masterful job of presenting this issue to the court.  If the BOP follows the court’s recommendation, the Mr. Vaughn will be released from custody next year.


    • Brief

    United States v. Estrada-Elias, 2021 WL5505499, No. 21-5680 (6th Cir. Nov. 24, 2021)

    Opinion and Order

    Argument: Case started out as an excessive sentence case (the two §851s that created life mandatory mininum wouldn't apply today), but due to bad case law in Sixth Cicuit, attorney Chloe Smith smartly pivoted to more traditional/COVID arguments. After Judge Danny Reeves in the EDKY denied the motion, Chloe appealed the denial of the CR motion to the Sixth Circuit. 

    The Sixth Circuit reversed and remanded the district court’s denial of compassionate release to a 90-year-old, terminally ill, bedridden defendant serving mandatory life for non-violent marijuana offense that would only be subject to a 10-year mandatory minimum today. In reversing, the Sixth Circuit found that the “district court’s analysis of the 18 U.S.C § 3553(a) factors leaves us “ ‘with a definite and firm conviction that the district court committed a clear error of judgment.’ ”

    By overly emphasizing Estrada-Elias’s history of nonviolent crimes, ignoring the low likelihood that Estrada-Elias will re-offend, and mischaracterizing the reality of the gap between Estrada-Elias’s present and prior convictions, the district court engaged in a substantively unreasonable balancing of the § 3553(a) factors and therefore abused its discretion.


    The court reversed and remanded for Judge Reeves to make a finding on extraordinary and compelling reasons prong, which it has assumed applied without actually holding as such.  



    • Brief

    United States v. Babb, 1:04CR190-ELH, ECF No. 274 (D. Md. June 4, 2021)

    Compassionate Release Motion (June 30, 2020)

    Government Response on Opposition (July 27, 2020)

    Reply (Aug. 31, 2020)

    Def's Supplement to Motion (Jan. 27, 2021)

    Def's Supplemental Reply (Apr. 16, 2021

    Order (June 4, 2021)

    Argument: Unusual win under both the compassionate release statute and the crack retroactivity amendment, section 404 of the First Step Act.  Mr. Babb had been serving a mandatory life sentence based on two § 851s, only one of which would still qualify today. Despite “extensive” criminal history, the court found that Mr. Babb “has continuously endeavored to improve himself and those around him.” The order also focuses on his age—at 50, “in just a few years he will be of an age by which he poses a reduced risk of recidivism.” CR granted, ECR based on “his model behavior while incarcerated, despite a seeming lack of hope that he would ever see freedom, and the changes in the sentencing landscape since 2007.” Order here, and Motion here. 

    Notably, even though the mandatory life statutory provision would no longer apply to Mr. Babb’s sentence, his guidelines remained life because they were based on the murder guideline, USSG § 2A1.1, so his guidelines remained life.  The court noted, however, that since one § 851 no longer applied, “the Court would not be compelled to sentence him to life imprisonment.” The Court then reduced his sentence to 30 years, which, notably, was not a time-served sentence.