Find helpful compassionate release motions and decisions involving 851 enhancements here. 

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.

Order granting motion for compassionate release 

Argument: Grant based on § 851, reducing 300-month meth sentence to time served, a 10-year reduction. Client received an 851 he would no longer be eligible for, plus signs of dementia (documented by family letter although not in BOP records), age, and some discussion of the fact that the case involved entrapment in the government’s undercover-enhanced case, even though jury still convicted.

Memorandum Opinion 

Argument: Order reducing a 2002 mandatory life sentence for an 851 career offender/mandatory life client who was convicted at trial of conspiracy pwid/FIP. Judge Messitte “found that the disparity between the life sentence Mr. Sappleton received and the sentence he would receive under the law today established an “extraordinary and compelling” reason to reduce his sentence under 18 USC 3582(c)(1)(A).  Second, he held that Mr. Sappleton was eligible for relief under Section 404 of the First Step Act and that the Court “can, and indeed should apply the current section 851 (i.e., as amended by section 401 of the First Step Act) in imposing a new sentence.” Judge Messitte explained that “[a]pplying defunct statutory penalties would [] be inconsistent with the text of section 404(b), which expressly permits the court to  ‘impose a reduced sentence.’” 

Order granting motion to reduce sentence 

Argument: Order reducing a 2002 mandatory life sentence for an 851 career offender/mandatory life client who was convicted at trial of conspiracy pwid/FIP. Judge Messitte “found that the disparity between the life sentence Mr. Sappleton received and the sentence he would receive under the law today established an “extraordinary and compelling” reason to reduce his sentence under 18 USC 3582(c)(1)(A).  Second, he held that Mr. Sappleton was eligible for relief under Section 404 of the First Step Act and that the Court “can, and indeed should apply the current section 851 (i.e., as amended by section 401 of the First Step Act) in imposing a new sentence.” Judge Messitte explained that “[a]pplying defunct statutory penalties would [] be inconsistent with the text of section 404(b), which expressly permits the court to  ‘impose a reduced sentence.’” 

Memorandum Order 

Argument:  Originally sentenced to life imprisonment dictated by an 851 enhancement.  Even during his 2004 sentencing, the sentencing judge had said he would have imposed a lesser sentence if he had the authority to do so.  The court found ECR to reduce Mr. Nicholson’s sentence based on the disparity between the sentence he received and the one he would receive today following Section 401 of the FSA.  Alternatively, the court held that it had the authority to reduce Mr. Nicholson’s sentence under Section 404 (crack retroactivity) of the First Step Act by applying current 851 law.

Memorandum Opinion. 

Argument: Paul Kratsas had a mandatory life sentence imposed in 1993. His case differs from those with stacked § 924(c) sentences because, today, a life sentence could still be imposed. Importantly, the sentencing judge “lamented his duty to impose the mandatory life sentence and stated that, if sentencing pursuant to the then mandatory Guidelines, which were 360 months to life, he would impose a sentence of 360 months and not life.” One of the “original prosecutors, now in private practice, support[ed] the request for immediate release.” Judge Chasanow found that those factors as well as Kratsas’ “current dangerousness and the § 3553(a) factors support[ed] granting release.”

Order (Feb. 26, 2021)

Motion (Aug. 31, 2021)

Argument: Defendant was subjected to 20-year man min based on 851 enhancement late in case--a year after indictment-- pursuant to pursuant to then-AG Sessions’ new charging policy; “[w]hen Gonzalez’s sentence is compared to the sentences received by his co-conspirators, it is apparent that he received a disproportionately harsh sentence.” CR motion granted, with the court opting to hold a new sentencing hearing.

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.  

Motion for Compassionate Release (Jan. 24, 2021)

Response (Mar. 8, 2021)

Opinion and Order (April 12, 2021)

Argument: Section 851 compassionate release reduction from life to time served in powder/crack cocaine PWID conspiracy.  The court noted Mr. Brisco’s clean disciplinary record, the GED he’d earned, and that he had “already has served more than 20 years in prison, and he has compiled an admirable record there.” 

The opinion also gives cautionary language f that is a good reminder for us to make sure we flesh out the unique and individualized circumstances of our clients under 3553a:

Contrary to defendant’s broad interpretation, the court of appeals did not hold that an unjust life sentence based solely on a change in the law is a freestanding basis for compassionate release. . . . I am persuaded that the unique circumstances and other factors present in this case warrant a sentence reduction for defendant.

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. 

Order and Memo

Argument: Remarkably persuaded Judge Brinkema to reduce Mr. Everett's 300-month sentence by half although he had already tested positive for COVID and is relatively young. Mr. Everett argued that if sentenced today, the 851 the government sought at his sentencing would no longer apply and his guideline range would be much lower as a result, which the Court clearly found compelling.

Comments to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Letter to the U.S. Sentencing Commission regarding proposed 1997 Amendments.