Holloway v. United States of

Filing 54

ORDER: For the reasons explained in the attached order, the United States Attorney is respectfully requested to reconsider her decision not to agree to an order vacating two or more of Mr. Holloway's 18 U.S.C. § 924(c) convictions and allow ing me to impose a more just sentence on this defendant. A status conference will be held on June 20, 2014, at 2:00 PM in courtroom 6C South. The government is respectfully directed to take the steps necessary to produce Mr. Holloway in court at that time. Harlan Protass is appointed pursuant to the Criminal Justice Act to represent Mr. Holloway. A copy of this order and the docket sheet will be mailed to Mr. Holloway at his address of record. Ordered by Judge John Gleeson on 5/14/2014. (Herling, Adam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

FRANCOIS HOLLOWAY,
Petitioner,
- versus -

ORDER
01-CV-1017

UNITED STATES OF AMERICA,
Respondent.

JOHN GLEESON, United States District Judge:
This almost 20-year-old case encapsulates several of the problems that have
plagued our federal criminal justice system in recent years. Specifically, it is a window into
(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 dares to go to
trial.
In 1995, the government decided that if Francois Holloway, who along with an
accomplice stole three cars at gunpoint, would just admit his guilt and go off to prison, a
sentence within the range of 130-147 months would be sufficient. It offered him a plea
bargain to that effect. Had Holloway accepted that bargain, he would have been released from
prison more than a decade ago.
But Holloway wanted a trial. He got one, but it cost him dearly. Because he
forced the government to trial, it required him to face all three of the counts it had brought
under 18 U.S.C. § 924(c), a practice called “stacking” that the Sentencing Commission has
since asked Congress to eliminate because it is so unjust. See U.S. Sentencing Comm’n,
Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice
System (“Mandatory Minimum Report”), at 368 (Oct. 2011). That decision forced me, after
Holloway was found guilty of the charges, to sentence Holloway to 57 years in prison – 45

years on the “stacked” firearm counts, which by operation of law had to run consecutively to
the 12 years meted out by the then-mandatory Guidelines for robbing the three cars. Thus, in
addition to the 11-year sentence the government was willing to have me impose on Holloway
if he pled guilty, I was required to tack on the price Holloway was required to pay for
exercising his right to put the government to its burden of proving him guilty beyond a
reasonable doubt: 46 years in prison.
In nine months Holloway will have spent 20 years in prison on this case. Still,
even with good time, he will be more than 30 years away from his projected release date. He
is 56 years old now, so absent relief from his sentence he won’t be released until he is 89
years old, after spending almost exactly 50 years in prison. As I mentioned in my order dated
February 25, 2013, ECF No. 36, sentencing data suggest that Holloway would have fared
much better if he had committed first degree murder instead of robbing three cars.
Black men like Holloway have long been disproportionately subjected to the
“stacking” of § 924(c) counts. See U.S. Sentencing Comm’n, Mandatory Minimum Report, at
363 (stating that black offenders are disproportionately convicted under § 924(c), subject to
mandatory minimums at sentencing, and convicted of multiple § 924(c) counts). The
Sentencing Commission’s Fifteen-Year Report states that black defendants accounted for 48%
of offenders who qualified for a charge under § 924(c), but they represented 56% of those
charged under the statute and 64% of those convicted under it. U.S. Sentencing Comm’n,
Fifteen Years of Guidelines Sentencing, at 90 (Nov. 2004); see also; Sonja B. Starr & M.
Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors
and the Effects of Booker, 123 YALE L.J. 1, 28-29 (2013) (even after controlling for, inter
alia, arrest offense, district, age, criminal history category, and education level, black men are

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nearly twice as likely as white defendants to be charged with an offense carrying a mandatory
minimum sentence).
Holloway has five children between the ages of 23 and 37. He hasn’t seen any
of them in 10 to 15 years because they’re in New York, taking care of their families, while he
is doing his 50 years in Florida. His mother is ailing, so he doesn’t ask her to travel.
Holloway has eight grandchildren he’s never even seen.
Nonetheless, Holloway has tried to better himself while in prison. He
completed a Basic Wellness program in 2000, was recognized for his performance as a Unit
Aide in 2002, completed a Parenting Program in 2002, completed a Stress Management class
in 2006, completed a Parenting Skills Program Level I in 2007, got a Certificate of
Achievement for officiating basketball in 2008, got a Certificate of Achievement for Song
Writing instructing in 2009, completed a Preparation for Release program in 2009, received a
certification in food protection management in 2010, got a Career Diploma in Catering in
2010, completed a Culinary Arts program in 2011, completed a Basketball Officiating class in
2012, and completed all the requirements for the Challenge Program run by the facility’s
Psychological Services program last year.
On February 25, 2013, I respectfully requested that the United States Attorney
consider exercising her discretion to agree to an order vacating two or more of Holloway’s §
924(c) convictions so he could face a more just resentencing. See Order dated February 25,
2013, ECF No. 36. In a letter dated July 24, 2013, the government declined to agree to such
an order. See Letter Responding to Court’s Order, ECF No. 42. As an alternative, the
government suggested, based on a conversation with the Office of the Pardon Attorney, that
Holloway may be eligible to apply for a commutation of his sentence on the ground that his
sentence was unduly severe. Id.
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Recent events make it clear that clemency is not a realistic avenue to justice for
Holloway. As part of the Justice Department’s new clemency initiative, Deputy Attorney
General James M. Cole announced on April 23, 2014, the criteria that the Department of
Justice will consider when reviewing and expediting clemency applications from federal
inmates. See U.S. Dep’t of Justice, Announcing New Clemency Initiative, Deputy Attorney
General James M. Cole Details Broad New Criteria for Applicants, (April 23, 2014)
http://www.justice.gov/opa/pr/2014/April/14-dag-419.html. The fact that Holloway
committed crimes of violence will disqualify him. Id. Though the power to grant clemency
rests with the President, not the Justice Department, as a practical matter the new policy spells
doom for Holloway’s hopes for executive clemency.
Because clemency is not a realistic option, the United States Attorney is
respectfully requested to reconsider her decision not to agree to an order vacating two or more
of Holloway’s 18 U.S.C. § 924(c) convictions. The onerous enhancement in § 924(c)(1)(c)
for “second or subsequent conviction[s]” under § 924(c) masquerades as a recidivism
enhancement, but when the “second or subsequent” conviction occurs in the very same case as
the first one, as they did here, the result is frequently a manifestly unjust mandatory sentence
with a disparate impact on black men. 1 Holloway deserved harsh punishment for his three
robberies, but no one can reasonably contend that his mandatory sentence was not excessive.

1

Among the other Sentencing Commission recommendations to Congress about § 924(c), which
include a recommendation to lower the sentences for subsequent convictions because they are too harsh, is a
recommendation to make them true recidivism enhancements:
Make 924(c) a “true” recidivist statute
Congress should consider amending section 924(c) so that the increased mandatory
minimum penalties for a “second or subsequent” offense apply only to prior convictions.
In those circumstances, the mandatory minimum penalties for multiple violations of
section 924(c) charged in the same indictment would continue to apply consecutively, but
would require significantly shorter sentences for offenders who do not have a prior
conviction under section 924(c). This would reduce the potential for overly severe
sentences for offenders who have not previously been convicted of an offense under
section 924(c), and ameliorate some of the demographic impacts resulting from stacking.
U.S. Sentencing Comm’n, Mandatory Minimum Report, at 364.

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The case will be called for a status conference on June 20, 2014, at 2:00 p.m.
The government is respectfully directed to take the steps necessary to produce Holloway in
court at that time. Harlan Protass is appointed pursuant to the Criminal Justice Act to
represent Holloway. Once again, I ask the United States Attorney to exercise her discretion to
permit me to reopen the sentence in this case to do justice. 2
In the absence of a government agreement to reopen the sentencing, I will
address the pending application to reopen Holloway’s collateral challenge to his conviction.
The extraordinary trial penalty in this case may warrant further briefing on the constitutional
issues raised by such a use of prosecutorial power. In addition, though I long ago rejected a
claim of ineffective assistance of counsel based on trial counsel’s admission in his opening
statement that Holloway in fact robbed the three victims of their cars, 3 upon further reflection
I may direct a closer inspection of that issue as well.

2

Such an agreement does not require a defect in the conviction or sentence. The government
demonstrated this in the Mayo case cited in my February 25, 2013 order. It did so again recently when it agreed
to reopen the sentence of one of its cooperating witnesses to do justice – despite the absence of any legal or
factual defect in the proceedings. The relevant colloquy in that case was as follows:
THE COURT: Good afternoon. Sentence has already been imposed. I really
don’t have authority to revisit the sentence. . . . I may as well be crystal clear about it.
[The prosecutor] is in the driver’s seat here. . . . I don’t have any legal authority to do it. I
don’t think anybody disputes that. But I do, if the government confers it on me. So that’s
the deal.
[THE PROSECUTOR]: We don’t have an objection to modifying the sentence . . .
THE COURT: . . . In light of this, my inclination is to enter an order that says on
the joint application of the parties the sentence imposed on August 7, 2013 is vacated and
the identical sentence is reimposed with the exception that instead of 18 months of
incarceration, the term of incarceration is 364 days. Fair enough?
[THE PROSECUTOR]: We would agree to that, your Honor.
United States v. Anandani, No. 11-CR-763, Transcript of Resentencing at 2-3, October 25, 2013. In short, the
Department of Justice is authorized, as a party to each criminal case, to do justice.
3

As Holloway explained during the September 17, 2013, court appearance, trial counsel
persuaded him not to plead guilty because he told Holloway “he could win the case at trial on a technicality.”
Oral Argument, Sept. 17, 2013, Tr. at 6. The “technicality” was this: Counsel believed that even if Holloway
hijacked a car at gunpoint on each of the three charged occasions, he was not guilty of violating 18 U.S.C. §
2119; since the three victims willingly gave up their cars upon demand, Holloway never formed the intent to
cause death or serious bodily injury required by the statute. He never had to, the argument went, because the
victims were so compliant. Before opening to the jury on that theory, trial counsel should have run it by the
court, because once it was raised via his opening statement I held that conditional intent, that is, intent to kill or
cause serious bodily harm if necessary to steal the car, was sufficient. That difficult issue eventually made its

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So ordered.
__________________
John Gleeson, U.S.D.J.
Dated: May 14, 2014
Brooklyn, New York

way to, and divided, the Supreme Court of the United States. See Holloway v. United States, 526 U.S. 1 (1999).
Had trial counsel known that his “technical” argument would fail, he might have chosen to challenge the
government’s evidence that Holloway was involved in the carjackings at all, rather than admit that involvement
in his opening statement, a tactic that surprised both the government and the Court.

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