On February 5, 2024, Davis Polk pro bono client Rufus Brown was released from prison after Chief Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio granted his motion for compassionate release and reduced his sentence to time served. Mr. Brown was originally sentenced to 119 years for his participation in a series of armed robberies in which no shots were fired and no one was physically injured. His sentence was more than five and a half times the average federal sentence for murder imposed today. Mr. Brown served more than 28 years of his original sentence.

A now defunct charging and sentencing practice known as “§ 924(c) stacking” was the cause of Mr. Brown’s unusually long sentence. Under this statute, consecutive 20-year terms were mandated for each count of use of a firearm in violation of § 924(c) after the first, even where all the counts were charged as part of the same offense. Stacking led to extraordinarily long sentences and disproportionately impacted people of color. In 2018, § 924(c) stacking was eliminated by the First Step Act, but this change of law was not made retroactive. In the years that followed, a Circuit split developed, with the Sixth Circuit issuing a decision, United States v. McCall, that prohibited district courts from considering nonretroactive changes in law when determining whether there were “extraordinary and compelling reasons” warranting a sentence reduction under § 3582(c)(1)(A). Shortly thereafter, on November 1, 2023, the U.S. Sentencing Commission amended the U.S. Sentencing Guidelines and corresponding policy statement to include nonretroactive sentencing changes, under certain circumstances, as “extraordinary and compelling” reasons warranting relief under the compassionate release statute. The Davis Polk team argued that the policy statement then became controlling on district courts and superseded McCall. 

Given the novel and complex issues of law involved, the Davis Polk team extensively briefed the relevant points. The Court ordered oral argument, with a particular focus on the authority of the U.S. Sentencing Commission to promulgate the November 1, 2023 policy amendments, and on January 23, 2024, Davis Polk associate Timothy J. Sullivan argued in the Southern District of Ohio. On February 2, Chief Judge Marbley issued an order granting Mr. Brown’s motion and reducing his sentence to time served, and on February 5, Mr. Brown was released into the care of his brothers and reunited with his mother.

The Davis Polk team consists of associates Timothy J. Sullivan, Logan Crossley, Betsy Johnson and Emily Park and law clerk Henry Goldberg. Partner Paul J. Nathanson, counsel and Head of Pro Bono Litigation Dara L. Sheinfeld and counsel and Head of Racial Justice Pro Bono Diane O. Lucas provided supervision.

Davis Polk represents Mr. Brown with co-counsel Debevoise & Plimpton LLP, as part of the “Holloway Project,” an initiative started by former Judge John Gleeson, that assists incarcerated individuals who have been impacted by unjust mandatory stacked prison sentences.

Learn more about Davis Polk’s Pro Bono program.

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