“Tis the season to get out of jail early”

Experienced compassionate release lawyers know that there is a massive difference between filing any old motion to reduce sentence and winning your client’s freedom based on compelling presentations. After the COVID-19 pandemic, seemingly every lawyer in America now claims they are expert compassionate release attorneys. No matter how little experience they have in this area or the fact that they have never once won a client’s freedom.

At Evergreen Attorneys, we have been on the front-lines of compassionate release in federal court since the passage of the First Step Act of 2018. Our skilled compassionate release lawyers not only understand the law in this area; they understand that storytelling is the key difference between getting your motion denied and an incarcerated person getting to leave prison early to come home to their family.

There is a good explainer video on how compassionate release works in the federal system that you can watch at this link for an introduction. To learn more in details about the compassionate release process and how the top compassionate release lawyers at Evergreen Attorneys can help you should start reading here.

Today we are covering a recent case out of the U.S. District Court for the Middle District of Georgia where an incarcerated person received compassionate release (a/k/a got to leave prison early) on his third try. You read that right: he filed two previous motions for compassionate release that were denied.

United States v. Cannon, case number 4:95-cr-30 (M.D. GA, Jan. 29, 2025) is the decision we will be covering and Judge Clay D. Land has some fantastic quotes. The “Tis the season to get out of jail early” at the top of our blog is how Judge Land opened his opinion. Even the best compassionate release attorneys need to stay up date on cases like Cannon to know how to make the best arguments to secure your client’s freedom from federal prison.

Compassionate Release Lawyers- First Step Act Change Everything

Prior to the passage of the 2018 FSA, on the Federal Bureau of Prisons could file a motion to reduce sentence based on “extraordinary and compelling reasons” in an inmate’s case. These are motions to reduce sentence pursuant to 18 U.S.C. 3582(c)(1)(A) and are commonly referred to as compassionate release.  There was widespread anger at the BOP for their refusal to ever use this mercy power. You can find horrific tales all over the internet where BOP as the jailer refused to do anything to let incarcerated dying individuals end their life with the dignity of being outside of custody.

As a result, Congress added a provision in the First Step Act that allows inmates to hire a compassionate release attorney and file their own request with the sentencing court after first being denied by the BOP Warden. As a practical matter, the Warden in the BOP is functionally always going to deny or delay a response on the compassionate release request. This means you simply need to send a letter to the Warden setting out why you think you meet the criteria for extraordinary and compelling reasons , wait 30 days, and then file your motion in court.

Again, we talk more about this process on other parts of our website so please do go read about compassionate release lawyers and procedure there. Suffice to say, the First Step Act of 2018 changed everything. Now incarcerated citizens can seek mercy directly from the Court instead of having to rely on the kindness (or lack thereof) of their jailers.

Cannon: Unlawful sentence today but how do we get you out?

Cannon presented a sadly common scenario in federal court. Mr. Cannon was previously convicted of stacked mandatory minimum convictions under 18 U.S.C Section 924(c). At the time Mr. Cannon was sentenced, 924(c) provided for a mandatory minimum consecutive (stacked) sentence of twenty years imprisonment even if the first and second 924(c) convictions were obtained in the same case. In practice, this meant that people like Mr. Cannon would be charged with multiple gun charges for say a spree of robberies in one case and when they went to sentencing they would be stacked 60 months for the first 924(c) and 240 months for the second, third, or even fourth 924(c) charge thereafter. See Deal v.United States, 508U.S.129 (explaining how 924(c) stacking provision applied pre-First Step Act).

What this meant for Mr. Cannon was that he was sentenced to 1) 293 months for carjacking, 2) 240 months for each of the armed robberies, 3) 60 consecutive months for his first 924(c) charge and 4) 240 months for each of his four remaining 924(c) charges to be served consecutively. Even though he was only 23 at the time of his arrest, Mr. Cannot received a total sentence of 109 years and 5 months. Basically, a life sentence all because of the 924(c) required stacking.

Today, 924(c) does not require stacking in this manner. Today, Cannon would not be facing such a draconian mandatory minimum sentence. However, when Congress abolished the 924(c) stacking provision in the 2018 First Step Act they specifically decided to not make it retroactive. Meaning thousands of incarcerated folks like Mr. Cannon were left with massive sentences that would not be required by current law today, but that were otherwise left in place.

Mr. Cannon could not file a motion to vacate sentence under 28 U.S.C. Section 2255 because there was no retroactive application of the law. Read about the 2255 motion lawyers at Evergreen Attorneys and the motion to vacate procedure here. Conceivably, Mr. Cannon could seek a sentence commutation from the President, but those are backed up with thousands still pending according to the U.S. Office of the Pardon Attorney. As of March 4, 2025, there are over 6,000 pending.

What legal remedy was Mr. Cannon left with to challenge his 105 year sentence that would not be required under current law? Mr. Cannon tried compassionate release.

District Court: I don’t like the Sentencing Commission doing that

Surprisingly, the Cannon Court took the position that the Sentencing Commission policy statement on “unusually long sentences” was not a valid exercise of their discretion. Meaning that the district court said it could not rely on the non-retroactive changes in law alone to reduce Mr. Cannon’s sentence.

This is a hot issue right now in the courts with courts all over the country divided. We will be doing a deep-dive into compassionate release and unusually long sentences to describe the current circuit split, what it means, and how to best present your case in the coming weeks.

Suffice to say, the Cannon judge was not going to reduce Mr. Cannon’s sentence merely because Congress had reduced the penalties for the crime in the intervening years.

Trial Penalty Compassionate Release

However, the district court did something more interesting. Instead, the district found that the unusually long sentence Mr. Cannon received after a trial compared with the short sentences of his co-defendants was an “extraordinary and compelling reason” to reduce his sentence.

This is commonly referred to as the “trial penalty” or the “trial tax” in criminal defense circles. It references the simple fact of life that judges routinely impose much more harsh sentences on defendants who exercise their constitutional right to go to trial than on defendants who plead guilty to the same offense.

According to the district court, the trial penalty was enough under the catch-all provision of the Sentencing Commission Guideline Policy Statement to meet the standard of extraordinary and compelling reasons. This is important because there are not many cases finding that the trial penalty itself can support a sentence reduction motion under 18 U.S.C. Section 3582(c)(1)(A).

Ultimately, the district court granted compassionate release to Mr. Cannon. He went from a functional life sentence to walking out of prison 90 days later because of the miracle of compassionate release.

Contact The Compassionate Release Lawyers at Evergreen Attorneys for Help Today

Compassionate Release in federal court is complicated. It is also an incredibly powerful tool if you have an experienced compassionate release attorney in your corner. If you or your loved one is ready to seek freedom using compassionate release reach out to us today for a free consultation. You can call us at 303-948-1489 or email us at [email protected] today.