United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne, United States District Judge
the Court is Defendant/Petitioner Warren Douglas Vann's
(“Defendant”) “Pro Se Motion for
Prosecutorial Relief Pursuant to the Holloway Doctrine (Dkt.#
97). Defendant argues his sentence is excessive and asks the
Court to reduce his sentence in the interests of justice and
fairness. The Government opposes Defendant's motion.
(Dkt.# 100). For the reasons stated below, Defendant's
Motion is DENIED.
Eastern District of Oklahoma grand jury charged Defendant
with: Count One-Murder in the First Degree in Indian Country,
in violation of 18 U.S.C. §1111(a), 1151 and 1153; Count
Two - Use of a Firearm in the Commission of a Violent Crime,
in violation of 18 U.S.C. § 924 (c)(1)(A)(iii) and 18
U.S.C. § 924(j); Count Three - Felon in Possession of a
Firearm, in violation of 18 U.S.C. §§ 922(g) and
924(a(2); and Count Four - Felon in Possession of Ammunition,
in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).
charges arose when Defendant walked into a home in the Cherry
Tree community of Stilwell and, with premeditation and malice
aforethought, shot a man multiple times with a rifle. At
trial, various witnesses identified Defendant as the
assailant, including: the victim's son who witnessed the
shooting; a neighbor who was able to describe Defendant and
the car he was driving; and several juveniles who lived in
the area and had seen Defendant earlier in the day in a
wooded area near Cherry Tree carrying a rifle and subsequent
to the shooting still in possession of the firearm.
Defendant's own mother and sister described to law
enforcement officers incriminating statements Defendant made
to them regarding the shooting. Additionally, Defendant's
nephew testified that prior to the shooting, he had given his
uncle ten rounds of .22 caliber ammunition. Following the
multi-day trial, the jury convicted Defendant on all counts.
the 2002 edition of the United States Sentencing Guidelines
(“U.S.S.G.”), the United States Probation Office
calculated Defendant's advisory Guideline range in
preparation for sentencing. Defendant was determined to have
a criminal history score of four, resulting in a Category III
criminal history. With an offense level 45 and a Category
III, Defendant's advisory range is life imprisonment.
Moreover, because Defendant actually discharged the firearm,
he was subject to a mandatory minimum consecutive sentence of
10 years on Count Two, pursuant to 18 U.S.C. §
Court sentenced Defendant “to life imprisonment on
Count I, life imprisonment on Count II (to be served
consecutively with Counts I, III, and IV), 120 months on
Count III, and 120 months on Count IV (to be served
concurrently with Counts I and III).” United States
v. Vann, 123 Fed.Appx. 898, 899 (10th Cir.
2005). Defendant appealed, but the Tenth Circuit dismissed
the case following the filing of an Anders brief.
did not file a 28 U.S.C. § 2255 motion within a year of
his sentence becoming final. On December 27, 2016, Defendant
filed the instant motion seeking a reduction on the basis of
the “Holloway Doctrine, ” pursuant to United
States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014).
(Dkt.# 97). On July 28, 2017, Defendant filed a 28 U.S.C.
§2255 motion alleging various instances of ineffective
counsel and challenging whether the location of the murder
was actually Indian Country. (Dkt.# 98).
seeks to reduce his sentence under what he calls the
“Holloway Doctrine, ” which takes its name from a
case filed in the Eastern District of New York, United
States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014).
“A district court does not have inherent authority to
modify a previously imposed sentence; it may do so only
pursuant to statutory authorization.” United States
v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (quotation
Holloway, the district court permitted a sentence
reduction in the “spirit of fairness, ” using the
authority of Federal Rule of Civil Procedure 60(b) to revisit
the defendant's excessive sentence. 68 F.Supp.3d at 311,
314. The defendant in Holloway stole three cars at
gunpoint over the course of two days. Id. at 312.
Each carjacking was charged as a separate count, accompanied
by three separate charges for crimes of violence under 18
U.S.C. § 924(c) for use of a gun during each carjacking.
Id. Holloway went to trial and was convicted on all
counts. Id. Under the then-mandatory Sentencing
Guidelines, he was sentenced to 151 months in prison for the
carjacking counts. Id. He was also sentenced to
mandatory consecutive sentences on the three § 924(c)
counts: 5 years for the first conviction and 20 years each
for the other two convictions. Id. The § 924(c)
sentences were required by statute to run consecutively to
each other and to the carjacking sentence, which resulted in
a total sentence of 691 months, or 57 years and 7 months.
Id. at 312-313. Both the Second Circuit and the
United States Supreme Court affirmed the convictions and
sentence. Id. at 313. The district court denied
Holloway's § 2255 petition, and the Second Circuit
declined to issue a certificate of appealability.
Id. The Second Circuit also denied Holloway's
request to file a successive § 2255 petition.
Id. at 313-14.
serving approximately twenty years of his sentence, Holloway
filed a motion to reopen his § 2255 proceeding under
Rule 60(b) of the Federal Rules of Civil Procedure, based on
the unduly harsh sentence produced from the mandatory
“stacking” of the § 924(c) counts.
Id. at 314. District Judge John Gleeson, the
sentencing judge, thereafter asked the United States Attorney
to “consider exercising her discretion to agree to an
order vacating two or more of Holloway's 18 U.S.C. §
924(c) convictions” so he could face a more just
resentencing. Id. After initially declining Judge
Gleeson's request, the United States Attorney ultimately
agreed to withdraw her objection to Holloway's Rule 60(b)
motion and agreed to the vacating of two of Holloway's
§ 924(c) convictions, so that Judge Gleeson could
resentence Holloway based on the remaining convictions.
Id. at 314-16.
prosecutor's decision was based on her office's view
“that this is both a unique case and a unique defendant
in many ways.” Id. at 315. The prosecutor
believed this case was unique, partly because of
Holloway's exemplary prison record-Holloway had only a
few minor infractions, and he had taken advantage of
educational and other opportunities in prison. Id.
The prosecutor also indicated the victims of Holloway's
crimes supported Holloway's release, which made
Holloway's case unique. Id. The Assistant United
States Attorney took care to emphasize the unique nature of
Holloway's case: “I want to be clear on this
point-that the United States Attorney's position in this
case shouldn't be interpreted as reflecting a broader
view of Section 924(c) generally or its application to other
cases.” Id. The Court then vacated two of
Holloway's three § 924(c) counts. Id.
case, Defendant now relies on the Holloway Doctrine in
requesting his conviction be vacated and his sentence be
reduced to be more fair and just. No Circuit Court has yet
addressed Holloway. Nor has there been a consistent
application of Holloway among the district courts
that have considered the case: See, e.g., Wade v. United
States, 2015 WL 7732834, at *2 (D. Md. Nov. 30, 2015)
(finding “no basis to apply the benefits of the
Holloway decision, a New York federal district court
ruling, to Wade's criminal cases”); United
States v. Horton, 2016 U.S. Dist. LEXIS 78611, at *3
(E.D. N.C. June 16, 2016) (viewing the Holloway Doctrine as
not so much a doctrine, but as “a single case carrying
no precedential weight in this court.”). But see
United States v. Ezell, 2015 U.S. Dist. LEXIS 109814, at
*39 (E.D. Pa. Aug. 18, 2015) (encouraging the prosecutor to
request a reduction of the defendant's sentence as in
Holloway); United States v. Trader, 2015 WL
4941820, at *16 (E.D. Pa. ...