United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
issue before the Court is whether Defendant Andrew Pompey is
eligible for a sentence reduction pursuant to Section 404 of
the First Step Act of 2018. Mr. Pompey was convicted and
sentenced in 2000 for crack cocaine offenses, long before
Congress enacted the Fair Sentencing Act of 2010 that
mitigated the harsh treatment of such offenders. The Fair
Sentencing Act's relief, however, was only prospective.
Under the First Step Act, federal district courts may now
retroactively apply the Fair Sentencing Act to reduce the
sentences of offenders who were convicted prior to 2010 under
then-existing mandatory minimum sentencing statutes. Relevant
here, the Fair Sentencing Act raised the quantities of crack
cocaine required to trigger sentences imposed pursuant to 21
U.S.C. §§ 841(b)(1)(A) and (B). The Fair Sentencing
Act did not affect offenders sentenced pursuant to 21 U.S.C.
§ 841(b)(1)(C), the statute's “catchall”
provision, which provides for a sentence of 0 to 20 years for
any unquantifiable amount of drugs, because this section does
not contain a mandatory minimum.
Mr. Pompey was indicted and convicted in part under 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and (b)(1)(B), application
of the First Step Act in this case would appear to be
relatively straightforward. Complicating matters, however, is
the fact that Mr. Pompey was convicted just before-and
sentenced just after-the United States Supreme Court decided
Apprendi v. New Jersey, 530 U.S. 466
(2000). In accordance with the law at the time of his trial,
the district court gave an instruction that allowed the jury
to find Mr. Pompey guilty of the charged crimes without
making any finding regarding a specific quantity of drugs. At
that time, the district court judge determined drug quantity
at sentencing. Because of the intervening Apprendi
decision, however, counsel for both the Government and
Defendant argued that the district court could not sentence
Mr. Pompey over the maximum contained in 21 U.S.C. §
841(b)(1)(C)'s catchall provision-20 years-because the
jury had not found drug quantity beyond a reasonable doubt.
Then-Chief United States District Judge John E. Conway
expressed some reluctance to extend Apprendi in such
a manner, and he stated at the sentencing hearing that he
believed the jury had passed on the issue of quantity based
on the fact that the Indictment and the verdict form included
quantities. Ultimately, though, he sentenced Mr. Pompey to
the “statutory maximum” of 20 years for each
count relevant to this motion. While he never mentioned 21
U.S.C. § 841(b)(1)(C), the Court finds that it is clear
that Judge Conway based Mr. Pompey's sentence on the
although Mr. Pompey was convicted of violating
Sections 841(b)(1)(A) and (B), he was sentenced
under Section 841(b)(1)(C). Section 404 of the First Step Act
specifies that it applies to offenders who received a
sentence for a “covered offense”-that
is, offenses including violations of Sections 841(b)(1)(A)
and (B). As Mr. Pompey received a sentence for a violation of
Section 841(b)(1)(C), he is ineligible for a sentence
reduction under the First Step Act.
Pompey was indicted and went to trial on five counts: Count
I, conspiracy to possess with intent to distribute 50 grams
or more of a substance containing cocaine base within 1, 000
feet of a school in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A), 860(a); Counts III and VI,
distribution of more than 50 grams of a substance containing
cocaine base in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A); Count V, distribution of more than 5
grams of a substance containing cocaine base within 1, 000
feet of a school in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), 860(a); and Count XVIII, possession
with intent to distribute more than 500 grams of a substance
containing cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and aiding and abetting, in
violation of 18 U.S.C. § 2. (See Docs. 421; 1;
Presentence Report (PSR) at 1.) In accordance with
pre-Apprendi law, the jury received an instruction
after trial that allowed it to find Mr. Pompey guilty without
finding a specific quantity of drugs. (See Doc.
603-B (Jury Instructions) at 28.) Jury Instruction 21 provided:
The indictment alleges that the defendant conspired to
possess with intent to distribute, distributed, and possessed
with intent to distribute various amounts of cocaine base and
cocaine. The evidence in the case need not establish that the
amount or quantity of controlled substance was as listed in
the Indictment, but only that a measurable amount of the
controlled substances were in fact the subject of the acts
charged in the Indictment.
(Id.) On February 4, 2000, the jury found Mr. Pompey
guilty of all five counts. (See Doc. 421.)
United States Probation Office (USPO) drafted a PSR using the
November 1, 1998 edition of the United States Sentencing
Guidelines Manual. (See PSR at 14.) Considering the
11.55 kilograms of cocaine base attributed to Mr. Pompey in
the Indictment and in his PSR, the USPO calculated a base
offense level of 38 with a one-level increase due to the fact
that the offense occurred within a protected location, making
the base offense level 39. (See Id. ¶ 68.) The
USPO calculated a two-level increase for the use of a firearm
and a three-level aggravating role increase for a total
offense level of 44. (See Id. ¶¶ 69, 71,
74; see also Doc. 603-A at 36 (finding a three,
rather than a four-level role increase).) The PSR stated that
Mr. Pompey was subject to the following penalties: for Counts
I, III, and VI, a term of 10 years to life for each count;
and for Counts V and XVIII, a term of 5 to 80 years for each
count. (See PSR at 25.) Judge Conway sentenced Mr.
Pompey to 20 years each for Counts I, III, VI, and XVIII, and
to 40 years for Count V. (See Doc. 603-A (Sentencing
Hr'g Tr.) at 36; see also Doc. 635-1
Pompey appealed his sentence, and the Tenth Circuit affirmed
it. See United States v. Pompey, 264 F.3d 1176 (10th
Cir. 2001). He filed two motions to vacate his sentence
pursuant to 28 U.S.C. § 2255, which the Court denied.
(See Docs. 487-89; 603-04.) He filed two motions to
reduce his sentence pursuant to 18 U.S.C. § 3582(c),
which the Court also denied. (See Docs. 578; 586;
595; 602.) Mr. Pompey now moves, with the assistance of
counsel, for a reduction in his sentence pursuant to Section
404 of the Formerly Incarcerated Reenter Society Transformed
Safely Transitioning Every Person Act (the First Step Act),
Pub. L. No. 115-391, 132 Stat. 5194 (2018). (See
Docs. 627; 629; 632.) The USPO prepared a memorandum to
assist the Court in determining whether Mr. Pompey is
eligible for a sentence reduction under the First Step Act.
(See Doc. 638.) Having reviewed the briefs, the
record, and the applicable law, the Court finds the motion is
not well-taken and should be denied.
Mr. Pompey is not eligible for a sentence reduction under the
First Step Act.
404 of the First Step Act makes Sections 2 and 3 of the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372,
retroactive. See United States v. Lewis, No. CR
08-0057 JB, 2019 WL 2192508, at *18, __ F.Supp.3d __ (D.N.M.
May 21, 2019). The relevant sections of the Fair Sentencing
Act increased the amount of crack cocaine required to trigger
mandatory minimum penalties as set out in 21 U.S.C.
§§ 841(b)(1)(A) and (B). The Fair Sentencing Act
did not apply retroactively. See Id. Section 404 of
the First Step Act “makes the Fair Sentencing Act's
sections 2 and 3 retroactive.” See Id. (citing
First Step Act § 404).
eligible for relief under Section 404, a defendant must have
both violated and been sentenced for a covered offense.
See First Step Act § 404(a)-(b). The statute
defines a “covered offense” as “a violation
of a Federal criminal statute, the statutory penalties for
which were modified by section 2 or 3 of the Fair Sentencing
Act of 2010 . . . .” Id. § 404(a).
Relevant to Mr. Pompey's motion, covered offenses include
violations of 21 U.S.C. §§ 841(b)(1)(A) and (B).
See Lewis, 2019 WL 2192508, at *21. Therefore, if
Mr. Pompey had been convicted of and sentenced under one of
these sections, he would be eligible for a sentence reduction
pursuant to the First Step Act. He was not.
Mr. Pompey was convicted of violations of the
relevant sections, he was not sentenced pursuant to
their mandatory minimums. In 2000, section 841(b)(1)(A)
provided a sentence of 10 years to life in prison for
offenses involving at least 50 grams of crack, and section
841(b)(1)(B) provided a sentence of 5 to 40 years'
imprisonment for at least 5 grams of crack. (See PSR
at 25.) If Judge Conway had sentenced Mr. Pompey
according to sections 841(b)(1)(A) and (B), therefore, he
would have been subject to statutory maximums of life and 40
years. Mr. Pompey's ...