Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Pompey

United States District Court, D. New Mexico

August 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW POMPEY Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         At 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.

         Because 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 catchall provision.

         Thus, 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.

         I. Background

         Mr. 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.[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[2]) 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.)

         The 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 (Judgment).)

         Mr. 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.

         II. Mr. Pompey is not eligible for a sentence reduction under the First Step Act.

         Section 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).

         To be 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.

         While 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.[3]) 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.