USA v. Ly et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MURVILLE LAMPKIN,
Defendant.
Case No. 3:15-cr-00005-SLG
ORDER RE MOTION FOR RECONSIDERATION
Before the Court at Docket 1108 is Defendant Murville Lampkin’s pro se
Motion for Reconsideration. On July 10, 2023, the Court requested a response
from the Government regarding the Attorney General’s recently issued guidance
regarding the filing of Section 851 notices as well as the Section 3553 factors;
however, no response has been filed.1
The 	Court 	previously 	granted 	Mr. 	Lampkin’s 	most 	recent 	motion 	for
compassionate release in an order filed on May 16, 2023.2 The Court reduced Mr.
Lampkin’s 	sentence 	to 	the 	current 	statutory 	mandatory 	minimum 	when 	the
enhanced penalty provision of 21 U.S.C. § 251 is applicable, which resulted in a
revised judgment of 180 months to serve.3
1 Docket 1109.
2 Docket 1103.
3 Docket 1104
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In his motion for reconsideration, Mr. Lampkin asks this Court to further
reduce his sentence. He first maintains that the Section 851 enhancement should
not 	have 	been 	applied 	in 	his 	case, 	citing 	to 	the 	Attorney 	General’s 	recent
guidelines setting out the criteria for applying the enhancement. 	That guideline
encourages prosecutors to decide whether to file an information under 21 U.S.C.
§ 851 “at the time the case is charged or as soon as possible thereafter.” 	It also
provides that “a Section 851 enhancement should not be filed simply to exert
leverage to induce a plea or because the defendant elected to exercise the right
to trial.”4
In this case, Mr. Lampkin was initially indicted on January 22, 2015 on a
drug conspiracy charge involving 50 grams or more of a mixture containing
methamphetamine and a detectable amount of heroin, as well as a count of
distribution of heroin and possession with intent to distribute methamphetamine.5
In late October and early November 2015, five of the codefendants plead
guilty to the charges against them in the indictment.6 A superseding indictment
was promptly filed thereafter, on November 18, 2015. The superseding indictment
added a money laundering conspiracy charge against Mr. Lampkin.7 At that point,
4 Docket 1108 at 3.
5 Docket 9.
6 Docket 233 (Adam Michael Cornelison); Docket 237 (Robert Lee Rast); Docket 248 (Rennie
Marie Davis); Docket 254 (Toa Danh Ly); Docket 255 (Pao Lee).
7 Docket 260.
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Case No. 3:15-cr-00005-SLG, USA v. Lampkin
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Mr. Lampkin was the only defendant awaiting trial; four other defendants were still
at large. 	Kasey Martinez was arrested in December 2015; on April 8, 2016, she
entered a guilty plea to the charge against her.8 	One month later, when Mr.
Lampkin was the only defendant awaiting trial, the Government filed its Notice of
Intent to Seek Enhanced Statutory Penalties against Mr. Lampkin.9
Mr. Lampkin asserts that the filing of the 851 notice “was used as an extra
punishment for Mr. Lampkin because he elected to use his right to trial.”10 	He
maintains that the 851 enhancement should not be considered and he should
instead be sentenced at what would have been the low end of the guidelines
without 	the 	sentencing 	enhancement, 	which 	he 	maintains 	is 	135 	months.
However, it appears that the Court determined that Mr. Lampkin’s total offense
level was 32, and his criminal history category IV, which results 	in a guideline
range of 168 to 210 months, if the 851 enhancement is not applied.11
Mr. Lampkin also asserts that the 417.5 grams of methamphetamine should
be assessed under the guidelines as a mixture, whereas the Court treated it as
pure methamphetamine. 	This assertion is incorrect; 	the Court adopted the
Presentence 	Report 	calculation, 	which 	determined 	that 	Mr. 	Lampkin 	as
8 Docket 395.
9 Docket 416.
10 Docket 1108 at 4.
11 Docket 826 (Statement of Reasons).
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responsible for the possession of 420 grams of methamphetamine, which was
converted 	to 	840 	kilograms 	of 	marijuana 	(420 	x 	2).12 	Had 	actual
methamphetamine been used in the formula, each gram would have converted to
20 kilograms of marijuana under the 2016 Guidelines manual then in effect,
resulting in a considerably higher guideline calculation. 	Therefore, this argument
is without merit.
But the Court does find that the Attorney General’s pronouncement against
the use of 	851 sentencing enhancements for individuals who chose to go to trial
to constitute one extraordinary and compelling reason that may warrant a further
reduction in Mr. Lampkin’s sentence, particularly in light of the degree of disparity
between Mr. Lampkin’s sentence and the sentences received by his co-defendants
in this case—each well under 10 years.
The Court further finds that Sentencing Commission’s Judiciary Sentence
Information (JSIN), indicates that for the last five fiscal years, when the primary
drug was methamphetamine, the final offense level was 32, and the criminal
history category was IV, the average sentence imposed was 167 months and the
median sentence imposed was 168 months.
The Court has also considered Mr. Lampkin’s age, rehabilitation, lack of
disciplinary infractions, and low security status while incarcerated.
12 Docket 750 at 20.
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For these reasons, the Court finds that together these facts constitute
extraordinary and compelling reasons to further reduce Mr. Lampkin’s sentence as
if the 851 sentencing enhancement had not been filed by the government. 	The
Court further finds that the Section 3553 factors, and particularly the need to avoid
unwarranted sentencing disparities with his codefendants in this case, certain of
whom were considerably more culpable than Mr. Lampkin, warrants a further
modest reduction in his sentence to the low end of the guidelines as adjusted
without the Section 851 enhancement, to 168 months.
A court generally “may not modify a term of imprisonment once it has been
imposed.” 	18 U.S.C. § 3582(c). 	But pursuant to the First Step Act, imprisoned
defendants may now bring their own motions for compassionate release seeking
to modify their sentence. 	18 U.S.C. § 3582(c)(1)(A) (2018). 	Although it appears
the Ninth Circuit has not addressed this point, this Court agrees with those courts
that have held that a district court has the authority to impose a sentence below a
current mandatory minimum, when the resultant sentence that was imposed, in
combination with other factors, together comprise extraordinary and compelling
circumstances that warrant the granting of compassionate release. 	See United
States v. Scarmazzo, 2023 WL 1830792, at *11-14 (E.D. Cal. 2023) (gathering
cases).
For the foregoing reasons, the Court GRANTS the motion to reconsider as
follows: 	Defendant’s sentence is reduced from 180 months to 168 months.
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Supervised release shall remain at 10 years with the same conditions previously
imposed. The Clerk of Court shall enter an amended judgment accordingly.
Absent 	new 	and 	extraordinary 	circumstances, 	no 	further 	reduction 	in
sentence will be granted in this case.
DATED this 11th day of August 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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