USA v. Ly et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MURVILLE LAVELLE LAMPKIN,
Defendant.
Case No. 3:15-cr-00005-SLG
ORDER REGARDING MOTION FOR COMPASSIONATE RELEASE
Before the Court at Docket 1100 is Defendant Murville Lampkin’s pro se
Motion for Compassionate Release. 	The Government did not file a response to
the motion. As requested by the Court, the U.S. Probation Office for the District of
Alaska filed a sealed memorandum at Docket 1102 regarding what the U.S.
Sentencing Commission guideline would be for Mr. Lampkin under current law,
and whether the statutory mandatory minimum had been reduced with respect to
Count 11 of the Indictment.
On 	July 	10, 	2018, 	this 	Court 	sentenced 	Mr. 	Lampkin to 	240 	months
imprisonment and 10 years supervised release after he was found guilty at trial of
one count of Conspiracy to Distribute and Possess with Intent to Distribute
Controlled Substances; one count of Money Laundering Conspiracy; one count of
Distribution of Controlled Substances; and one count of Possession with the Intent
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to Distribute Controlled Substances.1 The Court found that the enhanced penalty
provision pursuant to 21 U.S.C. § 851 applied, and that the statutory mandatory
minimum of 20 years (240 months) therefore applied to Count 11, the count of
Possession with the Intent to Distribute Controlled Substances.2 	Mr. Lampkin is
currently in Bureau of Prisons (BOP) custody and incarcerated at Sheridan FCI;
his projected release date is January 29, 2031.3
In May 2021, the Court denied on the merits Mr. Lampkin’s first motion for
compassionate release; that motion was based on his medical conditions.4 In June
2021, the Court denied Mr. Lampkin’s renewed request for compassionate release
based 	on 	the 	COVID-19 	pandemic 	that 	he 	presented 	in 	a 	motion 	for
reconsideration.5 	In 	March 	2023, 	Mr. 	Lampkin 	filed 	the 	instant 	motion 	for
compassionate release, seeking to reduce his sentence to time served with two to
five years of supervised release.6 	For the reasons addressed below, the Court
1 Docket 825 (Judgment).
2 See Docket 750 at 1-2 (sealed); Docket 817.
3 Fed. Bureau of Prisons, Inmate Locator (available at www.bop.gov/inmateloc/) (last accessed
May 8, 2023).
4 See Docket 1000.
5 See Docket 1004.
6 Docket 1100 at 11. On the last page of his pro se filing, Mr. Lampkin also requested that an
attorney be appointed to represent him in these proceedings, but that request appears to have
been included in error since the Court granted withdrawal of Mr. Lampkin’s attorney immediately
prior to Mr. Lampkin filing his instant motion for compassionate release. Docket 1099. The
Court will therefore disregard this request.
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partially grants Mr. Lampkin’s motion and reduces his sentence to 180 months,
with 10 years of supervised release to follow.
I. 	Applicable law
The First Step Act of 2018, enacted on December 21, 2018, amended 18
U.S.C. § 3582(c)(1)(A) to allow federal inmates to move the district court for a
sentence reduction after exhausting their administrative rights.7 	If an inmate has
exhausted his administrative rights, a district court must consider the motion on
the merits. 	On the merits, a court must find that “extraordinary and compelling
reasons warrant” a sentence reduction and that the applicable factors set forth in
18 U.S.C. § 3553(a) support a sentence reduction.8 Although a district court must
make both findings “before it grants compassionate release, a district court that
properly 	denies compassionate release need not evaluate each step.”9 The
Sentencing Commission’s policy statement at U.S.S.G. § 1B1.13 is not binding on
a district court considering a compassionate release motion filed by a defendant,
but that policy statement “may inform a district court’s discretion.”10
7 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Prior to this amendment,
only the Director of the Bureau of Prisons could bring a motion to reduce an inmate’s sentence.
8 18 U.S.C. § 3582(c).
9 United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (emphasis in original) (disagreeing
with the defendant that a district court must make an explicit “extraordinary and compelling”
finding before denying a motion based on the § 3553(a) factors).
10 United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021).
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In September 2022, the Ninth Circuit held in United States v. Chen that
“district 	courts 	may 	consider 	non-retroactive 	changes 	in 	sentencing 	law, 	in
combination 	with 	other 	factors 	particular 	to 	the 	individual 	defendant, 	when
analyzing extraordinary and compelling reasons for purposes of [compassionate
release pursuant to] § 3582(c)(1)(A).”11 In that case, the defendant was convicted
of several drug and firearm-related charges and received a 25-year mandatory
minimum stacking enhancement pursuant to 18 U.S.C. § 924(c). 	The First Step
Act modified the 25-year enhancement so that it is now triggered with a distinctly
subsequent § 924(c) conviction. 	But the First Step Act did not make this change
retroactive. In the defendant’s motion for compassionate release, he asserted that,
were he to be sentenced under current law, he would no longer be subject to the
mandatory 25-year enhancement but rather only a 60-month sentence. 	The
district court, however, held that it could not consider these non-retroactive
changes “when assessing whether a defendant has shown extraordinary and
compelling reasons for purposes of” compassionate release. The Ninth Circuit
disagreed and, after examining a circuit split, reasoned that such consideration
was permitted because Congress had not placed limitations on such consideration
and because barring it “would seemingly contravene the original intent behind the
compassionate release statute, which was created to provide the ‘need for a
11 48 F.4th 1092, 1094, 1098 (9th Cir. 2022) (“There is no textual basis for precluding district
courts from considering non-retroactive changes in sentencing law when determining what is
extraordinary and compelling.”).
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“safety valve” with respect to situations in which a defendant’s circumstances had
changed such that the length of continued incarceration no longer remained
equitable.’”12 The Circuit thus vacated and remanded the case to the district court
“to 	reassess 	whether 	extraordinary 	and 	compelling 	reasons 	exist 	when
considering non-retroactive changes in sentencing law, in combination with other
factors particular to [the defendant’s] case.”13
Among other changes, the First Step Act also reduced the mandatory
minimum sentence for a second felony drug conviction, pursuant to 21 U.S.C. §
841, from 20 years to 15 years.14 	However, the First Step Act did not make that
change retroactive.15 	Thus, in a § 851 proceeding to establish a prior conviction
of such an offense, the enhanced penalty provision, if applicable, would today
result in a mandatory minimum of 15 years if the defendant had only one such prior
conviction.16 	Several district courts within the Ninth Circuit have applied Chen’s
12 Chen, 48 F.4th at 1098-99 (quoting United States v. Ruvalcaba, 26 F.4th 14, 26 (1st Cir.
2022)). The Ninth Circuit noted that “Congress has only placed two limitations directly on
extraordinary and compelling reasons: the requirement that district courts are bound by the
Sentencing Commission’s policy statement, which does not apply here, and the requirement
that ‘[r]ehabilitation . . . alone’ is not extraordinary and compelling.” Chen, 48 F.4th at 1098
(alteration in original) (first citing 18 U.S.C. § 3582(c)(1)(A); and then citing 28 U.S.C. § 994(t)).
13 Chen, 48 F.4th at 1101.
14 See First Step Act § 401(a)(2)(A)(i); 21 U.S.C. § 841(b)(1)(A), in the text following clause (viii).
15 First Step Act § 401(c).
16 See 21 U.S.C. §§ 841(b)(1)(A), 851. The modified statute also requires that the prior
conviction be for a “serious drug felony,” whereas the prior statute only required a prior “felony
drug offense” conviction. The Court notes that Mr. Lampkin’s predicate drug conviction that
triggered the § 851 enhancement in the instant case appears to meet the definition of the new,
post-FSA “serious drug felony” term set forth in 21 U.S.C. § 802(57): Mr. Lampkin was convicted
of his predicate drug offense pursuant to 21 U.S.C. § 841(a)(1); he served a term of more than
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holding to compassionate release motions in which the defendant asserted that
this non-retroactive, § 851 mandatory minimum sentencing change constituted an
extraordinary and compelling reason warranted a reduction of sentence.17
II. 	Exhaustion of administrative rights
An inmate has exhausted his administrative rights if the warden of the
inmate’s facility has denied the inmate’s request for compassionate release or if
30 days have lapsed from the warden’s receipt of the request for compassionate
release.18 Mr. Lampkin previously asserted that he had requested compassionate
release from the Sheridan FCI warden in August 2020.19 	It appears that the
warden did not respond to the request. 	The government agreed then that Mr.
Lampkin exhausted his administrative rights.20 The Court will consider the motion
on its merits.
12 months; and he was released from that term of imprisonment within 15 years of the
commencement of this offense. See Docket 416 at 2; Docket 750 at 26-27; Docket 260 at 2-3,
8-9; Case No. 3:00-cr-00079-HRH, Docket 439, Docket 683.
17 See United States v. Ogata, Case No. CR 12-00190 HG-01, 2022 WL 17325816 (D. Haw.
Nov. 29, 2022) (reducing defendant’s sentence after considering the change to the
§ 841(b)(1)(A) mandatory minimum); United States v. Hernandez, Case No. 12CR0250-LAB,
2022 WL 17905524 (S.D. Cal. Dec. 23, 2022) (reducing defendant’s sentence after considering
that defendant’s prior predicate offense would no longer trigger a § 851 enhancement under
current law); United States v. McCreery, Case No. 1:08-CR-00091-BLW-4, 2022 WL 6152761,
at *4 (D. Idaho Oct. 7, 2022) (having “no hesitation in finding [the defendant’s] sentencing
disparity extraordinary and compelling” after considering change to the § 851 mandatory
minimum enhancement).
18 18 U.S.C. § 3582(c)(1)(A).
19 Docket 989 at 3, 6.
20 Docket 994 at 9.
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III. 	Extraordinary and compelling reasons
Mr. Lampkin, who is currently 50 years old, submits that he faces a number
of health concerns—specifically, obesity, a heart condition, gout, long-haul COVID,
“a hernia that likely will require surgery,” asthma, and an acute vulnerability to
severe complications from COVID-19 infections based on his medical conditions.21
Mr. Lampkin also contends that his original sentence was improperly enhanced
pursuant to 21 U.S.C. § 851 in 2018, and that were he to be sentenced today, he
would not have received the same enhancement.22 Mr. Lampkin cites to Chen in
support of his argument, and appears to encourage the Court to consider the
change in the law as an “extraordinary and compelling” circumstance to justify
reducing his sentence.23 Mr. Lampkin then asserts several other reasons why his
sentence should be reduced, such as that his mandatory minimum sentence was
incorrectly 	increased 	based 	on 	a 	faulty 	analysis 	of 	the 	amount 	of 	pure
methamphetamine he possessed and unacceptable prison conditions at Sheridan
FCI that were exacerbated during the COVID-19 pandemic.24
Pursuant 	to 	the 	Court’s 	request, 	the 	U.S. 	Probation 	Office 	filed 	a
memorandum calculating what the current sentencing range would be for Mr.
21 Docket 1100 at 3.
22 Docket 1100 at 3.
23 Docket 1100 at 3.
24 See Docket 1100 at 2-9.
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Lampkin, “including whether the [section] 851 sentencing enhancement with
respect to Count 11 would now be a mandatory minimum of 15 years instead of
20 	years.”25 	The 	Probation 	Office 	responded 	that 	the 	statutory 	mandatory
minimum for Count 11 would now indeed be 15 years, and that the current
guideline range for Mr. Lampkin’s convictions in this case would be 180 to 210
months.26
The Court finds that this change in the law and “the disparity between [the
original] sentence and the sentence ‘Congress now believes to be an appropriate
penalty for [Mr. Lampkin’s] conduct,’” in combination with Mr. Lampkin’s health
issues, rehabilitative efforts, and prison conditions, constitute extraordinary and
compelling reasons that warrant a sentence reduction in Mr. Lampkin’s case.27
IV. 	Section 3553(a) factors
In considering a motion for compassionate release, the § 3553(a) factors
are a lens through which the Court views the continued validity of the imposed
sentence. Mr. Lampkin asserts that he “has performed admirably during his term
in prison.”28 	He worked as a Unit Orderly during the COVID-19 pandemic and
“was tasked with serving food to inmates [and] making sure inmates had soap,
25 Docket 1101; Docket 1102 (sealed).
26 See Docket 1102 at 1-2.
27 See Ogata, 2022 WL 17325816, at *3 (quoting United States v. McCoy, 981 F.3d 271, 285
(4th Cir. 2020)).
28 Docket 1100 at 10.
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razors, [and] cleaning supplies.” 	Mr. Lampkin states that he “also saved a jail
guard’s life . . . when they were attacked by another person.” Mr. Lampkin asserts
that he participated in the Residential Drug and Alcohol Program, and he has thus
far served about eight years of his sentence.29 According to the Probation Office,
while Mr. Lampkin has an extensive criminal history, he “has had no disciplinary
incidents while in BOP custody for the instant offense[s].”30
The Court finds that, in light of the applicable § 3553(a) factors, a reduction
in Mr. Lampkin’s sentence from 240 months to 180 months (15 years) is warranted.
A sentence of 180 months would appropriately reflect the seriousness of Mr.
Lampkin’s offenses, the history and characteristics of Mr. Lampkin, including his
health problems and his age; would promote respect for the law; would afford
adequate 	deterrence; 	would 	protect 	the 	public; 	and 	would 	provide 	just
punishment.31 	Such a sentence falls within the current guideline range of 180 to
210 months, and it also addresses to some degree the sentencing disparity
between Mr. Lampkin and his co-defendants.32 As this Court stated in 2018 when
imposing the 240-month sentence the Court was then required to impose the 240
month sentence was not a just sentence because “it is excessive, it’s unnecessary,
29 Docket 1100 at 10.
30 Docket 1102 at 2-3.
31 18 U.S.C. § 3553(a)(1)-(2).
32 See 18 U.S.C. § 3553(a)(4), (6); Docket 1102 at 1-2; Docket 852 at 21-22.
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and it fails to avoid unwarranted sentencing disparities.”33 The Court finds that this
sentencing reduction to the current mandatory minimum sentence is warranted.34
The Court does not decide whether the Court has the authority to impose a
sentence at this time that is below the current mandatory minimum sentence, as it
finds that the 15-year sentence is warranted in any event upon consideration of all
the Section 3553(a) factors.35
Therefore, the Court finds that there are extraordinary and compelling
reasons that warrant a sentence reduction and that the applicable factors set forth
in 18 U.S.C. § 3553(a) support a sentence reduction to 180 months.
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant’s motion at Docket
1100 is GRANTED as follows: Defendant’s sentence is reduced from 240 months
to 180 months. 	Supervised release shall remain at 10 years with the same
33 Docket 852 at 22.
34 See Docket 852 at 22-23.
35 See United States v. Dobbertin, 475 F. Supp. 3d 1263, 1270 (D. Kan. 2020) (“The court need
not decide whether the compassionate release statute authorizes a sentence below the
mandatory minimum sentence to resolve the current motion.”). While some district courts have
concluded that they have the discretion to depart from current mandatory minimums, others
have concluded to the contrary. See, e.g., United States v. Wells, Case No. 2:14-cr-00280-
JCM-GWF, 2022 WL 1720987, at *6 (D. Nev. May 27, 2022) (reducing defendant’s 107-year
sentence to 10 years, below the current mandatory minimum of 35 years for his offenses);
contra United States v. Hamilton, Case No. CR-16-00268-001-PHX-JJT, 2023 WL 183671, at
*5-6 (D. Ariz. Jan. 13, 2023) (declining to reduce a sentence below the current mandatory
minimum because doing so would “create unwarranted disparities in the opposite direction,
imposing a more lenient sentence than similarly situated defendants facing sentencing post-FSA
can now receive”).
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conditions previously imposed. 	The Clerk of Court shall enter an amended
judgment accordingly.
DATED this 16th day of May, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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