The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING MOTION TO REDUCE SENTENCE
Before the Court is Defendant Kenneth Lumpkin's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2). After considering the moving, opposing, and replying papers, as well as the oral arguments of the parties, the Court hereby DENIES Defendant's Motion.
On May 20, 1996, a federal grand jury returned a two-count first superseding indictment, charging defendant Kenneth Lumpkin and co-defendant, Keith Ramon Chatman, with violating 21 U.S.C. § 846, conspiracy to possess with intent to distribute cocaine base, and 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a), aiding and abetting the possession with intent to distribute cocaine base.
On July 30, 1996, the Government filed an Information charging Defendant Lumpkin with having a prior felony drug conviction pursuant to 21 U.S.C. § 851. Trial began on August 6, 1996, and on August 12, 1996, the jury returned verdicts finding Lumpkin and his co-defendant guilty on both counts. On August 19, 1996, Lumpkin filed a motion for a new trial, and on September 9, 1996, presiding trial court judge, the Honorable Dickran M. Tevrizian, denied the motion.
On December 30, 1996, Tevrizian sentenced Lumpkin to 240 months incarceration on each count of conviction, to run concurrently. The probation office had prepared a Pre-Sentence Report ("PSR") that computed a guideline offense level of 36 under United States Sentencing Guidelines ("USSG") § 2D1.1 based on 1021 grams of cocaine base and a criminal history category of I. The resulting guideline sentencing range was 188 to 235 months. However, the probation office concluded that the court was required to impose a statutory mandatory minimum sentence of 240 months, based on a mandatory minimum sentencing provision for over 50 grams of cocaine base in 21 U.S.C. § 841(a)(1) combined with a 21 U.S.C. § 851 enhancement for a prior felony narcotics conviction. Judge Tevrizian imposed the statutory mandatory minimum, explaining that "his hands [were] tied."
While the quantity of drugs was alleged in the indictment, the jury did not find that the quantity was proved. The jury only had to find a "measurable amount" of cocaine, for which the statutory penalty is fixed at zero to five years. The quantity of 1021 grams found in order to impose the statutory mandatory minimum was found by Judge Tevrizian at sentencing based on the representation in the indictment as to amount.
After the imposition of his sentence, Lumpkin appealed his conviction to the Ninth Circuit. The Ninth Circuit affirmed his conviction in an unpublished memorandum decision on August 20, 1998. Defendant then filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. Judge Tevrizian denied the motion on July 25, 2000, and the Ninth Circuit denied Defendant's second appeal on August 15, 2002, in an unpublished memorandum decision.
Lumpkin has been in continuous custody since April 27, 1996, or 144 months. As of March 2008, Lumpkin has earned 594 days, or almost 20 months, of good time credit. Lumpkin has had an exemplary record while in prison. Though he was originally designated to a medium security facility, in 2000, he was transferred to a low security prison and then a minimum security prison in 2005. He has taken almost all college classes available to him, and he has learned how to be a barber in order to prepare himself for life outside prison. Further, since 2006, Lumpkin has been the executive chairman of a group called "The Outspoken Against Drugs" or "TOAD" program, a group that speaks to at-risk youth in schools, juvenile hall, and the juvenile court system in Kern County about the dangers of drug abuse.
Defendant brought the instant motion to reduce his sentence on August 18, 2008, pursuant to 18 U.S.C. § 3582(c)(2) that allows a court to modify a previously imposed sentence as a result of a sentencing range that has subsequently been lowered. Lumpkin bases his motion on the United State Sentencing Commission's November 1, 2007 amendment of § 2D1.1 of the sentencing guidelines and the March 3, 2008 amendment of § 1B1.10 making the November 1, 2007 amendment of § 2D1.1 retroactive. This amendment reduces Lumpkin's offense level from 36 to 34. Thus, Lumpkin argues this reduction allows the Court to modify his sentence. Further, Defendant argues that in modifying his sentence, the Court can also apply the requirements of Apprendi v. New Jersey mandating that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348 (2000). As a result, Defendant argues that under Apprendi and its Ninth Circuit progeny, the statutory mandatory minimum does not apply because the jury in his case did not find beyond a reasonable doubt the quantity that enhanced his sentence, and there was no specific allegation or finding of "crack" (as opposed to "cocaine base"). See U.S. v. Hollis, 490 F.3d 1149, 1155-6 (9th Cir. 2007).
The Government argues that Lumpkin's motion should be summarily denied. The Government contends that the amendment is inapplicable to Lumpkin because he was sentenced to a statutory mandatory minimum penalty rather than pursuant to the sentencing guideline range that has subsequently been lowered, and therefore his sentence may not be reduced. Further, the Government denies that Apprendi can be used to challenge the imposition of the mandatory minimum sentence under Section 3582(c)(2), as such a challenge involves an impermissible retroactive application of Apprendi.
Generally, a district court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). However, there is a limited exception allowing district courts to reduce sentences based on subsequent changes in the sentencing guidelines. Under 18 U.S.C. section 3582(c)(2), "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."
The parties primarily dispute two issues: (1) whether this Court even has jurisdiction to entertain the motion to reduce and (2) if the Court does, whether Apprendi can be utilized to challenge the imposition of the statutory mandatory minimum. While the Court is sympathetic to ...