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United States v. Francis

United States District Court, S.D. Alabama, Southern Division

May 3, 2019

UNITED STATES OF AMERICA,
v.
LOXLEY ROBERT FRANCIS, Defendant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This action is before the Court on Defendant Loxley Robert Francis' Motion Pursuant to the First Step Act (docs. 216, 218), [1] Francis' brief in support of his motion (doc. 230), the United States response (doc. 233) and Francis' reply (doc. 234). Upon consideration and for the reasons set forth herein, the motion is GRANTED as detailed below.

         A. Background

         Loxley Robert Francis was indicted for conspiracy to possess with intent to distribute 1.5 kilograms or more of crack cocaine in violation of 21 U.S.C. § 846 (Count One), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Six) (doc. 231-1, superseding indictment).[2]

         At trial, the jury was instructed, in relevant part, as follows:

You will note that in Counts One through Four the indictment charges a specific amount of crack cocaine. The evidence received in this case need not prove the actual amount of the controlled substance that was the object of the conspiracy or the exact amount of the controlled substance alleged to have been involved in the transaction.
What the Government must prove beyond a reasonable doubt is that a measurable amount of crack cocaine was the object of the conspiracy charged in Count One.

(Doc. 231-4).

         The jury found Francis guilty of the offenses in Count One and Count Six[3] (doc. 231-5, Order on Jury Trial). The jury did not make any determination of the quantity of crack cocaine.

         The United States filed one notice of enhancement for two prior drug felonies and one notice of enhancement for one prior drug felony (docs. 35, 53). Francis objected that the first enhancement was inadequate due to lack of specificity and that the second enhancement was untimely (doc. 231-6). At sentencing, the District Court acknowledged the objections and stated as follows:

I do believe you objected to the enhancement but is that a moot issue at this point, because of the total offense points in the criminal history? In other words whether the government properly notified of the enhancement for the statutory minimum of ten years.
[Counsel for Francis]: Judge, because of the amount, if Your Honor stayed with the amount of drugs it may be a moot issue because they have reached the threshold level that enhances him.
The Court: Yeah, I think that is a moot issue.

         (Doc. 231-7, sentencing transcript, p. 25-25). Accordingly, the Court made no finding regarding Francis' prior felony drug ...


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