United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
action is before the Court on Defendant Loxley Robert
Francis' Motion Pursuant to the First Step Act (docs.
216, 218),  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.
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,
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.
jury found Francis guilty of the offenses in Count One and
Count Six (doc. 231-5, Order on Jury Trial). The
jury did not make any determination of the quantity of crack
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
The Court: Yeah, I think that is a moot issue.
231-7, sentencing transcript, p. 25-25). Accordingly, the
Court made no finding regarding Francis' prior felony