United States v. Foy
700 F. App'x 875
| 10th Cir. | 2017Background
- Shevel M. Foy, pro se, sought a sentence reduction under 18 U.S.C. § 3582(c)(2) after the Sentencing Commission promulgated Amendment 782 (2014), which raised the cocaine threshold for a base offense level of 38 to 450 kg.
- At trial and on direct appeal this court attributed to Foy large quantities of cocaine based on co-conspirator testimony: Cruz Santa-Anna testified to ~20 kg/month for 23 months (≈460 kg); Thomas Humphrey testified to 165 kg over 11 months. Combined testimony supported a base offense level 38 under the pre-Amendment Guidelines.
- Foy’s § 3582(c)(2) motion sought a reduced base offense level of 36, arguing his offense involved at least 150 kg but less than 450 kg of cocaine under Amendment 782.
- The district court dismissed the motion for lack of jurisdiction, concluding the amended Guidelines did not lower Foy’s applicable guideline range because the record showed he was responsible for amounts exceeding 450 kg.
- The Tenth Circuit reviewed the dismissal de novo, construing Foy’s pro se filings liberally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had authority under § 3582(c)(2) to reduce Foy’s sentence based on Amendment 782 | Foy: Amendment 782 lowers his guideline because his quantity was between 150 kg and 450 kg, supporting level 36 | Government/District Court: Co-conspirator testimony establishes >450 kg, so Amendment 782 does not lower his applicable range | Affirmed — no reduction authorized because applicable guideline range was not lowered (quantity exceeded 450 kg) |
| Whether sentencing may consider drug quantities not charged in the indictment | Foy: Indictment did not allege >450 kg, so he should not be held responsible for that amount | Government/District Court: Court may consider uncharged drug quantities if part of same course of conduct or common scheme or plan | Affirmed — court may consider uncharged quantities; co-conspirator testimony tied the quantities to the conspiracy |
Key Cases Cited
- United States v. Foy, 641 F.3d 455 (10th Cir. 2011) (discusses attribution of co-conspirator testimony for drug quantity at sentencing)
- United States v. Jordan, 853 F.3d 1334 (10th Cir. 2017) (de novo review standard for § 3582(c)(2) jurisdictional issues)
- United States v. Pinson, 584 F.3d 972 (10th Cir. 2009) (pro se filings construed liberally)