United States v. Maumau

993 F.3d 821

UNITED STATES of America, Plaintiff - Appellant,

v.Kepa MAUMAU, Defendant - Appellee.

No. 20-4056

United States Court of Appeals, Tenth Circuit.

FILED April 1, 2021

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the briefs), Office of the United States Attorney, Salt Lake City, Utah, for Appellant.

John Gleeson (Farhana Choudhury, with him on the brief), Debevoise & Plimpton LLP, New York, New York, for Appellee.

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.

BRISCOE, Circuit Judge.

In August 2008, defendant Kepa Maumau, who was twenty years old at the time, participated in armed robberies of a clothing store and two restaurants. Maumau was indicted for his role in those robberies and ultimately convicted by a jury of one count of conspiracy to commit a racketeering offense, in violation of 18 U.S.C. § 1962(d), two counts of committing violent crimes in aid of racketeering, 18 U.S.C. § 1959(a), one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and three counts of using a gun during a crime of violence, in violation of 18 U.S.C. § 924(c) (2006).

At the time of Maumau's convictions, 18 U.S.C. § 924(c) included a "stacking" provision that required a district court to impose consecutive sentences of twenty-five years’ imprisonment for second or subsequent convictions of the statute, even if those convictions occurred at the same time as a defendant's first conviction under the statute. As a result of that "stacking" provision, Maumau was sentenced to a total term of imprisonment of 55 years.

In December 2018, Congress enacted the First Step Act of 2018 (First Step Act), Pub. L. 115-391, 132 Stat. 5194 (2018). Three provisions of the First Step Act are relevant to this appeal. First, Section 403(a) of the First Step Act amended § 924(c) so that the twenty-five-year mandatory minimum sentence for a second or subsequent conviction of § 924(c) applies only if the defendant's first § 924(c) conviction is final at the time of the second or subsequent § 924(c) conviction. Second, Section 403(b) of the First Step Act limited the retroactivity of the changes implemented by Section 403(a). Third, Section 603(b) of the First Step Act aimed to increase the use and transparency of compassionate release by amending 18 U.S.C. § 3582(c)(1) to authorize defendants to file their own motions for compassionate release; prior to the First Step Act, only the Bureau of Prisons could file such motions on behalf of defendants.

In October 2019, Maumau filed a motion pursuant to § 3582(c)(1) to reduce his sentence. Maumau argued in his motion that extraordinary and compelling reasons, including the First Step Act's elimination of § 924(c) ’s stacking provision, justified a reduction. The district court granted Maumau's motion and reduced Maumau's sentence to time served, plus a three-year term of supervised release.

The government now appeals, arguing that the district court erred in granting Maumau's motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the decision of the district court.

I

Maumau's gang involvement and crimes

Beginning in December 2002 and continuing at least until September 2008, law enforcement agencies in the State of Utah investigated the activities of persons associated with the Tongan Crip Gang (TCG). Aplt. App., Vol. 2 at 276. During that investigation, law enforcement officials identified Maumau as either a member or associate of TCG. Id .

In August 2008, Maumau, who was twenty years old at the time, and EK, a juvenile TCG member, robbed a Gen X clothing store in South Ogden, Utah.¹ During the robbery, which lasted approximately one minute, Maumau held a gun in his right hand, pointed it at the store's employees, and said, "Open the fucking cash register." Id . at 280. An employee opened the cash register, and EK took the money tray from the cash register and dumped it and its contents into a Gen-X bag. EK then asked about a second cash register, and a store employee opened the second register. EK also opened a metal box under the register and took cash from that box. Maumau walked to another part of the store and demanded that an employee give him several ball caps. Maumau and EK then walked out of the store, stopping briefly at a mannequin, from which they took a metal necklace. Maumau and EK left the store in a stolen van. Gen-X estimated its total loss to be approximately $7,000.

After robbing the Gen X Clothing store, Maumau and EK traveled to Tempe, Arizona, and robbed an El Pollo Loco restaurant. During that robbery, Maumau, who was wielding a handgun, jumped over the counter and told an employee behind the counter to give him all of the money from the register. Maumau pointed the gun at the employee and waived the gun up and down. Maumau then handed the gun to EK and took the money from the cash register drawer. After doing so, Maumau jumped back over the counter, and he and EK left the restaurant. Approximately $505 was taken during the robbery.

Maumau and EK then robbed a Jack in the Box restaurant down the street from the El Pollo Loco restaurant. During this robbery, EK first entered the restaurant and sat at a booth. A few moments later, Maumau entered the restaurant, made contact with the night manager, and walked with the night manager to the registers. At that point, EK walked to the counter, and both Maumau and EK pulled their shirts over their faces. Maumau pulled a handgun out of his waistband and pointed the gun at the night manager. Maumau told the night manager, "you can open the register or I'll kill you." Id . at 281. As the night manager was unlocking the register, EK jumped over the counter and took the paper money out of the register and left the coins. EK observed a safe under the register and ordered the night manager to open it. The night manager did not have the combination to the safe and thus was unable to comply. Maumau and EK then left the restaurant. The night manager later told the police that he feared for his life when the gun was pointed at him.

Maumau and EK were chased by the police after leaving the Jack in the Box restaurant. Maumau crashed his vehicle two miles into the chase. He and EK tried to run, but were detained and arrested by police.

Maumau's trial and sentencing

A federal grand jury indicted Maumau, as well as other TCG members, on multiple criminal counts. For his part, Maumau was charged with violating: (1) 18 U.S.C. § 1962(d) (2006), conspiracy to commit a racketeering offense; (2) 18 U.S.C. § 1959(a) (2006), violent crimes in aid of racketeering (VICAR); (3) 18 U.S.C. § 1951(a) (2006), Hobbs Act Robbery; and (4) 18 U.S.C. § 924(c) (2006), using a gun during a crime of violence.

Prior to trial, the government offered Maumau a plea deal that, if accepted, would have resulted in a ten-year sentence. Maumau rejected the plea offer.

The case against Maumau proceeded to trial in October 2011. The jury convicted Maumau of eight counts. To begin with, the jury convicted Maumau of conspiring to commit a racketeering offense, and the jury identified the Gen X, El Pollo Loco, and Jack in the Box robberies as part of this conspiracy. For his part in the Gen X robbery, Maumau was also found guilty on one VICAR count, one Hobbs Act count, and one § 924(c) count. For the El Pollo Loco and Jack in the Box robberies, Maumau was found guilty of two more VICAR counts and two more § 924(c) counts.

Maumau was sentenced in December 2011 to 57 years in prison. At the time of Maumau's sentencing, 18 U.S.C. § 924(c)(1)(C) required the imposition of a 25-year mandatory minimum consecutive sentence for "a second or subsequent conviction under [ § 924(c) ]," even if the second and subsequent convictions were part of the same prosecution as the first such conviction. 18 U.S.C. § 924(c)(1)(C) (2011) ; see Deal v. United States , 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Thus, Maumau's 57-year sentence included a seven-year mandatory minimum sentence for the first § 924(c) conviction and twenty-five year mandatory minimum sentences for both the second and third convictions, with all of these sentences to run consecutively.

In 2013, Maumau was resentenced following the Supreme Court's decision in Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that any fact that increases mandatory minimum sentence for a crime is an "element" of the crime that must be submitted to jury, and not a "sentencing factor"; further holding that a finding as to whether a defendant brandished, as opposed to merely carrying, a firearm in connection with crime of violence was an element of a separate, aggravated offense that must be found by jury). At the resentencing, the district court reduced the sentence for the first § 924(c) conviction from seven to five years. This in turn reduced Maumau's total sentence from 57 to 55 years.

Maumau appealed his convictions and we affirmed. United States v. Kamahele , 748 F.3d 984, 993, 1024 (10th Cir. 2014).

The First Step Act

In December of 2018, Congress passed the First Step Act. As relevant here, the First Step Act substantially revised the sentencing scheme for § 924(c) convictions. Specifically, Section 403(a) of the First Step Act amended § 924(c) so that a twenty-five-year mandatory minimum sentence for a second or subsequent § 924(c) conviction applies only if the defendant's first § 924(c) conviction is final at the time of the second or subsequent § 924(c) conviction. Section 403(b) of the First Step Act, however, limited the retroactivity of the changes implemented by Section 403(a) to "any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." 132 Stat. at 5222. Finally, the First Step Act amended 18 U.S.C. § 3582(c)(1), sometimes referred to as the "compassionate release" statute, to allow defendants to...