United States v. Ferguson

• Decision Date: 29 November 2022
• Docket Number: 21-6733
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Dwayne FERGUSON, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

55 F.4th 262

UNITED STATES of America, Plaintiff - Appellee,

v.Dwayne FERGUSON, Defendant - Appellant.

No. 21-6733

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2022

Decided: November 29, 2022

ARGUED: Ann M. Reardon, ANN REARDON LAW PLC, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Raj Parekh, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before WILKINSON, THACKER and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Wilkinson and Judge Richardson joined.

THACKER, Circuit Judge:

While serving his federal sentence, Dwayne Ferguson ("Appellant") asked the warden of the facility where he was incarcerated to file a motion for compassionate release on his behalf. After the warden denied his request, Appellant moved for compassionate release in federal district court. In addition to the arguments for compassionate release that Appellant presented to the warden, which were related to his medical condition, Appellant's motion for compassionate release in the district court included arguments that his convictions and sentence were unlawful.

The district court denied Appellant's motion. First, the district court determined that Appellant had not exhausted his administrative remedies as to the arguments about his convictions and sentence because he had not raised them in his request to the warden. The district court also concluded that those arguments could not sustain a compassionate release motion because to consider them would usurp the existing procedures for a defendant to challenge his conviction and/or sentence.

Although we agree with Appellant that he was not required to include the arguments about his convictions and sentence in his request for compassionate release to the warden, we agree with the district court that Appellant cannot challenge the validity of his convictions and sentence through a compassionate release motion. Accordingly, we affirm the district court's denial of Appellant's compassionate release motion.

I.

In September 2004, a jury found Appellant guilty of five federal offenses stemming from his involvement in a drug trafficking operation, and he was sentenced to a total of 765 months of imprisonment in February 2005. This total included a mandatory minimum sentence of 30 years for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Appellant's convictions and sentence were upheld on direct appeal. United States v. Ferguson , 172 F. App'x 539 (4th Cir.) (per curiam), cert. denied , 549 U.S. 926, 127 S.Ct. 292, 166 L.Ed.2d 223 (2006).

For more than a decade, Appellant lodged challenges to his convictions and sentence via various means, including two 28 U.S.C. § 2255 motions. Although his requests for relief were largely unsuccessful, in October 2016 the district court granted Appellant's motion for a sentence reduction filed pursuant to 18 U.S.C. § 3582(c)(2) and reduced Appellant's sentence to 622 months of imprisonment due to a retroactive change to the applicable United States Sentencing Guidelines ("USSG").

On May 15, 2020, Appellant submitted a request for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) to the warden of the facility at which he was then incarcerated. Appellant asked to be released because he was "at a heightened risk for death due to the global pandemic known as the coronavirus (COVID-19)" due to his asthma

and high blood pressure. J.A. 138.¹ The warden denied Appellant's request in a letter dated May 26, 2020.

Shortly afterward, on June 8, 2020, Appellant filed a pro se § 3582(c)(1)(A) motion in the district court. In addition to asserting that his asthma

and high blood pressure enhanced his risk of death from contracting COVID-19, Appellant argued that he should not have been sentenced to the mandatory minimum 30 years of imprisonment for his conviction on Count Seven of the indictment, which charged him with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), because the indictment did not allege that he possessed a silencer. At Appellant's request, the district court appointed counsel to assist him in prosecuting his compassionate release motion, and on January 21, 2021, Appellant, through counsel, filed another § 3582(c)(1)(A) motion. In this second motion, Appellant made the same arguments as he made in his pro se motion and the following additional arguments:

• The district court failed to instruct the jury that Appellant's possession of the silencer was an element of the offense on Count Seven.

• The United States (the "Government") failed to inform Appellant of the applicable penalty on Count Seven at his arraignment.

• Appellant's Guidelines range was calculated incorrectly.

• Appellant's trial counsel was ineffective by (1) failing to subpoena a witness; (2) incorrectly advising Appellant of the applicable Guidelines range; (3) failing to object to the calculation of the Guidelines range as to Count Seven; and (4) incorrectly informing Appellant that he faced the same penalty by going to trial as pleading guilty.

The district court denied Appellant's compassionate release motion on April 29, 2021. Appellant timely appealed.

II.

Before turning to the arguments Appellant makes in this appeal, we pause to address our jurisdiction to review the district court's denial of Appellant's compassionate release motion. See Hyman v. City of Gastonia , 466 F.3d 284, 286 (4th Cir. 2006) ("We have an obligation to inquire into jurisdictional issues sua sponte. "). Although we have never previously explained the basis of our jurisdiction to review rulings on such motions, we have exercised appellate jurisdiction over motions brought under a similar provision, 18 U.S.C. § 3582(c)(2), pursuant to both 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v. Legree , 205 F.3d 724, 727 (4th Cir. 2000) ( § 3742(a) ); United States v. Munn , 595 F.3d 183, 186 (4th Cir. 2010) ( § 1291 ). We now follow the lead of several of our sister circuits and hold that 28 U.S.C. § 1291 confers our appellate jurisdiction to review the district court's denial of a compassionate release motion filed pursuant to 18 U.S.C. § 3582(c)(1)(A). See, e.g., United States v. King , 24 F.4th 1226, 1228 (9th Cir. 2022) ; United States v. McCall , 20 F.4th 1108, 1111 (6th Cir. 2021), reh'g granted , 29 F.4th 816 (6th Cir. 2022) (mem); United States v. Andrews , 12 F.4th 255, 259 (3d Cir. 2021) ; United States v. Hald , 8 F.4th 932, 937 (10th Cir. 2021) ; United States v. Vangh , No. 20-1901, 2021 WL 2934764, at *1 (8th Cir. July 13, 2021) (per curiam); United States v. Long , 997 F.3d 342, 350–52 (D.C. Cir. 2021). But see United States v. Bridgewater , 995 F.3d 591, 594 (7th Cir. 2021) (asserting jurisdiction pursuant to both § 1291 and § 3742(a)(1)).

We believe that § 1291, which gives us broad authority to hear "appeals from all final decisions of the district courts of the United States," is a better fit for compassionate release motions than § 3742(a), which permits a criminal defendant to appeal "an otherwise final sentence" in one of four statutorily enumerated circumstances. While some of these circumstances could potentially overlap with the arguments a defendant makes in his compassionate release motion, § 3742(a) could also deprive us of jurisdiction to consider other arguments, such as those relating to a defendant's advanced age or deteriorating medical condition, which have historically been the hallmark of compassionate release motions. "[W]e interpret our jurisdiction under § 3742(a) narrowly." United States v. Hill , 70 F.3d 321, 324 (4th Cir. 1995). It would thus be difficult for any defendant to wedge arguments about his advanced age or deteriorating medical condition into one of the statutorily enumerated circumstances pursuant to which we may review his sentence. For instance, that a defendant is nearing 80 while incarcerated does not mean that his sentence "was imposed as a result of an incorrect application of the sentencing guidelines," 18 U.S.C. § 3742(a)(2), or "is greater than the sentence specified in the applicable guideline range," id. § 3742(a)(3).

Moreover, 18 U.S.C. § 3582(c) provides a mechanism for a district court to "modify" an existing sentence, rather than impose a new sentence. See Dillon v. United States , 560 U.S. 817, 825, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ("By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the modification of a term of imprisonment by giving courts the power to reduce an otherwise final sentence ...." (alteration and internal quotation marks omitted)). But as the D.C. Circuit has observed, § 3742(a) "contemplates only procedures imposing sentences initially or through resentencing.... [It] says nothing about the ‘sentence modification’ procedures set out in [§] 3582(c)(2) or in any other type of post-imposition adjustment in sentences." Long , 997 F.3d at 351. There is not a new sentence when the district court denies a defendant's motion for compassionate release, since the defendant's sentence remains the one that the district court initially imposed. Therefore, if § 3742(a) were the source of our appellate jurisdiction, then we would be limited to considering appeals of compassionate release motions only if those motions were granted. But we review both grants and denials of compassionate release pursuant to an abuse of discretion standard. United States v. Kibble , 992 F.3d 326, 329 (4th Cir. 2021) (per curiam). Only § 1291 affords us the power to do that.

As such, we possess jurisdiction to consider the district court's denial of Appellant's compassionate release motion pursuant to § 1291.

III.

A.

Moving on to the arguments Appellant makes in this...