United States v. McDonald

• Decision Date: 22 January 2021
• Docket Number: No. 19-7668, No. 19-7673, No. 19-7715,19-7668
• Citation: 986 F.3d 402
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Timothy Gerrell MCDONALD, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Anthony Ballard, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Riccardo Mercellus Davey, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

986 F.3d 402

UNITED STATES of America, Plaintiff - Appellee,

v.Timothy Gerrell MCDONALD, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.Anthony Ballard, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.Riccardo Mercellus Davey, Defendant - Appellant.

No. 19-7668

No. 19-7673

No. 19-7715

United States Court of Appeals, Fourth Circuit.

Argued: December 8, 2020

Decided: January 22, 2021

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellants. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, Andrew K. Kukorowski, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellants. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz and Judge Harris joined.

THACKER, Circuit Judge:

Timothy McDonald, Anthony Ballard, and Riccardo Mercellus Davey (collectively, "Appellants")¹ appeal district court orders partially granting their motions for sentence reductions pursuant to Section 404 of the First Step Act. In each case, the district court granted Appellants’ motions pursuant to a standard "AO 247" form² in which the district court checked the box for "granted" and reduced the term of supervised release on each of Appellants’ sentences by one year but did not alter their underlying sentences. In each of Appellants’ cases, the district court did not provide any reasoning for its decision. In this appeal, Appellants challenge the district court's lack of reasoning or explanation in its sentencing orders.

For the reasons discussed herein, the orders of the district court are vacated, and the cases are remanded.

I.

A.The Fair Sentencing Act

In 2010, Congress passed the Fair Sentencing Act, reducing the 100-to-1 cocaine base and powder cocaine disparity in sentencing -- which has been widely viewed as racially biased and irrational -- to 18-to-1. Thus, the Fair Sentencing Act increased the quantities of cocaine base required to trigger statutory mandatory minimum sentences. Specifically, Section 2 of the Fair Sentencing Act changed the drug weight threshold that triggers a mandatory statutory sentencing range of ten years to life from 50 grams to 280 grams. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 ; 21 U.S.C. § 841. However, the Fair Sentencing Act was not made retroactive, so generally, defendants who were sentenced under the prior disparate drug amounts could not receive adjusted sentences.

B.The First Step Act

In 2018, Congress enacted the First Step Act, which gives retroactive effect to the Fair Sentencing Act and allows defendants to bring a motion in district court for a reduction of their sentence pursuant to the Fair Sentencing Act. The First Step Act applies to any defendant who was convicted of an offense whose statutory penalties "were modified by section 2 or 3^{[3 ]} of the Fair Sentencing Act of 2010" that was "committed before August 3, 2010." First Step Act of 2018, Pub. L. No. 115-391, § 404(a), 132 Stat. 5194, 5222. Section 404 of the First Step Act provides, "A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed." Id. § 404(b), 132 Stat. at 5222 (internal citation omitted).

II.

A.Timothy McDonald

In 2003, Appellant McDonald pled guilty to possessing and conspiring to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841 and 846. At the time, the statutory range for imprisonment for a violation of § 846 was ten years to life to be followed by five years of supervised release. At his initial sentencing, the district court adopted Appellant McDonald's Presentence Investigation Report ("PSR"). The PSR found Appellant McDonald was responsible for 47.75 kilograms of cocaine base. Per the United States Sentencing Guidelines ("Guidelines"), he had a base offense level of 38, a criminal history category of II, a two-level enhancement for obstruction of justice, and a two-level reduction for acceptance of responsibility. Thus, Appellant McDonald's initial Guidelines sentencing range was 262 to 327 months of imprisonment. Appellant McDonald was sentenced to a within-Guidelines sentence of 276 months of imprisonment and five years of supervised release.

On June 12, 2019, Appellant McDonald filed a motion for a sentence reduction in the district court pursuant to Section 404 of the First Step Act. In relevant part, Appellant McDonald argued:

Mr. McDonald's case is straightforward, and he is eligible for relief under § 404 of the First Step Act. First, Mr. McDonald's sentence was imposed under a statutory section that was modified by the First Step Act, 21 U.S.C. § 841(a)(1). Second, his cocaine base offense was committed before August 3, 2010 (here, from 1997 to September 4, 2001). See Presentence Report at ¶ 1. Third, he was neither sentenced nor resentenced under sections 2 or 3 of the Fair Sentencing Act. Finally, this is Mr. McDonald's first motion under the First Step Act. See Act at § 404(c). Mr. McDonald's plea to conspiracy to distribute and possession with intent to distribute at least 50 grams of cocaine base subjected him to a statutory range of 10 to life imprisonment. Now, under section 2 of the [First Step Act], his statutory range is 5 to 40-years’ imprisonment; his supervised release term is four years instead of five; and the Guidelines are advisory, not mandatory.

Accordingly, Mr. McDonald respectfully requests that the Court grant this motion to resentence, set this case for a resentencing hearing, and impose a reduced sentence and reduced term of supervised release.

J.A. 36.⁴

The Government responded to Appellant McDonald's motion and acknowledged that he met the parameters under Section 404 of the First Step Act. But the Government nonetheless argued that Appellant McDonald was not entitled to relief and that the district court should exercise its discretion to deny a sentence reduction. The Government argued Appellant McDonald's statutory penalty was not affected by the amendments of the Fair Sentencing Act, and thus, he was not entitled to a sentence reduction. The Government acknowledged that the Fair Sentencing Act changed the threshold weight of cocaine base from 50 grams to 280 grams to trigger the mandatory minimum statutory sentence of ten years to life. However, because Appellant McDonald was found responsible at sentencing for 47.75 kilograms of cocaine, which exceeds 280 grams, the Government argued that the mandatory minimum would not have been different for Appellant McDonald at his initial sentencing.

In response to the Government, Appellant McDonald argued the district court should exercise its discretion to reduce his sentence for two reasons. First, Appellant McDonald pointed out that the Government's argument that he was ineligible for relief was incorrect because the First Step Act allowed any defendant who was convicted under a statute whose drug weights had changed -- such as 21 U.S.C. § 841 -- to bring a motion for sentence reduction without regard to the actual drug weight attributed to the individual defendant at sentencing. Because Appellant McDonald was charged under such a statute, he argued that he was entitled to bring the motion and that the drug weight found by the sentencing court was of no moment with regard to his eligibility for relief under the First Step Act.

Second, Appellant McDonald argued the district court should consider evidence of his post-sentencing conduct in exercising its discretion to reduce his sentence. Appellant McDonald noted that he was 47 years old and had already served 16 years. Further, Appellant McDonald noted that in his 16 years of incarceration, he received only one disciplinary infraction in 2007 for being in an unauthorized area of the prison. He has had a clean record since 2007 and acquired the lowest possible security classification. Appellant McDonald also paid all court fines, as well as the $1,850 he owed in restitution. Appellant McDonald completed his GED and several health, wellness, and drug treatment classes. Throughout his incarceration, he held steady jobs through UNICOR, the prison job program, and received excellent work reports. Upon release, Appellant McDonald has a re-entry plan to live with his mother and use the job skills he acquired in the textile industry from his years in UNICOR.

Appellant McDonald specifically requested that the district court reduce his sentence from 276 months of imprisonment to 240 months, and his term of supervised release from five years to four years.

On November 4, 2019, in response to Appellant McDonald's motion for sentence reduction, the district court entered only an AO 247 form order with a checkmark indicating that the motion was "granted" and stating, simply, "The term of supervised release is reduced to 4 years." J.A. 59. There was no reduction in Appellant McDonald's term of imprisonment.

B.Anthony Ballard

In 2005, Appellant Ballard pled guilty to possessing and conspiring to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841 and 846 and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). At the time, the statutory range for imprisonment on the cocaine base charge was ten years to life imprisonment. If a prison sentence was imposed, a term of at least five years supervised release was required by...