United States v. Reed

• Decision Date: 31 January 2023
• Docket Number: 19-7368
• Citation: 58 F.4th 816
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Larry Eugene REED, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

58 F.4th 816

UNITED STATES of America, Plaintiff – Appellee,

v.Larry Eugene REED, Defendant – Appellant.

No. 19-7368

United States Court of Appeals, Fourth Circuit.

Argued: October 28, 2022

Decided: January 31, 2023

Amended: February 1, 2023

ARGUED: Maya M. Eckstein, HUNTON ANDREWS KURTH, LLP, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Nicholas D. Stellakis, Boston, Massachusetts, Christopher M. Butler, HUNTON ANDREWS KURTH LLP, Los Angeles, California, for Appellant. G. Zachary Terwilliger, United States Attorney, Raj Parekh, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson and Judge Floyd joined.

QUATTLEBAUM, Circuit Judge:

Larry Reed appeals the district court's denial of his motion for a reduced sentence under Section 404(b) of the First Step Act of 2018. The district court determined that Reed was eligible for relief but declined to exercise its discretion to reduce Reed's sentence. Reed argues that the district court should have reduced his sentence to at least the revised statutory maximum under the Fair Sentencing Act. Alternatively, he contends that the district court should have addressed its rejection of that argument.

As to Reed's argument that the district court abused its discretion by not reducing his sentence to at least the revised statutory maximum, we disagree. The Supreme Court's recent decision in Concepcion v. United States , ––– U.S. ––––, 142 S. Ct. 2389, 213 L.Ed.2d 731 (2022), instructs that district courts need not reduce any sentence under the First Step Act. But Concepcion also requires district courts to demonstrate that they have considered all nonfrivolous arguments raised by the parties. And under this record, we are unable to determine if the district court considered and rejected Reed's statutory maximum argument. So we vacate and remand for reconsideration of Reed's motion.

I.

We begin with some background on the First Step Act. In 2010, Congress passed the Fair Sentencing Act, reducing the 100-to-1 cocaine base and powder cocaine ratio in sentencing to 18-to-1. In so doing, the Fair Sentencing Act increased the quantities of cocaine base required to trigger certain statutory mandatory minimum sentences. Specifically, Section 2 of the Fair Sentencing Act increased the amount required to trigger the five-year mandatory minimum from 5 grams to 28 grams and increased the amount required to trigger the ten-year mandatory minimum 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. But Congress did not make the Fair Sentencing Act apply retroactively. So generally, defendants who were sentenced based on the prior disparate drug amounts could not receive adjusted sentences.

In 2018, Congress enacted the First Step Act, which gives retroactive effect to the Fair Sentencing Act by allowing defendants to move for a sentence reduction under 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 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). But the Act adds that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Id. § 404(c), 132 Stat. at 5222.

II.

With that background in mind, we turn to the facts and procedural history applicable to this appeal. In 1996, a jury convicted Reed of several drug trafficking and firearm offenses. Those offenses included conspiracy to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and distribution and possession with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The statutory range at that time for the drug convictions was 10 years to life. The offenses also included the use or possession of a firearm while trafficking drugs, in violation of 18 U.S.C. § 924(c)(1). At that time, any § 924(c) convictions from a single prosecution after the first § 924(c) conviction would be "stacked" and require an increased 20-year mandatory minimum on top of the 5-year mandatory minimum for the first § 924(c) conviction. That increased 20-year mandatory minimum no longer applies under the First Step Act.¹

The district court sentenced Reed in January 1997. It applied the U.S.S.G. § 2D1.1(d)(1) cross reference for murder, finding by a preponderance of evidence that Reed killed two people in connection with the drug conspiracy. The cross reference set the base offense level at 43, which, under the Guidelines at that time, required the district court to impose a life sentence.² U.S.S.G. § 2A1.1. In addition to the life sentence for the drug offenses, it sentenced Reed to two consecutive terms totaling 25 years for the firearm convictions. Reed appealed and we affirmed. United States v. Reed , 151 F.3d 1030 (4th Cir. 1998) (per curiam) (unpublished).

In 2019, Reed moved for a sentence reduction based on Section 404(b) of the First Step Act. Reed first argued that he was subject to lower statutory maximum penalties based on the drug quantities charged in the indictment. Based on those quantities, the revised statutory maximums established by the Fair Sentencing Act for the three most serious drug offenses decreased from 10 years–life to 5–40 years. Reed also argued that his post-sentencing rehabilitation justified reducing his sentence. Finally, Reed argued that the district court could also resentence him based on the changes that the First Step Act made to the "stacking" of § 924(c) offenses.

The district court found Reed eligible for a reduced sentence, relying on the decreased statutory maximums based on the drug quantities from the indictment, and that it could also resentence Reed for the § 924(c) convictions. But after balancing the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court decided not to reduce Reed's sentence. Although it acknowledged Reed's efforts at rehabilitation, the district court found that Reed's prior conduct, including two uncharged murders related to the drug conspiracy and his involvement in two additional shootings, weighed against a reduction. As a result, Reed's life sentence for his drug offenses remains greater than the statutory maximum for those offenses after the Fair Sentencing Act.

Reed timely appealed and we have jurisdiction under 18 U.S.C § 3742 and 28 U.S.C. § 1291.

III.

We review a district court's denial of Section 404(b) relief for abuse of discretion.

United States v. Swain , 49 F.4th 398, 402 (4th Cir. 2022) ; United States v. Collington , 995 F.3d 347, 358–59 (4th Cir. 2021) ; see also Concepcion , ––– U.S. ––––, 142 S. Ct. 2389, 2404, 213 L.Ed.2d 731 (2022) ("As a general matter, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence," and, "[o]ther than legal errors in recalculating the Guidelines to account for the Fair Sentencing Act's changes, appellate review should not be overly searching.") (citations omitted).

Under this standard, we affirm a district court's denial of Section 404(b) relief unless the court's decision is procedurally or substantively unreasonable. Collington , 995 F.3d at 358–59. In reviewing whether a sentence is reasonable, we first

ensure[ ] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.

United States v. Fowler , 948 F.3d 663, 668 (4th Cir. 2020). "If the Court finds no significant procedural error, it then considers the substantive reasonableness of the sentence imposed." United States v. Arbaugh , 951 F.3d 167, 172 (4th Cir. 2020) (cleaned up).

"Substantive-reasonableness review requires us to consider the ‘totality of the circumstances’ to determine ‘whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).’ " Swain , 49 F.4th at 402 (quoting Collington , 995 F.3d at 361 ).

Guided by these principles, we turn to Reed's arguments on appeal.

A.

Reed first argues that the district court abused its discretion by maintaining a sentence that exceeds the revised statutory maximum established by the Fair Sentencing Act. As Reed points out, after the Fair Sentencing Act, the highest statutory maximum for his drug convictions is now 40 years. But in denying his First Step Act motion, the district court maintained a sentence greater than the retroactive statutory maximum. According to Reed, the district court abused its discretion.

Were we writing on a clean slate, this issue would present a tricky question of statutory interpretation. The Fair Sentencing Act established a new, lower maximum sentence for a conviction involving 50 or more grams of crack cocaine. If Reed were sentenced...