United States v. Roane
| Decision Date | 18 October 2022 |
| Docket Number | 20-14,20-16, No. 20-16 |
| Citation | 51 F.4th 541 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES H. ROANE, JR., a/k/a J.R., Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD TIPTON, a/k/a Whittey, Defendant-Appellant. |
Gerald Wesley King, Jr., FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Joanne Marie Heisey, FEDERAL COMMUNITY DEFENDER OFFICE, Philadelphia Pennsylvania, for Appellants.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF:
Jeffrey Lyn Ertel, FEDERAL DEFENDER PROGRAM, INC., Atlanta, Georgia; Stephen Northup, TROUTMAN SANDERS LLP, Richmond, Virginia; Frederick R. Gerson, DURRETTE, ARKEMA, GERSON & GILL PC, Richmond, Virginia, for Appellant
Richard Tipton, III. Jessica D. Aber, United States Attorney, Joseph Attias, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Before WILKINSON and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.
In this consolidated case, James Roane, Jr. and Richard Tipton appeal the district court's denial of their motion for a sentence reduction under the First Step Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). They argue first that their convictions under 21 U.S.C. § 848(e)(1)(A) for drug-related murder are "covered offenses" pursuant to the First Step Act, and therefore their death and life imprisonment sentences can no longer be sustained. They also argue that their convictions for crack cocaine distribution offenses in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) are "covered," and their sentences associated with these convictions should be reduced. We agree with the district court that 21 U.S.C. § 848(e)(1)(A) is not a covered offense under the First Step Act as its penalties were not modified by the Fair Sentencing Act, Pub. L. No. 111-220, §§ 2-3, 124 Stat. 2372, 2372 (2010). We also find the district court was substantively and procedurally reasonable in denying a sentence reduction for appellants' drug distribution offenses. We thus affirm.
As repeat litigants in this court, the underlying facts of this case have been comprehensively set forth by previous panels. United States v. Tipton, 90 F.3d 861 (4th Cir. 1996); see also United States v. Roane, 378 F.3d 382 (4th Cir. 2004). We reemphasize them here. This appeal arises from Roane and Tipton's involvement as principal "partners" in a drug-trafficking conspiracy in the Richmond, Virginia area from 1990 to 1992. Tipton, 90 F.3d at 868. The partners "obtained wholesale quantities of powdered cocaine from suppliers in New York City, converted it by 'cooking' [it] into crack cocaine, then packaged it, divided it among themselves, and distributed it through a network of 30-40 street level dealers[.]" Id. Appellants both earned substantial profits from this network. Id. Over a short period of time beginning in January 1992, appellants were involved in several brutal murders and maimings within the Richmond area. Id. Their victims were targeted because of "treachery or other malfeasance [within the gang], or because they were competitors in the drug trade, or because they had personally offended one of the 'partners.'" Id.
For example, on January 4, 1992, Tipton and Roane met with Douglas Talley, a subordinate in their drug business who had mishandled a drug transaction. Id. Roane grabbed him from behind while Tipton stabbed him eighty-four times in the head, neck, and upper body, killing him. Id. Nine days later, on January 13, 1992, Tipton and Roane went to Douglas Moody's apartment, a "suspected rival" drug dealer. Id. Once there, Tipton shot Moody twice in the back. Id. Moody fled, but Roane, armed with a military-style knife, caught up to Moody and fatally stabbed him eighteen times. Id. This string of violent homicides perpetrated by appellants and other co-conspirators continued until February 19, 1992, leaving ten dead and several others in critical condition. Id. at 868-69.
Following this spree, Roane, Tipton, and other co-conspirators were jointly charged in the Eastern District of Virginia on July 20, 1992, as part of a 33-count indictment for violations of federal drug laws. See J.A.T. 36-57.[1] Roane was charged with 15 counts total, including three counts of capital murder in furtherance of a Continuing Criminal Enterprise ("CCE"), in violation of 21 U.S.C. § 848(e) and 18 U.S.C. § 2; one count of possession of 50 or more grams of cocaine base ("crack cocaine") with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) (substantive provision) and (b)(1)(A) (penalty provision); and one count of engaging in a CCE, in violation of 21 U.S.C. § 848(a). J.A.R. 7-27. The jury convicted him on all charged counts. See Tipton, 90 F.3d at 870. Following a penalty hearing on the § 848(e)(1)(A) murder convictions, a capital jury recommended a death sentence for Roane on one count and life imprisonment on the other two. Id. The district court sentenced Roane in accord with this recommendation and imposed terms of imprisonment for the non-murder convictions, including forty years for the drug distribution offense under 21 U.S.C. § 841(a)(1). Id.; J.A.R. 56.
Tipton was charged with 29 counts, including eight counts of capital murder in furtherance of a CCE, two counts of possession of 50 or more grams of crack cocaine with intent to distribute, and one count of engaging in a CCE under the same statutes as Roane. J.A.T. 36-57. The jury convicted Tipton of six of the eight capital murders, both possession counts, and the CCE count, among other crimes. Tipton, 90 F.3d at 869. Following a penalty hearing on the murder convictions, a capital jury recommended death sentences for Tipton on three counts and life imprisonment on the other three. Id. at 870. The district court sentenced Tipton in accord with this recommendation and imposed terms of imprisonment for the non-murder convictions, including for both drug distribution convictions under 21 U.S.C. § 841(a)(1), forty years for one count and twenty for the other. Id.; J.A.T. 19. This court substantially upheld their convictions on appeal. See Tipton, 90 F.3d at 903.
Roane and Tipton have since filed numerous unsuccessful collateral attacks on their convictions and sentences. See, e.g., United States v. Roane, 378 F.3d 382 (4th Cir. 2004); Order, In re James Roane, Jr., No. 9-8, ECF No. 24 (4th Cir. July 13, 2010); Order, In re James Roane, Jr., No. 16-6, ECF No. 13 (4th Cir. June 6, 2016); Order, In re James Roane, Jr., No. 20-7, ECF No. 44 (4th Cir. Jan. 24, 2022); Order, In re Richard Tipton, No. 16-7, ECF No. 13 (4th Cir. June 6, 2016); Order, In re Richard Tipton, No. 19-2, ECF No. 9 (4th Cir. May 14, 2019); Order, In re Richard Tipton, No. 20-10, ECF No. 42 (4th Cir. Jan. 24, 2022). Most recently, they filed motions for sentence reduction pursuant to section 404(b) of the First Step Act for their 21 U.S.C. § 848(e)(1)(A) murder convictions and their 21 U.S.C. § 841(a)(1) drug distribution convictions. The district court, Judge David J. Novak, denied both motions in their entirety.[2]
In relevant part, the court held that appellants' convictions under 21 U.S.C. § 848(e)(1)(A) for murder in furtherance of a CCE did not constitute "covered offenses" under the First Step Act. J.A.R. 170. It explained that "the Fair Sentencing Act altered the sentences applicable to certain offenses and the First Step Act provides the vehicle to apply the Fair Sentencing Act retroactively." J.A.R. 161. But the benefit of this retroactivity only runs to certain "covered offense[s]," which is "a violation of a Federal criminal statute, the statutory penalties of which were modified by Section 2 or 3 of the Fair Sentencing Act…that was committed before August 3, 2010." J.A.R. 165-66 (quoting First Step Act § 404, 132 Stat. at 5222).
The district court stated that sections 2 and 3 of the Fair Sentencing Act expressly modified the penalties associated with the following statutes: 21 U.S.C. § 841(b)(1), 21 U.S.C. § 960(b), and 21 U.S.C. § 844(a). J.A.R. 167-68. Violations of these statutes constituted covered offenses under the First Step Act. J.A.R. 168. The court then found that Roane and Tipton's offense of conviction was 21 U.S.C. § 848(e)(1)(A), which was not expressly altered by the Fair Sentencing Act. J.A.R. 170. The statutory penalties in § 848(e)(1)(A) remained the same both before and after the Fair Sentencing Act- death or life imprisonment with a statutory minimum of 20 years imprisonment. J.A.R. 177. This precluded the court from imposing a reduced sentence "as if" the Fair Sentencing Act had been in effect under § 404(b) of the First Step Act. J.A.R. 178. Further, "Congress' clearly expressed intent with respect to both § 848(e)(1)(A) and the Fair Sentencing Act" shows that drug-related murder is not a covered offense, as the Fair Sentencing Act was meant to apply to low-level drug dealers and not to those offenders who "murdered others in furtherance of [their] drug dealing." J.A.R. 176-77.
The court also rejected Roane and Tipton's argument that their § 848(e)(1)(A) convictions were nonetheless "covered" by the First Step Act because the statute included a covered offense as a predicate. J.A.R. 171. The court found that § 848(e)(1)(A) creates a separate crime of "killing in furtherance of any of one of three distinct predicate offenses," which are engaging in or...
To continue reading
Request your trial