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Fourth Circuit Announces Substantive Reasonableness Review Applies to All Proceedings Under § 404 of First Step Act, Regardless of Whether Motion Is Granted or Denied

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that substantive reasonableness review applies to all proceedings under § 404 of the First Step Act of 2018 (“FSA”), regardless of whether the motion is granted or denied.

In February 2009, the U.S. District Court for the Eastern District of North Carolina sentenced Mitchell Swain to 324 months’ imprisonment for Swain’s earlier guilty plea to conspiracy to possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A)(iii). In 2010, Congress enacted the Fair Sentencing Act, which amended § 841(b)(1)(A)(iii) to require 280 grams or more of cocaine base in order to be punished under that subsection of the statute. The FSA accorded retroactive effect to the Fair Sentencing Act.

Swain moved for a sentence reduction under § 404 of the FSA, arguing that his Sentencing Guidelines range — pursuant to the FSA’s retroactive application of the amendments of the Fair Sentencing Act — would now be 210 to 262 months rather than the range of 324 to 405 months at the time of his original sentencing. The District Court denied the motion, and Swain appealed. 

Swain argued that, pursuant to United States v. Collington, 995 F.3d 347 (4th Cir. 2021) (holding that, unlike § 3582(c)(2) motions, § 404 proceedings trigger typical procedural and substantive reasonableness requirements); see also United States v. Chambers, 956 F.3d 667 (4th Cir. 2020) (outlining distinctions between § 3582(c)(2) and § 404 motions), the District Court’s decision not to reduce his sentence was substantively unreasonable. The Government countered that, per Collington, substantive reasonableness applies only when a court reduces a sentence under § 404, so since the District Court denied Swain’s motion, the decision is not subject to substantive reasonableness review.

The Court held that the requirements discussed in Collington apply to § 404 proceedings in general, regardless of whether the motion is granted or denied by the District Court.

It observed that, unlike sentencing modification proceedings under 18 U.S.C. § 3582(c)(2), § 404 proceedings trigger the typical procedural and substantive reasonableness requirements. Collington. The Collington Court explained: “Given the purpose of the First Step Act to reduce sentencing disparities and our requirement that the district court consider the [18 U.S.C. §] 3553(a) factors, it naturally follows that a substantive reasonableness requirement would attach to First Step Act proceedings.” The Collington Court further explained: “[N]either the First Step Act’s broadly remedial purpose to ensure greater justice for those subject to a racially disparate sentencing scheme, nor its requirement of a full review prior to the potential imposition of a sentence can be fully effectuated absent the application of a procedural and substantive reasonableness requirement.”

The Government, in supporting its contention that substantive reasonableness review applies only when a sentence reduction is granted, narrowly focused on a single sentence in Collington that read: “when a court exercises discretion to reduce a sentence, the imposition of the reduced sentence must be procedurally and substantively reasonable.”

The Court flatly rejected that argument and observed that in Collington, just as in the instant case, the District Court denied the defendant’s motion for a sentence reduction, and with the exception of that one sentence, the Collington Court talks about § 404 proceedings generally without making any distinction between grants and denials, the Court stated. Further, the basis of the Collington decision was that § 404 proceedings address the disproportionate and racial disparities in sentencing penalties. Consequently, there would be no principled reason to distinguish between § 404 grants and denials for purposes of procedural and substantive reasonableness review, the Court reasoned.

The Court then applied the newly announced rule regarding the generally applicability of substantive reasonableness review to all § 404 proceedings to the present case. It observed: “A sentence is substantively unreasonable if it is longer than necessary to serve the purposes of sentencing.” United States v. Fowler, 948 F.3d 663 (4th Cir. 2020). While a sentence above the Guidelines range is not presumed to be unreasonable, Gall v. United States, 552 U.S. 38 (2007), when the variance is a substantial one, courts “must more carefully scrutinize the reasoning offered by the district court in support of the variance.” United States v. Provenance, 944 F.3d 213 (4th Cir. 2019). The more the sentence diverges from the advisory Guidelines range, “the more compelling the reasons for the divergence must be.” Id.

In the instant case, the Court stated that the District Court neither effectively acknowledged it was retaining a variant sentence nor explained why such a large upward variance was warranted. To the contrary, the District Court relied on the same reasoning when denying the motion for sentence reduction as it had relied on at the initial sentencing under the pre-Fair-Sentencing-Act statutes. Since the FSA is remedial in nature and sentence reductions are its intended purpose, the FSA “increases rather than decreases the need to justify disagreement with the guideline.” Collington. Thus, the Court concluded that, while the District Court’s order denying Swain’s motion was procedurally reasonable, it was not substantively reasonable.

Accordingly, the Court vacated the District Court’s order denying the motion and remanded for the District Court to reconsider consistent with the instant opinion. See: United States v. Swain, 49 F.4th 398 (4th Cir. 2022). 

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