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Fourth Circuit Vacates Denial of First Step Act Relief Where Record Unclear Whether District Court Considered All Nonfrivolous Arguments Raised by Defendant

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit vacated the denial of a motion seeking a sentence reduction under § 404(b) of the First Step Act of 2018 (“FSA”) because the record was unclear as to whether the U.S. District Court for the Eastern District of Virginia considered all of the nonfrivolous arguments raised by Larry Eugene Reed.

In 1996, a jury convicted Reed of conspiracy to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A); distribution and possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1); and two counts of the use or possession of a firearm while trafficking drugs in violation of 18 U.S.C. § 924(c)(1). The District Court applied the U.S. Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(d)(1) cross-reference for murder, finding by a preponderance of the evidence that Reed killed two people in connection with a drug conspiracy which set the base offense level at 43 and required the District Court to impose a life sentence. U.S.S.G. § 2A1.1. (At the time of Reed’s sentencing, the Sentencing Guidelines were mandatory. The Guidelines became “advisory” in United States v. Booker, 543 U.S. 220 (2005).)

In addition to the life sentence for the drug offenses, the District Court imposed two consecutive terms totaling 25 years for the firearms offenses. (At the time of Reed’s sentencing, any § 924(c) conviction from a single prosecution after the first § 924(c) conviction would be “stacked” and required an increased 20-year mandatory minimum on top of the 5-year mandatory minimum for the first § 924(c) conviction.) His judgment was affirmed on appeal.

In 2019, Reed moved for a sentence reduction pursuant to § 404(b) of the FSA. He argued that, based on the drug quantities charged in his indictment, the revised statutory maximums established by the Fair Sentencing Act of 2010 for his drug offenses decreased from “10 - life” to “5 - 40 years.” Reed also argued that his post-sentencing rehabilitation justified reducing his sentence. Finally, he argued that he could be resentenced based on the changes the FSA made to the “stacking” of § 924(c) offenses.

The District Court found that Reed was eligible for a sentence reduction based on decreased statutory maximums; that he could be resentenced on the § 924(c) convictions; and that he could be resentenced based on his rehabilitation efforts. But after weighing the sentencing factors of 18 U.S.C. § 3553(a), the District Court decided not to reduce Reed’s sentence because his prior conduct included two uncharged murders and he had been involved in two other shootings. Reed appealed, arguing, among other things, that the District Court should have addressed his argument that his sentence should be reduced to the revised statutory maximums established by the Fair Sentencing Act.

The Fourth Circuit observed that § 2 of the Fair Sentencing Act increased the required amount of cocaine base to trigger a five-year mandatory minimum from 5 grams to 28 grams and increased the required amount to trigger the 10-year mandatory minimum from 50 grams to 280 grams. In 2018, Congress passed the FSA, which gave retroactive effect to those provisions of the Fair Sentencing Act. Section 404 of the FSA provides, “[a] court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Corrections, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act were in effect at the time the covered offense was committed.” However, “[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section.” § 404(c).

In Concepcion v. United States, 142 S. Ct. 2389 (2022), the U.S. Supreme Court explained that “[b]ecause district courts are always obliged to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when the parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.”

The Court concluded that Reed’s argument for a reduced sentence based upon the amended decreased statutory maximums established by the Fair Sentencing Act and given retroactive effect via the FSA was nonfrivolous. Instead of facing a sentencing range of 10 years to life, the amended maximum sentencing range is now 5 years to 40 years. While the District Court was not required to reduce Reed’s sentence to be within the amended statutory maximums, it was required to show it considered Reed’s argument. See Concepcion.

In the District Court, Reed had incorrectly alleged that the amended sentencing range carried only a 20-year maximum while the Government had incorrectly informed the District Court that the range for Count 1 was 10 years to life. Nowhere in the record was it shown that the District Court had independently recalculated Reed’s sentencing range under the Fair Sentencing Act and the FSA. Consequently, the Court concluded that the record is unclear as to whether the District Court had considered Reed’s nonfrivolous argument as required by Concepcion.

Accordingly, the Court vacated the order denying Reed’s First Step Act motion and remanded with instructions to recalculate Reed’s Guideline range to reflect the retroactive application of the Fair Sentencing Act and to consider Reed’s argument that his sentence should be reduced at least to the revised statutory maximum. See: United States v. Reed, 58 F.4th 816 (4th Cir. 2023).  

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