United States v. Colin Gordon

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 6, 2020
• Docket: 19-7283
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-7283

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

COLIN F. GORDON, a/k/a Christopher A. Donald, a/k/a P., a/k/a Big Daddy, a/k/a Daddy,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. James P. Jones, District Judge. (3:04-cr-00023-JPJ-1)

Submitted: April 20, 2020 Decided July 6, 2020

Before WILKINSON and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Juval O. Scott, Federal Public Defender, Roanoke, Virginia, Brian J. Beck, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Colin F. Gordon appeals from the district court’s order granting his motions to

reduce his sentence pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.

5194 (“First Step Act”): one through counsel and one pro se. In the counseled motion,

Gordon sought a reduction in his sentence from 480 months to 322 months or less. In his

pro se motion, Gordon did not request a specific sentence reduction, but noted that the

district court has discretion to reduce his sentence “even as far as time-already-served.”

Over the Government’s objection, the district court concluded that Gordon was

eligible for relief under the Act. The court reviewed the 18 U.S.C. § 3553(a) (2018) factors,

noting Gordon’s prior history and offense conduct, as well as any post-conviction

rehabilitation and granted his motion by reducing his sentence to 322 months. Gordon

appeals, arguing that the district court failed to consider his pro se request for a time-served

sentence.

This court reviews the district court’s ruling on a sentence reduction motion for

abuse of discretion and the scope of the district court’s legal authority de novo. See United

States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013) (stating standard of review in 18 U.S.C.

§ 3582(c)(2) (2018) context). Section 3582(c)(1)(B), which “is the appropriate vehicle for

a First Step Act motion,” United States v. Wirsing, 943 F.3d 175, 183 (4th Cir. 2019),

permits modification of a previously imposed sentence “to the extent . . . expressly

permitted by statute,” 18 U.S.C. § 3582(c)(1)(B). Even if a defendant is eligible for relief,

whether to grant a sentence reduction remains discretionary with the district court.

Wirsing, 943 F.3d at 180; see § 404(c), 132 Stat. at 5222 (“Nothing in this section shall be

2 construed to require a court to reduce any sentence pursuant to this section.”). The

Government does not challenge Gordon’s eligibility under the Act.

This court has observed that “there is little case law addressing appropriate

procedures for a court to follow when considering sentence modifications under 18 U.S.C.

§ 3582(c)(1)(B).” United States v. Venable, 943 F.3d 187, 194 n.11 (4th Cir. 2019).

Drawing on cases addressing procedural reasonableness when a district court sentences a

defendant in the first instance rather than cases addressing 18 U.S.C. § 3582(c)(1)(B),

Gordon argues that the district court was required to address all of his non-frivolous

sentencing arguments, including his reference to a time-served sentence. See United States

v. Lynn, 592 F.3d 573 (4th Cir. 2010). The Government contends that the First Step Act

does not entail a plenary resentencing, and therefore a district court must give a clear

indication it has considered relevant sentencing factors but need not address each and every

nonfrivolous argument. See United States v. Martin, 916 F.3d 389, 396 (4th Cir. 2019).

We need not discuss which standard applies. Although Gordon contends that the

court failed to address his argument for a sentence of time served, his motion served

through counsel did not make such an argument. See United States v. Carranza, 645 F.

App'x 297, 300 (4th Cir. 2016) (where a represented criminal defendant files pro se

sentencing objections, the trial court is not obligated to address them). Even Gordon’s pro

se motion merely stated that the district court had the discretion to make the reduction; it

did not present any reason why time-served was an appropriate sentence.

Here, the district court provided a lengthy explanation for its sentencing decision,

reviewing Gordon’s personal history contained in the presentence report, as well as the

3 details of his offense, and also considered Gordon’s educational programs and good

behavior in prison. In addition, the court noted that Gordon is likely to be deported once

he completes his present sentence. Accordingly, we affirm for the reasons stated by the

district court. United States v. Gordon, No. 3:04-cr-00023-JPJ-1 (W.D. Va. Aug. 14,

2019). We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED