USCA4 Appeal: 21-6829 Doc: 41 Filed: 08/03/2023 Pg: 1 of 16
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6829
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
DANNY DAMON SMITH, a/k/a Duke,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:07-cr-00433-HEH-1)
Argued: May 3, 2023 Decided: August 3, 2023
Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Rushing and Senior Judge Floyd joined.
ARGUED: Robert James Wagner, ROBERT J. WAGNER PLC, Richmond, Virginia, for Appellant. Daniel J. Honold, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Peter S. Duffey, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-6829 Doc: 41 Filed: 08/03/2023 Pg: 2 of 16
DIAZ, Chief Judge:
Danny Smith is fifteen years into his twenty-year prison sentence for conspiring to
distribute crack cocaine. A few years after he was sentenced, Congress passed the Fair
Sentencing Act, which reduced the crack-to-powder cocaine disparity. If sentenced today,
Smith’s mandatory minimum would be half his current sentence.
Under the retroactivity provisions of the First Step Act, Smith moved for a sentence
reduction to time served. The district court denied his motion, determining that twenty
years remained appropriate. Smith appealed, claiming among other things that the district
court miscalculated his Guidelines range and that our recent decision in United States v.
Swain, 49 F.4th 398 (4th Cir. 2022), reveals substantive errors in the district court’s
analysis.
Because we find no reversible error, we affirm.
I.
A.
Facing a five-count indictment, including a charge of murdering an FBI informant,
Smith pleaded guilty to a single count of conspiracy to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (2006). His presentence
report attributed to him 270.63 grams of cocaine base, colloquially known as “crack
cocaine,” and calculated his criminal history category as V.
At that time, the Sentencing Guidelines subjected “a drug trafficker dealing in crack
cocaine . . . to the same sentence as one dealing in 100 times more powder cocaine.”
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Kimbrough v. United States, 552 U.S. 85, 91 (2007). Had Smith been held responsible for
270.63 grams of powder cocaine, his Sentencing-Guidelines range would have been 63 to
78 months in prison, with no statutory minimum. But since Smith was convicted of
conspiracy to distribute crack cocaine, his presentence report calculated a Guidelines range
of 188 to 235 months. Smith had a prior felony drug conviction, and the government gave
notice of its intent to enhance his penalties under 21 U.S.C. § 851, resulting in a statutory
minimum of 240 months.
The government also sought to apply a first-degree murder cross-reference for the
killing of an FBI informant. That cross-reference would have resulted in a Guidelines
range of life imprisonment. The district court held a hearing and determined the evidence
didn’t support the cross-reference. The court stated that it had “very strong suspicions
about [Smith’s] involvement in killing [the informant], but, unfortunately, the law doesn’t
allow me to impose a sanction unless it’s proven by a preponderance of the evidence, which
it is not in this case.” J.A. 742.
The court sentenced Smith to the statutory minimum at the time: 240 months’
imprisonment and 10 years of supervised release.
B.
Congress subsequently passed the Fair Sentencing Act of 2010, which modified the
disproportionate sentences for crack cocaine offenses. See Pub. L. No. 111–220, 124 Stat.
2372. The United States Sentencing Commission updated the Sentencing Guidelines for
crack cocaine accordingly. If Smith had been charged under the Fair Sentencing Act’s
reforms, his Guidelines range would have been 151 to 188 months, with a statutory
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mandatory minimum of 120 months. But the Fair Sentencing Act wasn’t yet retroactive,
see United States v. Bullard, 645 F.3d 237, 248–49 (4th Cir. 2011), so Smith’s sentence
remained.
Eight years later, Congress enacted the First Step Act, which authorized (but didn’t
mandate) district courts to “impose a reduced sentence” for qualifying movants as if the
crack-cocaine modifications “were in effect at the time the covered offense was
committed.” Pub. L. No. 115-391 (“First Step Act”), § 404(b), 132 Stat. 5194, 5222
(2018).
1.
Smith sought relief under § 404(b) of the First Step Act, asking the district court to
reduce his term of imprisonment to time served and his supervised-release term to four
years.
The government agreed that Smith was eligible for a sentence reduction but opposed
the motion. The government noted that Smith’s attributed quantity of crack cocaine of
270.63 grams was about 9 grams below the 280-gram threshold “which would be sufficient
to trigger the mandatory minimum sentence.” J.A. 775. It highlighted Smith’s criminal
history and his “disturbing pattern of disruptive and violent behavior while in federal
prison.” Id. The government also reminded the court of its “strong suspicion” that Smith
participated in the informant’s murder. Id.
Smith replied that factoring in the court’s “strong suspicion” would be improper.
He claimed his “criminal history should present no barrier to relief,” since he had only “a
single adult felony conviction” before this offense. J.A. 843.
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Smith also compared his sentence to those of his co-conspirators, arguing his “drug
distribution activities . . . appeared to be less serious than the other[s’],” and that ten of his
co-defendants received prison sentences of 136 months or less. J.A. 844–45. Smith
pointed to his “significant turn towards rehabilitation,” noting that he “has not had a single
disciplinary infraction in 6 years” and that he was working to earn his GED. J.A. 847.
2.
The district court denied Smith’s motion for a sentence reduction.
The court first recalculated Smith’s Guidelines range under the Fair Sentencing Act.
It found that Smith’s “mandatory minimum sentence is now 10 years, his adjusted offense
level of 28 produces a guideline range of 130–162 months, and his mandatory minimum
term of supervised release is now 8 years.” J.A. 868. But the court also noted that Smith’s
existing “240-month sentence falls well within the current statutory maximum of lifetime
imprisonment.” Id.
The court acknowledged that Smith had a clean disciplinary record for the past six
years. But it also found that Smith’s “behavioral record [in prison] in the preceding years
was troublesome,” listing over ten infractions ranging from “failing to stand count” to
“possessing a dangerous weapon” and “fighting with an inmate.” J.A. 869–70.
The court next adopted the government’s argument that Smith’s attributable drug
weight was “just nine grams shy” of the 280-gram statutory minimum. J.A. 869. It also
reiterated its “strong suspicion” that Smith took part in the informant’s murder, though it
didn’t state it weighed that in its analysis. J.A. 867.
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Ultimately, the court concluded that “[a] modification of [Smith]’s sentence fails to
satisfy the relevant § 3553(a) factors” and denied relief. J.A. 870.
This appeal followed.
II.
We review the district court’s denial of § 404(b) relief for abuse of discretion.
United States v. Reed, 58 F.4th 816, 819 (4th Cir. 2023). We will affirm “unless the court’s
decision is procedurally or substantively unreasonable.” Id. at 820. Our review uncovers
no reversible error.
We begin by examining the district court’s judgment for procedural reasonableness.
Id. A district court commits procedural error by “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.” Id. (cleaned up).
Smith’s main procedural attack is that the district court erred in calculating his
Guidelines range as 130 to 162 months, even though that was the range he asserted to the
district court. See J.A. 760 (Smith’s § 404 Motion). He now claims the correct range is
110 to 137 months, based on a 2010 change from the Sentencing Commission that revised
calculations of criminal history. Since Smith didn’t make this argument to the district
court, it’s forfeited, absent plain error. See United States v. Coby, 65 F.4th 707, 712 (4th
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Cir. 2023). Our recent decision in United States v. Troy, 64 F.4th 177 (4th Cir. 2023),
shows why there was no plain error. 1
When exercising their discretion to reduce a sentence under the First Step Act,
district courts must calculate the Guidelines range “as if the Fair Sentencing Act’s
amendments had been in place at the time of the offense.” Concepcion v. United States,
142 S. Ct. 2389, 2402 n.6 (2022). Fleshing out Concepcion’s directive, we’ve articulated
a two-step process for adjudicating a § 404 motion. “First, [district courts] must recalculate
the movant’s Guidelines range only to the extent it adjusts for the Fair Sentencing Act.
Second, they may (and when raised by the parties, must) consider other legal and factual
changes when deciding whether to impose a reduced sentence.” Troy, 64 F.4th at 184
(cleaned up).
Put simply, “the proper ‘benchmark’ for the district court’s analysis (and for our
review) is the impact of the Fair Sentencing Act on the defendant’s Guidelines range.” Id.
This includes the Sentencing Commission amendments passed in response to the Fair
Sentencing Act’s mandate. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 8,
124 Stat. 2372, 2374 (directing the Sentencing Commission to “make such conforming
amendments to the Federal sentencing guidelines as the Commission determines necessary
to achieve consistency with [the Act]”). Any other factual and legal changes affecting the
Guidelines range are examined after this benchmark calculation.
1 We decided Troy after Smith submitted his briefs, so we take this opportunity to reiterate the proper standard for calculating the Guidelines range under a § 404 motion.
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Under the relevant amendments, 2 Smith’s attributed quantity of 270.63 grams of
crack cocaine yields a base offense level of 30. U.S.S.G. § 2D1.1(c)(5) (2011). The two-
level enhancement imposed because Smith possessed a firearm during the commission of
the drug offense cancels out the two-level decrease for acceptance of responsibility.
Together, Smith’s offense level of 30 and his criminal-history category of V result in a
baseline Guidelines range of 151 to 188 months. The criminal-history revisions Smith now
invokes would be considered in step two, had he raised them below.
The district court calculated Smith’s benchmark Guidelines range as 130 to 162
months—lower than the correct range. It appears to have used the current drug quantity
table, which yields a base offense level of 28 for Smith’s attributed quantity of crack
cocaine. See U.S.S.G. § 2D1.1(c)(6) (2021). But that table reflects amendments unrelated
to the Fair Sentencing Act. See U.S. Sent’g Guidelines Manual app. C, amend. 782 (U.S.
Sent’g Comm’n 2014) (lowering the base offense levels even further). The district court’s
calculation is thus an improper benchmark.
But under the plain-error standard, we reverse only when there is “a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018) (cleaned
up). Since the district court denied relief even under the incorrect lower range, there’s no
2 Specifically, Amendment 750, which lowered the base offense levels associated with different quantities of crack cocaine, and Amendment 759, which made those levels retroactive. See U.S. Sent’g Guidelines Manual app. C, amend. 750, 759 (U.S. Sent’g Comm’n 2011).
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reasonable probability the outcome would have been different had the court recognized its
mistake. See Troy, 64 F.4th at 184 n.3 (finding an erroneous lower benchmark calculation
harmless).
Smith’s other attacks on procedural reasonableness lack merit. For example, he
claims the court “failed to adequately assess [his] unwarranted disparity argument.”
Appellant’s Br. at 23. But the district court’s decision mentions “sentencing disparities,”
and explains why Smith’s sentence is “not a departure from sentences that many other
defendants today would receive for similar conduct.” J.A. 870–71. This explanation is
enough. See Concepcion, 142 S. Ct. at 2405 (“All that is required is for a district court to
demonstrate that it has considered the arguments before it.”).
Finding no reversible procedural error, we examine the district court’s decision for
substantive reasonableness. This review is “highly deferential.” United States v. Bond, 56
F.4th 381, 385 (4th Cir. 2023). It “should not be overly searching,” because “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.” Concepcion, 142 S. Ct. at 2404 (cleaned up).
But our deference isn’t unquestioning. We must “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).” United
States v. Swain, 49 F.4th 398, 402 (4th Cir. 2022) (cleaned up).
Although we can’t “presume that a sentence above the applicable Guidelines range
is unreasonable,” we “may consider the extent of the deviation” between the original
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sentence and the recalculated range. Id. at 402–03 (cleaned up). “When the variance is a
substantial one[,] we must more carefully scrutinize the reasoning offered by the district
court in support of the sentence. . . . The farther the court diverges from the advisory
guideline range, the more compelling the reasons for the divergence must be.” Id. at 403
In Swain, we overturned a district court’s denial of a § 404 motion for lack of
substantive reasonableness. Swain was sentenced to 324 months’ imprisonment for a
crack-cocaine offense. Id. at 400. He moved for a reduced sentence under the First Step
Act, noting the top of his recalculated Guidelines range was 62 months below his original
sentence. Id. The district court denied the motion, reasoning that “the § 3553(a) factors
did not support reducing [Swain]’s sentence given the aggravated offense conduct.” Id.
But we vacated and remanded because the district court failed to adequately support its
“effectively” variant sentence. Id. at 403–04.
We found that the “district court’s failure to justify [the 62-month] variance [was]
particularly troubling given that Congress was the actor that reduced [Swain]’s guideline
range through the passage of the First Step Act.” Id. at 403 (cleaned up). Since Congress
intended sentence reductions to be “one of [the First Step Act’s] primary purposes,” we
reviewed the district court’s decision “in light of [that] remedial purpose.” Id.
Under that lens, we determined the district court’s analysis was substantively
unreasonable because it “relied on largely the same factual basis to deny [Swain]’s motion
for a reduced sentence as it did to impose its initial bottom-of-the-Guidelines sentence—
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despite the fact that [Swain]’s amended Guidelines range decreased by five to ten years.”
Id. Additionally, “the court placed too little weight on the remedial aims of the First Step
Act.” Id.
Smith claims that the district court here made the same errors. 3 He notes that the
district court didn’t explicitly mention that Smith’s 240-month sentence represents a
significant upward variance from his post-First Step Act Guidelines range. Nor did the
court directly discuss the remedial aims of the First Step Act.
But we decline to read Swain as requiring district courts to robotically tick through
these effects of the First Step Act in sentencing. To do so would impose conditions beyond
our modest “requirement that [the district court] adequately explain its sentencing
decision.” United States v. Collington, 995 F.3d 347, 358 (4th Cir. 2021), abrogated on
other grounds by Concepcion, 142 S. Ct. 2389.
Reviewing the totality of the circumstances, we’re convinced that the district court
weighed the relevant considerations and adequately explained its conclusion. First, the
court’s recalculation of Smith’s Guidelines range signals it understood there was a disparity
between the new Guidelines range and the original sentence—in fact, as we explained
above, the district court thought the gap was bigger than it actually was. Next, the court
discussed the history of the First Step Act, noting it must make a “holistic resentencing
3 We calendared this case for the express purpose of considering how Swain applied here. Yet even though Smith relied repeatedly on Swain in his opening brief, the government’s response failed to cite it. We remind the government—and all other litigants—that when we ask for the parties’ views on the import of a case to the appeal, we expect the parties to address it.
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determination as to whether the original sentence remains appropriate in light of the Fair
Sentencing Act’s reforms.” J.A. 865 (quoting Collington, 995 F.3d at 355) (emphasis
added). Sending this case back for the district court to explicitly state what it implicitly
considered would accomplish nothing.
In denying relief, the district court considered Smith’s “fourteen disciplinary
violations in three different Bureau of Prisons facilities,” which included possession of a
dangerous weapon and multiple instances of fighting. 4 J.A. 869–70. When weighed
against Smith’s positive improvements, the court concluded his “behavior before and after
his confinement shows a flagrant disrespect for the law and exacerbates this Court’s
concern for the need to protect the public.” J.A. 870.
The district court also noted that the amount of cocaine attributable to Smith was
“just nine grams shy” of the increased statutory minimum. J.A. 869; see 21 U.S.C.
§ 841(b)(1)(A)(iii). Combined with Smith’s infractions in prison, the court determined that
a “modification of [Smith]’s sentence fails to satisfy the relevant § 3533(a) factors.” J.A.
870. Considering that the First Step Act “leaves much to the [district-court] judge’s own
4 The district court in Swain also discussed some of the defendant’s misconduct in prison. See United States v. Swain, No. 4:07-CR-62-D, 2021 WL 298189, at *2 (E.D.N.C. Jan. 28, 2021) (“[Swain] has been sanctioned for possessing unauthorized items, failing to follow safety regulations in 2009, using marijuana and suboxone in 2016, and extorting/blackmail/protecting in 2019.”). But the Swain opinion doesn’t mention these disciplinary violations.
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professional judgment,” we’re satisfied with its rationale. Concepcion, 142 S. Ct. at 2404
(cleaned up). 5
We pause to address a wrinkle not raised by either party. The district court wrote
that Smith “was attributed with an amount of cocaine base very close to the ceiling of [280
grams for] the sentencing reduction. His original sentence [of twenty years] is therefore
not a departure from sentences that many other defendants today would receive for similar
conduct.” J.A. 870–71 (emphasis added).
For defendants with a prior conviction for a serious drug felony (like Smith), the
Fair Sentencing Act set the statutory minimum for possession with intent to distribute 280
grams or more of crack cocaine at twenty years. See 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii)
(2010). But the First Step Act reduced that to fifteen years. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (2018). So if a similarly situated defendant was convicted today of that
offense, they would face a statutory mandatory minimum five years below Smith’s current
sentence.
It’s possible the district court was mistaken about the current statutory exposure for
Smith’s offense, or unreasonably believed that a five-year upward variance for that
conviction is common. But there are other reasonable interpretations of the district court’s
language. It may have been comparing other defendants who shared Smith’s
5 Smith’s reliance on United States v. Johnson, 26 F.4th 728 (6th Cir. 2022), an out- of-circuit case with fundamental similarities to Swain, fails to persuade for the same reasons.
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“troublesome” conduct while in prison. J.A. 869. Or perhaps the phrase “many other
defendants today,” J.A. 871, refers to defendants who, like Smith, seek relief under
§ 404(b) of the First Step Act. Those defendants would be subject to the Fair Sentencing
Act’s statutory minimum of twenty years. See First Step Act § 404(b) (a district court may
“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”).
Typically, when we “cannot tell” if the district court acted reasonably, we vacate
and remand for reconsideration. Reed, 58 F.4th at 824. But Smith didn’t develop this
argument in his opening brief, saying only that the district court’s observation “is simply
not an accurate reflection of sentencing practices today.” Appellant’s Br. at 18. It’s thus
forfeited. See Mowery v. Nat’l Geospatial-Intel. Agency, 42 F.4th 428, 433 n.5 (4th Cir.
2022) (noting that a party forfeits an argument by failing to develop it in the opening brief,
“even if its brief takes a passing shot at the issue” (cleaned up)). And since review of a
district court’s decision to grant or deny relief under § 404 is “highly deferential,” Bond,
56 F.4th at 385, we decline to consider this issue.
Next, Smith contends that the district court erred when it weighed its “suspicions”
of his involvement in the informant’s murder to deny a sentence modification. But we see
no evidence that the court’s hunch infected its analysis. While the district court did mention
its “strong suspicion” that Smith took part in the homicide, it also reiterated that it “was
not convinced that [the evidence] was sufficient to implicate [Smith].” J.A. 867. And the
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district court never brought the issue up again, let alone in its discussion of the § 3553(a)
factors.
Smith insists that the district court’s mention of “the circumstances surrounding the
offense that were raised at sentencing,” J.A. 870, shows that it considered the informant’s
murder. But many circumstances of Smith’s offense were raised at sentencing, including
his criminal history and the conduct of his co-conspirators. Attempting to parse out the
specific meaning of the court’s broad statement would approach the “overly searching”
review that the Supreme Court has prohibited. Concepcion, 142 S. Ct. at 2404.
3.
Smith’s other arguments don’t convince. He claims the district court failed to give
appropriate weight to his lack of criminal history and his behavioral improvement. But
these are “disagreement[s] with how [the] district court balance[d] the § 3553(a) factors,”
which are “insufficient to overcome the district court’s discretion.” Swain, 49 F.4th at 403.
Smith also asks us to “be sensitive” to the fact that “[u]pward variances for sentences
imposed in cocaine base cases today are extremely rare,” citing 2020 and 2021 statistics
from the Sentencing Commission. Appellant’s Br. at 20. But we’ve recognized that “there
are always variations in sentencing, which is a quintessentially fact-specific and
multifaceted exercise.” United States v. Friend, 2 F.4th 369, 382 (4th Cir. 2021). So
“comparisons of sentences may be treacherous because each sentencing proceeding is
inescapably individualized.” Id. at 382–83 (cleaned up).
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Smith’s use of aggregate sentencing data invites such perilous comparisons. While
we recognize the disparity between Smith’s new Guidelines range and his current sentence,
the district court properly explained why it remained substantively reasonable.
III.
“The Fair Sentencing Act and First Step Act, together, are strong remedial statutes,
meant to rectify disproportionate and racially disparate sentencing penalties.” Swain, 49
F.4th at 403 (cleaned up). The district court considered these remedial aims, as well as all
other nonfrivolous arguments, before exercising its broad discretion to deny sentencing
relief. Its decision is
AFFIRMED.