USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4415
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS DEANDRE FROST,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (7:21-cr-00039-FL-1)
Submitted: August 21, 2024 Decided: September 6, 2024
Before WILKINSON and GREGORY, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Lucy Partain Brown, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 2 of 5
PER CURIAM:
Darius Deandre Frost pled guilty without a plea agreement to conspiracy to
distribute and possess with the intent to distribute 28 grams or more of cocaine base and a
quantity of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846; two counts of
distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C);
being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2); and one count each of possession with intent to distribute quantities of cocaine
base and quantities of cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C), and was sentenced to an aggregate 188-month term of imprisonment. Frost
argues that the district court abused its discretion when it denied his request for a downward
variant sentence, based primarily on his eligibility for a safety valve reduction under United
States v. Jones, 60 F.4th 230 (4th Cir. 2023), and in light of his criminal history, which he
asserts was overrepresented. Finding no error, we affirm.
We generally review a sentence for “reasonableness” by applying the “deferential
abuse-of-discretion standard.” United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020)
(internal quotation marks omitted). In doing so, “[o]ur inquiry proceeds in two steps.”
United States v. Friend, 2 F.4th 369, 379 (4th Cir. 2021). First, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the [Sentencing] Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
(internal quotation marks omitted).
2 USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 3 of 5
“Only if we determine that the sentence is procedurally reasonable do we then
proceed to substantive reasonableness by considering the totality of the circumstances.”
Id. (internal quotation marks omitted). In considering the substantive reasonableness of a
sentence, this court “takes into account 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. Nance, 957 F.3d 204, 212
(4th Cir. 2020) (internal quotation marks omitted). “[A]ny sentence that is within or below
a properly calculated Guidelines range is presumptively reasonable.” United States v.
Gillespie, 27 F.4th 934, 945 (4th Cir. 2022) (internal quotation marks omitted). A
defendant can only rebut that presumption “by showing that the sentence is unreasonable
when measured against the . . . § 3553(a) factors.” United States v. Bennett, 986 F.3d 389,
401 (4th Cir. 2021) (internal quotation marks omitted).
We discern no reversible error here. Frost makes no assertion that his 188-month
sentence was tainted by procedural flaws, such as errors in calculating his Guidelines range,
erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a)
factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain
the chosen sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Instead, Frost
primarily asserts that the district court imposed a substantively unreasonable sentence when
it refused to vary downward based on Frost’s eligibility for the safety valve reduction and
his allegedly overrepresented criminal history. As support, Frost points to U.S. Sentencing
Guidelines Manual (USSG) § 2D1.1(b)(18), which instructs a district court to reduce a
3 USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 4 of 5
defendant’s offense level two levels if the defendant meets the Guidelines’ safety valve
criteria.
However, Frost does not argue that the district court ignored or misunderstood his
arguments for a lesser sentence, or that the court erroneously believed it was constrained
from imposing a variant sentence. In essence, Frost’s arguments amount to little more than
his disagreement with the district court’s rejection of Frost’s attempts to minimize his
criminal history, which is insufficient to overcome the presumption we afford the imposed
within-Guidelines sentence. See United States v. Evans, 526 F.3d 155, 162 (4th Cir. 2008)
(recognizing that deference to a district court’s sentence “is required because the
sentencing judge is in a superior position to find facts and judge their import under
§ 3553(a) in the individual case” (cleaned up)).
Moreover, just prior to Frost’s sentencing, this court decided Jones, holding that 18
U.S.C. “§ 3553(f)(1) uses ‘and’ as a conjunctive,” 60 F.4th at 235, which requires that “a
defendant is ineligible for safety valve relief only if she has all three criminal history
characteristics. That is, a defendant must not have the combination of (A) more than four
criminal history points, (B) a three-point offense, and (C) a two-point violent offense,” id.
at 234. The court also explained that “even if the defendant meets all the statutory
requirements, application of the safety valve is left to the sentencing judge’s discretion.”
Id. at 239. Accordingly, this court confirmed that “a judge who has discretion to impose a
Free access — add to your briefcase to read the full text and ask questions with AI
USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4415
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS DEANDRE FROST,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (7:21-cr-00039-FL-1)
Submitted: August 21, 2024 Decided: September 6, 2024
Before WILKINSON and GREGORY, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Lucy Partain Brown, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 2 of 5
PER CURIAM:
Darius Deandre Frost pled guilty without a plea agreement to conspiracy to
distribute and possess with the intent to distribute 28 grams or more of cocaine base and a
quantity of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846; two counts of
distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C);
being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2); and one count each of possession with intent to distribute quantities of cocaine
base and quantities of cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C), and was sentenced to an aggregate 188-month term of imprisonment. Frost
argues that the district court abused its discretion when it denied his request for a downward
variant sentence, based primarily on his eligibility for a safety valve reduction under United
States v. Jones, 60 F.4th 230 (4th Cir. 2023), and in light of his criminal history, which he
asserts was overrepresented. Finding no error, we affirm.
We generally review a sentence for “reasonableness” by applying the “deferential
abuse-of-discretion standard.” United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020)
(internal quotation marks omitted). In doing so, “[o]ur inquiry proceeds in two steps.”
United States v. Friend, 2 F.4th 369, 379 (4th Cir. 2021). First, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the [Sentencing] Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
(internal quotation marks omitted).
2 USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 3 of 5
“Only if we determine that the sentence is procedurally reasonable do we then
proceed to substantive reasonableness by considering the totality of the circumstances.”
Id. (internal quotation marks omitted). In considering the substantive reasonableness of a
sentence, this court “takes into account 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. Nance, 957 F.3d 204, 212
(4th Cir. 2020) (internal quotation marks omitted). “[A]ny sentence that is within or below
a properly calculated Guidelines range is presumptively reasonable.” United States v.
Gillespie, 27 F.4th 934, 945 (4th Cir. 2022) (internal quotation marks omitted). A
defendant can only rebut that presumption “by showing that the sentence is unreasonable
when measured against the . . . § 3553(a) factors.” United States v. Bennett, 986 F.3d 389,
401 (4th Cir. 2021) (internal quotation marks omitted).
We discern no reversible error here. Frost makes no assertion that his 188-month
sentence was tainted by procedural flaws, such as errors in calculating his Guidelines range,
erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a)
factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain
the chosen sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Instead, Frost
primarily asserts that the district court imposed a substantively unreasonable sentence when
it refused to vary downward based on Frost’s eligibility for the safety valve reduction and
his allegedly overrepresented criminal history. As support, Frost points to U.S. Sentencing
Guidelines Manual (USSG) § 2D1.1(b)(18), which instructs a district court to reduce a
3 USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 4 of 5
defendant’s offense level two levels if the defendant meets the Guidelines’ safety valve
criteria.
However, Frost does not argue that the district court ignored or misunderstood his
arguments for a lesser sentence, or that the court erroneously believed it was constrained
from imposing a variant sentence. In essence, Frost’s arguments amount to little more than
his disagreement with the district court’s rejection of Frost’s attempts to minimize his
criminal history, which is insufficient to overcome the presumption we afford the imposed
within-Guidelines sentence. See United States v. Evans, 526 F.3d 155, 162 (4th Cir. 2008)
(recognizing that deference to a district court’s sentence “is required because the
sentencing judge is in a superior position to find facts and judge their import under
§ 3553(a) in the individual case” (cleaned up)).
Moreover, just prior to Frost’s sentencing, this court decided Jones, holding that 18
U.S.C. “§ 3553(f)(1) uses ‘and’ as a conjunctive,” 60 F.4th at 235, which requires that “a
defendant is ineligible for safety valve relief only if she has all three criminal history
characteristics. That is, a defendant must not have the combination of (A) more than four
criminal history points, (B) a three-point offense, and (C) a two-point violent offense,” id.
at 234. The court also explained that “even if the defendant meets all the statutory
requirements, application of the safety valve is left to the sentencing judge’s discretion.”
Id. at 239. Accordingly, this court confirmed that “a judge who has discretion to impose a
shorter sentence, based on the safety-valve provision, may reasonably choose not to
exercise that discretion if consideration of the defendant’s history counsels against it.” Id.
4 USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 5 of 5
(cleaned up). We find that the district court here was fully aware of our decision in Jones
and exercised its discretion not to apply the safety valve reduction in this case. ∗
And since the imposed 188-month sentence, which is at the bottom of Frost’s
correctly calculated Guidelines range is presumed substantively reasonable by this court,
Gillespie, 27 F.4th at 945, we conclude that Frost’s failure to raise a meaningful challenge
to the chosen sentence in light of the § 3553(a) factors requires affirmance of the imposed
sentence, see United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) (“As with any
sentence, . . . we must give due deference to the district court’s decision and . . . must affirm
. . . [the] sentence unless we find the district court abused its discretion.” (internal quotation
marks omitted)).
Accordingly, we affirm the criminal judgment. 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
∗ We observe that the Supreme Court has since vacated our decision in Jones and remanded to this court for further consideration in light of Pulsifer v. United States, 601 U.S. 124, 132 (2024) (“A defendant is eligible for safety-valve relief under Paragraph (f)(1) only if he does not have all three of the items listed—or said more specifically, does not have four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense.” (internal quotation marks omitted)). See United States v. Jones, 144 S. Ct. 1091 (2024). Thus, regardless of whether the district court properly exercised its discretion in refusing to impose a downward variant sentence based on the safety valve provision, Frost—who has three prior three-point convictions—is ineligible for safety valve relief.