United States v. Donald Shealey

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 16, 2023
• Docket: 21-6680
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6680

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DONALD STANTON SHEALEY, a/k/a Face, a/k/a Diddy, a/k/a Face Diddy, a/k/a The City, a/k/a Donald Santon Shealey,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:08-cr-00282-FL-2)

Submitted: January 24, 2023 Decided: February 16, 2023

Before KING and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: James Wyda, Federal Public Defender, Shari Silver Derrow, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 21-6680 Doc: 71 Filed: 02/16/2023 Pg: 2 of 6

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Donald Stanton Shealey appeals from the district court’s denial of sentencing relief

under § 404 of the First Step Act, arguing that the court erred in retaining sentences that

exceed the now-applicable statutory maximum. Because our recent decision in United

States v. Reed, No. 19-7368, 2023 WL 1163109, at *1, *4 (4th Cir. Feb. 1, 2023), confirms

that district courts “are not required to reduce any sentence” so long as the court

“consider[s] all nonfrivolous arguments for sentence reductions under the First Step Act

based on changes in law or fact,” we affirm the judgment of the district court.

* * *

In 2009, a jury found Shealey guilty of conspiracy to distribute and possess with

intent to distribute more than one kilogram of heroin, more than five kilograms of cocaine,

and more than 50 grams of cocaine base, in violation of 21 U.S.C. § 846 (Count One);

distribution of a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1) (Counts Two

through Six); conspiracy to commit laundering of monetary instruments, in violation of

18 U.S.C. § 1956(h) (Count Seven); and laundering of monetary instruments, in violation

of 18 U.S.C. § 1956(a)(1)(A)(i) (Count Eight). The district court sentenced him to life

imprisonment on Count One; 360 months’ imprisonment on each of Counts Two through

Six; and 240 months’ imprisonment on each of Counts Seven and Eight. See JA at 355–

57.

Shealey later moved for a reduced sentence in the district court. He maintained that

his Count One offense was a “covered offense” under the First Step Act, which “defines a

‘covered offense’ as a violation of a federal criminal statute, the statutory penalties for

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which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was

committed before August 3, 2010.” See United States v. Gravatt, 953 F.3d 258, 260 (4th

Cir. 2020). The court denied Shealey’s motion and retained each of his existing sentences.

This appeal, however, concerns only the sentences retained on Counts Two through

Six. Because of an error unrelated to the First Step Act, 1 if Shealey were sentenced today,

the mandatory maximum sentence for each of those counts would be 240 months — a full

decade lower than the sentence Shealey received for each count. Shealey thus contends

that “[t]he district court exceeded the scope of its authority when it retained illegal

sentences on Counts Two through Six.” Appellant’s Opening Br. at 8. In support of this

argument, Shealey relies on United States v. Collington, 995 F.3d 347 (4th Cir. 2021),

where we vacated a sentence that exceeded the applicable statutory range. See Appellant’s

Opening Br. at 5 (“The Court’s decision in Collington sets forth a simple, straightforward

rule: when deciding a Section 404 motion, a district court cannot retain a sentence above

the statutory maximum.”). 2

1 At the time of his original sentencing in 2009, the district court applied a sentencing enhancement pursuant to 21 U.S.C. § 851. This enhancement increased the statutory maximum on Counts Two through Six from 240 months to 360 months. Two years later, in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), we held that a criminal defendant’s prior conviction is a valid § 851 predicate only if that actual defendant could have received punishment in excess of one year. It is undisputed that the conviction used to support Shealey’s enhanced sentences on Counts Two through Six was not actually punishable by a term of imprisonment exceeding one year. Accordingly, had Shealey been sentenced post-Simmons, the statutory maximum for Counts Two through Six would have been 240 months. 2 As the Government correctly argues, Collington dealt with a covered offense. See Appellee’s Br. at 20–21. Counts Two through Six, however, are not covered offenses and (Continued) 4 USCA4 Appeal: 21-6680 Doc: 71 Filed: 02/16/2023 Pg: 5 of 6

But we recently recognized in Reed that this portion of Collington’s holding has

been abrogated by the Supreme Court’s decision in Concepcion v. United States, 142 S.

Ct. 2389 (2022). Concepcion clarifies that “the First Step Act does not compel courts to

exercise their discretion to reduce any sentence.” 142 S. Ct. at 2396 (emphasis added). All

that is required is that the district court “consider all nonfrivolous arguments for sentence

reductions under the First Step Act based on changes in law or fact.” Reed, 2023 WL

1163109, at *4.

Our review of the record confirms that the district court here has satisfied this

obligation. After acknowledging that “Defendant is no longer a career offender and the

§ 851 enhancement is not applicable,” JA at 359 n.2, the court proceeded to conduct a

thorough assessment of the 18 U.S.C. § 3553(a) factors. See JA at 359. The court

considered Shealey’s efforts at rehabilitation, his support within the community, and the

fact that he had been offered full-time employment upon his release. JA at 360. But in the

end, the court determined that Shealey’s “current sentence remains necessary to reflect the

seriousness of the offense, provide just punishment for the offense, protect the public from

further crimes by defendant, and provide both specific and general deterrence to criminal

conduct.” JA at 361. That is sufficient to satisfy Concepcion’s mandate that courts

“explain their decisions and demonstrate that they considered the parties’ arguments.”

thus the penalties associated with those offenses were not altered by the Fair Sentencing Act. See Appellant’s Opening Br. at 8 (conceding that Counts Two through Six are not “‘covered’ by the First Step Act.”). 5 USCA4 Appeal: 21-6680 Doc: 71 Filed: 02/16/2023 Pg: 6 of 6

142 S. Ct. at 2404. Indeed, Shealey does not argue that the district court’s explanation in

this regard was deficient.

As in Reed, we must reject the argument that the district court erred by refusing to

reduce a sentence to at least the now-applicable statutory maximum. The judgment of the

district court is therefore

AFFIRMED.