USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-7745
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DORIS DENISE FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:09-cr-00013-MR-WCM-7)
Submitted: June 8, 2022 Decided: July 20, 2022
Before MOTZ and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William T. Stetzer, Acting United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 2 of 6
PER CURIAM:
Doris Denise Foster appeals the district court’s order granting in part and denying
in part her motion for a sentence reduction under Section 404 of the First Step Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194. On appeal, Foster contends the district court clearly
erred in asserting it had previously found a drug weight of 2,902.43 grams of cocaine base
and procedurally erred in recalculating her Guidelines range under the First Step Act. She
also contends any finding that she was responsible for more than 2.8 kilograms would be
clearly erroneous. We vacate the district court’s order and remand for further proceedings.
Under § 404(b) of the First Step Act, a district court may “impose a reduced
sentence ‘as if’ the revised penalties for crack cocaine enacted in the Fair Sentencing Act
of 2010 were in effect at the time the offense was committed.” Concepcion v. United
States, No. 20-1650, 2022 WL 2295029, at *4 (U.S. June 27, 2022); see also United States
v. McDonald, 986 F.3d 402, 408–09 (4th Cir. 2021) (internal quotation marks omitted).
When imposing a new sentence under this statutory scheme, “a court does not simply adjust
the statutory minimum; it must also recalculate the Guidelines range.” Id. at 409 (internal
quotation marks omitted); see also Concepcion, 2022 WL 2295029, at *10. District courts
retain much discretion in these proceedings, and “the scope of the analysis is defined by
the gaps left from the original sentencing to enable the court to determine what sentence it
would have imposed under the Fair Sentencing Act in light of intervening circumstances.”
United States v. Lancaster, 997 F.3d 171, 175 (4th Cir. 2021).
We review a district court’s First Step Act § 404 proceedings for procedural and
substantive reasonableness. United States v. Collington, 995 F.3d 347, 358–61 (4th Cir.
2 USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 3 of 6
2021). Among other things, this reasonableness standard requires a district court to
“accurately recalculate the Guidelines sentence range.” Id. at 355.
To accurately recalculate the Guidelines range, a district court may need to make
additional findings and identify the attributable drug quantity with more precision than at
the original sentencing. Lancaster, 997 F.3d at 176; see also United States v. Peters, 843
F.3d 572, 578 (4th Cir. 2016). “Such findings cannot contradict earlier ones and must be
supported by the record.” Peters, 843 F.3d at 578. “A district court may ‘adopt[] the PSR’s
findings in toto’ as the factual basis for a sentencing decision so long as it clearly resolved
any factual disputes.” United States v. Burnley, 988 F.3d 184, 190 (4th Cir. 2021) (quoting
United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994)).
“We review factual determinations, like the quantity of drugs attributable to a
defendant for sentencing purposes, for clear error.” United States v. Mann, 709 F.3d 301,
304 (4th Cir. 2013). “[T]o the extent the record is unclear, we must defer to the sentencing
judge’s reasonable understanding of the record – and particularly his interpretation of his
own earlier findings.” Id. at 306. However, “we need not defer to the district court if its
interpretation of its own previous ruling cannot be squared with the facts presented.” Id.
(citing United States v. Henry, 538 F.3d 300, 304–06 (4th Cir. 2008) (where actual record
failed to support district court’s recollection, no deference accorded)).
We have reviewed the record and agree with Foster that the district court clearly
erred in asserting it previously found a drug weight of 2,902.43 grams of cocaine base, and
it procedurally erred in recalculating her Guidelines range under the First Step Act. At her
sentencing in 2010, the presentence report (PSR) recommended a drug weight of 2,902.43
3 USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 4 of 6
grams, but Foster objected. In response, the Government argued the evidence supported,
at minimum, a finding of more than 1.5 kilograms. In resolving the objection, the court’s
“finding of fact” was “that the amount of cocaine base reasonably foreseeable to the
defendant in this matter was in the range between 1.5 and 4.5 kilos”; and it therefore
accepted the base offense level and Guidelines calculations stated in the PSR and overruled
the objection on that basis. J.A. 46.
Moreover, in response to Foster’s argument at sentencing that the district court
should find her responsible for less than 2.8 kilograms, in anticipation of a retroactive
Guidelines amendment pursuant to the Fair Sentencing Act of 2010, the court explained
that this was one of the reasons that it adopted the range; and it indicated its intent to make
a more precise finding on drug weight in the event of a retroactive amendment. J.A. 65–
66.
On direct appeal, the parties agreed the district court at sentencing had found Foster
responsible for a range between 1.5 and 4.5 kilograms, and Foster argued the finding was
erroneous. We held the district court did not clearly err in that finding under the Guidelines
in effect at the time of sentencing, but our decision was “rendered without prejudice to
Foster’s right to pursue a sentence reduction in the district court pursuant to 18 U.S.C.
§ 3582(c)(2).” United States v. Foster, 452 F. App’x 274, 276 (4th Cir. 2011).
Although the district court subsequently granted Foster’s counseled motion under
18 U.S.C. § 3582(c)(2) for a sentence reduction based on Amendment 782, it appears the
probation officer in that proceeding erroneously represented that the court’s original drug-
quantity finding was 2,902.43 grams, and there was no objection to or correction of the
4 USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 5 of 6
error. Although we affirmed the district court’s subsequent order denying Foster’s pro se
motion for a further reduction, we specifically noted “that the district court’s finding of
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USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-7745
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DORIS DENISE FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:09-cr-00013-MR-WCM-7)
Submitted: June 8, 2022 Decided: July 20, 2022
Before MOTZ and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. William T. Stetzer, Acting United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 2 of 6
PER CURIAM:
Doris Denise Foster appeals the district court’s order granting in part and denying
in part her motion for a sentence reduction under Section 404 of the First Step Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194. On appeal, Foster contends the district court clearly
erred in asserting it had previously found a drug weight of 2,902.43 grams of cocaine base
and procedurally erred in recalculating her Guidelines range under the First Step Act. She
also contends any finding that she was responsible for more than 2.8 kilograms would be
clearly erroneous. We vacate the district court’s order and remand for further proceedings.
Under § 404(b) of the First Step Act, a district court may “impose a reduced
sentence ‘as if’ the revised penalties for crack cocaine enacted in the Fair Sentencing Act
of 2010 were in effect at the time the offense was committed.” Concepcion v. United
States, No. 20-1650, 2022 WL 2295029, at *4 (U.S. June 27, 2022); see also United States
v. McDonald, 986 F.3d 402, 408–09 (4th Cir. 2021) (internal quotation marks omitted).
When imposing a new sentence under this statutory scheme, “a court does not simply adjust
the statutory minimum; it must also recalculate the Guidelines range.” Id. at 409 (internal
quotation marks omitted); see also Concepcion, 2022 WL 2295029, at *10. District courts
retain much discretion in these proceedings, and “the scope of the analysis is defined by
the gaps left from the original sentencing to enable the court to determine what sentence it
would have imposed under the Fair Sentencing Act in light of intervening circumstances.”
United States v. Lancaster, 997 F.3d 171, 175 (4th Cir. 2021).
We review a district court’s First Step Act § 404 proceedings for procedural and
substantive reasonableness. United States v. Collington, 995 F.3d 347, 358–61 (4th Cir.
2 USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 3 of 6
2021). Among other things, this reasonableness standard requires a district court to
“accurately recalculate the Guidelines sentence range.” Id. at 355.
To accurately recalculate the Guidelines range, a district court may need to make
additional findings and identify the attributable drug quantity with more precision than at
the original sentencing. Lancaster, 997 F.3d at 176; see also United States v. Peters, 843
F.3d 572, 578 (4th Cir. 2016). “Such findings cannot contradict earlier ones and must be
supported by the record.” Peters, 843 F.3d at 578. “A district court may ‘adopt[] the PSR’s
findings in toto’ as the factual basis for a sentencing decision so long as it clearly resolved
any factual disputes.” United States v. Burnley, 988 F.3d 184, 190 (4th Cir. 2021) (quoting
United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994)).
“We review factual determinations, like the quantity of drugs attributable to a
defendant for sentencing purposes, for clear error.” United States v. Mann, 709 F.3d 301,
304 (4th Cir. 2013). “[T]o the extent the record is unclear, we must defer to the sentencing
judge’s reasonable understanding of the record – and particularly his interpretation of his
own earlier findings.” Id. at 306. However, “we need not defer to the district court if its
interpretation of its own previous ruling cannot be squared with the facts presented.” Id.
(citing United States v. Henry, 538 F.3d 300, 304–06 (4th Cir. 2008) (where actual record
failed to support district court’s recollection, no deference accorded)).
We have reviewed the record and agree with Foster that the district court clearly
erred in asserting it previously found a drug weight of 2,902.43 grams of cocaine base, and
it procedurally erred in recalculating her Guidelines range under the First Step Act. At her
sentencing in 2010, the presentence report (PSR) recommended a drug weight of 2,902.43
3 USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 4 of 6
grams, but Foster objected. In response, the Government argued the evidence supported,
at minimum, a finding of more than 1.5 kilograms. In resolving the objection, the court’s
“finding of fact” was “that the amount of cocaine base reasonably foreseeable to the
defendant in this matter was in the range between 1.5 and 4.5 kilos”; and it therefore
accepted the base offense level and Guidelines calculations stated in the PSR and overruled
the objection on that basis. J.A. 46.
Moreover, in response to Foster’s argument at sentencing that the district court
should find her responsible for less than 2.8 kilograms, in anticipation of a retroactive
Guidelines amendment pursuant to the Fair Sentencing Act of 2010, the court explained
that this was one of the reasons that it adopted the range; and it indicated its intent to make
a more precise finding on drug weight in the event of a retroactive amendment. J.A. 65–
66.
On direct appeal, the parties agreed the district court at sentencing had found Foster
responsible for a range between 1.5 and 4.5 kilograms, and Foster argued the finding was
erroneous. We held the district court did not clearly err in that finding under the Guidelines
in effect at the time of sentencing, but our decision was “rendered without prejudice to
Foster’s right to pursue a sentence reduction in the district court pursuant to 18 U.S.C.
§ 3582(c)(2).” United States v. Foster, 452 F. App’x 274, 276 (4th Cir. 2011).
Although the district court subsequently granted Foster’s counseled motion under
18 U.S.C. § 3582(c)(2) for a sentence reduction based on Amendment 782, it appears the
probation officer in that proceeding erroneously represented that the court’s original drug-
quantity finding was 2,902.43 grams, and there was no objection to or correction of the
4 USCA4 Appeal: 20-7745 Doc: 28 Filed: 07/20/2022 Pg: 5 of 6
error. Although we affirmed the district court’s subsequent order denying Foster’s pro se
motion for a further reduction, we specifically noted “that the district court’s finding of
fact on the range of cocaine base Foster possessed (‘between 1.5 and 4.5 kilos’), straddles
two categories of base offense levels under the United States Sentencing Guidelines”; and
“[i]f the relevant amount of cocaine base fell under 2.8 kilograms, Foster may be eligible
for a further reduction in her sentence.” United States v. Foster, 738 F. App’x 788, 788
n.* (4th Cir. 2018) (citation omitted). Nonetheless, we did not consider or decide the issue
on appeal, because Foster “did not raise the issue in the court below.” Id.
In deciding Foster’s First Step Act § 404 motion, the district court erred in stating
that “the Court calculated that the Defendant was responsible for a total of 2,902.43 grams
of crack cocaine” at her sentencing, and it erred in recalculating her Guidelines range under
the First Step Act based on the error. J.A. 140–41. Although it asserted that “any lower
drug-quantity finding would be inconsistent with [its] earlier findings,” a finding of
between 1.5 and 2.8 kilograms would be consistent with its prior finding of between 1.5
and 4.5 kilograms. J.A. 141. We reject the government’s argument that this error was
harmless: At Foster’s original sentencing, the district court acknowledged that the
possibility of some double-counting in Foster’s drug quantity did raise concerns. Rather
than resolve the issue, it deferred making a precise drug-quantity finding, and stated that it
would “deal with that issue if we have to” – that is, if new Guidelines became applicable
to Foster’s case. J.A. 65. Under such circumstances, we cannot conclude that the failure
to reconsider that quantity was harmless.
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We therefore vacate the district court’s order and remand for it to either apply the
minimum drug quantity of 1.5 kilograms that was found by the court at sentencing or make
additional findings within the range previously found before recalculating the Guidelines
range under the First Step Act. We need not consider Foster’s second argument that any
drug-quantity finding of more than 2.8 kilograms would be clearly erroneous, since the
district court has not yet made that finding. “[B]ecause we are a court of review, not first
view, we remand so that the district court may resolve these issues in the first instance.”
United States v. Frank, 8 F.4th 320, 333 (4th Cir. 2021) (internal quotation marks omitted).
Accordingly, we vacate the district court’s order and remand for further proceedings
consistent with this opinion. 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.
VACATED AND REMANDED