USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES THOMAS BRICE, a/k/a Boo,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:07-cr-00261-SAG-2)
Submitted: July 19, 2022 Decided: August 29, 2022
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.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. Jonathan F. Lenzner, Acting United States Attorney, Shabnam Aryana, Special Assistant United States Attorney, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 2 of 5
PER CURIAM:
James Thomas Brice appeals the district court’s order denying his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act
of 2018 (the “Act”), Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. For the
reasons discussed below, we vacate the district court’s order and remand this matter for
further consideration in light of the Supreme Court’s ruling in Concepcion v. United States,
142 S. Ct. 2389 (2022). 1
Upon a defendant’s motion, a district court may reduce a term of imprisonment if
the defendant has exhausted his administrative remedies and “extraordinary and
compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). When
deciding whether to reduce a defendant’s sentence under § 3582(c)(1)(A)(i), a district court
generally proceeds in three steps. See United States v. High, 997 F.3d 181, 185-86 (4th
Cir. 2021). First, the court determines whether “extraordinary and compelling reasons”
exist to support a sentence reduction. Id. at 185 (quoting § 3582(c)(1)(A)(i)). Second, the
court considers whether “a [sentence] reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). Because
there is “now no ‘applicable’ policy statement governing compassionate-release motions
filed by defendants under the recently amended § 3582(c)(1)(A), . . . district courts are
empowered to consider any extraordinary and compelling reason for release that a
defendant might raise.” United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020)
1 We held this appeal in abeyance for Concepcion.
2 USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 3 of 5
(cleaned up). Finally, even if the court finds extraordinary and compelling reasons to
support relief, it retains the discretion to deny a defendant’s motion after balancing the
applicable 18 U.S.C. § 3553(a) factors. High, 997 F.3d at 186.
We review for abuse of discretion a district court’s ruling on a motion for
compassionate release. United States v. Kibble, 992 F.3d 326, 329 (4th Cir.), cert. denied,
142 S. Ct. 383 (2021). “A district court abuses its discretion when it acts arbitrarily or
irrationally, fails to consider judicially recognized factors constraining its exercise of
discretion, relies on erroneous factual or legal premises, or commits an error of law.”
United States v. Jenkins, 22 F.4th 162, 167 (4th Cir. 2021) (internal quotation marks
omitted).
In his motion for compassionate release, Brice maintained that his 262-month
sentence, which was imposed in January 2009, should be reduced to time served because
three underlying considerations, taken together, satisfied the “extraordinary and
compelling reasons” standard. These factors were: (1) Brice’s age (then 52) and identified
medical conditions, coupled with the high rate of infection in his place of incarceration and
his prior COVID-19 infection; (2) changes in federal sentencing law meant that Brice no
longer qualified as a career offender because he was not convicted of a “controlled
substance offense” 2 and his sentencing range under the now-operative Sentencing
2 This argument relied on our ruling in United States v. Norman, 935 F.3d 232, 237- 39 (4th Cir. 2019) (holding that a drug conspiracy offense under 21 U.S.C. § 846 is not categorically a “controlled substance offense” for purposes of U.S. Sentencing Guidelines Manual § 4B1.2(b)).
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Guidelines would be lower; and (3) an unwarranted disparity between Brice’s sentence and
the sentences imposed on others in the underlying narcotics conspiracy.
In deciding this motion in relevant part, 3 the district court acknowledged its
authority under McCoy to consider any of the “extraordinary and compelling” reasons
advanced by Brice. The court further acknowledged that, “if Brice were to be sentenced
today after Norman and certain intervening changes to the sentencing guidelines, his
advisory guideline range would likely be meaningfully lower.” J.A. 93. 4 The court
observed, though, that the Act “did not expressly change the law in any way that would
modify Brice’s sentence, and it did not suggest or require the recalculation of existing
sentences. Neither Norman nor the changes to the sentencing guidelines are retroactively
applied on collateral review.” Id.. The court thus declined to find that the identified “non-
retroactive changes to sentencing case law or revisions to the sentencing guidelines”
satisfied the “extraordinary and compelling reasons” standard. Id. at 94.
Brice challenges this ruling on appeal and, in light of the Supreme Court’s decision
in Concepcion, we question the district court’s reliance on the nonretroactivity of Norman
and the relevant Guidelines changes to conclude that the advanced postsentencing legal
developments could not satisfy the “extraordinary and compelling reasons” standard. In
3 Because Brice’s brief on appeal challenges the district court’s rationale as related only to the second advanced ground, we do not discuss the court’s reasoning as to the first and third bases for the compassionate release motion. 4 Citations to the “J.A.” refer to the two-volume joint appendix submitted by the parties. (See ECF Nos. 14, 15).
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Concepcion, the Supreme Court considered whether, in the context of a motion for sentence
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USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES THOMAS BRICE, a/k/a Boo,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:07-cr-00261-SAG-2)
Submitted: July 19, 2022 Decided: August 29, 2022
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Vacated and remanded 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. Jonathan F. Lenzner, Acting United States Attorney, Shabnam Aryana, Special Assistant United States Attorney, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 2 of 5
PER CURIAM:
James Thomas Brice appeals the district court’s order denying his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act
of 2018 (the “Act”), Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239. For the
reasons discussed below, we vacate the district court’s order and remand this matter for
further consideration in light of the Supreme Court’s ruling in Concepcion v. United States,
142 S. Ct. 2389 (2022). 1
Upon a defendant’s motion, a district court may reduce a term of imprisonment if
the defendant has exhausted his administrative remedies and “extraordinary and
compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). When
deciding whether to reduce a defendant’s sentence under § 3582(c)(1)(A)(i), a district court
generally proceeds in three steps. See United States v. High, 997 F.3d 181, 185-86 (4th
Cir. 2021). First, the court determines whether “extraordinary and compelling reasons”
exist to support a sentence reduction. Id. at 185 (quoting § 3582(c)(1)(A)(i)). Second, the
court considers whether “a [sentence] reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). Because
there is “now no ‘applicable’ policy statement governing compassionate-release motions
filed by defendants under the recently amended § 3582(c)(1)(A), . . . district courts are
empowered to consider any extraordinary and compelling reason for release that a
defendant might raise.” United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020)
1 We held this appeal in abeyance for Concepcion.
2 USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 3 of 5
(cleaned up). Finally, even if the court finds extraordinary and compelling reasons to
support relief, it retains the discretion to deny a defendant’s motion after balancing the
applicable 18 U.S.C. § 3553(a) factors. High, 997 F.3d at 186.
We review for abuse of discretion a district court’s ruling on a motion for
compassionate release. United States v. Kibble, 992 F.3d 326, 329 (4th Cir.), cert. denied,
142 S. Ct. 383 (2021). “A district court abuses its discretion when it acts arbitrarily or
irrationally, fails to consider judicially recognized factors constraining its exercise of
discretion, relies on erroneous factual or legal premises, or commits an error of law.”
United States v. Jenkins, 22 F.4th 162, 167 (4th Cir. 2021) (internal quotation marks
omitted).
In his motion for compassionate release, Brice maintained that his 262-month
sentence, which was imposed in January 2009, should be reduced to time served because
three underlying considerations, taken together, satisfied the “extraordinary and
compelling reasons” standard. These factors were: (1) Brice’s age (then 52) and identified
medical conditions, coupled with the high rate of infection in his place of incarceration and
his prior COVID-19 infection; (2) changes in federal sentencing law meant that Brice no
longer qualified as a career offender because he was not convicted of a “controlled
substance offense” 2 and his sentencing range under the now-operative Sentencing
2 This argument relied on our ruling in United States v. Norman, 935 F.3d 232, 237- 39 (4th Cir. 2019) (holding that a drug conspiracy offense under 21 U.S.C. § 846 is not categorically a “controlled substance offense” for purposes of U.S. Sentencing Guidelines Manual § 4B1.2(b)).
3 USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 4 of 5
Guidelines would be lower; and (3) an unwarranted disparity between Brice’s sentence and
the sentences imposed on others in the underlying narcotics conspiracy.
In deciding this motion in relevant part, 3 the district court acknowledged its
authority under McCoy to consider any of the “extraordinary and compelling” reasons
advanced by Brice. The court further acknowledged that, “if Brice were to be sentenced
today after Norman and certain intervening changes to the sentencing guidelines, his
advisory guideline range would likely be meaningfully lower.” J.A. 93. 4 The court
observed, though, that the Act “did not expressly change the law in any way that would
modify Brice’s sentence, and it did not suggest or require the recalculation of existing
sentences. Neither Norman nor the changes to the sentencing guidelines are retroactively
applied on collateral review.” Id.. The court thus declined to find that the identified “non-
retroactive changes to sentencing case law or revisions to the sentencing guidelines”
satisfied the “extraordinary and compelling reasons” standard. Id. at 94.
Brice challenges this ruling on appeal and, in light of the Supreme Court’s decision
in Concepcion, we question the district court’s reliance on the nonretroactivity of Norman
and the relevant Guidelines changes to conclude that the advanced postsentencing legal
developments could not satisfy the “extraordinary and compelling reasons” standard. In
3 Because Brice’s brief on appeal challenges the district court’s rationale as related only to the second advanced ground, we do not discuss the court’s reasoning as to the first and third bases for the compassionate release motion. 4 Citations to the “J.A.” refer to the two-volume joint appendix submitted by the parties. (See ECF Nos. 14, 15).
4 USCA4 Appeal: 21-6776 Doc: 32 Filed: 08/29/2022 Pg: 5 of 5
Concepcion, the Supreme Court considered whether, in the context of a motion for sentence
reduction under § 404(b) of the Act, a district court may consider intervening legal and
factual developments in determining whether a reduction is appropriate. The Court ruled
that district courts may do so and that, “[b]ecause district courts are always obligated to
consider nonfrivolous arguments presented by the parties, the First Step Act requires
district courts to consider intervening changes when parties raise them.” Concepcion, 142
S. Ct. at 2396. The Court further recognized, though, that the Act “does not compel courts
to exercise their discretion to reduce any sentence based on those arguments.” Id. With
regard to the nonretroactivity of the relied-upon changes in the law, the Supreme Court
explained that “[n]othing express or implicit in the First Step Act” prohibits or restricts a
district court from “consider[ing] nonretroactive Guidelines amendments to help inform
whether to reduce sentences at all, and if so, by how much.” Id. at 2403.
This latter aspect of Concepcion undermines the district court’s reasoning for
rejecting the second prong of Brice’s motion for compassionate release. Thus, although
Concepcion arises in an admittedly different posture because it involved a motion pursuant
to § 404(b) of the Act, we vacate the district court’s order and remand this case to the
district court for further consideration in light of Concepcion. We express no opinion as
to the merits of the claim as remanded. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED