United States v. Jermaine Wood

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 1, 2023
• Docket: 20-6508
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6508

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAINE LAMONT WOOD, a/k/a Jeremaine Lamont Wood,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:99-cr-00144-MHL-RCY-1)

Argued: January 26, 2023 Decided: August 1, 2023

Before DIAZ, Chief Judge, and THACKER, Circuit Judge, and Catherine C. EAGLES, United States District Judge for the Middle District of North Carolina, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Daniel Julius Honold, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 2 of 12

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Jermaine Lamont Wood (“Appellant”) appeals the district court’s denial of his

motion for a reduced sentence and motion for reconsideration pursuant to section 404 of

the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (“First Step Act”).

Following a jury trial, Appellant was convicted on three counts of federal narcotics and

firearms violations and acquitted on one count. He was sentenced to concurrent terms of

480 months of imprisonment, 240 months of imprisonment, and life imprisonment.

In 2019, Appellant moved for a reduced sentence pursuant to the First Step Act.

The district court denied Appellant’s motion and Appellant sought reconsideration, which

the district court also denied. Appellant subsequently appealed both orders. We vacate

and remand with instructions to consider Appellant’s non-frivolous arguments.

I.

A.

In May 1999, a jury convicted Appellant of conspiracy to possess with intent to

distribute more than five grams of cocaine base (“crack cocaine”) in violation of 21 U.S.C.

§ 846 (count one); conspiracy to use and carry firearms during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(o) (count three); and using a firearm to

commit second degree murder during and in relation to a drug trafficking crime in violation

of 18 U.S.C. §§ 924(c), (j) (count four). 1

1 Appellant was acquitted of possession of more than five grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (count two). 3 USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 4 of 12

Relying on United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)

section 2D1.1(d)(1)’s cross-reference to first degree murder, Appellant’s presentence

investigation report (“PSR”) calculated a base offense level of 43 for the crack cocaine

violation. See U.S.S.G. § 2D1.1(d)(1) (Nov. 1998) (“If a victim was killed under

circumstances that would constitute murder . . . apply § 2A1.1.”); see also id. at § 2A1.1(a)

(providing a base offense level of 43 for first degree murder). The PSR grouped all three

counts of conviction pursuant to sections 3D1.2(b) and 3D1.3 of the Guidelines. As a

result, the combined adjusted offense level was 43. The PSR calculated a total Guidelines

sentencing range of life in prison, acknowledging that concurrent sentences at the lower

statutory maximums for counts one (480 months) and three (240 months) would be

appropriate. See 5G1.2(b), and (c).

Pursuant to the then-mandatory Guidelines, the district court sentenced Appellant

to concurrent terms of 480 months of imprisonment as to count one, 240 months of

imprisonment as to count three, and life imprisonment as to count four.

B.

On November 1, 2006, U.S.S.G. section 2D1.1(d)(1) was modified by Amendment

684, which permits a cross-reference to either U.S.S.G. section 2A1.1, imposing a base

offense level of 43 in cases involving first degree murder, or U.S.S.G. section 2A1.2,

imposing a base offense level of 38 in cases involving second degree murder (“Amendment

684”). See U.S.S.G. App. C, Amend. 684 (2006).

In August of 2010, Congress enacted the Fair Sentencing Act, Pub. L. No. 111-220,

124 Stat. 2372 (“FSA”). As we explained in United States v. Wirsing, 943 F.3d 175, 177–

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78 (4th Cir. 2019), the FSA reduced sentencing disparities between powder cocaine and

crack cocaine offenses. However, at the time of its enactment, the FSA provided only

prospective relief.

Then, in 2018, Congress passed the First Step Act which gave the FSA retroactive

effect. See United States v. Chambers, 956 F.3d 667, 670 (4th Cir. 2020). Specifically,

section 404(b) of the First Step Act permits individuals to petition the court to “impose a

reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect

at the time the covered offense was committed.” First Step Act § 404(b), 132 Stat. at 5222.

C.

In March 2019, in response to Appellant’s request to file a motion for sentence

reduction, the district court directed the probation office to prepare a First Step Act

worksheet and provide it to Appellant as well as to all counsel of record. 2 Per the

worksheet, Appellant’s Guidelines sentencing range remained unchanged. However, the

worksheet noted that the maximum statutory penalty for count one has been reduced from

480 months to 240 months of imprisonment.

Through counsel, Appellant filed a First Step Act motion requesting a sentence

reduction from 480 to 240 months of imprisonment on count one (his crack cocaine

conviction). Before the district court ruled on this motion, however, Appellant wrote letters

requesting that the district court remove his counsel and also remove the motion filed by

2 At the time Appellant made the request to file a motion for sentence reduction, he was pro se. But by the time the worksheet was prepared, Appellant was represented by the Federal Public Defender.

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counsel from the docket. Although the district court granted Appellant’s motion to proceed

without counsel, his request to remove his former counsel’s motion was not granted.

Instead, the court said it was taking the counseled motion “under advisement” pending

further briefing. J.A. 116. 3

Subsequently, Appellant filed a pro se motion seeking a reduction in his sentence

pursuant to section 404 of the First Step Act. In support, Appellant argued that his

sentencing range would have been lower had he been sentenced after the Fair Sentencing

Act and that his counts of conviction were erroneously grouped in the 1999 PSR.

After the government responded that Appellant’s life sentence was driven by his

924(j) conviction at count four, which it argued was unaffected by the Fair Sentencing Act,

Appellant raised a new argument in his reply brief. He asserted that after Amendment 684

modified Guidelines section 2D1.1(d)(1) to cross reference first or second degree murder

“as appropriate,” U.S.S.G § 2D1.1(d)(1), he would have been subject to a base offense

level of 38 rather than 43, resulting in a lower Guidelines sentencing range that did not

include life.

The district court concluded that Appellant met the threshold eligibility for First

Step Act relief because (1) his conviction for crack cocaine was a covered offense, (2) he

had not previously received a sentence reduction pursuant to section 2 or 3 of the Fair

Sentencing Act, and (3) he had not previously filed a motion pursuant to section 404 of the

First Step Act. Nevertheless, the court declined to reduce Appellant’s sentence. In part,

3 Citations to the “J.A.” refer to the Joint Appendix filed by the parties to this appeal.

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the district court reasoned that the “First Step Act does not alter the [Guidelines] range

applicable to [Appellant].” J.A. 215. In so ruling, the district court relied on the First Step

Act worksheet, which indicated that Appellant’s Guidelines sentencing calculation

remained unchanged.

Therefore, the district court denied both Appellant’s pro se motion to reduce his

sentence and the motion filed by Appellant’s former counsel. Appellant subsequently filed

a pro se motion asking the district court to reconsider. The district court denied the motion

for reconsideration. Appellant timely noticed his appeal. The Government concedes that

the sentencing package doctrine, United States v. Ventura, 864 F.3d 301 (2017), applies to

section 404 motions, which means the entirety of Appellant’s sentence (as to all three

counts) may be reviewed, and we assume that doctrine to apply for purposes of this

decision.

II.

“We review the scope of a district court’s sentencing authority under the First Step

Act de novo.” United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020). And

“[o]rdinarily, when ‘determining whether a district court properly applied the []

Guidelines,’ including its application of a cross reference, ‘we review the district court’s

legal conclusions de novo and its factual findings for clear error.’” United States v.

Ashford, 718 F.3d 377, 380 (4th Cir. 2013) (quoting United States v. Layton, 564 F.3d 330,

334 (4th Cir. 2009)). Thus, we affirm a district court’s denial of section 404(b) relief unless

the district court’s decision was procedurally or substantively unreasonable. See United

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States v. Swain, 49 F.4th 398, 402 (4th Cir. 2022). In determining whether a sentence was

reasonable, this court must:

ensure that the district court committed no significant procedural error, such as 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.

United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (quoting Gall v. United States,

552 U.S. 38, 51 (2007)).

III.

Appellant argues the district court erred in determining that the First Step Act did

not alter his applicable Guidelines sentencing range. Appellant asserts that the maximum

sentence as to his crack cocaine conviction has been amended, requiring a reduction in his

sentence to the new statutory maximum. Additionally, Appellant argues that the district

court erred in failing to consider what his Guidelines sentencing range would have been

had Amendment 684’s change to the murder cross-reference applied in his case. He also

asserts that his due process rights were violated when the district court relied on the First

Step Act worksheet without providing Appellant with a copy or giving him an opportunity

to object to its determination that the Guidelines range remained unchanged. 4

4 Although Appellant argued below that his counts of conviction were erroneously grouped in the PSR, he has abandoned this argument on appeal and concedes that the district court did not err in its grouping analysis. 8 USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 9 of 12

Appellant first contends that the district court erred by maintaining a sentence, as to

count one, that exceeds the revised statutory maximum pursuant to the FSA. However,

this court recently held that Concepcion v. United States, 142 S. Ct. 2389 (2022), “instructs

that district courts need not reduce any sentence under the First Step Act.” United States

v. Reed, 58 F.4th 816 (4th Cir. 2023). This includes a situation, such as the one presented

here, where the statutory maximum has been revised and Appellant’s sentence exceeds this

revised maximum. Id. at 822 (rejecting the argument that a district court abuses its

discretion when it refrains from reducing a sentence to the revised statutory maximum).

As the worksheet noted the reduction in the statutory maximum as to Count one -- and the

district court considered the worksheet -- we find no error.

Appellant next contends that the district court erred by failing to consider his

argument that his Guidelines range would have been lower if he was sentenced pursuant to

Amendment 684. Specifically, Appellant contends that, in light of the jury’s finding of

second degree murder, the cross-reference to the first degree murder guideline would be

inappropriate following Amendment 684.

The PSR applied the cross-reference for first degree murder when determining

Appellant’s base offense level. Prior to Amendment 684, the Guidelines stated, “If a victim

was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had

such killing taken place within the territorial or maritime jurisdiction of the United States,

apply § 2A1.1 (First Degree Murder).” U.S.S.G. § 2D1.1(d)(1) (Nov. 1998). In turn,

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section 2A1.1 of the Guidelines instructs that the base offense level under this circumstance

is 43. U.S.S.G. § 2A1.1(a). And the Guidelines “range” for individuals who have an

offense level of 43 is “life.” U.S.S.G. ch. 5, pt. A (sentencing table).

However, in 2006, section 2D1.1(d)(1) was amended “to allow the application of §

2A1.2 (Second Degree Murder) in cases in which the conduct involved is second degree

murder.” U.S.S.G. App. C, Amend. 684 (eff. Nov. 1, 2006). Amendment 684, which was

not retroactive, provides that the base offense level for second degree murder is 38.

U.S.S.G. § 2A1.2(a). Consequently, if Appellant had been sentenced using a cross-

reference to the second degree murder guideline, his Guidelines range would have been

324–405 months of imprisonment as opposed to life.

Appellant contends that pursuant to the Supreme Court’s recent decision in

Concepcion, the district court was required to consider his Amendment 684 argument. In

Concepcion, the Supreme Court considered “whether a district court adjudicating a motion

under the First Step Act may consider other intervening changes of law (such as changes

to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating

a First Step Act motion.” 142 S. Ct. at 2396. In answering that question yes, the Court

emphasized, “Because 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.” Id. (emphasis supplied).

Here, the district court did not explicitly consider the merits of Appellant’s argument

as to the cross-reference. And, in light of the Supreme Court’s guidance in Concepcion,

the district court was at least required to consider that following Amendment 684,

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Appellant would have been subject to a lower Guidelines sentencing range. Concepcion

makes clear that “[t]he First Step Act does not require a district court to be persuaded by

the nonfrivolous arguments raised by the parties before it, but it does require the court to

consider them.” 142 S. Ct. at 2405 (emphasis supplied).

Because the district court’s order did not address Appellant’s Amendment 684

argument, the district court erred. Accordingly, we vacate and remand 5 so that the district

court can consider Appellant’s non-frivolous Guidelines argument as to Amendment 684. 6

Finally, we readily dispense with Appellant’s argument that his right to due process

was violated. In this regard, Appellant alleges that he was not provided with a copy of the

First Step Act worksheet. But the record makes clear that Appellant was represented by

counsel at the time the worksheet was prepared and that counsel was provided with the

worksheet. Thus, Appellant’s argument is without merit.

5 We express no opinion as to the outcome of the district court’s decision on remand. 6 The government points out that Appellant did not raise his murder cross-reference argument until his reply brief. But rather than argue that Appellant waived the cross- reference argument, the government took the position, in briefing and at oral argument, that the district court’s limited explanation was sufficient given this posture. However, neither the order denying Appellant’s First Step Act motion nor the order denying his motion for reconsideration reference the cross-reference argument at all. Thus, we are not convinced on this record that the district court “considered the argument” as required pursuant to Concepcion. 142 S.Ct. at 2405; accord Reed, 58 F.4th at 823.

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IV.

The district court’s orders denying Appellant’s First Step Act motion and motion

for reconsideration are vacated and remanded for further proceedings consistent with this

opinion.

VACATED AND REMANDED