United States v. Kareem Currence

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 8, 2021
• Docket: 20-7648
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7648

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KAREEM JAMAL CURRENCE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:05-cr-00231-MHL-1)

Submitted: May 11, 2021 Decided: June 8, 2021

Before MOTZ, WYNN, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Kareem Jamal Currence, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Kareem Jamal Currence—who in 2006 was convicted of possession with intent to

distribute less than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

(“Count 1”), and possession with intent to distribute less than five grams of cocaine base

within 1000 feet of an elementary school, in violation of 21 U.S.C. § 860 (“Count 2”)—

appeals the district court’s order granting his Fed. R. Crim. P. 33 motion and his motions

for sentence reduction, pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132

Stat. 5194 (“the Act”). After determining that the Act rendered Currence eligible for a

sentence reduction on the Count 1 conviction, the court vacated Currence’s Count 2

conviction to remedy a double jeopardy violation and reduced the 240-month sentence

imposed on Count 1 to 220 months in prison. On appeal, Currence asserts that: (1) his

Count 1 conviction is no longer valid under Arizona v. Gant, 556 U.S. 332 (2009); (2) his

career offender designation is no longer valid; and (3) the district court should have

recalculated his Sentencing Guidelines range after it vacated the Count 2 conviction. We

vacate and remand.

First, Currence never raised his Gant challenge in his motions in the district court

and, absent extraordinary circumstances, we will not consider issues raised for the first

time on appeal. See Pornomo v. United States, 814 F.3d 681, 686 (4th Cir. 2016). In any

event, Currence could not have challenged his Count 1 conviction in a motion for

sentence reduction under the Act. Such a challenge must instead be raised in an

authorized, successive 28 U.S.C. § 2255 motion, see United States v. Little, 392 F.3d 671,

678-79 (4th Cir. 2004), or, under certain circumstances, in a 28 U.S.C. § 2241 petition,

2 see In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Currence has not obtained this

court’s authorization to raise his Gant challenge in a successive § 2255 motion, however;

indeed, Currence has previously—albeit, unsuccessfully—sought this court’s

authorization to challenge his convictions under Gant. See In re Currence, No. 14-188

(ECF Nos. 2, 4). We therefore reject Currence’s Gant challenge to his remaining

conviction.

Next, we discern no error in the district court’s decision to reject Currence’s

argument that the offenses underlying his prior Virginia convictions are no longer

“controlled substance offenses” under the career offender Guideline. See United States v.

Ward, 972 F.3d 364, 374 (4th Cir. 2020) (holding that convictions under Va. Code

§ 18.2-248 “categorically qualify under the ordinary meaning of ‘controlled substance

offense’” to trigger a career offender enhancement), pet. for cert. filed, No. 20-7327 (U.S.

Feb. 26, 2021). In addition, because Currence’s career offender status dictated his

offense level, Guidelines Amendments 706 and 782 have no impact on Currence’s

Guidelines range, see U.S. Sentencing Guidelines Manual (USSG) § 1B1.10(a)(2)(B) (“A

reduction in the defendant’s term of imprisonment . . . is not authorized under 18 U.S.C.

§ 3582(c)(2) if . . . [a]n amendment listed in subsection (d) does not have the effect of

lowering the defendant’s applicable guideline range.”), and Amendment 742 is not

retroactively applicable, see USSG § 1B1.10(d) (listing retroactive amendments).

We nonetheless agree with Currence that the district court should have considered

that the statutory maximum applicable to his Count 1 conviction is lower than the

statutory maximum applicable to the Count 2 conviction and, thus, the court should have

3 recalculated Currence’s Guidelines range when it decided his motions. See 21 U.S.C.

§§ 841(b)(1)(C), 860(a); USSG § 4B1.1(b)(2), (3); see also United States v. Chambers,

956 F.3d 667, 675 (4th Cir. 2020) (ordering district court to recalculate Chambers’

Guidelines range on remand without the erroneous career offender enhancement). In

deciding to reduce Currence’s sentence, however, the district court did not indicate that it

recalculated Currence’s Guidelines range on the Count 1 conviction after vacating

Currence’s Count 2 conviction. In fact, the court’s order suggests that the court based its

sentence reduction decision on the Guidelines range applicable to both counts of

conviction. This constitutes reversible error. See United States v. Collington, __ F.3d __,

__, No. 19-6721, 2021 WL 1608756, at *8-9 (4th Cir. Apr. 26, 2021) (adopting

reasonableness review to sentences imposed under the Act, which “require[s] courts to

consider a defendant’s arguments, give individual consideration to the defendant’s

characteristics in light of the § 3553(a) factors, determine—following the Fair Sentencing

Act—whether a given sentence remains appropriate in light of those factors, and

adequately explain that decision”); United States v. Ross, 912 F.3d 740, 745 (4th Cir.)

(vacating sentence where the district court’s “comments . . . require[d] this Court to

impermissibly speculate as to the reason for the . . . sentencing decision”), cert. denied,

140 S. Ct. 206 (2019).

Because it does not appear that the district court recalculated Currence’s

Guidelines range applicable to the Count 1 conviction and, thus, it is unclear whether the

court would have chosen to further reduce Currence’s remaining sentence had it done so,

we vacate the remainder of Currence’s sentence on Count 1 and remand for further

4 proceedings consistent with this opinion. We express no opinion as to whether the

district court on remand should further reduce Currence’s remaining sentence. * 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

* While Currence has been released from prison, he remains on supervised release. Accordingly, his challenge to the district court’s order is not moot. See United States v. Ketter, 908 F.3d 61, 66 (4th Cir. 2018) (“Although the underlying prison sentence has been served, a case is not moot when an associated term of supervised release is ongoing, because on remand a district court could grant relief to the prevailing party in the form of a shorter period of supervised release.”).