UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-7815
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENWOOD WEBSTER DAVIS, a/k/a Tony Lee Miller,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (4:94-cr-00021-BO-2)
Submitted: September 30, 2020 Decided: October 8, 2020
Before MOTZ and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Lenwood Webster Davis appeals from the district court’s order granting his motion
for a sentence reduction under the First Step Act (FSA), of 2018, Pub. L. No. 115-391,
§ 402, 132 Stat. 5194, 5221. After receiving a worksheet from the United States Probation
Office and considering the parties’ arguments for and against imposing a new sentence, the
court reduced Davis’ term of incarceration to 310 months, a sentence within the revised
Sentencing Guidelines range. On appeal, counsel for Davis filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious grounds
for appeal, but raising for the court’s consideration whether Davis should have received a
lower sentence. Davis did not file a pro se supplemental brief. We identified two
potentially meritorious issues and ordered the parties to submit supplemental briefs
addressing: (1) whether the court plainly erred by not reconsidering Davis’ status as a
career offender under the current Sentencing Guidelines manual, and (2) whether the court
erred by not addressing counsel’s argument for a sentence at the low end of the recalculated
Guidelines range. The parties have complied and the matter is now ripe for disposition.
Having conducted a thorough review of the record, we affirm the district court’s order.
The FSA rendered the Fair Sentencing Act of 2010 (the Act), Pub. L. No. 111-220,
124 Stat. 2372, retroactive to all sentences imposed prior to the Act’s effective date.
Section 404 of the FSA provides that “[a] court that imposed a sentence for a covered
offense may, on motion of the defendant, . . . impose a reduced sentence as if sections 2
and 3 of [the Act] were in effect at the time the covered offense was committed.” First
Step Act, § 404(b), 132 Stat. at 5222. A “covered offense” is a federal crime, committed
2 before the Act’s effective date, for which the penalties were modified by section 2 or 3 of
the FSA. First Step Act, § 404(a), 132 Stat. at 5222. However, “[n]othing in this section
shall be construed to require a court to reduce any sentence pursuant to this section.”
§ 404(c), 132 Stat. at 5222.
“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). When a
sentence reduction is permitted, we review for abuse of discretion the court’s decision to
grant or deny the motion. United States v. Muldrow, 844 F.3d 434, 437 (4th Cir. 2016).
18 U.S.C. § 3582(c)(1)(B), which “is the appropriate vehicle for a First Step Act motion,”
United States v. Wirsing, 943 F.3d 175, 183 (4th Cir. 2019), permits modification of a
previously imposed sentence “to the extent . . . expressly permitted by statute.” Even if a
defendant is eligible for relief, whether to grant a sentence reduction remains within the
court’s discretion. Wirsing, 943 F.3d at 180.
There is no dispute that Davis was eligible for a reduced sentence under the FSA.
Here, the Probation Office’s worksheet revised Davis’ statutory and advisory Guidelines
sentence. Neither the Probation Office nor Davis’ counsel took into consideration that, if
the current version of the Guidelines manual was used to determine Davis’ offense level,
he would no longer be considered a career offender. * One of Davis’ two predicate
convictions, Florida battery, no longer qualifies as a crime of violence under the current
* If Davis was not considered a career offender, under the current Guidelines manual, his range would be 168 to 210 months’ imprisonment.
3 Guidelines, see Johnson v. United States, 559 U.S. 133, 140-42 (2010) (holding that Florida
battery is not a violent felony under the force clause of 18 U.S.C. § 924(e)(2)(B)(i)),
because the offense qualified as a crime of violence under the Guidelines’ residual clause,
see Rozier v. United States, 701 F.3d 681, 682-83 (11th Cir. 2012), which was removed
from the Guidelines in 2016 pursuant to Amendment 798.
Because Davis’ counsel did not assert before the district court that Davis would not
be a career offender if the current version of the Guidelines was used to determine his
Guidelines range, our review is for plain error. United States v. Muslim, 944 F.3d 154, 167
(4th Cir. 2019) (noting unpreserved Guidelines challenges are reviewed for plain error).
“To prevail on plain error review, an appellant must show (1) that the district court erred,
(2) that the error was plain, and (3) that the error affected his substantial rights.” United
States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018). A plain error affects substantial rights
if there is a “reasonable probability that, but for the error, the outcome of the proceeding
would have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (internal quotation marks omitted). “[T]he defendant bears the burden of satisfying
each of the elements of the plain error standard.” United States v. Massenburg, 564 F.3d
337, 343 (4th Cir. 2009). “If each of those three requirements are satisfied, we possess
discretion on whether to recognize the error, but we should not do so unless the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Cohen, 888 F.3d at 685 (internal quotation marks omitted).
We conclude that there was no plain error because it was not incumbent upon the
district court to consider a revised Guidelines range in accordance with the current version
4 of the Guidelines manual. We further conclude that Davis fails to show that his substantial
rights were affected because there is no indication that the court would have imposed a
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-7815
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENWOOD WEBSTER DAVIS, a/k/a Tony Lee Miller,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (4:94-cr-00021-BO-2)
Submitted: September 30, 2020 Decided: October 8, 2020
Before MOTZ and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Lenwood Webster Davis appeals from the district court’s order granting his motion
for a sentence reduction under the First Step Act (FSA), of 2018, Pub. L. No. 115-391,
§ 402, 132 Stat. 5194, 5221. After receiving a worksheet from the United States Probation
Office and considering the parties’ arguments for and against imposing a new sentence, the
court reduced Davis’ term of incarceration to 310 months, a sentence within the revised
Sentencing Guidelines range. On appeal, counsel for Davis filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious grounds
for appeal, but raising for the court’s consideration whether Davis should have received a
lower sentence. Davis did not file a pro se supplemental brief. We identified two
potentially meritorious issues and ordered the parties to submit supplemental briefs
addressing: (1) whether the court plainly erred by not reconsidering Davis’ status as a
career offender under the current Sentencing Guidelines manual, and (2) whether the court
erred by not addressing counsel’s argument for a sentence at the low end of the recalculated
Guidelines range. The parties have complied and the matter is now ripe for disposition.
Having conducted a thorough review of the record, we affirm the district court’s order.
The FSA rendered the Fair Sentencing Act of 2010 (the Act), Pub. L. No. 111-220,
124 Stat. 2372, retroactive to all sentences imposed prior to the Act’s effective date.
Section 404 of the FSA provides that “[a] court that imposed a sentence for a covered
offense may, on motion of the defendant, . . . impose a reduced sentence as if sections 2
and 3 of [the Act] were in effect at the time the covered offense was committed.” First
Step Act, § 404(b), 132 Stat. at 5222. A “covered offense” is a federal crime, committed
2 before the Act’s effective date, for which the penalties were modified by section 2 or 3 of
the FSA. First Step Act, § 404(a), 132 Stat. at 5222. However, “[n]othing in this section
shall be construed to require a court to reduce any sentence pursuant to this section.”
§ 404(c), 132 Stat. at 5222.
“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). When a
sentence reduction is permitted, we review for abuse of discretion the court’s decision to
grant or deny the motion. United States v. Muldrow, 844 F.3d 434, 437 (4th Cir. 2016).
18 U.S.C. § 3582(c)(1)(B), which “is the appropriate vehicle for a First Step Act motion,”
United States v. Wirsing, 943 F.3d 175, 183 (4th Cir. 2019), permits modification of a
previously imposed sentence “to the extent . . . expressly permitted by statute.” Even if a
defendant is eligible for relief, whether to grant a sentence reduction remains within the
court’s discretion. Wirsing, 943 F.3d at 180.
There is no dispute that Davis was eligible for a reduced sentence under the FSA.
Here, the Probation Office’s worksheet revised Davis’ statutory and advisory Guidelines
sentence. Neither the Probation Office nor Davis’ counsel took into consideration that, if
the current version of the Guidelines manual was used to determine Davis’ offense level,
he would no longer be considered a career offender. * One of Davis’ two predicate
convictions, Florida battery, no longer qualifies as a crime of violence under the current
* If Davis was not considered a career offender, under the current Guidelines manual, his range would be 168 to 210 months’ imprisonment.
3 Guidelines, see Johnson v. United States, 559 U.S. 133, 140-42 (2010) (holding that Florida
battery is not a violent felony under the force clause of 18 U.S.C. § 924(e)(2)(B)(i)),
because the offense qualified as a crime of violence under the Guidelines’ residual clause,
see Rozier v. United States, 701 F.3d 681, 682-83 (11th Cir. 2012), which was removed
from the Guidelines in 2016 pursuant to Amendment 798.
Because Davis’ counsel did not assert before the district court that Davis would not
be a career offender if the current version of the Guidelines was used to determine his
Guidelines range, our review is for plain error. United States v. Muslim, 944 F.3d 154, 167
(4th Cir. 2019) (noting unpreserved Guidelines challenges are reviewed for plain error).
“To prevail on plain error review, an appellant must show (1) that the district court erred,
(2) that the error was plain, and (3) that the error affected his substantial rights.” United
States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018). A plain error affects substantial rights
if there is a “reasonable probability that, but for the error, the outcome of the proceeding
would have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (internal quotation marks omitted). “[T]he defendant bears the burden of satisfying
each of the elements of the plain error standard.” United States v. Massenburg, 564 F.3d
337, 343 (4th Cir. 2009). “If each of those three requirements are satisfied, we possess
discretion on whether to recognize the error, but we should not do so unless the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Cohen, 888 F.3d at 685 (internal quotation marks omitted).
We conclude that there was no plain error because it was not incumbent upon the
district court to consider a revised Guidelines range in accordance with the current version
4 of the Guidelines manual. We further conclude that Davis fails to show that his substantial
rights were affected because there is no indication that the court would have imposed a
sentence of less than 310 months or time served.
We further conclude that the district court’s imposition of a reduced sentence
survives plain error review. Davis received the sentence he requested: a within-Guidelines
sentence. Davis’ counsel never specifically requested a below-Guidelines sentence or a
specific within-Guidelines sentence. Thus, we review the court’s explanation for the
reduced sentence for plain error. See United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011) (noting that, to preserve challenge to a procedural sentencing error, defendant must
argue “for a sentence different than the one ultimately imposed” by referencing the 18
U.S.C. § 3553(a) sentencing factors (alteration and internal quotation marks omitted)).
There is no indication that a remand to allow the court to explain the new sentence after
considering Davis’ postconviction conduct would produce a sentence more beneficial to
Davis.
In accordance with Anders, we have reviewed the entire record in this case and have
found no additional meritorious issues for appeal. We therefore affirm the district court’s
order granting Davis’ motion for a reduced sentence. This court requires that counsel
inform Davis, in writing, of the right to petition the Supreme Court of the United States for
further review. If Davis requests that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof was served on Davis.
We dispense with oral argument because the facts and legal contentions are adequately
5 presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED