USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-6776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEODORE HENDERSON, II, a/k/a Theodore Henderson, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:90-cr-00102-CMH-2)
Submitted: August 15, 2024 Decided: September 11, 2024
Before NIEMEYER, HARRIS, and BENJAMIN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Joseph Tacopina, Chad D. Seigel, TACOPINA SEIGEL & DEOREO, New York, New York, for Appellant. Jessica D. Aber, United States Attorney, Philip Alito, Richard Cooke, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 2 of 5
PER CURIAM:
Theodore Henderson, II, appeals the district court’s order granting in part and
denying in part his motion for a sentence reduction under the First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194 (FSA). In 1991, a federal jury convicted Henderson of
conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21
U.S.C. § 846 (Count 1); conspiracy to commit violent crimes in aid of racketeering, in
violation of 18 U.S.C. § 1959 (Count 2); attempt to commit murder and assault with a
dangerous weapon in aid of racketeering, in violation of § 1959 (Count 3); two counts of
using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)
(Counts 4 and 6); assault with a dangerous weapon in aid of racketeering, in violation of
§ 1959 (Count 5); conspiracy to engage in a pattern of racketeering (“RICO conspiracy”),
in violation of 18 U.S.C. § 1962(d) (Count 7); engaging in a pattern of racketeering
(RICO), in violation of 18 U.S.C. § 1962(c) (Count 8); and two counts of possession with
intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)
(Counts 10 and 12). The district court sentenced Henderson to life imprisonment for the
drug conspiracy charged in Count 1, the RICO conspiracies charged in Counts 2 and 7, the
RICO charges in Count 5 and 8, and the possession with intent to distribute charges in
Counts 10 and 12. The court also imposed a term of 10 years for the attempted violent
crimes in aid of racketeering charged in Count 3, and the statutory mandatory consecutive
terms of five years each for the § 924(c) offenses charged in Counts 4 and 6.
In 2022, Henderson moved for a sentence reduction under § 404(b) of the FSA,
seeking a reduction of all of his life sentences to time served. The district court determined
2 USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 3 of 5
that while Henderson’s drug-related offenses in Counts 1, 10, and 12 were covered offenses
under the FSA, his RICO conspiracy and substantive RICO offenses were not, and
therefore the court did not have the authority to reduce his sentences for those noncovered
offenses. The court, however, reduced the life sentences for Counts 1, 10, and 12 to 480
months of imprisonment. On appeal, Henderson argues that the district court erred in
determining that he was not eligible for a sentence reduction on his noncovered offenses.
“Under § 404(b) of the [FSA], sentencing courts may impose a reduced sentence as
if section[s] 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered
offense was committed.” United States v. McDonald, 986 F.3d 402, 408-09 (4th Cir. 2021)
(internal quotation marks omitted). The FSA “defines a ‘covered offense’ as a violation of
a federal criminal statute, the statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” United
States v. Gravatt, 953 F.3d 258, 260 (4th Cir. 2020). Once a district court has determined
that a defendant is eligible for a sentence reduction under the FSA, the court “must
recalculate the [Sentencing] Guidelines range only to the extent it adjusts for the Fair
Sentencing Act.” United States v. Troy, 64 F.4th 177, 184 (4th Cir. 2023); see McDonald,
986 F.3d at 409. The court then considers the 18 U.S.C. § 3553(a) factors in determining
whether to exercise its discretion to reduce the sentence, considering any nonfrivolous
arguments for a lower sentence. Id.; see United States v. Reed, 58 F.4th 816, 822-23
(4th Cir. 2023). The court also “may (and when raised by the parties, must) consider other
legal and factual changes when deciding whether to impose a reduced sentence.” Troy, 64
F.4th at 184. A district court, however, is not required to reduce any sentence, even a
3 USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 4 of 5
sentence in excess of the new statutory maximum. Reed, 58 F.4th at 821-22; see
Concepcion v. United States, 597 U.S. 481, 496 (2022) (“[A] district court is not required
to modify a sentence for any reason.”).
We review a district court’s decision to grant or deny a sentence reduction for abuse
of discretion. Reed, 58 F.4th at 819. In reviewing a district court’s decision for abuse of
discretion, we will “affirm a district court’s denial of [§] 404(b) relief unless the court’s
decision is procedurally or substantively unreasonable.” Id. at 820. “As a general matter,
it is not the role of an appellate court to substitute its judgment for that of the sentencing
court as to the appropriateness of a particular sentence,” and “[o]ther than legal errors in
recalculating the Guidelines to account for the Fair Sentencing Act’s changes, appellate
review should not be overly searching.” Concepcion, 597 U.S. at 501 (cleaned up). “A
district court also[, however,] abuses its discretion when it misapprehends or misapplies
the applicable law.” United States v. Richardson, 96 F.4th 659, 665 (4th Cir. 2024).
After the district court’s ruling in this case, we held that a “district court has the
discretion to reduce [the sentences for] both covered and noncovered offenses under the
[FSA] if they function as a package.” Id. Thus, where a defendant has been convicted of
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USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-6776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEODORE HENDERSON, II, a/k/a Theodore Henderson, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:90-cr-00102-CMH-2)
Submitted: August 15, 2024 Decided: September 11, 2024
Before NIEMEYER, HARRIS, and BENJAMIN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Joseph Tacopina, Chad D. Seigel, TACOPINA SEIGEL & DEOREO, New York, New York, for Appellant. Jessica D. Aber, United States Attorney, Philip Alito, Richard Cooke, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 2 of 5
PER CURIAM:
Theodore Henderson, II, appeals the district court’s order granting in part and
denying in part his motion for a sentence reduction under the First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194 (FSA). In 1991, a federal jury convicted Henderson of
conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21
U.S.C. § 846 (Count 1); conspiracy to commit violent crimes in aid of racketeering, in
violation of 18 U.S.C. § 1959 (Count 2); attempt to commit murder and assault with a
dangerous weapon in aid of racketeering, in violation of § 1959 (Count 3); two counts of
using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)
(Counts 4 and 6); assault with a dangerous weapon in aid of racketeering, in violation of
§ 1959 (Count 5); conspiracy to engage in a pattern of racketeering (“RICO conspiracy”),
in violation of 18 U.S.C. § 1962(d) (Count 7); engaging in a pattern of racketeering
(RICO), in violation of 18 U.S.C. § 1962(c) (Count 8); and two counts of possession with
intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)
(Counts 10 and 12). The district court sentenced Henderson to life imprisonment for the
drug conspiracy charged in Count 1, the RICO conspiracies charged in Counts 2 and 7, the
RICO charges in Count 5 and 8, and the possession with intent to distribute charges in
Counts 10 and 12. The court also imposed a term of 10 years for the attempted violent
crimes in aid of racketeering charged in Count 3, and the statutory mandatory consecutive
terms of five years each for the § 924(c) offenses charged in Counts 4 and 6.
In 2022, Henderson moved for a sentence reduction under § 404(b) of the FSA,
seeking a reduction of all of his life sentences to time served. The district court determined
2 USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 3 of 5
that while Henderson’s drug-related offenses in Counts 1, 10, and 12 were covered offenses
under the FSA, his RICO conspiracy and substantive RICO offenses were not, and
therefore the court did not have the authority to reduce his sentences for those noncovered
offenses. The court, however, reduced the life sentences for Counts 1, 10, and 12 to 480
months of imprisonment. On appeal, Henderson argues that the district court erred in
determining that he was not eligible for a sentence reduction on his noncovered offenses.
“Under § 404(b) of the [FSA], sentencing courts may impose a reduced sentence as
if section[s] 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered
offense was committed.” United States v. McDonald, 986 F.3d 402, 408-09 (4th Cir. 2021)
(internal quotation marks omitted). The FSA “defines a ‘covered offense’ as a violation of
a federal criminal statute, the statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” United
States v. Gravatt, 953 F.3d 258, 260 (4th Cir. 2020). Once a district court has determined
that a defendant is eligible for a sentence reduction under the FSA, the court “must
recalculate the [Sentencing] Guidelines range only to the extent it adjusts for the Fair
Sentencing Act.” United States v. Troy, 64 F.4th 177, 184 (4th Cir. 2023); see McDonald,
986 F.3d at 409. The court then considers the 18 U.S.C. § 3553(a) factors in determining
whether to exercise its discretion to reduce the sentence, considering any nonfrivolous
arguments for a lower sentence. Id.; see United States v. Reed, 58 F.4th 816, 822-23
(4th Cir. 2023). The court also “may (and when raised by the parties, must) consider other
legal and factual changes when deciding whether to impose a reduced sentence.” Troy, 64
F.4th at 184. A district court, however, is not required to reduce any sentence, even a
3 USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 4 of 5
sentence in excess of the new statutory maximum. Reed, 58 F.4th at 821-22; see
Concepcion v. United States, 597 U.S. 481, 496 (2022) (“[A] district court is not required
to modify a sentence for any reason.”).
We review a district court’s decision to grant or deny a sentence reduction for abuse
of discretion. Reed, 58 F.4th at 819. In reviewing a district court’s decision for abuse of
discretion, we will “affirm a district court’s denial of [§] 404(b) relief unless the court’s
decision is procedurally or substantively unreasonable.” Id. at 820. “As a general matter,
it is not the role of an appellate court to substitute its judgment for that of the sentencing
court as to the appropriateness of a particular sentence,” and “[o]ther than legal errors in
recalculating the Guidelines to account for the Fair Sentencing Act’s changes, appellate
review should not be overly searching.” Concepcion, 597 U.S. at 501 (cleaned up). “A
district court also[, however,] abuses its discretion when it misapprehends or misapplies
the applicable law.” United States v. Richardson, 96 F.4th 659, 665 (4th Cir. 2024).
After the district court’s ruling in this case, we held that a “district court has the
discretion to reduce [the sentences for] both covered and noncovered offenses under the
[FSA] if they function as a package.” Id. Thus, where a defendant has been convicted of
both covered and noncovered offenses under the FSA, the district court “should consider
whether the noncovered offenses represent a freestanding and distinct sentence from that
of the covered offenses, or whether the sentence reflects an attempt to achieve an overall
sentence without regard to the component parts.” Id. at 669. While a district court is not
required to reduce any sentence under the FSA, if the court determines that the sentences
for the covered offenses were interconnected with the sentences for the noncovered
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offenses, the court has the discretion to reduce the sentences for the noncovered offenses
as well. See id. at 666, 668. Importantly, “the best entity to determine the intention of the
district court’s sentence is the district court itself, not the reviewing court.” Id. at 669.
Because the district court did not have the benefit of our decision in Richardson, we
remand this case “with instruction that its discretion under Section 404 of the [FSA]
includes the authority to use the sentencing package doctrine.” Id. We express no opinion
regarding whether or to what extent the court should reduce Henderson’s sentences. 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