UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID TOBIAS MAY,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:07-cr-00058-JPJ-PMS-1)
Submitted: October 31, 2019 Decided: November 8, 2019
Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Juval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa Marie Lorish, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,
Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Tobias May appeals the district court’s order denying his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) (2012). May pled guilty to drug and
firearm offenses pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement. May sought
to reduce his sentence under Amendment 782 to the Sentencing Guidelines, which lowered
the offense levels applicable to most drug trafficking offenses by two levels and is
retroactively applicable. See U.S. Sentencing Guidelines Manual § 1B1.10(d), p.s. (2018);
supp. app. C, amend. 782. May argues on appeal that the district court failed to understand
its obligation to consider all the relevant 18 U.S.C. § 3553(a) (2012) factors in ruling on
his motion to reduce sentence, and failed to consider all his mitigation arguments and
adequately explain the denial of relief. We affirm.
We review the denial of a § 3582(c)(2) motion for abuse of discretions but “whether
a court ruling on a motion to reduce under § 3582(c)(2) must provide an individualized
explanation is considered de novo.” United States v. Martin, 916 F.3d 389, 395 (4th Cir.
2019). The district court found that May was eligible for a sentence reduction because
Amendment 782 lowered May’s Guidelines sentencing range for the drug offenses but
declined to impose a lower sentence. * The district court noted its authority to reduce May’s
sentence after considering the applicable § 3553(a) factors, public safety concerns, and
May’s postsentencing conduct. The court acknowledged May’s arguments that his
*
The Government does not contest the district court’s finding that May was eligible
for relief under Amendment 782.
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criminal history category was too high, that he had no disciplinary infractions during his
current incarceration, and that at 55 years of age he was unlikely to reoffend. The court
found that “May’s history reveals him to be a dangerous individual with little regard for
the law,” and as a result the court was “not convinced that May is likely to live a law-
abiding life upon his release from prison.” The court determined that a lengthy period of
incarceration was required to protect the public, and that, based on “the nature and
characteristics of his crimes and all of the information contained in the [presentence report],
. . . that May’s current sentence of 240 months remains appropriate despite Amendment
782’s two-offense-level reduction for his drug offenses.” (J.A. 108).
We conclude that the district court understood its obligation to consider the relevant
§ 3553(a) factors in determining whether to grant May’s motion, Dillon v. United States,
560 U.S. 817, 826-27 (2010). Thus, May’s first argument is without merit.
May next argues that the district court erred in failing to properly consider
mitigating factors, and failing to adequately explain its decision. When evaluating the
sufficiency of a sentencing court’s explanation for a denial of a § 3582(c)(2) motion, there
is a presumption that the district court sufficiently considered relevant § 3553(a) factors,
see United States v. Legree, 205 F.3d 724, 728-29 (4th Cir. 2000). However, “[e]vidence
of mitigating factors not available at the original sentencing has indeed been used to rebut
the Legree presumption,” and a court may err if it fails to provide “an individualized
explanation for why it chose to deny [a] motion,” Martin, 916 F.3d at 396.
May asserts that the district court did not acknowledge, or expressly consider, his
new mitigation arguments based on his completion of a drug treatment program, his
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attainment of a GED, and that the court’s failure to lower his sentence would result in
unwarranted sentencing disparities with other similarly-situated defendants. “The
fundamental problem with this contention is that new arguments cannot be raised in a reply
brief. Thus, in failing to consider a reply brief, the district court did not fail to consider all
relevant factors properly before it.” United States v. Smalls, 720 F.3d 193, 197 (4th Cir.
2013) (citation omitted). Based upon the facts and circumstances of this case, we conclude
that the district court adequately addressed the arguments raised in May’s motion for
reduction of sentence and explained its decision to deny relief.
Accordingly, we affirm. 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.
AFFIRMED
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