United States v. Mitchell Swain

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                                              PUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                               No. 21-6167


        UNITED STATES OF AMERICA,

                             Plaintiff - Appellee,

                      v.

        MITCHELL SWAIN,

                             Defendant - Appellant.


        Appeal from the United States District Court for the Eastern District of North Carolina, at
        Greenville. James C. Dever III, District Judge. (4:07-cr-00062-D-1)


        Argued: March 9, 2022                                       Decided: September 14, 2022


        Before MOTZ, WYNN and THACKER, Circuit Judges.


        Vacated and remanded by published opinion. Judge Thacker wrote the opinion, in which
        Judge Motz and Judge Wynn joined.


        ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
        Raleigh, North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
        STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan
        DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
        Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States
        Attorney, Jennifer P. May-Parker, Assistant United States Attorney, David A. Bragdon,
        Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
        Raleigh, North Carolina, for Appellee.
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        THACKER, Circuit Judge:

               Mitchell Swain (“Appellant”) appeals the district court’s denial of his motion for a

        reduced sentence pursuant to section 404 of the First Step Act of 2018 (the “First Step

        Act”), which makes retroactive the provisions of the Fair Sentencing Act of 2010 (the “Fair

        Sentencing Act”) that reduced sentencing disparities between cocaine and crack cocaine

        offenses. Appellant contends that pursuant to United States v. Collington, 995 F.3d 347

        (4th Cir. 2021), section 404 decisions must be procedurally and substantively reasonable,

        and the district court’s decision not to reduce his sentence was substantively unreasonable.

        In contrast, the United States (the “Government”) insists that Collington is distinguishable

        and limited to section 404 grants as opposed to denials. Therefore, the Government argues

        that the more circumscribed review for abuse of discretion applies to the district court’s

        denial of section 404 relief in this case.

               We conclude that the requirements outlined in Collington apply generally in the

        section 404 context -- that is, regardless of whether the district court grants or denies the

        motion. And because the district court did not fully comply with those requirements in this

        case, we vacate the district court’s order denying Appellant’s section 404 motion and

        remand for reconsideration.

                                                     I.

               In May 2008, Appellant pled guilty to conspiracy to possess with the intent to

        distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 and

        841(b)(1)(A)(iii). In February 2009, the district court sentenced Appellant to 324 months

        of imprisonment (27 years). In August 2010, Congress enacted the Fair Sentencing Act,

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        Pub. L. No. 111-220, 124 Stat. 2372, which raised the quantity of cocaine base punishable

        pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). Prior to the Fair Sentencing Act, offenses

        involving 50 grams or more of cocaine base were punishable pursuant to

        § 841(b)(1)(A)(iii), whereas now only offenses involving 280 grams or more of cocaine

        base are punishable pursuant to the provision. Fair Sentencing Act of 2010, Pub. L. No.

        111-220, § 2(a), 124 Stat. 2372, 2372; see also United States v. Gravatt, 953 F.3d 258, 263

        (4th Cir. 2020) (“Section 841(b)(1)(A)(iii) was amended from requiring 50 grams or more

        of crack cocaine to 280 grams or more.”).

               The First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, accorded

        retroactive effect to the Fair Sentencing Act. United States v. McDonald, 986 F.3d 402,

        404 (4th Cir. 2021). “Under § 404(b) of the First Step Act, sentencing courts may impose

        a reduced sentence as if section[s] 2 and 3 of the Fair Sentencing Act of 2010 . . . were in

        effect at the time the covered offense was committed.” Id. at 408–09 (internal quotation

        marks omitted) (alteration in original). “Building on the ‘may’ language in Section 404(b),

        [section 404(c)] provides that ‘nothing in the section is to be construed to require a court

        to reduce any sentence’ under the Act.” Gravatt, 953 F.3d at 261. District courts must

        consider the sentencing factors set forth in 18 U.S.C. § 3553(a) in section 404 proceedings.

        United States v. Chambers, 956 F.3d 667, 674 (4th Cir. 2020) (“[T]he § 3553(a) sentencing

        factors apply in the § 404(b) resentencing context.”).

               In May 2019, Appellant moved for a sentence reduction pursuant to section 404 of

        the First Step Act. According to a report filed by the United States Probation Office for

        the Eastern District of North Carolina, Appellant’s advisory sentencing range pursuant to

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        the United States Sentencing Guidelines (“Guidelines”) dropped from 324 to 405 months

        to 262 to 327 months. Appellant contends that his Guidelines range dropped even further,

        to 210 to 262 months. In resolving the motion, the district court assumed without deciding

        that Appellant was correct. In other words, the district court assumed that Appellant’s re-

        calculated First Step Act sentencing range was 17½ to 21.8 years as compared to his

        original sentencing range of 27 to 33.75 years.

               The district court then correctly determined that it had the discretion to reduce

        Appellant’s sentence since Appellant was convicted of a covered offense pursuant to the

        First Step Act. Nonetheless, the district court declined to exercise its discretion to do so

        after “completely review[ing] the entire record, the parties’ arguments, the new advisory

        guideline range, and all relevant factors under 18 U.S.C. § 3553(a).” United States v.

        Swain, No. 4:07-CR-62-D, 2021 WL 298189, at *2 (E.D.N.C. Jan. 28, 2021). The district

        court reasoned that the § 3553(a) factors did not support reducing Appellant’s sentence

        given the aggravated offense conduct. The district court focused on the facts that Appellant

        engaged in prolonged drug dealing for over three years, possessed a stolen firearm in

        furtherance of the conspiracy, and led officers on a high-speed chase when they attempted

        to arrest him, as well as Appellant’s infractions while incarcerated and past as a “violent

        recidivist” with a “spotty work history” who performed poorly on supervision.            Id.

        Therefore, the district court denied the motion.

               Appellant filed a timely notice of appeal. On appeal, Appellant contends that the

        district court erred in declining to reduce his sentence “even in the face of a drastically

        reduced advisory Guidelines range” based “heavily on [Appellant’s] criminal history and

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        offense conduct, all of which it had already accounted for when sentencing him originally.”

        Appellant’s Br. at 4.

                                                    II.

                                                    A.

                  The threshold issue is whether we review the district court’s order for substantive

        reasonableness -- as Appellant contends -- or abuse of discretion -- as the Government

        argues.

               Our analysis begins with our decision in United States v. Collington, which

        purported to resolve the question of “whether First Step Act resentencing decisions must

        be procedurally and substantively reasonable” in the affirmative. 995 F.3d 347, 358 (4th

        Cir. 2021). In Collington, after acknowledging that “the Supreme Court and this Court

        have clearly distinguished sentence modification proceedings under [18 U.S.C]

        § 3582(c)(2) from typical sentencing proceedings,” we held that, unlike § 3582(c)(2)

        motions, section 404 proceedings trigger the typical procedural and substantive

        reasonableness requirements. Id. at 358–59; see also United States v. Chambers, 956 F.3d

        667, 671 (4th Cir. 2020) (outlining the distinctions between § 3582(c)(2) and section 404

        motions).

               We reasoned, “[g]iven the purpose of the First Step Act to reduce sentencing

        disparities and our requirement that the district court consider the § 3553(a) factors, it

        naturally follows that a substantive reasonableness requirement would attach to First Step

        Act proceedings.” Collington, 995 F.3d at 360. And we emphasized that although “the

        First Step Act does not explicitly restrict district courts’ discretion in” resentencing eligible

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        defendants, “neither the First Step Act’s broadly remedial purpose to ensure greater justice

        for those subject to a racially disparate sentencing scheme, nor its requirement of a full

        review prior to the potential imposition of a sentence can be fully effectuated absent the

        application of a procedural and substantive reasonableness requirement.” Id. (internal

        quotation marks and citation omitted).

               The Government contends that Collington is distinguishable because here, the

        district court had the discretion to deny Appellant’s motion outright since Appellant’s

        sentence did not exceed the revised statutory maximum, whereas, in Collington, the district

        court abused its discretion by not reducing a sentence that exceeded the revised statutory

        maximum.     Specifically, in support, the Government relies on a single sentence in

        Collington that the Government contends limits its holding to section 404(c) grants: “when

        a court exercises discretion to reduce a sentence, the imposition of the reduced sentence

        must be procedurally and substantively reasonable.” Government’s Br. at 14 (emphasis in

        original) (quoting Collington, 995 F.3d at 358). The Government further argues that

        applying “substantive reasonableness review for a reduction but not for the decision not to

        reduce makes sense,” Government’s Br. at 15 (emphasis supplied), because section 404(c)

        of the First Step Act explicitly provides “[n]othing in this section shall be construed to

        require a court to reduce any sentence pursuant to this section.”

               The Government’s arguments are unpersuasive. First, as the Government admitted

        at oral argument, the district court in Collington, like the district court below, declined to

        reduce the defendant’s sentence and denied the section 404 motion outright. See Oral

        Argument at 17:45–18:10, United States v. Swain, No. 21-6167 (4th Cir. Mar. 9, 2022),

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        http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.        Contrary to the

        Government’s assertion otherwise, the fact that the district court in Collington retained a

        sentence above the revised statutory maximum does not make the case meaningfully

        distinguishable from the instant matter. In Collington, our discussion concerning the

        proper scope of appellate review in the section 404 context was detached from our

        discussion concerning district courts’ elementary obligation to impose sentences in

        accordance with the applicable statutory scheme. Compare Collington, 995 F.3d at 356–

        58 (“The district court erred by not resentencing Collington to -- at most -- twenty years’

        imprisonment.”), with id. at 358–60 (“Because we vacate and remand the district court’s

        First Step Act decision for reconsideration, we need not address whether the sentence in

        this case was ultimately procedurally or substantively reasonable.”).

               Second, the considerations that persuaded us in Collington that the typical

        procedural and substantive reasonableness requirements apply in the section 404 context -

        - specifically, the distinctions between section 404 and § 3582(c) proceedings and the

        broad remedial purpose of the Fair Sentencing Act and First Step Act -- did not turn on the

        manner in which the district court exercised its discretion. Indeed, aside from the single

        sentence that the Government clings to in asserting that Collington is limited to section 404

        grants, the decision speaks about section 404 proceedings generally without distinguishing

        grants from denials. See, e.g., 995 F.3d at 360 (“Given the purpose of the First Step Act to

        reduce sentencing disparities and our requirement that the district court consider the

        § 3553(a) factors, it naturally follows that a substantive reasonableness requirement would

        attach to First Step Act proceedings.”); id. at 361 (“In light of the more robust nature of

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        First Step Act proceedings, we also hold that they are most naturally reviewed for

        procedural and substantive reasonableness.”). Finally, there is no principled reason for us

        to review section 404 grants under a different standard of review than section 404 denials

        -- either procedural and substantive reasonableness requirements are necessary to ensure

        the broad remedial purposes of the Fair Sentencing Act and First Step Act are effectuated

        in the section 404 context, or they are not.

               For these reasons, we hold that pursuant to Collington, substantive reasonableness

        review applies to all section 404 proceedings.

                                                       B.

                                                       1.

               Substantive-reasonableness review requires us to consider the “‘totality of the

        circumstances’ to determine ‘whether the sentencing court abused its discretion in

        concluding that the sentence it chose satisfied the standards set forth in § 3553(a).’” Id.

        (quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010)). “A

        sentence is substantively unreasonable if it is longer than necessary to serve the purposes

        of sentencing.” United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020).

               We may not presume that a sentence above the applicable Guidelines range is

        unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007); Nance, 957 F.3d at 212.

        However, we “may consider the extent of the deviation.” Nance, 957 F.3d at 212 (quoting

        Gall, 552 U.S. at 51). “[W]hen the variance is a substantial one . . . we must more carefully

        scrutinize the reasoning offered by the district court in support of the sentence.” United

        States v. Provance, 944 F.3d 213, 219–20 (4th Cir. 2019) (quoting United States v.

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        Moreland, 437 F.3d 424, 434 (4th Cir. 2006), overruled in part on other grounds by Rita

        v. United States, 551 U.S. 338 (2007)). “And ‘[t]he farther the court diverges from the

        advisory guideline range, the more compelling the reasons for the divergence must be.’”

        Id. at 220 (quoting Moreland, 437 F.3d at 434).

                                                     2.

               Appellant complains that the district court relied too heavily on his offense conduct

        and criminal history. But the § 3553(a) factors explicitly require the district court to

        consider these factors and section 404 does not provide that in the resentencing context,

        certain factors are more relevant than others.        Moreover, generally, a defendant’s

        disagreement with how a district court balances the § 3553(a) factors is insufficient to

        overcome the district court’s discretion. However, as noted, we review the district court’s

        reasoning for imposing variant sentences closely, and here, the district court did not

        explicitly acknowledge it was effectively retaining a variant sentence, let alone why it

        believed such a large upward variance was warranted.

               The district court’s failure to justify such a variance is particularly troubling given

        that “Congress was the actor that reduced [Appellant’s] guideline range through the

        passage of the First Step Act, rather than the Sentencing Commission.” Collington, 995

        F.3d at 361 n.6 (emphasis supplied) (quoting Smith, 959 F.3d at 703); see Johnson, 26 F.4th

        at 738 n.8. “[T]he Fair Sentencing Act and First Step Act, together, are strong remedial

        statutes, meant to rectify disproportionate and racially disparate sentencing penalties.”

        Collington, 995 F.3d at 360 (quoting United States v. White, 984 F.3d 76, 90 (D.C. Cir.

        2020)).

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               Viewed in this light, sentence reductions are not a mere side effect of this legislation,

        but one of its primary purposes.       While Congress certainly gave district courts the

        discretion under section 404 not to impose sentence reductions, see Concepcion v. United

        States, 142 S. Ct. 2389, 2402 (2022), that discretion must be reviewed in light of the First

        Step Act’s remedial purpose. And that remedial context, “if anything[,] increases rather

        than decreases the need to justify disagreement with the guideline.” Collington, 995 F.3d

        at 361 n.6 (emphasis supplied) (quoting Smith, 959 F.3d at 703).

               But, here, the district court relied on largely the same factual basis to deny

        Appellant’s motion for a reduced sentence as it did to impose its initial bottom-of-the-

        Guidelines sentence -- despite the fact that Appellant’s amended Guidelines range

        decreased by five to ten years. In addition, the court placed too little weight on the remedial

        aims of the First Step Act.

               Therefore, we conclude that although the district court’s order denying Appellant’s

        section 404 motion was procedurally reasonable, it was not substantively so. “[P]rocedural

        and substantive reasonableness . . . 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. Collington, 995 F.3d 347, 360 (4th Cir. 2021) (emphasis supplied).




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                                                III.

              For the foregoing reasons, the district court’s denial of Appellant’s section 404

        motion is vacated and remanded for the district court to reconsider consistent with this

        opinion.

                                                                  VACATED AND REMANDED




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