USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 1 of 12
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6508
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE LAMONT WOOD, a/k/a Jeremaine Lamont Wood,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:99-cr-00144-MHL-RCY-1)
Argued: January 26, 2023 Decided: August 1, 2023
Before DIAZ, Chief Judge, and THACKER, Circuit Judge, and Catherine C. EAGLES,
United States District Judge for the Middle District of North Carolina, sitting by
designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Daniel Julius Honold, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C.
Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 2 of 12
Unpublished opinions are not binding precedent in this circuit.
2
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 3 of 12
PER CURIAM:
Jermaine Lamont Wood (“Appellant”) appeals the district court’s denial of his
motion for a reduced sentence and motion for reconsideration pursuant to section 404 of
the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (“First Step Act”).
Following a jury trial, Appellant was convicted on three counts of federal narcotics and
firearms violations and acquitted on one count. He was sentenced to concurrent terms of
480 months of imprisonment, 240 months of imprisonment, and life imprisonment.
In 2019, Appellant moved for a reduced sentence pursuant to the First Step Act.
The district court denied Appellant’s motion and Appellant sought reconsideration, which
the district court also denied. Appellant subsequently appealed both orders. We vacate
and remand with instructions to consider Appellant’s non-frivolous arguments.
I.
A.
In May 1999, a jury convicted Appellant of conspiracy to possess with intent to
distribute more than five grams of cocaine base (“crack cocaine”) in violation of 21 U.S.C.
§ 846 (count one); conspiracy to use and carry firearms during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(o) (count three); and using a firearm to
commit second degree murder during and in relation to a drug trafficking crime in violation
of 18 U.S.C. §§ 924(c), (j) (count four). 1
1
Appellant was acquitted of possession of more than five grams of crack cocaine
with intent to distribute in violation of 21 U.S.C. § 841(a) (count two).
3
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 4 of 12
Relying on United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
section 2D1.1(d)(1)’s cross-reference to first degree murder, Appellant’s presentence
investigation report (“PSR”) calculated a base offense level of 43 for the crack cocaine
violation. See U.S.S.G. § 2D1.1(d)(1) (Nov. 1998) (“If a victim was killed under
circumstances that would constitute murder . . . apply § 2A1.1.”); see also id. at § 2A1.1(a)
(providing a base offense level of 43 for first degree murder). The PSR grouped all three
counts of conviction pursuant to sections 3D1.2(b) and 3D1.3 of the Guidelines. As a
result, the combined adjusted offense level was 43. The PSR calculated a total Guidelines
sentencing range of life in prison, acknowledging that concurrent sentences at the lower
statutory maximums for counts one (480 months) and three (240 months) would be
appropriate. See 5G1.2(b), and (c).
Pursuant to the then-mandatory Guidelines, the district court sentenced Appellant
to concurrent terms of 480 months of imprisonment as to count one, 240 months of
imprisonment as to count three, and life imprisonment as to count four.
B.
On November 1, 2006, U.S.S.G. section 2D1.1(d)(1) was modified by Amendment
684, which permits a cross-reference to either U.S.S.G. section 2A1.1, imposing a base
offense level of 43 in cases involving first degree murder, or U.S.S.G. section 2A1.2,
imposing a base offense level of 38 in cases involving second degree murder (“Amendment
684”). See U.S.S.G. App. C, Amend. 684 (2006).
In August of 2010, Congress enacted the Fair Sentencing Act, Pub. L. No. 111-220,
124 Stat. 2372 (“FSA”). As we explained in United States v. Wirsing, 943 F.3d 175, 177–
4
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 5 of 12
78 (4th Cir. 2019), the FSA reduced sentencing disparities between powder cocaine and
crack cocaine offenses. However, at the time of its enactment, the FSA provided only
prospective relief.
Then, in 2018, Congress passed the First Step Act which gave the FSA retroactive
effect. See United States v. Chambers, 956 F.3d 667, 670 (4th Cir. 2020). Specifically,
section 404(b) of the First Step Act permits individuals to petition the court to “impose a
reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect
at the time the covered offense was committed.” First Step Act § 404(b), 132 Stat. at 5222.
C.
In March 2019, in response to Appellant’s request to file a motion for sentence
reduction, the district court directed the probation office to prepare a First Step Act
worksheet and provide it to Appellant as well as to all counsel of record. 2 Per the
worksheet, Appellant’s Guidelines sentencing range remained unchanged. However, the
worksheet noted that the maximum statutory penalty for count one has been reduced from
480 months to 240 months of imprisonment.
Through counsel, Appellant filed a First Step Act motion requesting a sentence
reduction from 480 to 240 months of imprisonment on count one (his crack cocaine
conviction). Before the district court ruled on this motion, however, Appellant wrote letters
requesting that the district court remove his counsel and also remove the motion filed by
2
At the time Appellant made the request to file a motion for sentence reduction, he
was pro se. But by the time the worksheet was prepared, Appellant was represented by the
Federal Public Defender.
5
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 6 of 12
counsel from the docket. Although the district court granted Appellant’s motion to proceed
without counsel, his request to remove his former counsel’s motion was not granted.
Instead, the court said it was taking the counseled motion “under advisement” pending
further briefing. J.A. 116. 3
Subsequently, Appellant filed a pro se motion seeking a reduction in his sentence
pursuant to section 404 of the First Step Act. In support, Appellant argued that his
sentencing range would have been lower had he been sentenced after the Fair Sentencing
Act and that his counts of conviction were erroneously grouped in the 1999 PSR.
After the government responded that Appellant’s life sentence was driven by his
924(j) conviction at count four, which it argued was unaffected by the Fair Sentencing Act,
Appellant raised a new argument in his reply brief. He asserted that after Amendment 684
modified Guidelines section 2D1.1(d)(1) to cross reference first or second degree murder
“as appropriate,” U.S.S.G § 2D1.1(d)(1), he would have been subject to a base offense
level of 38 rather than 43, resulting in a lower Guidelines sentencing range that did not
include life.
The district court concluded that Appellant met the threshold eligibility for First
Step Act relief because (1) his conviction for crack cocaine was a covered offense, (2) he
had not previously received a sentence reduction pursuant to section 2 or 3 of the Fair
Sentencing Act, and (3) he had not previously filed a motion pursuant to section 404 of the
First Step Act. Nevertheless, the court declined to reduce Appellant’s sentence. In part,
3
Citations to the “J.A.” refer to the Joint Appendix filed by the parties to this appeal.
6
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 7 of 12
the district court reasoned that the “First Step Act does not alter the [Guidelines] range
applicable to [Appellant].” J.A. 215. In so ruling, the district court relied on the First Step
Act worksheet, which indicated that Appellant’s Guidelines sentencing calculation
remained unchanged.
Therefore, the district court denied both Appellant’s pro se motion to reduce his
sentence and the motion filed by Appellant’s former counsel. Appellant subsequently filed
a pro se motion asking the district court to reconsider. The district court denied the motion
for reconsideration. Appellant timely noticed his appeal. The Government concedes that
the sentencing package doctrine, United States v. Ventura, 864 F.3d 301 (2017), applies to
section 404 motions, which means the entirety of Appellant’s sentence (as to all three
counts) may be reviewed, and we assume that doctrine to apply for purposes of this
decision.
II.
“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). And
“[o]rdinarily, when ‘determining whether a district court properly applied the []
Guidelines,’ including its application of a cross reference, ‘we review the district court’s
legal conclusions de novo and its factual findings for clear error.’” United States v.
Ashford, 718 F.3d 377, 380 (4th Cir. 2013) (quoting United States v. Layton, 564 F.3d 330,
334 (4th Cir. 2009)). Thus, we affirm a district court’s denial of section 404(b) relief unless
the district court’s decision was procedurally or substantively unreasonable. See United
7
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 8 of 12
States v. Swain, 49 F.4th 398, 402 (4th Cir. 2022). In determining whether a sentence was
reasonable, this court must:
ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.
United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (quoting Gall v. United States,
552 U.S. 38, 51 (2007)).
III.
Appellant argues the district court erred in determining that the First Step Act did
not alter his applicable Guidelines sentencing range. Appellant asserts that the maximum
sentence as to his crack cocaine conviction has been amended, requiring a reduction in his
sentence to the new statutory maximum. Additionally, Appellant argues that the district
court erred in failing to consider what his Guidelines sentencing range would have been
had Amendment 684’s change to the murder cross-reference applied in his case. He also
asserts that his due process rights were violated when the district court relied on the First
Step Act worksheet without providing Appellant with a copy or giving him an opportunity
to object to its determination that the Guidelines range remained unchanged. 4
4
Although Appellant argued below that his counts of conviction were erroneously
grouped in the PSR, he has abandoned this argument on appeal and concedes that the
district court did not err in its grouping analysis.
8
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 9 of 12
A.
Appellant first contends that the district court erred by maintaining a sentence, as to
count one, that exceeds the revised statutory maximum pursuant to the FSA. However,
this court recently held that Concepcion v. United States, 142 S. Ct. 2389 (2022), “instructs
that district courts need not reduce any sentence under the First Step Act.” United States
v. Reed, 58 F.4th 816 (4th Cir. 2023). This includes a situation, such as the one presented
here, where the statutory maximum has been revised and Appellant’s sentence exceeds this
revised maximum. Id. at 822 (rejecting the argument that a district court abuses its
discretion when it refrains from reducing a sentence to the revised statutory maximum).
As the worksheet noted the reduction in the statutory maximum as to Count one -- and the
district court considered the worksheet -- we find no error.
B.
Appellant next contends that the district court erred by failing to consider his
argument that his Guidelines range would have been lower if he was sentenced pursuant to
Amendment 684. Specifically, Appellant contends that, in light of the jury’s finding of
second degree murder, the cross-reference to the first degree murder guideline would be
inappropriate following Amendment 684.
The PSR applied the cross-reference for first degree murder when determining
Appellant’s base offense level. Prior to Amendment 684, the Guidelines stated, “If a victim
was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had
such killing taken place within the territorial or maritime jurisdiction of the United States,
apply § 2A1.1 (First Degree Murder).” U.S.S.G. § 2D1.1(d)(1) (Nov. 1998). In turn,
9
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 10 of 12
section 2A1.1 of the Guidelines instructs that the base offense level under this circumstance
is 43. U.S.S.G. § 2A1.1(a). And the Guidelines “range” for individuals who have an
offense level of 43 is “life.” U.S.S.G. ch. 5, pt. A (sentencing table).
However, in 2006, section 2D1.1(d)(1) was amended “to allow the application of §
2A1.2 (Second Degree Murder) in cases in which the conduct involved is second degree
murder.” U.S.S.G. App. C, Amend. 684 (eff. Nov. 1, 2006). Amendment 684, which was
not retroactive, provides that the base offense level for second degree murder is 38.
U.S.S.G. § 2A1.2(a). Consequently, if Appellant had been sentenced using a cross-
reference to the second degree murder guideline, his Guidelines range would have been
324–405 months of imprisonment as opposed to life.
Appellant contends that pursuant to the Supreme Court’s recent decision in
Concepcion, the district court was required to consider his Amendment 684 argument. In
Concepcion, the Supreme Court considered “whether a district court adjudicating a motion
under the First Step Act may consider other intervening changes of law (such as changes
to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating
a First Step Act motion.” 142 S. Ct. at 2396. In answering that question yes, the Court
emphasized, “Because district courts are always obligated to consider nonfrivolous
arguments presented by the parties, the First Step Act requires district courts to consider
intervening changes when parties raise them.” Id. (emphasis supplied).
Here, the district court did not explicitly consider the merits of Appellant’s argument
as to the cross-reference. And, in light of the Supreme Court’s guidance in Concepcion,
the district court was at least required to consider that following Amendment 684,
10
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 11 of 12
Appellant would have been subject to a lower Guidelines sentencing range. Concepcion
makes clear that “[t]he First Step Act does not require a district court to be persuaded by
the nonfrivolous arguments raised by the parties before it, but it does require the court to
consider them.” 142 S. Ct. at 2405 (emphasis supplied).
Because the district court’s order did not address Appellant’s Amendment 684
argument, the district court erred. Accordingly, we vacate and remand 5 so that the district
court can consider Appellant’s non-frivolous Guidelines argument as to Amendment 684. 6
C.
Finally, we readily dispense with Appellant’s argument that his right to due process
was violated. In this regard, Appellant alleges that he was not provided with a copy of the
First Step Act worksheet. But the record makes clear that Appellant was represented by
counsel at the time the worksheet was prepared and that counsel was provided with the
worksheet. Thus, Appellant’s argument is without merit.
5
We express no opinion as to the outcome of the district court’s decision on remand.
6
The government points out that Appellant did not raise his murder cross-reference
argument until his reply brief. But rather than argue that Appellant waived the cross-
reference argument, the government took the position, in briefing and at oral argument,
that the district court’s limited explanation was sufficient given this posture. However,
neither the order denying Appellant’s First Step Act motion nor the order denying his
motion for reconsideration reference the cross-reference argument at all. Thus, we are not
convinced on this record that the district court “considered the argument” as required
pursuant to Concepcion. 142 S.Ct. at 2405; accord Reed, 58 F.4th at 823.
11
USCA4 Appeal: 20-6508 Doc: 70 Filed: 08/01/2023 Pg: 12 of 12
IV.
The district court’s orders denying Appellant’s First Step Act motion and motion
for reconsideration are vacated and remanded for further proceedings consistent with this
opinion.
VACATED AND REMANDED
12