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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-7107
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN L. BROOKS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern of Virginia, at Richmond.
David J. Novak, District Judge. (3:93−cr−00063−DJN−1)
Submitted: March 27, 2023 Decided: August 15, 2023
Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished opinion. Chief Judge Diaz wrote the opinion, in which Judge
Rushing and Senior Judge Floyd joined.
ON BRIEF: Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Laura J.
Koenig, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Jessica D. Aber, United States Attorney,
Stephen W. Miller, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Chief Judge:
John L. Brooks was convicted in 1994 on eleven counts related to armed robbery,
including five counts under 18 U.S.C. § 924(c). He was sentenced to 1,090 months in
prison, the mandatory minimum at the time. The majority of Brooks’s sentence—1,020
months—was due to his § 924(c) convictions.
In 2018, Congress passed the First Step Act, eliminating the “stacking” scheme used
for 18 U.S.C. § 924(c) convictions. If sentenced today, Brooks’s statutory sentencing
minimum for those convictions would be 300 months, not 1,020. Brooks filed for
compassionate release based on this disparity.
The district court granted a partial sentence reduction and lowered Brooks’s
sentence to 466 months. The court didn’t reduce the sentence to reflect Brooks’s
recalculated minimum of 370 months—300 for the § 924(c) convictions and 70 for the
others—because Brooks’s conduct during the robberies was “consistent with brandishing,”
and thus warranted a sentence in line with that enhancement. J.A. 380. Brooks appealed,
claiming that his presentence report contained factual errors and that the district court
improperly found he brandished a firearm.
Finding no reversible error, we affirm.
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I.
A.
From June to July 1992, Brooks and his coconspirators committed five armed
robberies in Virginia. Only the first three—which occurred on June 12, 16, and 26—are at
issue.
On June 12, Brooks and two accomplices ran into a bank yelling and demanding
money while one of them pointed an object wrapped in white cloth at a teller. The teller
believed it was a gun but testified that she wasn’t sure. Brooks’s presentence report
affirmatively called the object a gun.
On June 16, Brooks and an accomplice ran into a different bank and demanded
money. One of them pointed a gun at the teller, and the other pointed something wrapped
in brown paper at the assistant manager. Again, a witness believed the latter object to be a
gun but didn’t know, and again, the presentence report labeled the object a gun.
On June 26, Brooks and two accomplices robbed a third bank. A witness testified
that one individual was “carrying” what the witness thought was a large-caliber weapon,
though the presentence report states that an “Uzi-type weapon” was “displayed” rather than
carried. Compare J.A. 133, with J.A. 388. The individual with the large-caliber weapon
conducted a “sweep” of the bank lobby while the other two jumped on the counter and
demanded money from the tellers. J.A. 134, 139.
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Brooks and his coconspirators were arrested following their fifth robbery. In 1993,
a grand jury in the Eastern District of Virginia indicted Brooks on one count of conspiracy
to commit armed bank robbery (18 U.S.C. § 371), five counts of armed bank robbery (18
U.S.C. § 2113(a), (d)), and five counts of using a firearm during and in relation to a crime
of violence (18 U.S.C. § 924(c)). Brooks went to trial and was convicted on all charges.
Brooks’s presentence report calculated his mandatory minimum to be 1,090 months
in prison. 1 This was driven by the “stacked” sentencing scheme for 18 U.S.C. § 924(c)
convictions. At that time, Brooks’s multiple § 924(c) convictions required a mandatory
minimum of 60 months for his first § 924(c) offense and then “stacked” a 240-month
mandatory minimum for each subsequent § 924(c) offense, even though they were part of
the same case. Thus, Brooks’s mandatory minimum was 1,020 months for his five § 924(c)
convictions: 60 months for the first conviction, and 960 months for the next four.
He also faced 60 months for the conspiracy count and 70 months for each of the five
bank robbery counts. These all ran concurrently with each other but consecutively with
the § 924(c) counts.
The district court sentenced Brooks to the mandatory minimum of 1,090 months.
B.
In 2018, Congress passed the First Step Act, which ended the “stacked” sentencing
scheme for 18 U.S.C. § 924(c) convictions. First Step Act, Pub. L. No. 115-391, § 403,
1
The presentence report doesn’t specify, for any robbery, whether Brooks possessed
a gun.
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132 Stat. 5194, 5221–22 (2018). Now, multiple § 924(c) convictions in the same case are
subject to their original statutory minimums, rather than the 240-month enhanced minimum
for “stacked” convictions. In Brooks’s case, this was 60 months each. So if convicted
today, Brooks’s sentence for his § 924(c) convictions would have a mandatory minimum
of 300 months, resulting in a total of 370 months in prison, 720 months less than his current
sentence. The First Step Act didn’t make the stacking change retroactive, but we have held
that stacking-driven disparities can be an “extraordinary and compelling reason[]” for
compassionate release. United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020).
In 2022, Brooks moved for compassionate release. See 18 U.S.C. § 3582(c)(1)(A).
He argued that multiple factors constituted extraordinary and compelling reasons for his
release, including the sentencing disparity between the current mandatory minimum
sentence for his § 924(c) convictions of 300 months versus the 1,020 months imposed at
his 1994 sentencing, his youth at the time of his offense, and his rehabilitation efforts in
prison.
The district court granted his motion, but it reduced his prison sentence to 466
months rather than the requested 370. The court acknowledged that the § 3553(a) factors
weighed in favor of a reduced sentence, but it concluded that Brooks’s offenses warranted
a sentence longer than the new statutory minimum.
The district court noted that the conspirators’ conduct during the robberies was
“consistent with brandishing.” J.A. 380. The court didn’t specify whether Brooks himself
brandished a weapon, instead explaining that Brooks “and/or his coconspirators pointed
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what appeared to be a gun, held a handgun on the two tellers and displayed an Uzi-type
weapon and demanded money.” J.A. 380–81 (cleaned up).
Brandishing is an enhancement that raises the statutory minimum for a § 924(c)
offense from 60 months to 84 months if the defendant “display[s] all or part of the firearm,
or otherwise make[s] the presence of the firearm known to another person, in order to
intimidate that person, regardless of whether the firearm is directly visible to that person.”
18 U.S.C. § 924(c)(1)(A)(ii), (c)(4). Because the enhancement was added in 1998—after
Brooks was sentenced—the judge didn’t consider it at Brooks’s initial sentencing.
But the district court did look to the brandishing enhancement’s mandatory
minimum sentence as a guide in resolving Brooks’s compassionate release motion. It
ultimately landed on 84 months for each of the four counts. The court didn’t disturb the
60-month sentence for the first § 924(c) conviction, the 60-month sentence on the
conspiracy conviction, or the 70 months Brooks received for the five bank robbery counts.
This appeal followed.
II.
Brooks raises two issues on appeal. First, he claims the presentence report
incorrectly suggested he or his coconspirators brandished a firearm during the June 12, 16,
and 26 robberies. Second, he claims the district court improperly applied the brandishing
mandatory minimum in deciding his First Step Act motion.
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We typically review a grant of compassionate release for an abuse of discretion.
United States v. Kibble, 992 F.3d 326, 329 (4th Cir. 2021). We will uphold the district
court’s decision unless it “acted arbitrarily or irrationally, failed to consider judicially
recognized factors constraining its exercise of direction, relied on erroneous factual or legal
premises, or committed an error of law.” United States v. Dillard, 891 F.3d 151, 158 (4th
Cir. 2018) (cleaned up).
But the alleged errors in the presentence report demand a different standard of
review. Brooks didn’t raise this issue before the district court during his original sentencing
or when he moved for compassionate release. When a defendant fails to make an argument
in the district court, an appellate court “may review the issue only for plain error.” Davis
v. United States, 140 S. Ct. 1060, 1061 (2020).
Still, Brooks maintains that we should review the alleged presentence-report errors
for an abuse of discretion. He claims that he didn’t need to contest the errors related to
brandishing when originally sentenced since that enhancement didn’t yet exist. But Brooks
had a duty to review the presentence report and object to any errors. See United States v.
Roper, 26 F. App’x 104, 105–06 (4th Cir. 2001) (“The court asked Roper if he had any
objections to the pre-sentence report and Roper indicated he did not. . . . Thus, Roper’s
final contention is [not] preserved.”). At the very least, Brooks should have alerted the
district court to the alleged errors after the government argued that the district court should
apply the brandishing mandatory minimum.
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Since Brooks failed to object to the purported errors in the district court, we review
the presentence-report issue for plain error. But we test Brooks’s claim that the district
court improperly applied a brandishing mandatory minimum for abuse of discretion.
A.
We begin with Brooks’s claim that the presentence report contained factual errors.
He says that these errors led the district court to wrongly conclude the conspirators’ actions
resembled brandishing during the robberies on June 12, 16, and 26. For the district court
to have plainly erred, the presentence report must contain “(1) an error; (2) that is plain;
and (3) that affects [Brooks’s] substantial rights.” United States v. Collins, 982 F.3d 236,
241 (4th Cir. 2020).
For the June 12 and 16 robberies, Brooks challenges the parts of the presentence
report that definitively state that the conspirators were armed with or displayed guns. 2 He
says these statements conflict with trial testimony from tellers who only believed the
objects were guns. See J.A. 74 (June 12 teller testifying she “believed [the object] to be a
gun”); J.A. 106 (assistant manager in June 16 robbery responding “Oh, yes, I did” when
asked whether she believed the object to be a gun). According to Brooks, because the
2
The presentence report incorrectly states that both suspects pointed something
wrapped in a towel in the June 12 robbery, but this minor error is immaterial since the jury
found at least one firearm was used during the robbery and Brooks was aware of it. See
United States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998) (“A defendant may be convicted
of a § 924(c) charge on the basis of a coconspirator’s use of a gun if the use was in
furtherance of the conspiracy and was reasonably foreseeable to the defendant.”)
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tellers in both robberies didn’t know whether the objects were guns, the government never
proved that a gun was brandished. We disagree.
In finding Brooks guilty of a § 924(c) offense for those robberies, the jury
necessarily found that the objects the witnesses saw were guns. See 18 U.S.C. § 924(c)
(stating that the statute applies to a “person who, during and in relation to any crime of
violence . . . uses or carries a firearm”). So there was no error in the presentence report,
plain or otherwise.
Next, Brooks complains that the presentence report erroneously states that an “Uzi-
type weapon was displayed” during the June 26 robbery, while a witness testified that the
weapon was only “carried.” Appellant’s Br. at 17–18 (emphasis added). Brooks claims
that the use of “displayed” improperly suggested that the weapon was brandished, and that
the district court erred in relying on it to resolve Brooks’s compassionate release motion.
We disagree.
The relevant guideline explains that
“Brandished” with reference to a dangerous weapon (including a firearm)
means that all or part of the weapon was displayed, or the presence of the
weapon was otherwise made known to another person, in order to intimidate
that person, regardless of whether the weapon was directly visible to that
person. Accordingly, although the dangerous weapon does not have to be
directly visible, the weapon must be present.
U.S.S.G. § 1B1.1 cmt. n.1(C) (emphasis added).
The trial testimony clarifies that the conspirators were not simply carrying
concealed weapons. Witnesses to the June 26 robbery saw the guns being carried, so they
were “made known” to them. And the actions of the co-conspirators during the robbery
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showed the required intimidatory purpose. A witness testified that at least one of the guns
was used to intimidate the employees and customers. See J.A. 133 (security guard in June
26 robbery describing how one of the suspects entered the lobby carrying a large-caliber
weapon and “ordered everyone down”).
Admittedly, the presentence report doesn’t state who carried which gun, and the
district court didn’t parse that out. But because Brooks was convicted of conspiracy, it
doesn’t matter. See Rosemond v. United States, 572 U.S. 65, 77–78 (2014). Since Brooks
“actively participate[d] in [the] criminal venture with full knowledge of the circumstances
constituting the charged offense,” he can also be held liable for the actions of his
codefendants. See id. at 77. So here again, there was no error, plain or otherwise, in the
presentence report.
B.
Brooks next argues that the district court abused its discretion by “basing its
decision . . . on the current mandatory minimum sentence for brandishing a firearm.”
Appellant’s Br. at 10. As a reminder, we uphold the district court’s decision unless it “acted
arbitrarily or irrationally, failed to consider judicially recognized factors constraining its
exercise of direction, relied on erroneous factual or legal premises, or committed an error
of law.” Dillard, 891 F.3d at 158 (cleaned up).
The district court didn’t impose an 84-month mandatory minimum for brandishing.
Congress didn’t make the First Step Act’s change to stacking retroactive. § 403(b), 132
Stat. at 5222; see also United States v. Jordan, 952 F.3d 160, 171–72 (4th Cir. 2020). So
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Brooks’s mandatory minimum for his § 924(c) convictions remains 1,020 months. And
the district court recognized that it wasn’t conducting a resentencing proceeding. See J.A.
380 & n.3 (comparing a compassionate release sentence reduction with a resentencing).
But the court also recognized that if it were conducting a resentencing, Brooks’s
mandatory minimum on each count would have been 60 months (not 84) “because during
the trial, the jury did not specifically find that Defendant brandished a firearm.” J.A. 380
n.3; see also id. (explaining that under Alleyne v. United States, 570 U.S. 99, 103 (2013),
facts that increase the statutory penalty for a crime must be found by a jury beyond a
reasonable doubt). The court further noted that if it were resentencing Brooks or sentencing
a defendant for similar conduct today, it would have discretion to impose any appropriate
sentence within the statutory range of 60 months to life. J.A. 380 n.3; see also Alleyne,
570 U.S. at 116 (“Nothing in this history suggests that it is impermissible for judges to
exercise discretion—taking into consideration various factors relating both to offense and
offender—in imposing a judgment within the range prescribed by statute.” (cleaned up)).
In other words, the district court benchmarked Brooks’s sentence reduction against
the likely penalty he would face if sentenced today. See J.A. 372 (“[Brooks’s] five § 924(c)
convictions resulted in a mandatory minimum 1020-month term of imprisonment, whereas,
today, the mandatory minimum for his charges would be 300 months.”). In doing so, the
court considered not only the current statutory range but “what sentence in that range is
appropriate based on Defendant’s conduct.” J.A. 380 n.3. It found Brooks’s conduct was
“more severe than merely using or carrying a firearm.” J.A. 380. And in accounting for
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that increased severity in Brooks’s sentence reduction, the court “dr[ew] helpful guidance”
from the 84-month mandatory minimum for brandishing. Id. That was all within its ample
discretion.
Brooks contends that when exercising discretion to grant compassionate release,
district courts can’t engage in a “retrospective review of facts not litigated during original
proceedings.” Appellant’s Br. at 12 (cleaned up). But that’s not what happened here.
We’ve noted that “not all defendants convicted under § 924(c) should receive new
sentences, but the courts should be empowered to relieve some defendants of those
sentences on a case-by-case basis.” McCoy, 981 F.3d at 287 (cleaned up). District courts
must use the facts within the record to make these “case-by-case” determinations. And one
of the factors they are required to consider is “the nature and circumstances of the offense.”
See 18 U.S.C. § 3582(c)(1)(A) (directing the court to the factors in 18 U.S.C. § 3553(a)).
The district court did so here, concluding that the circumstances were aggravated because
Brooks and his co-conspirators “used guns to scare the bank tellers into giving them
money.” J.A. 376.
And contrary to Brooks’s assertion, these facts were litigated. They appear in both
the trial transcripts and Brooks’s presentence report. Brooks’s cited cases largely involve
drug weights that the government theoretically could have, but didn’t, charge under a prior
sentencing regime. Under those circumstances, courts declined to speculate that the
government would have ultimately convicted the defendant at the higher drug amount,
especially given the complex dynamics of plea bargaining. E.g., United States v. Pierre,
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372 F. Supp. 3d 17, 22 (D.R.I. 2019) (“[T]he Court is not confident that a well-counseled
defendant caught with 28.77 grams of crack cocaine and a reasonable prosecutor . . . would
have reached a plea deal of 28 grams or more of crack cocaine.”).
But in Brooks’s case, there’s no need to speculate about uncharged conduct. As the
district court recognized, even if Brooks had faced the lower 60-month mandatory
minimum for each count, it would have been within its discretion to impose a sentence of
up to life based on the sentencing factors. Based on the convictions and record, the court
found Brooks’s conduct would have warranted a 466-month sentence. It then benchmarked
Brooks’s sentence reduction to that figure, finding it was sufficient, but not greater than
necessary, to fulfill the purposes of sentencing. See J.A. 376–79 (discussing the § 3553(a)
factors).
The district court’s sentencing decision wasn’t an abuse of discretion.
* * *
We affirm the district court’s judgment. And 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 in our decision.
AFFIRMED
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