PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6288

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RONALD SAMUEL JACKSON, a/k/a Young,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:03-cr-30093-EKD-4)

Argued: October 29, 2019 Decided: March 10, 2020

Before KING, FLOYD, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge King and Judge Floyd joined.

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. RUSHING, Circuit Judge:

When a defendant’s sentence is vacated and the district court resentences the

defendant to a term of incarceration less than the time he has already served, the defendant

may have the option to “bank” the excess time served and credit that banked time toward

a future sentence of incarceration imposed for violating the supervised release term of his

sentence. In this case, we are presented not with a vacated sentence, but with a sentence

reduction pursuant to the First Step Act of 2018,

,

, 5222 (2018). The district court granted Ronald Samuel Jackson’s motion for a

reduced sentence under the First Step Act, reducing Jackson’s sentence from 240 months’

imprisonment and ten years of supervised release to time served (approximately 177

months’ imprisonment) and eight years of supervised release. In reducing the sentence,

the court rejected Jackson’s request for a sentence of 120 months’ imprisonment, which

would have allowed Jackson to bank approximately 57 months toward a future sentence of

incarceration if he violated his supervised release. The court reasoned that the need to

protect the public and the need for deterrence dictated that Jackson not be given banked

time to offset the penalties for future violations of his supervised release, including future

crimes. Jackson argues that the district court abused its discretion by considering the

possibility of banked time in determining an appropriate reduced sentence. Because we

conclude that the district court acted within its discretion in considering banked time and

imposing a sentence of time served, we affirm.

2 I.

A.

Ordinarily, a sentence of imprisonment is final and may not be modified once it has

been imposed, except in narrow circumstances.

(c). One such

circumstance is when modification is “expressly permitted by statute.”

(c)(1)(B).

The First Step Act of 2018 expressly permits sentencing modifications. § 404, 132

Stat. at 5222. As relevant here, the First Step Act makes retroactive certain provisions of

the Fair Sentencing Act of 2010,

Stat. 2372 (2010). The Fair

Sentencing Act “reduced the statutory penalties for cocaine base offenses” to “alleviate the

severe sentencing disparity between crack and powder cocaine.” United States v. Peters,

(4th Cir. 2016). Section 2 of the Fair Sentencing Act modified the drug

quantities required to trigger mandatory minimum sentences for cocaine base (often

referred to as crack cocaine) trafficking offenses; it increased the amount required to trigger

the five-year mandatory minimum from 5 grams to 28 grams and increased the amount

required to trigger the ten-year mandatory minimum from 50 grams to 280 grams. See

United States v. Wirsing,

(4th Cir. 2019) (citing Fair Sentencing Act,

§ 2, 124 Stat. at 2372). Section 3 eliminated the five-year mandatory minimum for simple

possession of crack. Id. (citing Fair Sentencing Act, § 3, 124 Stat. at 2372).

The relevant provisions of the First Step Act apply to “a covered offense,” which

means “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

3 before August 3, 2010.” § 404(a), 132 Stat. at 5222. The First Step Act provides that “[a]

court that imposed a sentence for a covered offense may . . . 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.” § 404(b), 132 Stat. at 5222. Even if a defendant is

eligible for a sentence reduction, however, the decision whether to grant a reduction is

entrusted to the district court’s discretion. § 404(c), 132 Stat. at 5222 (“Nothing in this

section shall be construed to require a court to reduce any sentence pursuant to this

section.”).

B.

Jackson was convicted on May 7, 2004 of conspiring to distribute 50 grams or more

of crack cocaine, in violation of

and 841(a)(1). Because of a prior drug

conviction, Jackson faced a twenty-year mandatory minimum term of imprisonment and a

ten-year minimum term of supervised release. See

(b)(1)(A), 851. The

presentence report calculated Jackson’s Guidelines sentencing range as 188 to 235 months,

increased to 240 months because of the mandatory minimum. The district court sentenced

Jackson to the mandatory minimum of 240 months’ imprisonment, to be followed by a ten-

year term of supervised release. This Court affirmed. See United States v. Jackson,

(4th Cir. 2006).

On January 26, 2019, Jackson moved in the district court for relief under Section

404 of the First Step Act. The parties agreed that Jackson was eligible for a sentence

reduction, because his offense was committed before August 3, 2010 and the penalties

applicable to his statute of conviction were modified by Section 2 of the Fair Sentencing

4 Act. In particular, because Section 2 increased the quantity of cocaine base required to

trigger the statutory penalties in Section 841(b)(1)(A) from 50 grams to 280 grams, and

Jackson was convicted of conspiring to possess 50 grams or more, Jackson was now subject

to the penalties set forth in Section 841(b)(1)(B), which apply to convictions involving 28

grams or more of cocaine base. Under Section 841(b)(1)(B), Jackson’s new statutory

sentencing range was ten years to life imprisonment and at least eight years of supervised

release.

By the time he moved for a sentence reduction, Jackson had already served

approximately 177 months of his 240-month sentence. In his motion, Jackson requested

that the district court reduce his sentence to the new statutory mandatory minimum of 120

months’ imprisonment and eight years of supervised release. Jackson’s new Guidelines

range was 51–61 months, increased to 120 months because of the mandatory minimum.

He argued that the court should reduce his sentence to the mandatory minimum of 120

months because his original sentence had been for the then-applicable mandatory minimum

of 240 months. Jackson waived any hearing on his motion in order to expedite his

immediate release.

The Government agreed that Jackson was eligible for immediate release but urged

the district court to reduce his sentence to time served and eight years of supervised release.

The Government objected to any sentence below time served because such a sentence

would allow Jackson to “‘bank’ time to offset any future term of imprisonment that may

be imposed upon a supervised release revocation.” J.A. 30–31. The Government argued

that allowing Jackson to bank time would leave the probation office and the court with no

5 real recourse in the event he violated the terms of his supervision and would undercut the

rehabilitative aims of supervised release.

The district court determined that Jackson was eligible for relief under the First Step

Act and that a sentence reduction was warranted. The court noted Jackson’s request to be

sentenced to 120 months and stated:

Having considered the sentencing factors of

(a), the court will reduce his sentence to a sentence of time served, to be followed by an eight-year term of supervised release, but will not reduce his sentence below a sentence of time served. In particular, the need to protect the public and the need for deterrence dictate[] that a defendant not be allowed to “bank time,” which could allow him to commit further crimes without the fear of imprisonment. Cf. Miller v. Cox,

(4th Cir. 1971) (“[T]he availability of credits against sentences for future crimes would provide a sense of immunity and an incentive to engage in criminal conduct.”). In all likelihood, similar concerns underlie the express prohibition on a court’s reduction of a sentence below time served when reducing based on a sentencing guideline amendment. See U.S.S.G. § 1B1.10(b)(1)(C) (directing that a reduction in a term of imprisonment pursuant to a guideline amendment “[i]n no event may . . . be less than the term of imprisonment the defendant has already served”).

J.A. 39–40. The court also observed that other courts granting sentence reductions under

the First Step Act had reduced sentences to time served, “even where a defendant already

had served more than the applicable guideline range.” J.A. 40. The court reduced

Jackson’s sentence to time served and eight years of supervised release. Jackson appealed.

II.

As noted, this case comes to us on appeal from a sentence reduction under the First

Step Act. The parties agree that we need not resolve various questions about the proper

procedure to be followed in a First Step Act sentence reduction proceeding, either because

the parties have not disputed them here or because, even though the parties disagree,

6 resolution of their dispute is not necessary to resolve this appeal. We agree and so leave

those questions for another day.

The parties do dispute, however, the extent to which we should review the sentence

reduction granted by the district court. The Government, borrowing from decisions

reviewing sentence reductions under

(c)(2), would have us review for

abuse of discretion. See United States v. Martin,

(4th Cir. 2019).

Jackson agrees that we apply an abuse of discretion standard but would have us review his

sentence modification for procedural and substantive reasonableness, as we do the district

court’s imposition of the original sentence. See Gall v. United States,

(2007). We conclude that we need not resolve this debate either. “Even assuming (purely

for argument’s sake),” Chavez-Meza v. United States,

(2018), that

we review a sentence reduction pursuant to the First Step Act for reasonableness under an

abuse of discretion standard, none of Jackson’s arguments convince us that his sentence

reduction was unreasonable, as we explain below.

III.

Jackson primarily argues on appeal that the district court abused its discretion by

considering the possibility of banked time in reducing his sentence. Before the district

court, Jackson requested the mandatory minimum sentence because his original sentence

had been the then-applicable mandatory minimum, and he also renews this argument on

7 appeal, contending that the district court failed to consider the relevance of his original

sentence. We address these arguments in turn.

A.

The concept of banked time in the federal prison system is most often associated

with the credit a defendant receives for time spent in jail after his arrest but before his

conviction and sentencing. In

(b), Congress provided that “[a] defendant

shall be given credit toward the service of a term of imprisonment for any time he has spent

in official detention prior to the date the sentence commences” as a result of (1) “the offense

for which the sentence was imposed” or (2) “any other charge for which the defendant was

arrested after the commission of the offense for which the sentence was imposed.” The

statute awards credit “only for presentence restraints on liberty.” Reno v. Koray,

(1995). The Attorney General, through the Bureau of Prisons (BOP), computes the

amount of the credit in a particular case after the defendant begins his sentence. United

States v. Wilson,

(1992).

Another circumstance in which the concept of crediting or banking time may arise

occurs when a defendant’s conviction is vacated. For example, if a defendant’s conviction

is set aside and the defendant is then retried and convicted of the same offense, the time

served under the voided conviction must be credited toward the subsequently imposed

sentence to avoid a double jeopardy violation. North Carolina v. Pearce,

,

718–719 (1969); cf. Jones v. Thomas,

(1989) (crediting time served

on one of two consecutive sentences after it became apparent that state law permitted only

one of the sentences). But a defendant whose conviction has been vacated cannot credit

8 the time served on the voided conviction against a new sentence for a new crime. Miller,

. Similarly, this Court has declared it “unthinkable” that a defendant

whose conviction is vacated could establish “a line of credit for future crimes,” reasoning

that “the availability of credits against sentences for future crimes would provide a sense

of immunity and an incentive to engage in criminal conduct.”

(internal quotation marks

omitted).

Questions about banked time also arise in the context of supervised release. The

Supreme Court has held that when a defendant’s term of incarceration is partially vacated,

the overserved time does not shorten his term of supervision. United States v. Johnson,

(2000). Even if a defendant’s term of imprisonment should have ended

sooner than it did, his term of supervised release does not begin until he is released from

custody.

. Although custodial and supervised release terms are components of

one unitary sentence, see United States v. Ketter,

(4th Cir. 2018), they

serve different purposes. The conditions of a defendant’s supervised release are intended

to provide the defendant with assistance in transitioning into community life. Johnson,

. The rehabilitative objectives of supervised release “would be unfulfilled if

excess prison time were to offset and reduce terms of supervised release.”

BOP has created extensive regulations concerning its duty to calculate sentences,

including the treatment of banked time. Among other things, BOP’s regulations provide

that “[a]ny prior custody time spent in official detention after the date of offense that was

not awarded to the original sentence or elsewhere shall be awarded to the revocation term”

when a defendant is sentenced to a term of incarceration for violating his supervised

9 release. BOP Program Statement § 5880.28, Sentence Computation Manual-CCCA of

1984 (1999) at 1-69. For example, if a defendant’s term of incarceration is partially vacated

and as a result the defendant has served more time than necessary, the defendant may credit

the excess time against future revocations of his supervised release term under the same

sentence. The question in this case is not the legality of this regulation or how BOP should

apply it; rather, the question is whether a district court in a sentence reduction proceeding

may take into account the defendant’s potential to bank time against future supervised

release violations.

B.

The district court here considered Jackson’s ability to bank time against future

supervised release revocations in its analysis of the need to protect the public and the need

for deterrence, two factors a court considers under

(a) in imposing a

sentence. In particular, the district court declined to reduce Jackson’s sentence below time

served because the court was concerned that allowing Jackson to bank time would “allow

him to commit further crimes without the fear of imprisonment.” J.A. 39. Jackson argues

that his sentence is procedurally unreasonable because the district court misapplied Section

3553(a)’s protection-of-the-public and deterrence factors in considering banked time and

substantively unreasonable because banked time is an improper sentencing factor. See,

e.g., United States v. Clark,

, 687–688 (4th Cir. 2006) (holding sentence

unreasonable because it rested on a misapplication of Section 3553(a)(6)); United States v.

Montes-Pineda,

(4th Cir. 2006) (“A sentence may be substantively

unreasonable if the court relies on an improper factor . . . .” (internal quotation marks

10 omitted)). The arguments substantially overlap, requiring us to consider if, and how, a

district court may consider banked time in reducing a sentence.

Logically, we first assess whether consideration of banked time in reducing a

sentence is forbidden. Jackson identifies no authority forbidding a court from taking

banked time into account, and we are aware of none. In fact, in the context of a sentence

reduction based on a change in the Sentencing Guidelines, a Guidelines policy statement

specifically prohibits the court from imposing a sentence of less than time served,

presumably to avoid creating banked time. See U.S.S.G. § 1B1.10(b)(2)(C) (“In no event

may the reduced term of imprisonment be less than the term of imprisonment the defendant

has already served.”); see also

(c)(2) (restricting courts’ authority to

reduce sentences based on changes to the Guidelines to reductions “consistent with

applicable policy statements issued by the Sentencing Commission”). That restriction does

not directly apply here, but it suggests that a district court is not entirely forbidden from

considering the impact of banked time when deciding whether to reduce a defendant’s

sentence to time served or some lesser term.

More broadly, a defendant is not entitled to a sentence that would result in banked

time. Even when a defendant’s conviction itself is vacated, there are situations where the

defendant will not receive credit for the time during which he was incorrectly incarcerated.

For example, in Johnson, there was no doubt that the federal defendant’s “term of

imprisonment should have ended earlier than it did,” but the Supreme Court held that the

defendant was not entitled to credit his excess time served against his term of supervised

release.

. Likewise, in Miller, this Court reiterated that a state defendant is

11 not entitled to credit time served on a voided conviction against a new sentence for a new

crime.

; cf.

(reasoning that, “where there is a strong indication

that the defendant has been required to serve time for an offense he had not actually

committed,” a sentencing court may, “and ordinarily should,” take into account time served

on a voided sentence, but rejecting argument that the court must credit a new sentence for

a new crime based on time served on a prior invalidated conviction). Here, Jackson’s

conviction was not invalidated, and a sentence of time served, although above his new

Guidelines sentence of 120 months, was well within his new statutory sentencing range of

120 months to life. We cannot say that Jackson was entitled to a sentence that would

provide him with banked time or that the district court was forbidden from considering the

possibility of banked time when reducing Jackson’s sentence.

Next, we must examine whether, in the context of a sentence reduction under the

First Step Act, the district court permissibly considered the possibility of banked time in

analyzing the Section 3553(a) factors of deterrence and protection of the public. Of course,

a particular fact need not be mentioned specifically in Section 3553(a) to be considered in

the court’s sentencing calculus; many case-specific facts fit under the broad umbrella of

the Section 3553(a) factors. See United States v. Fowler,

(4th Cir. 2020)

(“Section 3553(a)’s broad language is consistent with the principle ‘that district courts

enjoy significant discretion in sentencing, provided, of course, that they devise reasonable

sentences.’” (quoting Clark,

(Motz, J., concurring))). The possibility of

banked time that may be used to satisfy or offset a future supervised release revocation

sentence is relevant to at least two factors: whether the sentence imposed will “protect the

12 public from further crimes of the defendant” and “afford adequate deterrence to criminal

conduct.”

(a)(2)(B), (C).

Jackson argues that banked time is not relevant to these Section 3553(a) factors

because a defendant can spend his banked time to offset only future supervised release

revocation sentences, not to offset future sentences for new crimes. Because a defendant

could be prosecuted for any new crime he commits, and if he is convicted his banked time

could not be credited toward his new criminal sentence, the argument goes, banked time

does not create a sense of immunity or an incentive to commit new crimes, therefore a

sentence fashioned to prevent banked time is not necessary for deterrence or to protect the

public.

While Jackson is correct that a defendant in these circumstances may credit banked

time only against future supervised release revocation sentences, his conclusion does not

follow. A district court can revoke a defendant’s supervised release upon finding, by a

preponderance of the evidence, that the defendant violated a condition of his supervision.

See

(e)(3). Therefore, a district court may sentence a defendant to a

revocation sentence for violating state, local, or federal law even though the defendant has

not been convicted of that new offense. See, e.g., United States v. Armstrong,

(4th Cir. 1999) (affirming revocation of supervised release even though

defendant’s drug and firearm charges were dismissed after he successfully excluded the

evidence); United States v. Copley,

(4th Cir. 1992) (affirming revocation

of supervised release because evidence was sufficient to prove by a preponderance that

defendant cultivated marijuana in violation of state and federal law); see also 18 U.S.C.

13 § 3583(d) (requiring court to order, as a condition of supervised release, that defendant not

commit another federal, state, or local crime). Similarly, a district court may revoke a

defendant’s supervised release upon finding that the defendant violated a condition of his

release that overlaps with illegal conduct. See, e.g.,

(d) (requiring court

to order, as a condition of supervised release, that defendant “refrain from any unlawful

use of a controlled substance” and submit to drug tests);

(requiring court to order, as a

condition of supervised release for a person required to register under the Sex Offender

Registration and Notification Act, “that the person comply with the requirements of that

Act”). And when a defendant is convicted of a new crime while on supervised release, he

may receive both a new sentence for the new offense and a revocation sentence. See United

States v. Woodrup,

(4th Cir. 1996) (“[T]he Double Jeopardy Clause does

not prohibit the government from criminally prosecuting and punishing an offense which

has formed the basis for revocation of a term of supervised release.”).

We cannot agree, therefore, with Jackson’s argument that the availability of banked

time to offset a revocation sentence is irrelevant to deterring future offenses and protecting

the public simply because a defendant in some circumstances may be subject to a new

criminal sentence in addition to a revocation sentence for an offense. It is reasonable for a

district court to think that the prospect of returning to prison under a revocation sentence

would provide a measure of deterrence against future crimes of the defendant and thereby

provide a measure of protection to the public. Cf. United States v. Gullett,

(4th Cir. 1996) (rejecting defendant’s contention that sentencing court could not

consider good-time credit when crafting a sentence, because argument would “reward the

14 defendant who says ‘I’m going to be a trouble-maker’” in the future). Moreover, the threat

of consequences for violating the terms of a defendant’s supervision is important to the

rehabilitative purposes of supervised release, including assisting the defendant in learning

to become a law-abiding member of the community. See Johnson, 529 U.S. at 59–60.

Although the district court here was focused on deterring criminal conduct, we

acknowledge that revocation also can be a tool for encouraging compliance with conditions

not directly related to criminal conduct but comparably important in a defendant’s

rehabilitation. See, e.g., United States v. Satterfield,

(4th Cir. 2013)

(per curiam) (affirming revocation of supervised release for testing positive for cocaine and

absconding from residential re-entry center); United States v. Terry,

(4th Cir. 2006) (per curiam) (affirming revocation of supervised release for failure to

report to probation officer and work regularly).

Thus, we conclude that the district court did not abuse its discretion in considering

Jackson’s ability to bank time when reducing his sentence and consideration of that fact

did not render Jackson’s reduced sentence unreasonable. Jackson also criticizes the district

court for citing Miller and the policy statement in Section 1B1.10(b)(1)(C) of the

Sentencing Guidelines, neither of which control here. However, the district court

appropriately acknowledged that those authorities were not controlling but merely

supportive of its evaluation of the impact of banked time. See J.A. 39–40. Finally, we note

that the district court, citing “the need to avoid unwarranted sentencing disparities,” also

observed that other courts granting reductions under the First Step Act have reduced

sentences to time served, even where a defendant already has served more than the

15 applicable Guidelines range. J.A. 40. Although we agree with Jackson that this factor

concerns only “defendants with similar records who have been found guilty of similar

conduct,”

(a)(6), we do not conclude that the district court abused its

discretion in considering these two cases for the limited purpose of evaluating how those

courts handled requests to bank time in a First Step Act sentence reduction proceeding.

C.

Jackson also contends that the district court abused its discretion in rejecting his

request for a sentence of 120 months, which is his new Guidelines sentence and the new

statutory mandatory minimum, because he originally received a Guidelines sentence,

which was the then-applicable mandatory minimum. This was the only argument Jackson

presented to the district court in favor of his requested reduction to a sentence of 120

months, and Jackson does not identify any other facts or Section 3553(a) factors that he

contends would support a sentence lower than time served. Cf. Martin,

(reversing the denial of a sentence reduction under Section 3582(c)(2) where district court

did not address the “complexity” of the defendant’s case, which included a “mountain of

new mitigating evidence”). Contrary to Jackson’s argument, a defendant in a sentence

reduction proceeding is not entitled to a sentence at “a point within the new lower

Guidelines range that is ‘proportional’ to the point previously chosen in the older higher

Guidelines range,” nor is there “any law or any convincing reason” for presuming that a

purportedly “proportional” reduction would lead to the “right” sentence. Chavez-Meza,

. Moreover, under the First Step Act, even after the district court found

Jackson eligible for a sentence reduction, the court was not obligated to reduce Jackson’s

16 sentence at all. See § 404(c), 132 Stat. at 5222 (“Nothing in this section shall be construed

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

The district court acknowledged that Jackson’s original sentence was a within-

Guidelines sentence at the old mandatory minimum, but the court explained why it believed

a Guidelines sentence of 120 months was inappropriate and why a sentence of time served

better reflected the Section 3553(a) factors. The court calculated the new Guidelines

sentence, stated that it had considered the Section 3553(a) factors, responded to all of the

arguments made by Jackson and the Government, and explained that the need to protect

the public and the need for deterrence “in particular” warranted a sentence of time served,

so as to avoid awarding Jackson with banked time. J.A. 39. Even assuming—again, purely

for the sake of argument—that a district court in a First Step Act sentence reduction

proceeding has equivalent duties to a court initially sentencing a defendant, but cf. United

States v. Smalls,

(4th Cir. 2013) (reasoning that

(c),

which requires a sentencing court to explain its reasoning when initially sentencing a

defendant, does not apply to § 3582(c)(2) sentence modification proceedings), what the

district court did here was sufficient. We are satisfied that the district court “considered

the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal

decisionmaking authority.” Chavez-Meza,

(first alteration in original)

(quoting Rita v. United States,

(2007)).

* * *

For the foregoing reasons, we conclude that the district court did not abuse its

discretion in reducing Jackson’s sentence to time served and ordering his immediate release

17 but denying his request to bank time for credit against future supervised release violations.

The judgment of the district court is

AFFIRMED.

18