UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-7815

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LENWOOD WEBSTER DAVIS, a/k/a Tony Lee Miller,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (4:94-cr-00021-BO-2)

Submitted: September 30, 2020 Decided: October 8, 2020

Before MOTZ and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lenwood Webster Davis appeals from the district court’s order granting his motion

for a sentence reduction under the First Step Act (FSA), of 2018,

,

, 5221. After receiving a worksheet from the United States Probation

Office and considering the parties’ arguments for and against imposing a new sentence, the

court reduced Davis’ term of incarceration to 310 months, a sentence within the revised

Sentencing Guidelines range. On appeal, counsel for Davis filed a brief pursuant to

Anders v. California,

(1967), asserting that there were no meritorious grounds

for appeal, but raising for the court’s consideration whether Davis should have received a

lower sentence. Davis did not file a pro se supplemental brief. We identified two

potentially meritorious issues and ordered the parties to submit supplemental briefs

addressing: (1) whether the court plainly erred by not reconsidering Davis’ status as a

career offender under the current Sentencing Guidelines manual, and (2) whether the court

erred by not addressing counsel’s argument for a sentence at the low end of the recalculated

Guidelines range. The parties have complied and the matter is now ripe for disposition.

Having conducted a thorough review of the record, we affirm the district court’s order.

The FSA rendered the Fair Sentencing Act of 2010 (the Act),

Stat. 2372, retroactive to all sentences imposed prior to the Act’s effective date.

Section 404 of the FSA provides that “[a] court that imposed a sentence for a covered

offense may, on motion of the defendant, . . . impose a reduced sentence as if sections 2

and 3 of [the Act] were in effect at the time the covered offense was committed.” First

Step Act, § 404(b), 132 Stat. at 5222. A “covered offense” is a federal crime, committed

2 before the Act’s effective date, for which the penalties were modified by section 2 or 3 of

the FSA. First Step Act, § 404(a), 132 Stat. at 5222. However, “[n]othing in this section

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

§ 404(c), 132 Stat. at 5222.

“We review the scope of a district court’s sentencing authority under the First Step

Act de novo.” United States v. Chambers,

(4th Cir. 2020). When a

sentence reduction is permitted, we review for abuse of discretion the court’s decision to

grant or deny the motion. United States v. Muldrow,

(4th Cir. 2016).

(c)(1)(B), which “is the appropriate vehicle for a First Step Act motion,”

United States v. Wirsing,

(4th Cir. 2019), permits modification of a

previously imposed sentence “to the extent . . . expressly permitted by statute.” Even if a

defendant is eligible for relief, whether to grant a sentence reduction remains within the

court’s discretion. Wirsing,

.

There is no dispute that Davis was eligible for a reduced sentence under the FSA.

Here, the Probation Office’s worksheet revised Davis’ statutory and advisory Guidelines

sentence. Neither the Probation Office nor Davis’ counsel took into consideration that, if

the current version of the Guidelines manual was used to determine Davis’ offense level,

he would no longer be considered a career offender. * One of Davis’ two predicate

convictions, Florida battery, no longer qualifies as a crime of violence under the current

* If Davis was not considered a career offender, under the current Guidelines manual, his range would be 168 to 210 months’ imprisonment.

3 Guidelines, see Johnson v. United States,

, 140-42 (2010) (holding that Florida

battery is not a violent felony under the force clause of

(e)(2)(B)(i)),

because the offense qualified as a crime of violence under the Guidelines’ residual clause,

see Rozier v. United States,

(11th Cir. 2012), which was removed

from the Guidelines in 2016 pursuant to Amendment 798.

Because Davis’ counsel did not assert before the district court that Davis would not

be a career offender if the current version of the Guidelines was used to determine his

Guidelines range, our review is for plain error. United States v. Muslim,

(4th Cir. 2019) (noting unpreserved Guidelines challenges are reviewed for plain error).

“To prevail on plain error review, an appellant must show (1) that the district court erred,

(2) that the error was plain, and (3) that the error affected his substantial rights.” United

States v. Cohen,

(4th Cir. 2018). A plain error affects substantial rights

if there is a “reasonable probability that, but for the error, the outcome of the proceeding

would have been different.” Molina-Martinez v. United States,

(2016) (internal quotation marks omitted). “[T]he defendant bears the burden of satisfying

each of the elements of the plain error standard.” United States v. Massenburg,

(4th Cir. 2009). “If each of those three requirements are satisfied, we possess

discretion on whether to recognize the error, but we should not do so unless the error

seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Cohen,

(internal quotation marks omitted).

We conclude that there was no plain error because it was not incumbent upon the

district court to consider a revised Guidelines range in accordance with the current version

4 of the Guidelines manual. We further conclude that Davis fails to show that his substantial

rights were affected because there is no indication that the court would have imposed a

sentence of less than 310 months or time served.

We further conclude that the district court’s imposition of a reduced sentence

survives plain error review. Davis received the sentence he requested: a within-Guidelines

sentence. Davis’ counsel never specifically requested a below-Guidelines sentence or a

specific within-Guidelines sentence. Thus, we review the court’s explanation for the

reduced sentence for plain error. See United States v. Powell,

(4th Cir.

2011) (noting that, to preserve challenge to a procedural sentencing error, defendant must

argue “for a sentence different than the one ultimately imposed” by referencing the

(a) sentencing factors (alteration and internal quotation marks omitted)).

There is no indication that a remand to allow the court to explain the new sentence after

considering Davis’ postconviction conduct would produce a sentence more beneficial to

Davis.

In accordance with Anders, we have reviewed the entire record in this case and have

found no additional meritorious issues for appeal. We therefore affirm the district court’s

order granting Davis’ motion for a reduced sentence. This court requires that counsel

inform Davis, in writing, of the right to petition the Supreme Court of the United States for

further review. If Davis requests that a petition be filed, but counsel believes that such a

petition would be frivolous, then counsel may move in this court for leave to withdraw

from representation. Counsel’s motion must state that a copy thereof was served on Davis.

We dispense with oral argument because the facts and legal contentions are adequately

5 presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED

6