UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7232

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD DONNELL RUDISILL, a/k/a Ricky,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:01-cr-00048-MR-WCM-7)

Submitted: January 28, 2021 Decided: February 4, 2021

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Richard Donnell Rudisill, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Richard Donnell Rudisill appeals from the district court’s order denying his motion

for a reduction in his sentence under Section 404 of the First Step Act of 2018,

Stat. 5194. In 2002, Rudisill was convicted by a jury of conspiracy to possess

with intent to distribute cocaine and crack cocaine. The presentence report (PSR) attributed

to Rudisill 9.1 kilograms of crack cocaine and recommended a base offense level of 38,

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(1) (2001). After

adjustments for possession of a dangerous weapon, USSG § 2D1.1(b)(1), and Rudisill’s

role in the offense, USSG § 3B1.1(b), Rudisill’s total offense level of was 42. With a

criminal history category of VI, Rudisill’s then-mandatory Sentencing Guidelines range

was 360 months to life. The district court sentenced Rudisill to 360 months imprisonment.

In June 2020, Rudisill filed a pro se motion seeking relief under the First Step Act.

In his motion, Rudisill noted that he had an excellent good conduct record while

incarcerated and completed multiple courses in art, music, religion, parenting, vocational

skills, drugs, and re-entry courses. He requested a sentence of time served.

A supplemental presentence report was prepared concluding that, applying the

revisions provided in the Fair Sentencing Act of 2010,

Stat. 2372,

Rudisill’s total offense level was reduced by two levels to 40, but his now-advisory

Guidelines range remained 360 months to life. The report also detailed Rudisill’s good

conduct during his term in prison. Without a hearing or a response from the Government,

the district court denied Rudisill’s motion, finding that, although Rudisill was convicted of

2 a covered offense, he was not entitled to relief because his Guidelines range was

unchanged. Rudisill appeals.

We review a district court’s decision whether or not to grant a reduction under the

First Step Act for abuse of discretion. See United States v. Jackson,

(4th

Cir. 2020) (reviewing ruling on First Step Act motion for abuse of discretion but declining

to decide parameters of such review). We have observed that “there is little case law

addressing appropriate procedures for a court to follow when considering sentence

modifications under

(c)(1)(B),” United States v. Venable,

,

194 n.11 (4th Cir. 2019), but generally “a sentence modification is not a plenary

resentencing proceeding,” Chavez-Meza v. United States,

(2018)

(internal quotation marks omitted) (addressing

(c)(2)); see Venable,

n.11 (characterizing First Step Act reduction as “sentence modification”).

When determining whether to modify a sentence, the district court “need only set forth

enough to satisfy the appellate court that [it] has considered the parties’ arguments and has

a reasoned basis for exercising [its] own legal decisionmaking authority.” Chavez-Meza,

(internal quotation marks omitted).

Nevertheless, we have recently noted that “‘the resentencing court has discretion

with the § 404(b) framework to vary from the Guidelines and, in doing so, to consider

movants’ post-sentencing conduct.” United States v. McDonald, __F.3d__,

at *5 (4th Cir. Jan. 22, 2021) (quoting United States v. Chambers,

(4th Cir. 2020). In Chambers, we held that, “when imposing a new sentence” under

the First Step Act, “a court does not simply adjust the statutory minimum; it must also

3 recalculate the Guidelines range.”

(internal quotation marks omitted). We

also held that “the § 3553(a) sentencing factors apply in the § 404(b) resentencing context,”

and a court “may consider post-sentencing conduct” in determining whether to exercise its

discretion to reduce a sentence. Id. at 674.

Like the appellant in McDonald, Rudisill offered evidence—both his own

statements and those contained in the supplemental PSR—of his post-sentencing good

conduct. “[T]hat kind of post-sentencing mitigation evidence is enough to require a district

court to provide an explanation on the record of its reasons for deciding a sentencing

reduction motion.” McDonald,

, at *8. Moreover, Rudisill was sentenced

at a time when the Guidelines were mandatory, and the district court’s order does not

indicate that it considered the fact that they are now advisory. See United States v. Booker,

(2005).

Here, as in McDonald, “it is not at all clear that the district court considered or gave

any weight to [McDonald’s] post-sentencing conduct.”

, at *8.

Accordingly, we find that the district court’s failure to address Rudisill’s post-sentencing

or otherwise provide an explanation of its reasons for denying his motion was an abuse of

its discretion. Therefore, we vacate the judgment and remand for further proceedings

consistent with this opinion. However, we express no opinion as to the outcome of the

district court’s decision upon remand. 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 the decisional process.

VACATED AND REMANDED

4