USCA4 Appeal: 21-6829 Doc: 41 Filed: 08/03/2023 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6829

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

DANNY DAMON SMITH, a/k/a Duke,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:07-cr-00433-HEH-1)

Argued: May 3, 2023 Decided: August 3, 2023

Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Rushing and Senior Judge Floyd joined.

ARGUED: Robert James Wagner, ROBERT J. WAGNER PLC, Richmond, Virginia, for Appellant. Daniel J. Honold, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Peter S. Duffey, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-6829 Doc: 41 Filed: 08/03/2023 Pg: 2 of 16

DIAZ, Chief Judge:

Danny Smith is fifteen years into his twenty-year prison sentence for conspiring to

distribute crack cocaine. A few years after he was sentenced, Congress passed the Fair

Sentencing Act, which reduced the crack-to-powder cocaine disparity. If sentenced today,

Smith’s mandatory minimum would be half his current sentence.

Under the retroactivity provisions of the First Step Act, Smith moved for a sentence

reduction to time served. The district court denied his motion, determining that twenty

years remained appropriate. Smith appealed, claiming among other things that the district

court miscalculated his Guidelines range and that our recent decision in United States v.

Swain,

(4th Cir. 2022), reveals substantive errors in the district court’s

analysis.

Because we find no reversible error, we affirm.

I.

A.

Facing a five-count indictment, including a charge of murdering an FBI informant,

Smith pleaded guilty to a single count of conspiracy to distribute fifty grams or more of

cocaine base, in violation of

and 841(b)(1)(A) (2006). His presentence

report attributed to him 270.63 grams of cocaine base, colloquially known as “crack

cocaine,” and calculated his criminal history category as V.

At that time, the Sentencing Guidelines subjected “a drug trafficker dealing in crack

cocaine . . . to the same sentence as one dealing in 100 times more powder cocaine.”

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Kimbrough v. United States,

(2007). Had Smith been held responsible for

270.63 grams of powder cocaine, his Sentencing-Guidelines range would have been 63 to

78 months in prison, with no statutory minimum. But since Smith was convicted of

conspiracy to distribute crack cocaine, his presentence report calculated a Guidelines range

of 188 to 235 months. Smith had a prior felony drug conviction, and the government gave

notice of its intent to enhance his penalties under

, resulting in a statutory

minimum of 240 months.

The government also sought to apply a first-degree murder cross-reference for the

killing of an FBI informant. That cross-reference would have resulted in a Guidelines

range of life imprisonment. The district court held a hearing and determined the evidence

didn’t support the cross-reference. The court stated that it had “very strong suspicions

about [Smith’s] involvement in killing [the informant], but, unfortunately, the law doesn’t

allow me to impose a sanction unless it’s proven by a preponderance of the evidence, which

it is not in this case.” J.A. 742.

The court sentenced Smith to the statutory minimum at the time: 240 months’

imprisonment and 10 years of supervised release.

B.

Congress subsequently passed the Fair Sentencing Act of 2010, which modified the

disproportionate sentences for crack cocaine offenses. See Pub. L. No. 111–220,

. The United States Sentencing Commission updated the Sentencing Guidelines for

crack cocaine accordingly. If Smith had been charged under the Fair Sentencing Act’s

reforms, his Guidelines range would have been 151 to 188 months, with a statutory

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mandatory minimum of 120 months. But the Fair Sentencing Act wasn’t yet retroactive,

see United States v. Bullard,

, 248–49 (4th Cir. 2011), so Smith’s sentence

remained.

Eight years later, Congress enacted the First Step Act, which authorized (but didn’t

mandate) district courts to “impose a reduced sentence” for qualifying movants as if the

crack-cocaine modifications “were in effect at the time the covered offense was

committed.”

(“First Step Act”), § 404(b),

, 5222

(2018).

1.

Smith sought relief under § 404(b) of the First Step Act, asking the district court to

reduce his term of imprisonment to time served and his supervised-release term to four

years.

The government agreed that Smith was eligible for a sentence reduction but opposed

the motion. The government noted that Smith’s attributed quantity of crack cocaine of

270.63 grams was about 9 grams below the 280-gram threshold “which would be sufficient

to trigger the mandatory minimum sentence.” J.A. 775. It highlighted Smith’s criminal

history and his “disturbing pattern of disruptive and violent behavior while in federal

prison.” Id. The government also reminded the court of its “strong suspicion” that Smith

participated in the informant’s murder. Id.

Smith replied that factoring in the court’s “strong suspicion” would be improper.

He claimed his “criminal history should present no barrier to relief,” since he had only “a

single adult felony conviction” before this offense. J.A. 843.

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Smith also compared his sentence to those of his co-conspirators, arguing his “drug

distribution activities . . . appeared to be less serious than the other[s’],” and that ten of his

co-defendants received prison sentences of 136 months or less. J.A. 844–45. Smith

pointed to his “significant turn towards rehabilitation,” noting that he “has not had a single

disciplinary infraction in 6 years” and that he was working to earn his GED. J.A. 847.

2.

The district court denied Smith’s motion for a sentence reduction.

The court first recalculated Smith’s Guidelines range under the Fair Sentencing Act.

It found that Smith’s “mandatory minimum sentence is now 10 years, his adjusted offense

level of 28 produces a guideline range of 130–162 months, and his mandatory minimum

term of supervised release is now 8 years.” J.A. 868. But the court also noted that Smith’s

existing “240-month sentence falls well within the current statutory maximum of lifetime

imprisonment.” Id.

The court acknowledged that Smith had a clean disciplinary record for the past six

years. But it also found that Smith’s “behavioral record [in prison] in the preceding years

was troublesome,” listing over ten infractions ranging from “failing to stand count” to

“possessing a dangerous weapon” and “fighting with an inmate.” J.A. 869–70.

The court next adopted the government’s argument that Smith’s attributable drug

weight was “just nine grams shy” of the 280-gram statutory minimum. J.A. 869. It also

reiterated its “strong suspicion” that Smith took part in the informant’s murder, though it

didn’t state it weighed that in its analysis. J.A. 867.

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Ultimately, the court concluded that “[a] modification of [Smith]’s sentence fails to

satisfy the relevant § 3553(a) factors” and denied relief. J.A. 870.

This appeal followed.

II.

We review the district court’s denial of § 404(b) relief for abuse of discretion.

United States v. Reed,

(4th Cir. 2023). We will affirm “unless the court’s

decision is procedurally or substantively unreasonable.”

. Our review uncovers

no reversible error.

A.

We begin by examining the district court’s judgment for procedural reasonableness.

A district court commits procedural error by “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.” Id. (cleaned up).

Smith’s main procedural attack is that the district court erred in calculating his

Guidelines range as 130 to 162 months, even though that was the range he asserted to the

district court. See J.A. 760 (Smith’s § 404 Motion). He now claims the correct range is

110 to 137 months, based on a 2010 change from the Sentencing Commission that revised

calculations of criminal history. Since Smith didn’t make this argument to the district

court, it’s forfeited, absent plain error. See United States v. Coby,

(4th

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Cir. 2023). Our recent decision in United States v. Troy,

(4th Cir. 2023),

shows why there was no plain error. 1

When exercising their discretion to reduce a sentence under the First Step Act,

district courts must calculate the Guidelines range “as if the Fair Sentencing Act’s

amendments had been in place at the time of the offense.” Concepcion v. United States,

, 2402 n.6 (2022). Fleshing out Concepcion’s directive, we’ve articulated

a two-step process for adjudicating a § 404 motion. “First, [district courts] must recalculate

the movant’s Guidelines range only to the extent it adjusts for the Fair Sentencing Act.

Second, they may (and when raised by the parties, must) consider other legal and factual

changes when deciding whether to impose a reduced sentence.” Troy,

(cleaned up).

Put simply, “the proper ‘benchmark’ for the district court’s analysis (and for our

review) is the impact of the Fair Sentencing Act on the defendant’s Guidelines range.”

This includes the Sentencing Commission amendments passed in response to the Fair

Sentencing Act’s mandate. See Fair Sentencing Act of 2010,

,

, 2374 (directing the Sentencing Commission to “make such conforming

amendments to the Federal sentencing guidelines as the Commission determines necessary

to achieve consistency with [the Act]”). Any other factual and legal changes affecting the

Guidelines range are examined after this benchmark calculation.

1 We decided Troy after Smith submitted his briefs, so we take this opportunity to reiterate the proper standard for calculating the Guidelines range under a § 404 motion.

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Under the relevant amendments, 2 Smith’s attributed quantity of 270.63 grams of

crack cocaine yields a base offense level of 30. U.S.S.G. § 2D1.1(c)(5) (2011). The two-

level enhancement imposed because Smith possessed a firearm during the commission of

the drug offense cancels out the two-level decrease for acceptance of responsibility.

Together, Smith’s offense level of 30 and his criminal-history category of V result in a

baseline Guidelines range of 151 to 188 months. The criminal-history revisions Smith now

invokes would be considered in step two, had he raised them below.

The district court calculated Smith’s benchmark Guidelines range as 130 to 162

months—lower than the correct range. It appears to have used the current drug quantity

table, which yields a base offense level of 28 for Smith’s attributed quantity of crack

cocaine. See U.S.S.G. § 2D1.1(c)(6) (2021). But that table reflects amendments unrelated

to the Fair Sentencing Act. See U.S. Sent’g Guidelines Manual app. C, amend. 782 (U.S.

Sent’g Comm’n 2014) (lowering the base offense levels even further). The district court’s

calculation is thus an improper benchmark.

But under the plain-error standard, we reverse only when there is “a reasonable

probability that, but for the error, the outcome of the proceeding would have been

different.” Rosales-Mireles v. United States,

, 1904–05 (2018) (cleaned

up). Since the district court denied relief even under the incorrect lower range, there’s no

2 Specifically, Amendment 750, which lowered the base offense levels associated with different quantities of crack cocaine, and Amendment 759, which made those levels retroactive. See U.S. Sent’g Guidelines Manual app. C, amend. 750, 759 (U.S. Sent’g Comm’n 2011).

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reasonable probability the outcome would have been different had the court recognized its

mistake. See Troy,

n.3 (finding an erroneous lower benchmark calculation

harmless).

Smith’s other attacks on procedural reasonableness lack merit. For example, he

claims the court “failed to adequately assess [his] unwarranted disparity argument.”

Appellant’s Br. at 23. But the district court’s decision mentions “sentencing disparities,”

and explains why Smith’s sentence is “not a departure from sentences that many other

defendants today would receive for similar conduct.” J.A. 870–71. This explanation is

enough. See Concepcion, 142 S. Ct. at 2405 (“All that is required is for a district court to

demonstrate that it has considered the arguments before it.”).

B.

Finding no reversible procedural error, we examine the district court’s decision for

substantive reasonableness. This review is “highly deferential.” United States v. Bond,

(4th Cir. 2023). It “should not be overly searching,” because “it is not the

role of an appellate court to substitute its judgment for that of the sentencing court as to the

appropriateness of a particular sentence.” Concepcion, 142 S. Ct. at 2404 (cleaned up).

But our deference isn’t unquestioning. We must “consider the totality of the

circumstances to determine whether the sentencing court abused its discretion in

concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United

States v. Swain,

(4th Cir. 2022) (cleaned up).

Although we can’t “presume that a sentence above the applicable Guidelines range

is unreasonable,” we “may consider the extent of the deviation” between the original

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sentence and the recalculated range.

at 402–03 (cleaned up). “When the variance is a

substantial one[,] we must more carefully scrutinize the reasoning offered by the district

court in support of the sentence. . . . The farther the court diverges from the advisory

guideline range, the more compelling the reasons for the divergence must be.”

(cleaned up).

1.

In Swain, we overturned a district court’s denial of a § 404 motion for lack of

substantive reasonableness. Swain was sentenced to 324 months’ imprisonment for a

crack-cocaine offense. Id. at 400. He moved for a reduced sentence under the First Step

Act, noting the top of his recalculated Guidelines range was 62 months below his original

sentence. Id. The district court denied the motion, reasoning that “the § 3553(a) factors

did not support reducing [Swain]’s sentence given the aggravated offense conduct.” Id.

But we vacated and remanded because the district court failed to adequately support its

“effectively” variant sentence. Id. at 403–04.

We found that the “district court’s failure to justify [the 62-month] variance [was]

particularly troubling given that Congress was the actor that reduced [Swain]’s guideline

range through the passage of the First Step Act.” Id. at 403 (cleaned up). Since Congress

intended sentence reductions to be “one of [the First Step Act’s] primary purposes,” we

reviewed the district court’s decision “in light of [that] remedial purpose.” Id.

Under that lens, we determined the district court’s analysis was substantively

unreasonable because it “relied on largely the same factual basis to deny [Swain]’s motion

for a reduced sentence as it did to impose its initial bottom-of-the-Guidelines sentence—

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despite the fact that [Swain]’s amended Guidelines range decreased by five to ten years.”

Id. Additionally, “the court placed too little weight on the remedial aims of the First Step

Act.” Id.

Smith claims that the district court here made the same errors. 3 He notes that the

district court didn’t explicitly mention that Smith’s 240-month sentence represents a

significant upward variance from his post-First Step Act Guidelines range. Nor did the

court directly discuss the remedial aims of the First Step Act.

But we decline to read Swain as requiring district courts to robotically tick through

these effects of the First Step Act in sentencing. To do so would impose conditions beyond

our modest “requirement that [the district court] adequately explain its sentencing

decision.” United States v. Collington,

(4th Cir. 2021), abrogated on

other grounds by Concepcion,

.

Reviewing the totality of the circumstances, we’re convinced that the district court

weighed the relevant considerations and adequately explained its conclusion. First, the

court’s recalculation of Smith’s Guidelines range signals it understood there was a disparity

between the new Guidelines range and the original sentence—in fact, as we explained

above, the district court thought the gap was bigger than it actually was. Next, the court

discussed the history of the First Step Act, noting it must make a “holistic resentencing

3 We calendared this case for the express purpose of considering how Swain applied here. Yet even though Smith relied repeatedly on Swain in his opening brief, the government’s response failed to cite it. We remind the government—and all other litigants—that when we ask for the parties’ views on the import of a case to the appeal, we expect the parties to address it.

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determination as to whether the original sentence remains appropriate in light of the Fair

Sentencing Act’s reforms.” J.A. 865 (quoting Collington,

) (emphasis

added). Sending this case back for the district court to explicitly state what it implicitly

considered would accomplish nothing.

In denying relief, the district court considered Smith’s “fourteen disciplinary

violations in three different Bureau of Prisons facilities,” which included possession of a

dangerous weapon and multiple instances of fighting. 4 J.A. 869–70. When weighed

against Smith’s positive improvements, the court concluded his “behavior before and after

his confinement shows a flagrant disrespect for the law and exacerbates this Court’s

concern for the need to protect the public.” J.A. 870.

The district court also noted that the amount of cocaine attributable to Smith was

“just nine grams shy” of the increased statutory minimum. J.A. 869; see

(b)(1)(A)(iii). Combined with Smith’s infractions in prison, the court determined that

a “modification of [Smith]’s sentence fails to satisfy the relevant § 3533(a) factors.” J.A.

870. Considering that the First Step Act “leaves much to the [district-court] judge’s own

4 The district court in Swain also discussed some of the defendant’s misconduct in prison. See United States v. Swain, No. 4:07-CR-62-D,

, at *2 (E.D.N.C. Jan. 28, 2021) (“[Swain] has been sanctioned for possessing unauthorized items, failing to follow safety regulations in 2009, using marijuana and suboxone in 2016, and extorting/blackmail/protecting in 2019.”). But the Swain opinion doesn’t mention these disciplinary violations.

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professional judgment,” we’re satisfied with its rationale. Concepcion, 142 S. Ct. at 2404

(cleaned up). 5

We pause to address a wrinkle not raised by either party. The district court wrote

that Smith “was attributed with an amount of cocaine base very close to the ceiling of [280

grams for] the sentencing reduction. His original sentence [of twenty years] is therefore

not a departure from sentences that many other defendants today would receive for similar

conduct.” J.A. 870–71 (emphasis added).

For defendants with a prior conviction for a serious drug felony (like Smith), the

Fair Sentencing Act set the statutory minimum for possession with intent to distribute 280

grams or more of crack cocaine at twenty years. See

(b)(1)(A)(iii), (B)(iii)

(2010). But the First Step Act reduced that to fifteen years. See

(b)(1)(A)(iii) (2018). So if a similarly situated defendant was convicted today of that

offense, they would face a statutory mandatory minimum five years below Smith’s current

sentence.

It’s possible the district court was mistaken about the current statutory exposure for

Smith’s offense, or unreasonably believed that a five-year upward variance for that

conviction is common. But there are other reasonable interpretations of the district court’s

language. It may have been comparing other defendants who shared Smith’s

5 Smith’s reliance on United States v. Johnson,

(6th Cir. 2022), an out- of-circuit case with fundamental similarities to Swain, fails to persuade for the same reasons.

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“troublesome” conduct while in prison. J.A. 869. Or perhaps the phrase “many other

defendants today,” J.A. 871, refers to defendants who, like Smith, seek relief under

§ 404(b) of the First Step Act. Those defendants would be subject to the Fair Sentencing

Act’s statutory minimum of twenty years. See First Step Act § 404(b) (a district court may

“impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in

effect at the time the covered offense was committed”).

Typically, when we “cannot tell” if the district court acted reasonably, we vacate

and remand for reconsideration. Reed,

. But Smith didn’t develop this

argument in his opening brief, saying only that the district court’s observation “is simply

not an accurate reflection of sentencing practices today.” Appellant’s Br. at 18. It’s thus

forfeited. See Mowery v. Nat’l Geospatial-Intel. Agency,

, 433 n.5 (4th Cir.

2022) (noting that a party forfeits an argument by failing to develop it in the opening brief,

“even if its brief takes a passing shot at the issue” (cleaned up)). And since review of a

district court’s decision to grant or deny relief under § 404 is “highly deferential,” Bond,

56 F.4th at 385, we decline to consider this issue.

2.

Next, Smith contends that the district court erred when it weighed its “suspicions”

of his involvement in the informant’s murder to deny a sentence modification. But we see

no evidence that the court’s hunch infected its analysis. While the district court did mention

its “strong suspicion” that Smith took part in the homicide, it also reiterated that it “was

not convinced that [the evidence] was sufficient to implicate [Smith].” J.A. 867. And the

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district court never brought the issue up again, let alone in its discussion of the § 3553(a)

factors.

Smith insists that the district court’s mention of “the circumstances surrounding the

offense that were raised at sentencing,” J.A. 870, shows that it considered the informant’s

murder. But many circumstances of Smith’s offense were raised at sentencing, including

his criminal history and the conduct of his co-conspirators. Attempting to parse out the

specific meaning of the court’s broad statement would approach the “overly searching”

review that the Supreme Court has prohibited. Concepcion, 142 S. Ct. at 2404.

3.

Smith’s other arguments don’t convince. He claims the district court failed to give

appropriate weight to his lack of criminal history and his behavioral improvement. But

these are “disagreement[s] with how [the] district court balance[d] the § 3553(a) factors,”

which are “insufficient to overcome the district court’s discretion.” Swain,

.

Smith also asks us to “be sensitive” to the fact that “[u]pward variances for sentences

imposed in cocaine base cases today are extremely rare,” citing 2020 and 2021 statistics

from the Sentencing Commission. Appellant’s Br. at 20. But we’ve recognized that “there

are always variations in sentencing, which is a quintessentially fact-specific and

multifaceted exercise.” United States v. Friend,

(4th Cir. 2021). So

“comparisons of sentences may be treacherous because each sentencing proceeding is

inescapably individualized.”

at 382–83 (cleaned up).

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Smith’s use of aggregate sentencing data invites such perilous comparisons. While

we recognize the disparity between Smith’s new Guidelines range and his current sentence,

the district court properly explained why it remained substantively reasonable.

III.

“The Fair Sentencing Act and First Step Act, together, are strong remedial statutes,

meant to rectify disproportionate and racially disparate sentencing penalties.” Swain,

(cleaned up). The district court considered these remedial aims, as well as all

other nonfrivolous arguments, before exercising its broad discretion to deny sentencing

relief. Its decision is

AFFIRMED.

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