USCA4 Appeal: 23-4415 Doc: 33 Filed: 09/06/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4415

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARIUS DEANDRE FROST,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (7:21-cr-00039-FL-1)

Submitted: August 21, 2024 Decided: September 6, 2024

Before WILKINSON and GREGORY, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Lucy Partain Brown, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Darius Deandre Frost pled guilty without a plea agreement to conspiracy to

distribute and possess with the intent to distribute 28 grams or more of cocaine base and a

quantity of cocaine, in violation of

(b)(1)(B), 846; two counts of

distribution of a quantity of cocaine base, in violation of

(a)(1), (b)(1)(C);

being a felon in possession of ammunition, in violation of

(g)(1),

924(a)(2); and one count each of possession with intent to distribute quantities of cocaine

base and quantities of cocaine base and cocaine, in violation of

(a)(1),

(b)(1)(C), and was sentenced to an aggregate 188-month term of imprisonment. Frost

argues that the district court abused its discretion when it denied his request for a downward

variant sentence, based primarily on his eligibility for a safety valve reduction under United

States v. Jones,

(4th Cir. 2023), and in light of his criminal history, which he

asserts was overrepresented. Finding no error, we affirm.

We generally review a sentence for “reasonableness” by applying the “deferential

abuse-of-discretion standard.” United States v. McCain,

(4th Cir. 2020)

(internal quotation marks omitted). In doing so, “[o]ur inquiry proceeds in two steps.”

United States v. Friend,

(4th Cir. 2021). First, we must “ensure that the

district court committed no significant procedural error, such as failing to calculate (or

improperly calculating) the [Sentencing] Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

(internal quotation marks omitted).

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“Only if we determine that the sentence is procedurally reasonable do we then

proceed to substantive reasonableness by considering the totality of the circumstances.”

Id. (internal quotation marks omitted). In considering the substantive reasonableness of a

sentence, this court “takes into account 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. Nance,

(4th Cir. 2020) (internal quotation marks omitted). “[A]ny sentence that is within or below

a properly calculated Guidelines range is presumptively reasonable.” United States v.

Gillespie,

(4th Cir. 2022) (internal quotation marks omitted). A

defendant can only rebut that presumption “by showing that the sentence is unreasonable

when measured against the . . . § 3553(a) factors.” United States v. Bennett,

(4th Cir. 2021) (internal quotation marks omitted).

We discern no reversible error here. Frost makes no assertion that his 188-month

sentence was tainted by procedural flaws, such as errors in calculating his Guidelines range,

erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a)

factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain

the chosen sentence. See Gall v. United States,

(2007). Instead, Frost

primarily asserts that the district court imposed a substantively unreasonable sentence when

it refused to vary downward based on Frost’s eligibility for the safety valve reduction and

his allegedly overrepresented criminal history. As support, Frost points to U.S. Sentencing

Guidelines Manual (USSG) § 2D1.1(b)(18), which instructs a district court to reduce a

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defendant’s offense level two levels if the defendant meets the Guidelines’ safety valve

criteria.

However, Frost does not argue that the district court ignored or misunderstood his

arguments for a lesser sentence, or that the court erroneously believed it was constrained

from imposing a variant sentence. In essence, Frost’s arguments amount to little more than

his disagreement with the district court’s rejection of Frost’s attempts to minimize his

criminal history, which is insufficient to overcome the presumption we afford the imposed

within-Guidelines sentence. See United States v. Evans,

(4th Cir. 2008)

(recognizing that deference to a district court’s sentence “is required because the

sentencing judge is in a superior position to find facts and judge their import under

§ 3553(a) in the individual case” (cleaned up)).

Moreover, just prior to Frost’s sentencing, this court decided Jones, holding that 18

U.S.C. “§ 3553(f)(1) uses ‘and’ as a conjunctive,”

, which requires that “a

defendant is ineligible for safety valve relief only if she has all three criminal history

characteristics. That is, a defendant must not have the combination of (A) more than four

criminal history points, (B) a three-point offense, and (C) a two-point violent offense,”

. The court also explained that “even if the defendant meets all the statutory

requirements, application of the safety valve is left to the sentencing judge’s discretion.”

. Accordingly, this court confirmed that “a judge who has discretion to impose a

shorter sentence, based on the safety-valve provision, may reasonably choose not to

exercise that discretion if consideration of the defendant’s history counsels against it.”

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(cleaned up). We find that the district court here was fully aware of our decision in Jones

and exercised its discretion not to apply the safety valve reduction in this case. ∗

And since the imposed 188-month sentence, which is at the bottom of Frost’s

correctly calculated Guidelines range is presumed substantively reasonable by this court,

Gillespie,

, we conclude that Frost’s failure to raise a meaningful challenge

to the chosen sentence in light of the § 3553(a) factors requires affirmance of the imposed

sentence, see United States v. Abu Ali,

(4th Cir. 2008) (“As with any

sentence, . . . we must give due deference to the district court’s decision and . . . must affirm

. . . [the] sentence unless we find the district court abused its discretion.” (internal quotation

marks omitted)).

Accordingly, we affirm the criminal judgment. 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.

AFFIRMED

∗ We observe that the Supreme Court has since vacated our decision in Jones and remanded to this court for further consideration in light of Pulsifer v. United States,

(2024) (“A defendant is eligible for safety-valve relief under Paragraph (f)(1) only if he does not have all three of the items listed—or said more specifically, does not have four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense.” (internal quotation marks omitted)). See United States v. Jones,

(2024). Thus, regardless of whether the district court properly exercised its discretion in refusing to impose a downward variant sentence based on the safety valve provision, Frost—who has three prior three-point convictions—is ineligible for safety valve relief.

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