USCA4 Appeal: 22-6776 Doc: 25 Filed: 09/11/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6776

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THEODORE HENDERSON, II, a/k/a Theodore Henderson, III,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:90-cr-00102-CMH-2)

Submitted: August 15, 2024 Decided: September 11, 2024

Before NIEMEYER, HARRIS, and BENJAMIN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: Joseph Tacopina, Chad D. Seigel, TACOPINA SEIGEL & DEOREO, New York, New York, for Appellant. Jessica D. Aber, United States Attorney, Philip Alito, Richard Cooke, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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PER CURIAM:

Theodore Henderson, II, appeals the district court’s order granting in part and

denying in part his motion for a sentence reduction under the First Step Act of 2018,

Stat. 5194 (FSA). In 1991, a federal jury convicted Henderson of

conspiracy to distribute and possess with intent to distribute cocaine base, in violation of

(Count 1); conspiracy to commit violent crimes in aid of racketeering, in

violation of

(Count 2); attempt to commit murder and assault with a

dangerous weapon in aid of racketeering, in violation of § 1959 (Count 3); two counts of

using and carrying a firearm during a crime of violence, in violation of

(c)

(Counts 4 and 6); assault with a dangerous weapon in aid of racketeering, in violation of

§ 1959 (Count 5); conspiracy to engage in a pattern of racketeering (“RICO conspiracy”),

in violation of

(d) (Count 7); engaging in a pattern of racketeering

(RICO), in violation of

(c) (Count 8); and two counts of possession with

intent to distribute 50 grams or more of cocaine base, in violation of

(a)

(Counts 10 and 12). The district court sentenced Henderson to life imprisonment for the

drug conspiracy charged in Count 1, the RICO conspiracies charged in Counts 2 and 7, the

RICO charges in Count 5 and 8, and the possession with intent to distribute charges in

Counts 10 and 12. The court also imposed a term of 10 years for the attempted violent

crimes in aid of racketeering charged in Count 3, and the statutory mandatory consecutive

terms of five years each for the § 924(c) offenses charged in Counts 4 and 6.

In 2022, Henderson moved for a sentence reduction under § 404(b) of the FSA,

seeking a reduction of all of his life sentences to time served. The district court determined

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that while Henderson’s drug-related offenses in Counts 1, 10, and 12 were covered offenses

under the FSA, his RICO conspiracy and substantive RICO offenses were not, and

therefore the court did not have the authority to reduce his sentences for those noncovered

offenses. The court, however, reduced the life sentences for Counts 1, 10, and 12 to 480

months of imprisonment. On appeal, Henderson argues that the district court erred in

determining that he was not eligible for a sentence reduction on his noncovered offenses.

“Under § 404(b) of the [FSA], sentencing courts may impose a reduced sentence as

if section[s] 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered

offense was committed.” United States v. McDonald,

(4th Cir. 2021)

(internal quotation marks omitted). The FSA “defines a ‘covered offense’ as 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 before August 3, 2010.” United

States v. Gravatt,

(4th Cir. 2020). Once a district court has determined

that a defendant is eligible for a sentence reduction under the FSA, the court “must

recalculate the [Sentencing] Guidelines range only to the extent it adjusts for the Fair

Sentencing Act.” United States v. Troy,

(4th Cir. 2023); see McDonald,

. The court then considers the

(a) factors in determining

whether to exercise its discretion to reduce the sentence, considering any nonfrivolous

arguments for a lower sentence. Id.; see United States v. Reed,

(4th Cir. 2023). The court also “may (and when raised by the parties, must) consider other

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

. A district court, however, is not required to reduce any sentence, even a

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sentence in excess of the new statutory maximum. Reed,

; see

Concepcion v. United States,

(2022) (“[A] district court is not required

to modify a sentence for any reason.”).

We review a district court’s decision to grant or deny a sentence reduction for abuse

of discretion. Reed,

. In reviewing a district court’s decision for abuse of

discretion, we will “affirm a district court’s denial of [§] 404(b) relief unless the court’s

decision is procedurally or substantively unreasonable.” Id. at 820. “As a general matter,

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,” and “[o]ther than legal errors in

recalculating the Guidelines to account for the Fair Sentencing Act’s changes, appellate

review should not be overly searching.” Concepcion,

(cleaned up). “A

district court also[, however,] abuses its discretion when it misapprehends or misapplies

the applicable law.” United States v. Richardson,

(4th Cir. 2024).

After the district court’s ruling in this case, we held that a “district court has the

discretion to reduce [the sentences for] both covered and noncovered offenses under the

[FSA] if they function as a package.”

Thus, where a defendant has been convicted of

both covered and noncovered offenses under the FSA, the district court “should consider

whether the noncovered offenses represent a freestanding and distinct sentence from that

of the covered offenses, or whether the sentence reflects an attempt to achieve an overall

sentence without regard to the component parts.”

. While a district court is not

required to reduce any sentence under the FSA, if the court determines that the sentences

for the covered offenses were interconnected with the sentences for the noncovered

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offenses, the court has the discretion to reduce the sentences for the noncovered offenses

as well. See

. Importantly, “the best entity to determine the intention of the

district court’s sentence is the district court itself, not the reviewing court.”

.

Because the district court did not have the benefit of our decision in Richardson, we

remand this case “with instruction that its discretion under Section 404 of the [FSA]

includes the authority to use the sentencing package doctrine.”

We express no opinion

regarding whether or to what extent the court should reduce Henderson’s sentences. 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

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