USCA4 Appeal: 23-6600 Doc: 48 Filed: 10/30/2024 Pg: 1 of 13

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6600

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD DAVID DEGOUT, a/k/a New York Steve,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:94-cr-00008-JHM-3)

Submitted: September 16, 2024 Decided: October 30, 2024

Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Mary E. Maguire, Federal Public Defender, Erin Trodden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Christopher R. Kavanaugh, United States Attorney, Laura Day Taylor, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

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PER CURIAM:

Richard Degout (“Appellant”) challenges the district court’s denial of his motion

for a sentence reduction pursuant to Section 404 of the First Step Act. He argues that his

conviction for homicide in the commission of a drug trafficking crime is a covered offense,

making him eligible for First Step Act relief. This argument is foreclosed by our precedent.

In any event, Appellant further argues the district court abused its discretion in declining

to reduce his sentence. There, too, we conclude that the district court did not err.

Therefore, we affirm.

I.

Appellant was convicted in 1994 for his role in a drug trafficking conspiracy.

Appellant’s co-defendant, Reggie Ismel, was the primary supplier of crack cocaine in the

conspiracy, and Appellant was his “right hand man.” J.A. 230. 1 In addition to the drug

trafficking activity, the evidence at trial established that, at Ismel’s direction, Appellant

killed one of Ismel’s suppliers, Anthony Jones. The evidence further established that

Appellant threatened to kill a man who witnessed the murder in order to keep him from

coming forward.

Following trial, Appellant was convicted of four counts: conspiracy to distribute

crack cocaine, in violation of

(b)(1)(A) (Count One); homicide by a person

engaged in an offense punishable under § 841(b)(1)(A), in violation of

(e)(1)(A) (Count Two); use of a firearm during and in furtherance of a drug

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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trafficking crime, in violation of 18 U.S.C. 924(c) (Count Three); and, witness tampering,

in violation of

(Count Four). Appellant was sentenced to two concurrent

life sentences on Counts One and Two, a consecutive 5 year sentence on Count Three, and

a concurrent 10 year sentence on Count Four. Appellant has now served over 30 years in

prison.

In 2020, Appellant filed a motion for a sentence reduction pursuant to Section 404

of the First Step Act. Appellant argued that both Count One and Count Two were covered

offenses under the First Step Act making him eligible for a sentence reduction, and that the

(a) sentencing factors, including his post-sentencing conduct, weighed in

favor of a reduction. The district court determined that Count Two was not a covered

offense. Although the district court determined that Count One was a covered offense, it

denied Appellant relief. While the court recognized that “[s]ome of the § 3553(a)

sentencing factors weigh[ed] in favor of a sentence reduction,” it explained that Appellant’s

“offenses are among the most serious this Court sees. He both pulled the trigger to

intentionally kill a man and threatened to kill another to cover his wrongdoing. He was

also convicted for his role in a conspiracy to distribute a sizeable quantity of drugs.” J.A.

220. The district court further determined that “the need to reflect the seriousness of the

offense, promote respect for the law, and provide just punishment for the offense weigh

against a sentence reduction.” J.A. 221.

Appellant noted this timely appeal. He argues here that the district court erred in

determining that Count Two was not a covered offense. And he argues that the district

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court procedurally and substantively erred in declining to reduce his sentence based on

Count One.

II.

Appellant first argues that the district court erred in determining that Count Two

was not a covered offense. “This is a question of ‘threshold eligibility for First Step Act

relief, which we consider de novo.’” United States v. Roane,

(4th Cir.

2022) (quoting United States v. Goodwin,

, 952 (4th Cir. 2022)); see

also United States v. Allen,

(4th Cir. 2013) (“Whether the new threshold

amount announced in the Fair Sentencing Act applie[s] to [the appellant] is a question of

law which we decide de novo.”).

A.

In 2010, Congress passed the Fair Sentencing Act.

Stat.

2372. Sections 2 and 3 of the Fair Sentencing Act “reduced the penalties for specific

cocaine-related offenses . . . by increasing the amount of cocaine base required to trigger

certain statutory penalties.” United States v. Venable,

(4th Cir. 2019).

Prior to the Fair Sentencing Act, cocaine base offenses were punished much more harshly

-- at a rate of 100:1 -- than offenses involving powder cocaine. By increasing the quantities

of cocaine base required to trigger higher statutory penalties, the First Step Act lowered

this disparity to 18:1.

But the Fair Sentencing Act was not retroactive until Congress passed the First Step

Act in 2018.

Stat. 5194. Section 404 of the First Step Act allows

previously sentenced defendants to file a motion requesting the sentencing court to “impose

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a reduced sentence as if [S]ections 2 and 3 of the Fair Sentencing Act of 2010 were in

effect at the time the covered offense was committed.” Venable,

.

Critically, “[a]n offender is eligible for a sentence reduction under the First Step Act only

if he previously received a sentence for a covered offense.” Terry v. United States,

(2021) (citation and internal quotation marks omitted).

A “covered offense” is “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.” First Step Act § 404(a) (internal citation

omitted) (emphasis supplied). The Supreme Court has explained that “‘statutory penalties’

references the entire, integrated phrase ‘a violation of a Federal criminal statute’ . . . [a]nd

that phrase means ‘offense.’” Terry,

. “We thus ask whether the Fair

Sentencing Act modified the statutory penalties for [the] petitioner’s offense.” Id.; see

United States v. Thomas,

(4th Cir. 2022) (“[W]hat matters for our FSA

inquiry is whether the Act modified the statutory penalties for [the] offense.”).

Given this definition of “covered offense,” we have held that “only five ‘offenses’

are explicitly contemplated by the text,” that is:

Section 2 of the Fair Sentencing Act modified the penalties associated with

(b)(1)(A)(iii), 841(b)(1)(B)(iii), 960(b)(1)(C), and 960(b)(2)(C) by increasing the drug quantity thresholds for crack cocaine to trigger each statute’s mandatory minimum sentence . . . . Section 3 modified the penalties associated with

(a) by eliminating mandatory minimum sentences for simple possession of crack.

United States v. Roane,

(4th Cir. 2022).

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B.

Appellant argues that his conviction for violating

(e)(1)(A) is a

covered offense. In its entirety, § 848(e)(1)(A) provides the following:

[A]ny person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

Appellant was convicted of homicide by a person “engaging in an offense

punishable under section 841(b)(1)(A)” (“drug related murder”). While Appellant

recognizes that the Fair Sentencing Act did not modify the penalties for § 848(e)(1)(A), he

argues that it is nevertheless a covered offense because § 841(b)(1)(A) -- a violation of

which is an element of drug related murder -- is a covered offense. Appellant is incorrect.

We squarely addressed this issue in United States v. Roane,

(4th Cir.

2022). There, the appellants had been convicted of homicide in furtherance of a continuing

criminal enterprise (“CCE”), in violation of § 848(e)(1)(A). Like Appellant here, the

Roane appellants argued that § 848(e)(1)(A) is a covered offense eligible for First Step Act

relief because § 848(e)(1)(A) includes § 841(b)(1)(A), a covered offense, as a predicate. 2

2 The Roane Appellants made this argument even though they were convicted of homicide in furtherance of a continuing criminal enterprise, rather than drug related murder, because the continuing criminal enterprise involved drug crimes in violation of

(b)(1)(A), for which they were also convicted.

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The district court rejected this argument because the Fair Sentencing Act “did not affect .

. . substantive liability or statutory penalties under § 848(e)(1)(A).” Roane,

. We agreed. We explained that “21 U.S.C. § 848(e)(1)(A), the offense of which

appellants were convicted, is nowhere mentioned in the text of the Fair Sentencing Act.”

Id. at 548. We recognized that § 848(e)(1)(A) “creates a separate crime of killing in

furtherance of any one of three predicate offenses by defining the conduct it prohibits and

the statutory penalties for engaging in the prohibited conduct.” Id. at 548 (cleaned up).

And, like the district court, we found conclusive the fact that “Congress in no way modified

the elements or penalties of § 848(e)(1)(A) via the Fair Sentencing Act.” Id. Roane did

not differentiate between the types of homicide criminalized by § 848(e)(1)(A) and, even

if it had, its reasoning would demand the same outcome here.

As we explained in Roane, “the statutory penalties associated with [Appellant’s] §

848(e)(1)(A) conviction[] remain the same both before and after the Fair Sentencing Act–

a 20-year minimum sentence up to life imprisonment or death for drug-related murder.”

. It matters not that the penalties for

(b)(1)(A) were

modified by the Fair Sentencing Act. “The penalties associated with [§ 848(e)(1)(A)] are

established completely independently of the predicate offenses even while incorporating

some of the substantive conduct. Thus, § 848(e)(1)(A) is not a ‘covered offense’ eligible

for sentence reduction under the First Step Act.” Id. at 550 (internal citation omitted).

Our decision here is in line with the decisions of our sister circuits that have

confronted the same issue. Each has determined that § 848(e)(1)(A) is not a covered

offense. See United States v. Snow,

(6th Cir. 2020) (addressing drug related

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murder specifically); United States v. Fletcher,

(2d Cir. 2021) (addressing

drug related murder specifically); United States v. Junius,

(3d Cir. 2023)

(addressing CCE murder, and relying on Roane, Fletcher, and Snow).

We thus affirm the district court’s holding that § 848(e)(1)(A) is not a covered

offense.

III.

While Count Two is not a covered offense, there is no dispute that Count One,

conspiracy to distribute crack cocaine, in violation of

(b)(1)(A), is.

Nevertheless, the district court declined to reduce Appellant’s sentence. Appellant argues

the court both procedurally and substantively erred in retaining his life sentence. We

address each argument in turn, reviewing the district court’s decision for abuse of

discretion. United States v. Troy,

(4th Cir. 2023).

A.

In discussing the procedural reasonableness standard applicable to First Step Act

motions, we have explained, “a district court’s discretion is broad and its burden light.”

Troy,

. “District courts are not required to modify a sentence ‘for any

reason’ and may reject arguments they consider unconvincing in ‘a brief statement of

reasons’ and ‘without a detailed explanation.’”

(quoting Concepcion v. United States,

(2022)). “A district court commits procedural error by failing to

calculate (or improperly calculating) the [Sentencing] 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—

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including an explanation for any deviation from the Guidelines range.” United States v.

Smith,

(4th Cir. 2023) (internal quotation marks and citation omitted);

see also Troy,

.

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

district court must calculate the sentencing range provided by the United States Sentencing

Guidelines Manual (“Guidelines”) “as if the Fair Sentencing Act’s amendments had been

in place at the time of the offense.” Concepcion,

n.6. We have articulated

a two-step process. “First, [district courts] must recalculate the movant’s Guidelines range

only to the extent it adjusts for the Fair Sentencing Act.” Troy,

(cleaned

up) (emphasis supplied). This is because “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.”

Second, after calculating the new benchmark Guidelines range,

district courts consider the § 3553(a) factors. In doing so, “they may (and when raised by

the parties, must) consider other legal and factual changes when deciding whether to

impose a reduced sentence.” Id. (cleaned up) (emphasis supplied).

“For its resolution of a First Step Act motion to be procedurally reasonable, a district

court must consider a defendant’s arguments, give individual consideration to the

defendant’s characteristics in light of the § 3553(a) factors, determine—following the Fair

Sentencing Act—whether a given sentence remains appropriate in light of those factors,

and adequately explain that decision.” Troy,

(cleaned up). The district

court’s explanation need not be “detailed.” Concepcion,

. “All that is

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required is for a district court to demonstrate that it has considered the arguments before

it.”

; see also Smith,

.

Here, Appellant argues the district court made two procedural errors in denying his

motion for a sentence reduction. First, he argues that the district court failed to properly

recalculate his Guidelines because it left in place a first degree murder cross reference on

Count One, rather than using the cross reference to second degree murder that is now

available. And second, Appellant argues the district court improperly calculated his

Guidelines by failing to group Counts One and Two.

As an initial matter, neither of these alleged errors required the district court to

engage in step one of the two step proceed set out in Troy. The district court was not

required to recalculate Appellant’s Guidelines range because neither alleged error involves

a change that “reflect[s] the retroactive application of the Fair Sentencing Act.”

Concepcion,

n.6. As to the second step of the process laid out in Troy, we

readily conclude that the district court adequately explained its decision to retain the

application of the first degree murder cross reference. The record makes clear that the

district court considered Appellant’s argument but determined that “[g]iven the facts of

this case . . . the Court finds use of the second-degree murder guideline would not be

appropriate.” J.A. 218 n.3.

As to Appellant’s argument about grouping Counts One and Two, Appellant

conceded in his briefing before this court that “[i]f he remain[s] under the first degree

murder guideline, [any grouping] error would not have any impact on his guidelines, which

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would already be at the highest level possible, at 43.” Appellant’s Opening Br. at 23. Thus,

any error in the district court’s explanation of this issue is harmless.

B.

Finally, Appellant argues that the district court’s decision to retain his life sentence

was substantively unreasonable.

To determine whether the denial of a First Step Act motion is substantively

reasonable, we consider whether, under the totality of the circumstances, the district court

“abused its discretion in concluding that the sentence it chose satisfied the standards set

forth in § 3553(a).” United States v. Reed,

(4th Cir. 2023)

(quoting United States v. Swain,

(4th Cir. 2022)). Relevant here, while

a district court must consider all nonfrivolous arguments, it is “not required to reduce any

sentence.” Reed,

. This remains true even where the sentence the district

court retains is greater than “the revised statutory maximum contained in the Fair

Sentencing Act.”

. The district court may retain the higher sentence, so long as

it is substantively reasonable.

As in an initial sentencing, sentences within the “appropriate benchmark”

Guidelines range are “presumptively reasonable.” Troy,

(citing United States v. Blue,

, 519–20 (4th Cir. 2017)). Even where the

district court retains a sentence that is above the applicable Guidelines range, we “may not

presume” that doing so is unreasonable. Swain,

. “However, we may

consider the extent of the deviation . . . [a]nd the farther the court diverges from the

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

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at 403 (cleaned up). Our review is to be “highly deferential” and “not [] 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.” Smith,

.

And “disagreement with how a district court balances the § 3553(a) factors is insufficient

to overcome the district court’s discretion.” Swain,

.

Appellant argues that his personal history and characteristics, including his post-

sentencing conduct and rehabilitation, support a sentence reduction. And he notes that

even if we disagree with him as to the § 848(e)(1)(A) conviction, the new statutory

maximum for Count One is 480 months of imprisonment. Appellant argues the district

court did not sufficiently explain its reasoning for varying upward to leave in place his life

sentence, and thus the sentence was substantively unreasonable.

Upon review of the record, we conclude that the district court adequately explained

its decision to retain Appellant’s life sentence. The court “examin[ed] [Appellant’s

sentence] in its entirety, despite the inclusion of [] non-covered offense[s].” J.A. 217. It

determined that Appellant’s base offense level would remain 43 today, and that offense

level 43 corresponds with a Guidelines sentencing range of life imprisonment, regardless

of criminal history category. The court explained, as Appellant points out, that the

Guidelines sentence for Count One would now be 480 months -- lower than the life

sentence previously imposed -- because that is the revised statutory maximum in light of

the First Step Act. In total, the court calculated that Appellant’s new “Guidelines sentence

is one life term” on Count Two “plus 480 months” on Count One, “and a five-year

consecutive term” on Count Three. J.A. 219 n.5. Despite the fact that the revised statutory

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maximum sentence on Count One was 480 months, the court declined to reduce

Appellant’s sentence.

In doing so, the district court recognized that “[s]ome of the [18 U.S.C.] § 3553(a)

sentencing factors weigh in favor of a sentence reduction.” J.A. 220. But the court was

not convinced that these factors supported a sentence reduction. In its view, Appellant’s

“offenses are among the most serious this Court sees. He both pulled the trigger to

intentionally kill a man and threatened to kill another to cover his wrongdoing. He was

also convicted for his role in a conspiracy to distribute a sizeable quantity of drugs.” J.A.

220. Considering the totality of the circumstances, the district court determined that “the

need to reflect the seriousness of the offense, promote respect for the law, and provide just

punishment for the offense weigh against a sentence reduction.” J.A. 221.

This explanation satisfies us that the district court did not abuse its discretion in

retaining Appellant’s life sentence.

IV.

The district court did not err in concluding that

(e)(1)(A) is not a

covered offense. Nor did it procedurally or substantively err in declining to reduce

Appellant’s sentence.

AFFIRMED

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