USCA4 Appeal: 23-4216 Doc: 37 Filed: 01/22/2025 Pg: 1 of 13

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4216

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TYTUS LAMAAR SHIELDS,

Defendant – Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:21-cr-00268-1)

Argued: September 26, 2024 Decided: January 22, 2025

Before HARRIS, HEYTENS, and BERNER, Circuit Judges.

Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Heytens and Judge Berner joined.

ARGUED: Wesley P. Page, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Judson Campbell MacCallum, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. USCA4 Appeal: 23-4216 Doc: 37 Filed: 01/22/2025 Pg: 2 of 13

PAMELA HARRIS, Circuit Judge:

Tytus Lamaar Shields pleaded guilty to possession of a firearm as a felon, in

violation of

(g)(1). The district court calculated an advisory Sentencing

Guidelines range of 51 to 63 months’ imprisonment and sentenced Shields to 51 months in

prison. Shields appeals, arguing that his sentence is procedurally unreasonable because the

district court failed to address his non-frivolous argument for a downward variance. We

agree. Because the district court failed to adequately address Shields’s argument and

explain the sentence imposed, we vacate the sentence and remand for resentencing.

I.

In November 2021, law enforcement officers in Parkersburg, West Virginia,

received information indicating that Tytus Lamaar Shields was transporting drugs into the

area. Investigation revealed that Shields was on bond for pending criminal charges in Ohio

and was considered a fugitive from justice. An arrest warrant was issued, and officers took

Shields into custody at his West Virginia residence. During the arrest, they seized drugs,

cash, and a loaded Ruger LC9 9mm firearm. Shields admitted the firearm was his.

Shields was charged with being a felon in possession of a firearm in violation of

(g)(1). Specifically, Shields’s indictment charged that he possessed the Ruger

LC9 firearm while knowing he had been convicted of two Ohio felony offenses. Both Ohio

convictions occurred in 2014, and one of them was for a violation of Ohio’s drug trafficking

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statute, Ohio Revised Code § 2925.03. Shields pleaded guilty to the single-count

indictment without a plea agreement. 1

At issue in this appeal is Shields’s sentencing and, specifically, application of

Sentencing Guideline § 2K2.1(a)(4)’s increased base offense level, which applies, as

relevant here, if a defendant has a prior felony conviction for a “controlled substance

offense.” U.S.S.G. § 2K2.1(a)(4)(A) (2021). In its Presentence Investigation Report

(“PSR”), the probation office did not apply that base offense level in calculating Shields’s

advisory sentencing range. It recognized that Shields had a prior felony conviction under

Ohio’s drug trafficking law. But because our court had recently held in United States v.

Campbell,

(4th Cir. 2022), that a conviction under West Virginia’s similar

controlled substances law did not qualify categorically as a Guidelines “controlled

substance offense,” the PSR deemed § 2K2.1(a)(4) inapplicable. As a result, Shields’s

base offense level in the PSR was 14 – not 20 – and his advisory sentencing range was 30

to 37 months’ imprisonment.

The government objected, arguing that Shields’s Ohio drug trafficking conviction

was indeed a “controlled substance offense.” According to the government, Ohio’s statute

is distinguishable from the West Virginia statute at issue in Campbell: Unlike West

Virginia’s statute, Ohio’s does not reach inchoate “attempt” offenses, which we held in

Campbell fell outside the Guidelines definition of a “controlled substance offense.” See

1 As for the outstanding Ohio charges, Shields’s bond was revoked, and he was ultimately convicted in Ohio court on multiple counts, including trafficking in fentanyl.

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Campbell, 22 F.4th at 446–47. 2 Instead, the least culpable conduct covered by the Ohio

statute is possession with intent to distribute, making Ohio’s drug trafficking law a

categorical match for the Guidelines. On that understanding, the government explained,

Shields would have a base offense level of 20 – not the PSR’s 14 – and a Guidelines range

of 51 to 63 months’ imprisonment. The government asked the court to impose a sentence

of 51 months.

In response, Shields asked for a sentence of 36 months, consistent with the PSR’s

Guidelines range. But if the district court sustained the government’s objection and instead

adopted a 51-to-63-month range, Shields said, then it should grant a downward variance to

36 months. Otherwise, according to Shields, application of the increased base offense level

would lead to unfair and arbitrary results, with a defendant who committed a prior drug

trafficking offense in Ohio subject to a higher advisory sentencing range than a defendant

who was convicted for the same conduct in West Virginia. To avoid this “unwarranted

sentencing disparity,” the court “should impose the same sentence on Mr. Shields – 36

months – based on his prior conduct” regardless of the state “where his prior conviction

2 That definition, which appeared in U.S.S.G. § 4B1.2(b) (2021), has since been amended to include inchoate offenses as “controlled substance offense[s].” See Amendments to the Sentencing Guidelines § 4B1.2(d) (Apr. 27, 2023), https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly- amendments/202305_RF.pdf [https://perma.cc/Y3AS-25DW]. So today, a prior conviction under West Virginia’s controlled substances statute qualifies as a “controlled substance offense” and triggers the increased base offense level under § 2K2.1(a)(4).

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was sustained and how that conviction is treated” under Campbell. J.A. 15–16

(Defendant’s Sentencing Memorandum).

At Shields’s sentencing hearing, the district court began by addressing the

government’s objection and the Campbell issue. Shields acknowledged that there was no

caselaw applying Campbell to Ohio’s drug trafficking statute and did not attempt to rebut

the government’s objection as a legal matter. Instead, Shields emphasized his equitable

argument for a variance: “[I]f the Court sustains the objection[,] a downward variance

would be warranted to account for the unwarranted sentencing disparity that would result

from someone being convicted of similar conduct in Ohio” facing a significantly higher

Guidelines range than someone “having the same conduct with a prior conviction in West

Virginia.” J.A. 40–41.

The district court sustained the government’s objection. It thoroughly analyzed the

Guidelines definition of “controlled substance offense,” the Ohio drug trafficking statute

under which Shields was convicted, and this court’s decision in Campbell. In the end, it

agreed with the government: While the West Virginia statute at issue in Campbell

criminalized “attempted delivery,” the Ohio statute was drafted differently and did not

penalize inchoate offenses. This meant that a violation of the Ohio statute, unlike a

violation of the West Virginia statute, did qualify under the categorical approach as a

“controlled substance offense” under the Guidelines. The increased base offense level

under § 2K2.1(a)(4) thus applied, resulting in a base offense level of 20 and a Guidelines

range of 51 to 63 months’ imprisonment. In the course of this legal analysis, the court did

not address Shields’s equitable argument for avoiding sentencing disparities.

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The district court then turned to the sentencing factors set forth in

(a). Shields again asked for a downward variance. He again argued that but for a

happenstance of geography – a prior controlled substance offense committed in Ohio

instead of West Virginia – he would be subject to a significantly lower base offense level

and advisory sentencing range. He also briefly argued that his criminal history score

overstated his criminal record, and he alluded to a difficult childhood, his significant state

sentence, and the support he would receive from his family upon release. Without

questioning counsel or commenting during this presentation, the district court sentenced

Shields to a prison term of 51 months and a supervised release term of three years.

The court’s explanation for its sentence focused on Shields’s extensive criminal

history, which the court described as “persistent criminal behavior” demonstrating “a total

disregard for the law.” J.A. 51. The court also recognized the lengthy state sentence

Shields would be serving, noting that it sentenced Shields at the bottom of his Guidelines

range in recognition of that consecutive state sentence. But the court did not address or

make any reference to Shields’s repeated argument that a downward variance was justified

by an unwarranted disparity in the treatment of defendants who committed the same

predicate drug offenses in different states.

II.

On appeal, Shields challenges the procedural reasonableness of his sentence,

arguing that the district court failed to engage with his non-frivolous argument for a

downward variance to avoid an arbitrary sentencing disparity. We review the procedural

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reasonableness of a sentence under a “deferential abuse-of-discretion standard.” United

States v. Blue,

(4th Cir. 2017) (quoting Gall v. United States,

(2007)). We consider “whether the district court properly calculated the defendant’s

advisory guidelines range, gave the parties an opportunity to argue for an appropriate

sentence, considered the

(a) factors, and sufficiently explained the

selected sentence.” United States v. Ross,

(4th Cir. 2019). Directly

relevant here is the requirement that a sentencing court “address the parties’ nonfrivolous

arguments in favor of a particular sentence, and if [it] rejects those arguments, [] explain

why in a sufficiently detailed manner to allow this Court to conduct a meaningful appellate

review.” Blue,

; see Ross, 912 F.3d at 744–45.

A.

We agree with Shields that the district court committed procedural error when it

failed to address his non-frivolous argument for a downward variance. In his sentencing

memorandum and twice at his sentencing hearing, Shields argued for a downward variance

to account for an unwarranted disparity between the 51-to-63-month Guidelines advisory

range that applied to him and the 30-to-37-month range that would apply to a similarly

situated felon-in-possession defendant who had committed the same prior drug offense in

West Virginia, not Ohio. Congress has expressly instructed sentencing courts to consider

“the need to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.”

(a)(6). But the district

court never addressed or otherwise engaged with this argument for a below-Guideline

sentence.

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The district court did, to be sure, carefully consider the legal issue of whether

§ 2K2.1(a)(4)’s increased base offense level applied to Shields, consistent with Campbell.

But that is a different question, as we explained in United States v. Torres-Reyes,

(4th Cir. 2020). There, the defendant argued that as a matter of law, certain offenses

should not be included in the Guideline calculation of his criminal history.

. He

also argued that if the court disagreed, it should vary downward from the resulting

Guidelines range as a matter of equity, in part to avoid creating unwarranted sentencing

disparities.

at 151–52. The district court in Torres-Reyes considered the defendant’s

legal objection to the Guideline calculation but did not address his alternative equitable

argument for a downward variance.

. On appeal, this court concluded that Torres-

Reyes’s argument for a downward variance was a distinct, non-frivolous argument and that

the district court had committed procedural error by failing to separately address it.

at

152–53.

The same conclusion applies here. The district court thoroughly addressed the legal

merits of the government’s objection to the PSR’s Guideline calculation and the parties’

positions on Shields’s proper offense level. It did not, however, address or even

acknowledge Shields’s equitable argument about the disparity that would result from its

resolution of that legal question. Nor did it “engage counsel in a discussion” from which

we might be able to infer an explanation for its rejection of Shields’s request for a

downward variance. Blue,

. Under those circumstances, we “cannot

assume that [the] sentencing court truly considered” Shields’s argument or meaningfully

review the sentence it imposed.

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In response, the government reminds us that a district court need not address every

argument for a lower sentence. Blue and similar cases obligate a court to address only a

defendant’s non-frivolous arguments, see Blue,

, and Shields’s Campbell-

based argument, the government contends, is so frivolous that the court was free to ignore

it. We disagree.

The government argues, first, that the sentencing disparity Shields points to is not

the kind of disparity contemplated by § 3553(a)(6). That provision directs sentencing

courts to consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.”

(a)(6). According to the government, it is not intended to address disparities worked

by variations in state statutes, but only to ensure that defendants with “the same prior

criminal convictions” are treated similarly. And because Shields’s prior Ohio drug

trafficking conviction was treated just like any other defendant’s prior Ohio drug

trafficking conviction, there is no disparity to be addressed.

But § 3553(a)(6) is not so limited. It does not, in fact, refer to defendants with the

“same prior criminal convictions,” but instead to “defendants with similar records who

have been found guilty of similar conduct.”

(a)(6). And that is the crux

of Shields’s entire argument: The same prior conduct, with the same level of culpability,

would lead to a different Guidelines sentencing range if it had resulted in a West Virginia

conviction than it would if it had resulted in an Ohio conviction. If Shields had engaged

in his prior drug-trafficking conduct in West Virginia and been convicted under West

Virginia’s statute, he would not have committed a “controlled substance offense” under the

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Guidelines – not because of anything having to do with his conduct or culpability, but

because of how West Virginia drafted its controlled substances statute. The outcome is

different in Ohio only because of an unrelated legislative drafting choice and the

categorical approach we apply in defining “controlled substance offense[s]” under the

Guidelines. See J.A. 41–44 (district court explanation for why Campbell does not apply to

Ohio’s statute).

We think this is the kind of disparity a district court could consider under

§ 3553(a)(6). And it turns out that the government agrees: At oral argument, the

government recognized that the district court could have varied downward on this basis

without rendering its sentence substantively unreasonable. That forthright concession,

which we appreciate, effectively settles the issue before us. Categorizing as “frivolous” an

argument that could permissibly lead to a lower sentence is a contradiction in terms.

In any event, we also are unpersuaded by the government’s second argument, which

is that Shields is seeking what amounts to an undeserved “windfall” bestowed by Campbell

on defendants with prior drug convictions in West Virginia. According to the government,

Shields was not penalized when his Ohio drug trafficking offense was, like most state drug

trafficking offenses, treated as a “controlled substance offense” under the Guidelines.

Instead, he was deprived of a benefit that accrued to certain defendants with prior West

Virginia drug convictions under Campbell. The problem, in other words, is not Shields’s

higher sentencing range, but the lower ranges of those other defendants – a position

embraced, the government says, by the recent Sentencing Guidelines amendment adjusting

the definition of a “controlled substance offense” so that violations of West Virginia’s

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statute now qualify. See Amendments to the Sentencing Guidelines § 4B1.2(d) (Apr. 27,

2023).

Had the district court considered the government’s argument, it might have agreed.

But the district court did not consider it. And contrary to the government’s suggestion, an

argument for a lower sentence is not frivolous simply because there are reasons why it

should not be adopted. There are, after all, two sides to most sentencing arguments – which

is why it is so important that the district court address those arguments, explaining its

thinking to the parties and allowing this court to engage in “meaningful appellate review.”

Blue,

.

Shields’s argument for a downward variance was not frivolous, and the district court

was obliged to address that argument and explain why it was rejected. Its failure to do so

rendered Shields’s sentence procedurally unreasonable. See

B.

The government also argues that even if the district court committed procedural

error by failing to address Shields’s Campbell-based argument for a downward variance,

that error was harmless. We again disagree.

In Ross, we applied the harmless-error standard to a sentencing court’s failure to

address a defendant’s non-frivolous arguments for a lower sentence. The burden is on the

government, we explained, to “prove that the error did not have a substantial and injurious

effect or influence on the result.”

(quoting United States v. Lynn,

(4th Cir. 2010)). In this context, that means the government must show that

“explicit consideration” of a defendant’s “mitigating arguments would not have affected

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the ultimate term of confinement imposed.”

And we are talking here, by definition,

only about “mitigating arguments” that are not frivolous – that could, as the government

conceded here, be the basis for a substantively reasonable downward variance. Where a

defendant articulates a non-frivolous argument for a lower sentence – as in Ross, and as in

this case – it may well be difficult for the government to prove that proper consideration

of that argument could not have moved the sentencing needle.

(holding that government

failed to prove harmless error because the district court “could have conceivably given [the

defendant] a different sentence” had it considered his non-frivolous arguments).

Here, the government argues that it can meet this burden because Shields’s

mitigating argument, even if non-frivolous, was so relatively weak by comparison to his

extensive criminal history, on which the district court was focused. And it is true that the

court was especially concerned by Shields’s “continued pattern of drug trafficking over a

period of more than ten years,” which did not stop even when Shields was on bond before

trial in Ohio. J.A. 52. But the question at sentencing was not whether Shields’s disparity-

based argument for a downward variance somehow outweighed his criminal history. Nor

were the choices before the district court limited to the 51-month within-Guideline

sentence it imposed and the 36-month below-Guideline sentence Shields requested.

Sentencing is not a binary inquiry, but a matter of degree. Even where one factor – say, an

especially troubling criminal history – may push the length of a sentence substantially

upward, another factor – say, avoidance of an arbitrary sentencing disparity – may nudge

the sentence back down, even if only by a few months. The responsibility of the sentencing

court is to weigh all of the relevant factors together. Here, as in Ross, we cannot look at

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this record and say with assurance that the court could not “conceivably [have] given”

Shields a somewhat lower sentence if it had considered and addressed his non-frivolous

mitigating argument as part of that mix.

. 3

III.

For the foregoing reasons, we vacate Shields’s sentence and remand for

resentencing proceedings consistent with this opinion.

VACATED AND REMANDED

3 The government points us to unpublished decisions in which we have deemed Blue-type errors harmless in part because of the relative weakness of the defendants’ mitigating arguments. See United States v. Abdin,

, 896 (4th Cir. 2020); United States v. Nelson, No. 18-4922,

, at *2 (4th Cir. May 19, 2020). We do not doubt, as Ross presupposes, that there may be cases in which a Blue error can be shown to be harmless. Our holding is simply that this is not such a case.

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