USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4580

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JARVIS MIKEL JACKSON,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:21−cr−00495−HMH−1)

Argued: September 27, 2024 Decided: January 31, 2025

Before AGEE and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Agee and Senior Judge Keenan joined.

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Brook Bowers Andrews, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Adair F. Boroughs, United States Attorney, Andrea G. Hoffman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 2 of 16

PAMELA HARRIS, Circuit Judge:

Jarvis Mikel Jackson pled guilty to possession of a firearm as a felon, in violation

of

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

range of 110 to 120 months’ imprisonment and sentenced Jackson to a prison term of 115

months. In this appeal, Jackson raises two challenges to his sentence.

First, Jackson argues that the district court erred in calculating his Guidelines

sentencing range by treating two prior South Carolina convictions for drug distribution as

“controlled substance offense[s]” under the Guidelines, increasing his base offense level.

See U.S.S.G. § 2K2.1(a)(1). According to Jackson, that determination was inconsistent

with United States v. Campbell,

(4th Cir. 2022), which held that a violation

of West Virginia’s controlled substances statute did not qualify as a Guidelines controlled

substance offense. We disagree. As we have explained already, South Carolina’s drug

distribution statute is “materially distinguishable” from the West Virginia statute at issue

in Campbell, and a distribution conviction under South Carolina’s statute is a controlled

substance offense as defined by the Guidelines. See United States v. Davis,

,

443–45 (4th Cir. 2023). That precedent squarely governs here.

We do, however, agree with Jackson that the district court failed to explain its 115-

month sentence or address Jackson’s arguments for a lower term of imprisonment. The

absence of an individualized explanation for a sentence constitutes procedural error, and

we therefore vacate Jackson’s sentence and remand for resentencing.

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I.

This is the second time Jackson has appealed his sentence, and the procedural

history of this case is somewhat complex. We begin with Jackson’s first sentencing and

appeal. We then briefly describe our decisions in United States v. Groves,

(4th Cir. 2023) and United States v. Davis,

(4th Cir. 2023), which issued

shortly after we decided Jackson’s original appeal and before his resentencing. Finally, we

turn to the resentencing now at issue.

A.

1.

In 2021, Jackson pled guilty to one count of possession of a firearm by a felon in

violation of

(g)(1). The probation office prepared a presentence report

(“PSR”) assigning Jackson an enhanced base offense level of 26. That base offense level

rested in part on Jackson’s two prior felony convictions for distribution of crack cocaine

under South Carolina Code § 44-53-375(B), which the PSR classified as “controlled

substance offense[s].” See U.S.S.G. § 2K2.1(a)(1) (increasing base offense level when,

inter alia, a defendant has at least two prior felony convictions for a “controlled substance

offense”). All told, the PSR calculated an advisory Guidelines range of 110 to 120 months’

imprisonment. 1

1 Jackson’s total offense level and criminal history category ordinarily would lead to a Guidelines range of 110 to 137 months. That range was capped here by the 120-month statutory maximum sentence for Jackson’s § 922(g)(1) conviction. 3 USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 4 of 16

Jackson objected to the PSR’s treatment of his South Carolina convictions as

predicate controlled substance offenses, relying on our then-recent decision in United

States v. Campbell,

(4th Cir. 2022). In Campbell, we held that a drug

distribution conviction under West Virginia’s controlled substances statute did not qualify,

under the categorical approach, as a Guidelines controlled substance offense.

at 441–

42, 449. The Guidelines definition of a “controlled substance offense,” we explained,

excluded inchoate attempt offenses from its ambit.

at 444–46; see U.S.S.G. § 4B1.2(b)

(2021) (defining “controlled substance offense”). 2 But West Virginia’s statute was

broader, reaching attempted as well as completed deliveries of controlled substances, and

so it was not a categorical match for the Guidelines definition. Id. at 441–42.

Jackson argued that the same reasoning should apply to his case. Like the West

Virginia statute at issue in Campbell, Jackson contended, South Carolina Code § 44-53-

375(B) criminalizes attempted drug deliveries, taking it outside the scope of a Guidelines

controlled substance offense. And without two predicate controlled substance offenses,

Jackson explained, a base offense level of 26 was not warranted. Instead, Jackson’s base

offense level would fall to 20, leading to a Guidelines sentencing range of 63 to 78 months’

imprisonment.

2 The Sentencing Commission has since amended § 4B1.2(b)’s definition of “controlled substance offense” to include inchoate offenses. 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 may qualify as a “controlled substance offense” for Guidelines purposes. 4 USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 5 of 16

The district court overruled Jackson’s objection. The court agreed with the

government that Jackson’s reading of South Carolina’s statute was incorrect, and that in

fact, a § 44-53-375(B) distribution offense does not include attempted distribution. That

meant that Campbell was distinguishable, and that Jackson’s South Carolina convictions

remained controlled substance offenses under the Guidelines. The district court thus

adopted the PSR’s base offense level of 26 and Guidelines range of 110 to 120 months’

imprisonment.

The district court then sentenced Jackson to a prison term of 115 months, followed

by three years of supervised release. The court’s discussion of its sentence was brief. The

court did not “discuss the factors in

(a) or otherwise explain the basis for

Jackson’s sentence in any detail.” United States v. Jackson, No. 22-4179,

, at *2 (4th Cir. Apr. 10, 2023) (“Jackson I”). Instead, the court simply stated that

it believed it had correctly calculated the Guidelines and found Jackson’s case to be “a

typical case contemplated by the [G]uidelines.” S.A. 19. 3

2.

Jackson appealed his sentence, continuing to argue that his prior South Carolina

drug distribution convictions are not controlled substance offenses under the Guidelines.

South Carolina’s statute, Jackson explained, defines “distribute” as “deliver,”

(17), and “deliver or delivery” to include the “attempted transfer” of a

controlled substance,

at § 44-53-110(10) (defining “‘deliver’ or ‘delivery’” as an

3 “S.A.” refers to the supplemental appendix filed by the government. “J.A.” refers to the joint appendix filed by both parties. 5 USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 6 of 16

“actual, constructive, or attempted transfer”). It follows, he argued, that South Carolina’s

statute, like the West Virginia statute reviewed in Campbell, reaches attempted delivery of

a controlled substance, broadening it beyond the Guidelines definition of controlled

substance offense.

In an unpublished opinion, we agreed with Jackson. Jackson I,

,

at *3. Under Campbell, we reasoned, a state controlled substances law that sweeps in

inchoate attempt offenses goes beyond the conduct covered by the Guidelines definition in

§ 4B1.2(b) and is therefore not a controlled substance offense under Guideline

§ 2K2.1(a)(1). Id. at *3. And South Carolina’s “distribution” offense, we concluded, like

West Virginia’s, reaches attempted deliveries outside the scope of § 4B1.2(b). Id. We

were not persuaded by the government’s argument that under South Carolina’s law an

“attempted transfer” is not equivalent to an attempted delivery, but instead refers to a

completed delivery, nor by the government’s other efforts to distinguish Campbell. Id. at

*3–5. Accordingly, we vacated Jackson’s sentence and remanded for resentencing. Id. at

*6.

B.

Almost immediately after our unpublished decision in Jackson – but before

Jackson’s resentencing – we issued two published decisions of importance here.

First, in United States v. Groves,

(4th Cir. 2023), we held that

Campbell notwithstanding, a drug distribution conviction under the federal controlled

substances statute,

(a)(1), is a controlled substance offense under the

Guidelines. We recognized that the federal statute defines “distribute” as “deliver,” and

6 USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 7 of 16

“deliver” to include an “attempted transfer.”

(quoting

(11), 802(8)). But we agreed with the government – and several other circuit courts

– that “attempted transfer” as used in the federal statute means a “completed delivery rather

than an attempt crime,” in part because the federal law separately criminalizes attempt

offenses.

(internal quotation marks omitted). That rendered the federal law “materially

different” from Campbell’s West Virginia law,

, and made it a categorical match

for a Guidelines controlled substance offense,

. In a footnote, we rejected the

defendant’s reliance on Jackson I, an unpublished decision without precedential effect.

at 173 n.4.

Next came United States v. Davis,

, 443 (4th Cir. 2023), in which we

considered the very same South Carolina statute now at issue, § 44-53-375(B), and held

that a distribution violation constitutes a controlled substance offense as defined by the

Guidelines. We rejected the defendant’s argument that “we [we]re bound by Campbell to

conclude that a South Carolina Code [§] 44-53-375(B) ‘distribution’ offense criminalizes

the attempt offense of attempted distribution” and is thus broader than the Guidelines

definition. Id. at 444. Instead, we followed Groves: Like the federal statue in Groves, we

reasoned, South Carolina law separately codifies the offense of attempted distribution; and

under South Carolina law, like federal law, an “attempted transfer” of drugs is a “completed

distribution,” not an attempted one. Id. at 443. Because South Carolina’s § 44-53-375(B)

distribution offense does not in fact reach attempt offenses, it is “materially

distinguishable” from West Virginia’s law as understood in Campbell, and a distribution

conviction under § 44-53-375(B) categorically qualifies as a Guidelines controlled

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substance offense. Id. at 445. Again, we declined to follow Jackson I – decided, we noted,

without the benefit of the Groves precedent – as an unpublished and nonprecedential

decision. Id. at 444 n.15.

C.

That brings us, finally, to Jackson’s resentencing, from which the current appeal

arises. About a month after our decision in Davis, the probation office issued a revised

PSR. The PSR continued to treat Jackson’s prior South Carolina convictions as controlled

substance offenses, and again calculated a Guidelines range of 110 to 120 months’

imprisonment. The probation office rejected Jackson’s argument that it was bound by the

mandate rule to give effect to Jackson I, reasoning that our intervening decision in Davis

constituted a dramatic change in the law.

Before the district court, Jackson again objected, arguing that Jackson I prohibited

the court from counting his South Carolina convictions as Guidelines “controlled substance

offense[s].” He recognized that an exception to the mandate rule applies when “controlling

legal authority has changed dramatically,” see United States v. Bell,

(4th Cir.

1993), and that Davis marked a change from the earlier decision in Jackson I. Nevertheless,

Jackson contended, there was no cognizable change because Davis is not “controlling legal

authority”: Davis is in irreconcilable conflict with Campbell; Campbell, as the earlier panel

opinion, controls; and Davis is therefore without effect for purposes of the mandate rule,

leaving the district court bound by Jackson I.

Without an enhanced base offense level predicated on his South Carolina

convictions, Jackson again explained, his Guidelines sentencing range would fall to 63 to

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78 months’ imprisonment. Jackson urged the district court to impose a sentence within

that range, either as a within-Guidelines sentence following Jackson I or, if the district

court decided to follow Davis, as a downward variant sentence. In arguing that the

(a) factors supported such a sentence, Jackson relied primarily on his post-

sentencing conduct while in custody: Jackson had been on excellent behavior, with no

disciplinary infractions, and had been taking job skills classes and working toward a GED.

Jackson also argued that his criminal history score fully accounted for his prior offenses

and that he would return to a loving family home – a fiancée and four children – upon

release.

The district court overruled Jackson’s objection and decided to “follow the Davis

decision,” calling this an “easy” question. J.A. 22. Davis, the court noted – unlike

Campbell – “actually dealt with the South Carolina statute” at issue, J.A. 22–23, making

clear that a violation of § 44-53-375(B) qualifies as a controlled substance offense under

the Guidelines definition. The court agreed with the government that the exception to the

mandate rule for changes in the law applied, and that it should adhere to Davis rather than

to Jackson I. Accordingly, it adopted the PSR advisory sentencing range of 110 to 120

months’ imprisonment.

The court again sentenced Jackson to a 115-month prison term. And again, its

discussion was brief. The court “incorporate[d] my comments and all of the record that

was before me incorporated into this adjudication of his sentence,” spelled out Jackson’s

offense level and criminal history category, and said it had “considered those factors under

(a).” J.A. 23. No further explanation was provided.

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Jackson timely appealed.

II.

On appeal, Jackson challenges the procedural reasonableness of his sentence. “In

determining procedural reasonableness, this Court considers 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). According to Jackson, the district court erred in two of these

respects: by improperly calculating his Guidelines range and by failing to adequately

explain its sentence. For the reasons given below, we disagree with Jackson’s first claim

but agree with his second, and we therefore vacate Jackson’s sentence and remand for

resentencing.

A.

Jackson argues first that the district court incorrectly used his prior drug distribution

convictions under South Carolina’s § 44-53-375(B) to increase his Guidelines base offense

level, treating them as controlled substance offenses contrary to our controlling decision in

Campbell. We review de novo whether a prior conviction qualifies as a controlled

substance offense under the Sentencing Guidelines, see Davis, 75 F.4th at 441, and we

agree with the district court that Jackson’s South Carolina convictions so qualify.

Because this is Jackson’s second appeal of his sentence, we begin with the mandate

rule. The parties do not dispute the rule’s contours as they apply here. They agree that

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under ordinary circumstances, the district court would have been required to carry out the

mandate of Jackson I on remand, treating Jackson’s South Carolina convictions as outside

the Guidelines definition of a controlled substance offense and lowering Jackson’s base

offense level accordingly. See Bell,

(explaining that the mandate rule generally

“forecloses relitigation of issues expressly or impliedly decided by the appellate court”).

They also agree that an exception to the mandate rule exists when “controlling legal

authority has changed dramatically,” see

, allowing a district court to consider the

merits anew and follow later precedent. And they agree that there has been a “change” in

the law here – that after our unpublished decision in Jackson I, we changed course in Davis,

expressly declining to follow Jackson I and instead holding in a published opinion that a

conviction under South Carolina’s § 44-53-375(B) qualifies as a Guidelines controlled

substance offense.

But while there may have been a “change,” Jackson argues, there was not a change

in “controlling legal authority,” because Davis is not “controlling.” Instead, Jackson

argues, because there is an irreconcilable conflict between Davis and the earlier-decided

Campbell, Campbell continues to control. See McMellon v. United States,

(4th Cir. 2004) (en banc) (“When published panel opinions are in direct conflict on a

given issue, the earliest opinion controls[.]”). The parties’ dispute, in other words, is not

about the mandate rule but about the status of Davis: According to Jackson, Davis is

without “legal authority” – taking it outside the mandate rule exception – because it cannot

be reconciled with our earlier decision in Campbell.

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As the district court observed, this may be an “interesting dynamic,” but it is also

an “easy” question, J.A. 22, because Jackson’s argument is foreclosed by Davis itself. We

considered precisely this issue in Davis, in which the defendant argued – just as Jackson

does here – that the West Virginia statute in Campbell and South Carolina’s drug

distribution statute are “materially indistinguishable,” and that we were therefore “bound

by Campbell” to conclude that a distribution conviction under South Carolina’s § 44-53-

375(B) does not qualify as a Guidelines controlled substance offense. Davis, 75 F.4th at

444. But we held to the contrary, finding that Campbell is not controlling when it comes

to the South Carolina statute. Id. at 444–45. We of course recognized Campbell’s core

holding that “an attempt offense cannot be a ‘controlled substance offense,’ as defined in

Guidelines [§] 4B1.2(b).” Id. at 441–42. 4 That holding did not apply to § 44-53-375(B),

however: The “South Carolina statutory scheme” is “materially distinguishable” from

West Viriginia’s in that it does not reach attempted distribution offenses, making Campbell

likewise distinguishable. Id. at 445.

That holding squarely governs here. Davis has already decided that South

Carolina’s drug distribution statute is materially different from the West Virginia statute at

issue in Campbell. The purported “conflict” between Campbell and Davis on which

defendant’s entire argument rests does not exist, for the reasons given by Davis. Jackson

may disagree with Davis’s analysis, but Davis is published, binding authority. And when

4 To avoid any confusion, we note again that the Sentencing Commission has since amended the Guidelines definition of controlled substance offense so that it now includes inchoate attempt offenses. See supra n.2. 12 USCA4 Appeal: 23-4580 Doc: 42 Filed: 01/31/2025 Pg: 13 of 16

Davis declined to follow our unpublished decision in Jackson I, see id. at 444 n.15, and

instead ruled that a South Carolina distribution conviction under § 44-53-375(B) is a

Guidelines controlled substance offense, it changed the “controlling legal authority” for

purposes of the mandate rule exception, see Bell,

, allowing the district court

to follow our new precedent on remand.

The district court correctly relied on Davis and properly treated Jackson’s South

Carolina drug distribution convictions as predicate controlled substance offenses under the

Guidelines. Accordingly, we find no procedural error in the district court’s calculation of

Jackson’s Guidelines sentencing range.

B.

We turn next to Jackson’s argument that the district court failed to sufficiently

explain his 115-month sentence. At resentencing, Jackson argued that even if the district

court overruled his Campbell-based objection and adopted the Guidelines range of 110 to

120 months, it should vary down to a term of somewhere between 63 and 78 months under

the

(a) factors. Although the district court ably addressed Jackson’s legal

objection regarding the status of his South Carolina convictions, it did not address

Jackson’s argument for a downward variant sentence, and it did not explain the 115-month

sentence it selected. We agree with Jackson that this constituted procedural error

warranting a vacatur of his sentence and a remand for resentencing.

We review a district court’s sentence – whether inside or outside the Guidelines

range – under a “deferential abuse-of-discretion standard.” Gall v. United States,

(2007). “A district court is required to provide an individualized assessment based

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on the facts before the court, and to explain adequately the sentence imposed to allow for

meaningful appellate review and to promote the perception of fair sentencing.” United

States v. Lewis,

(4th Cir. 2020) (internal quotation marks omitted). That

explanation must “provide some indication that the court considered the § 3553(a) factors

and applied them to the particular defendant.” United States v. Nance,

, 212–

13 (4th Cir. 2020) (cleaned up). And of special relevance here, when a defendant – like

Jackson – is being resentenced on remand after appeal, new “evidence of [the] defendant’s

rehabilitation since his prior sentencing” may “support a downward variance from the

advisory Guidelines range.” Pepper v. United States,

(2011).

As described above, the district court’s discussion of its 115-month, within-

Guidelines sentence was abbreviated, covering just a few lines of text in the transcript.

Several were devoted to the court’s introductory “incorporat[ion]” of “[its] comments and

all of the record that was before [it].” J.A. 23. The court then walked through Jackson’s

Guidelines offense level, criminal history category, and advisory sentencing range; noted

Jackson’s inability to pay a fine; and concluded by saying, “[t]he [c]ourt has considered

those factors under

(a),” without saying what “those factors” were.

We cannot find that explanation sufficient. Without belaboring the point, we note

the following: The district court did not address any individualized fact about Jackson in

imposing sentence. See United States v. Lynn,

(4th Cir. 2010) (“[A]

district court’s explanation of its sentence need not be lengthy, but the court must offer

some individualized assessment justifying the sentence imposed.” (internal quotation

marks omitted) (emphasis in original)). It did not identify any § 3553(a) factor it

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considered, or explain how any § 3553(a) factor “applied” to “the particular defendant” in

front of it. Nance, 957 F.3d at 212–13. It did not mention, engage with, or rule on

Jackson’s request for a downward variance. See United States v. Blue,

(4th Cir. 2017) (“[A] [district] court must address the parties’ nonfrivolous arguments in

favor of a particular sentence[.]”). And it never discussed the heart of Jackson’s argument

for a downward variance: that his post-sentencing conduct – exemplary disciplinary

record, GED classes, and the like – were evidence of rehabilitation. See id.; Nance, 957

F.3d at 212–13 (district court must indicate that it has considered arguments for a lower

sentence).

We are not persuaded by the government’s contrary arguments. It is true, as the

government explains, that the district court accepted the parties’ sentencing memoranda

and heard both parties’ arguments. But that minimum requirement of procedural fairness

– that a district court provide a defendant with the opportunity to present argument – is

distinct from the requirement that a district court explain its sentence in light of those

arguments. See Blue,

.

The government also suggests that the explanation here can be bolstered by the

court’s “specific[] incorporat[ion]” of its comments at Jackson’s first sentencing. We are

less certain than the government that the court intended to “incorporate” materials from the

original sentencing, rather than the materials currently before it. See J.A. 23 (“I incorporate

my comments and all of the record that was before me incorporated into this adjudication

of his sentence.”). But regardless, a reference back to Jackson’s first sentencing adds little.

As we noted in Jackson I, the court’s explanation at that sentencing, too, was “brief,” with

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the court failing to “discuss the factors in

(a) or otherwise explain the

basis for Jackson’s sentence in any detail.” Jackson I,

, at *2. And of

course, the court at that first sentencing could not have considered or addressed the

evidence on which Jackson chiefly relied at his resentencing, concerning his post-

sentencing conduct and rehabilitation.

We express no view as to the merits of Jackson’s arguments for a lower sentence.

We hold only that the district court committed procedural error when it failed to address

those arguments and to provide an individualized explanation for the sentence it selected.

Accordingly, we vacate Jackson’s sentence and remand for resentencing.

III.

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

resentencing proceedings consistent with this opinion.

VACATED AND REMANDED

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