USCA4 Appeal: 23-6896 Doc: 65 Filed: 07/08/2025 Pg: 1 of 19

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6896

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

SHAHEEM JOHNSON,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, Senior District Judge. (1:97-cr-00314-AJT-1)

Argued: January 29, 2025 Decided: July 8, 2025

Before NIEMEYER, GREGORY, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the opinion, in which Judge Quattlebaum joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Nathaniel Christian Wenstrup, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant. Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellee. USCA4 Appeal: 23-6896 Doc: 65 Filed: 07/08/2025 Pg: 2 of 19

GREGORY, Circuit Judge:

The government appeals the district court’s order which reduced Shaheem Johnson’s

sentence under

(c)(1)(A) from two life sentences plus 790 months in prison

to 35 years in prison. In so doing, the government argues that no extraordinary and

compelling reasons exist to warrant compassionate release, and as such, the district court

abused its discretion. Finding no abuse of discretion by the district court, we affirm.

I.

During the 1990s, Johnson engaged in a multi-state drug-trafficking enterprise.

During the ongoing drug-trafficking enterprise, Johnson was directly responsible for the

deaths of two people. 1 In one incident, Johnson, Damein Piranti, Rickey Piranti, and

another coconspirator shot and killed Bernard Franklin. Sealed J.A. 741. In another

incident, Johnson and a coconspirator hired hit man Eldon Brown to kill Richard Villa.

Sealed J.A. 741–42. Johnson was ultimately arrested in August 1997 in relation to the

drug-trafficking enterprise. Sealed J.A. 738.

As relevant here, Johnson, Damein, and Rickey were all charged with murder in aid

of racketeering, in connection with the death of Bernard Franklin, pursuant to

(a)(1). Johnson was also charged in connection with Villa’s death under

1 In total, the criminal enterprise resulted in the deaths of five people. While Johnson was only convicted of offenses related to the deaths of Franklin and Villa, he nonetheless accepted responsibility for all five deaths due to his leadership role in the organization during the hearing on his motion for compassionate release. See J.A 677–79. 2 USCA4 Appeal: 23-6896 Doc: 65 Filed: 07/08/2025 Pg: 3 of 19

§§ 1959(a)(1) and (2), and

(c) and 924(j). In addition, Rickey was

charged under § 1959(a)(1) in connection with the murder of another individual.

Johnson elected to exercise his right to a jury trial. As relevant here, the jury

convicted Johnson of voluntary manslaughter of Franklin using a firearm during a drug

trafficking offense, in violation of

(c)(1) and 924(j), and aiding and

abetting the murder of Villa in aid of racketeering, in violation of

(a)(1)

and (2). 2 Johnson was ultimately sentenced to a total of two terms of life imprisonment

plus 790 months in prison. Johnson’s convictions were confirmed on direct appeal. United

States v. Johnson,

(4th Cir. 2000).

After trial, Damein and Rickey, who pleaded guilty and assisted the government,

received reduced sentences. Damein previously pled guilty to his § 1959(a)(1) charge

related to the Franklin killing and received a mandatory life sentence. Sealed J.A. 733.

Damein’s sentence was ultimately reduced to 20 years imprisonment, and he was

subsequently released from prison in 2015. See J.A. 76 (Docket No. 547); see also J.A.

418. Rickey previously pled guilty to both of his § 1959(a)(1) charges related to the

Franklin killing and the killing of another individual and received two concurrent

mandatory life sentences. J.A. 47 (Docket No. 233); see also Sealed J.A. 733–34. Rickey’s

sentence was ultimately reduced to a total of 40 years imprisonment, and he is expected to

be released from prison in 2032. J.A. 77 (Docket No. 556); see also J.A. 418.

2 Johnson was also convicted of other felonies, including various drug and money- laundering crimes and firearm offenses. J.A. 137–38. 3 USCA4 Appeal: 23-6896 Doc: 65 Filed: 07/08/2025 Pg: 4 of 19

As for Brown, he was arrested in New York and indicted in December 1997 on

various charges. United States v. Eldon Brown, No. 1:97-cr-1271 (S.D.N.Y. Dec. 10,

1997), Docket No. 1. Brown, who testified against Johnson, pleaded guilty to conspiracy

to commit murder for hire, murder for hire, three counts of using a firearm during and in

relation to a crime of violence, two counts of Hobbs Act robbery, and one count of making

false statements. United States v. Eldon Brown, No. 1:97-cr-1271 (S.D.N.Y. Mar. 24,

2000), Docket No. 7; see also J.A. 706 fn. 32. Brown was ultimately sentenced to five

years imprisonment and was released in 2003. See id.

In March 2021, Johnson filed a pro se motion for compassionate release pursuant to

(c)(1)(A), which the government opposed. J.A. 87 (Docket Nos. 676,

687). In August 2021, counsel for Johnson filed a supplemental memorandum in support

of Johnson’s motion for compassionate release. As relevant here, the memorandum

asserted that the sentencing disparities between Johnson’s sentence and the sentences of

Damein Piranti, Rickey Piranti, and Eldon Brown constituted an extraordinary and

compelling reason for a sentence reduction. J.A. 416–19.

In August 2023, the district court issued an order granting Johnson’s motion in part

and accordingly, reducing Johnson’s sentence from two terms of life plus 790 months in

prison to 35 years in prison. J.A. 691–722. As relevant here, the district court found that

the sentence disparities that existed between Johnson on one hand, and Damein, Rickey,

and Brown on the other hand, weighed in favor of granting compassionate release. J.A.

706–08. Specifically, the district court found the fact that Damein and Rickey received 20

and 40 years, after pleading guilty to one and two § 1959(a)(1) murders, respectively, was

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significant considering Johnson was convicted of one § 1959(a)(1) murder and “sentenced

to life, notwithstanding that the jury found mitigating circumstances and that his

participation was minor.” J.A. 708. The district court further found “an even greater

unwarranted sentencing disparity” existed between Johnson and Brown especially upon

considering “Brown’s five year sentence (which was potentially not related to the

underlying conduct in this case whatsoever) and the jury’s findings that (1) Johnson did

not substantially plan or premediate Villa’s killing, or procure payment to Brown for it, (2)

Brown was the person that actually killed Villa, and (3) Johnson was found guilty of aiding

and abetting.” Id. (referencing Jury Special Verdict Form at J.A. 303–05). Hence, the

district court found the sentencing disparities among Johnson, Damein, Rickey, and Brown

constituted an extraordinary and compelling reason to grant compassionate release. 3

The government now appeals the district court’s order reducing Johnson’s sentence

under § 3582(c)(1)(A).

II.

“Under § 3582(c)(1)(A), a district court may reduce a sentence if it finds that a

reduction is both warranted by ‘extraordinary and compelling reasons’ and also ‘consistent

with applicable policy statements issued by the Sentencing Commission.’” United States

3 In addition to this factor, the district court found the following factors weighed in favor of granting compassionate release: (1) Johnson’s rehabilitative efforts; (2) Johnson’s age at the time of the offense; and (3) Johnson’s § 924(c) stacked convictions. Moreover, the district court found the following factors was a consideration for granting compassionate release: (1) the underlying doctrinal sentiments in United States v. Booker,

(2005) and (2) Johnson’s lack of § 924(c) predicate offenses. J.A. 687–714. 5 USCA4 Appeal: 23-6896 Doc: 65 Filed: 07/08/2025 Pg: 6 of 19

v. McCoy,

(4th Cir. 2020). In the absence of an applicable policy

statement, district courts are “empowered . . . to consider any extraordinary and compelling

reason for release that a defendant might raise.”

(emphasis in original).

We review a district court’s decision on a motion for compassionate release for

abuse of discretion. United States v. Davis,

(4th Cir. 2024). “A district

court abuses its discretion when it acts arbitrarily or irrationally, fails to follow statutory

requirements, fails to consider judicially recognized factors constraining its exercise of

discretion, relies on erroneous factual or legal premises, or commits an error of law.” Id.;

see also United States v. Centeno-Morales,

(4th Cir. 2024) (quoting

United States v. Bethea,

(4th Cir. 2022)). A reviewing court may not

substitute its judgment for that of the district court. Bethea,

.

Here, the district court did not abuse its discretion in finding the sentence disparities

between Johnson’s sentence and the sentences of Damein Piranti, Rickey Piranti, and

Eldon Brown weighed in favor of granting relief. First, Damein and Rickey essentially

received 20 years for the § 1959(a)(1) conviction related to the Franklin killing, while

Johnson received a life sentence for the Franklin killing. But the only difference between

Johnson and Damein and Rickey is the mere fact that Johnson elected to exercise his right

to a jury trial. While Damein and Rickey cooperated with the government, the district court

did not abuse its discretion in concluding that such cooperation, without more, did not

justify such a vast disparity between Johnson’s sentence and Damein and Rickey’s

sentences.

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Second, and as the district court acknowledged, an even greater disparity exists

between Johnson and Brown. At best, Brown served five years for the killing of Villa, and

at worst, did not serve any time related to the killing of Villa. This is in direct contrast to

Johnson, who received a mandatory life sentence for the killing of Villa. The district court

was entitled to consider this disparity between Johnson and Brown, especially considering

the jury found that Johnson was not the trigger man, did not substantially plan or

premediate Villa’s killing, or procure payment to Brown for the killing. It did not abuse

its discretion in relying on the fact that one individual received a life sentence for a killing

and another individual (possibly) received five years for the same killing, merely because

the latter individual assisted the government. Moreover, the ambiguity surrounding the

underlying conduct of Brown’s charges does not change our calculus, as district courts

“generally exercise a wide discretion in the sources and types of evidence used to craft

appropriate sentences.” Concepcion v. United States,

(2022). As such, it

was not an abuse of discretion for the district court to find that such a significant sentence

disparity weighed in favor of granting compassionate release.

My colleague in dissent shares a different view and concludes that Johnson’s

sentencing disparity does not constitute an extraordinary and compelling reason that

warrants relief. See Dissenting Op. at 4. But not so. In determining whether an

extraordinary and compelling reason exists to grant a defendant compassionate release, and

in addition to the various circumstances outlined in § 1B1.13(b), § 1B1.13(b) allows a

district court to contemplate “other reasons” that may constitute “extraordinary and

compelling.” § 1B1.13(b)(5). A district court may consider this reason by itself or in

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combination with any other reasons outlined in § 1B1.13(b), so long as they “are similar in

gravity[.]” § 1B1.13(b)(5). In other words, there is no exhaustive list as to what may be

considered extraordinary and compelling, and it was well within the district court’s

discretion to find “other reasons,” such as Johnson’s sentencing disparity, constituted an

extraordinary and compelling factor that weighed in favor of granting relief. Interestingly,

the dissent cannot identify any precedent in this circuit that holds a sentencing disparity

alone is not enough to constitute an extraordinary and compelling reason to grant

compassionate release. Instead, the dissent relies on cases that are outside of this circuit,

unpublished, or both—none of which have any binding effect on this decision or Court.

The dissent’s other argument fares no better. As previously mentioned, the district

court did not abuse its discretion in finding that Damein’s and Rickey’s cooperation with

the government did not justify the disparity between their sentences and Johnson’s

sentence. The dissent attempts to explain why the district court’s finding is incorrect, but

respectfully, whether reasonable minds can differ is not the standard for reversal. Rather,

the standard for reversal is abuse of discretion, which is not present here.

* * *

Accordingly, given the vast disparities that exist between Johnson’s sentence, and

the sentences of Damein, Rickey, and Brown, it was well within the district court’s

discretion to find such disparities weighed in favor of granting relief. In addition, because

we find that this was not an abuse of discretion, we decline to address whether the district

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court abused its discretion in finding other factors also weighed in favor of granting

compassionate release. 4

III.

For the foregoing reasons, the district court’s ruling is

AFFIRMED.

The government does not argue that the district court erred in its evaluation of the 4

(a) factors, and as such, no analysis on these factors is necessary. 9 USCA4 Appeal: 23-6896 Doc: 65 Filed: 07/08/2025 Pg: 10 of 19

NIEMEYER, Circuit Judge, dissenting:

Shaheem Johnson led a large, multi-year drug conspiracy that was responsible for

five killings, and he was charged for his personal involvement in two of the killings. A

jury convicted him on 12 counts, two of which supported terms of life imprisonment under

(a)(1) (murder in aid of racketeering activity) and

(engaging in a continuing criminal enterprise). The district court sentenced Johnson in

1999 to two life terms for the convictions on those counts, plus 790 months’ imprisonment

for the convictions on the remaining counts.

Three times thereafter, Johnson filed motions in the district court challenging his

sentence — once in 2001, again in 2014, and yet again in 2015 — and the district court

rejected those challenges.

Finally, in March 2021, Johnson filed a motion under

(c)(1)(A),

commonly called a motion for compassionate release, and a different district judge granted

it and reduced Johnson’s sentence to 35 years’ imprisonment. The court relied on the

disparity in sentences given to three of Johnson’s coconspirators — Rickey Piranti, Damein

Piranti, and Eldon Brown. It reviewed the conduct of each of those coconspirators based

on trial evidence, the charges that the prosecutors chose to lodge against them, and the

sentences that the district courts imposed on them, concluding:

On balance, there are sentencing disparities that weigh in favor of granting relief. Damein and Rickey ultimately received 20 and 40 years, respectively, after pleading guilty to one and two § 1959(a)(1) murders, respectively. By contrast, Johnson was convicted of one § 1959(a)(1) murder and sentenced to life, notwithstanding that the jury found mitigating circumstances and that his participation was minor. There also exists an even greater unwarranted sentencing disparity between Johnson and Brown, given Brown’s five year

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sentence (which was potentially not related to the underlying conduct in this case whatsoever) and the jury’s findings that (1) Johnson did not substantially plan or premeditate Villa’s killing, or procure payment to Brown for it, (2) Brown was the person that actually killed Villa, and (3) Johnson was found guilty of aiding and abetting.

The majority opinion now affirms the district court on the basis that a sentencing disparity

existed, yielding simply to the discretion exercised by the district court in deciding

Johnson’s motion. The majority holds:

Here, the district court did not abuse its discretion in finding the sentence disparities between Johnson’s sentence and the sentences of Damein Piranti, Rickey Piranti, and Eldon Brown weighed in favor of granting relief.

* * *

[G]iven the vast disparities that exist between Johnson’s sentence, and the sentences of Damein, Rickey, and Brown, it was well within the district court’s discretion to find such disparities weighed in favor of granting relief.

Supra at 6–8.

The majority, however, conducted no analysis to apply the requirements imposed

by law for granting motions for compassionate release. Had it done so, it could not legally

or factually have affirmed the district court’s errant reduction in Johnson’s sentence.

Disparities in sentencing are not legally a basis for granting a motion for compassionate

release under § 3582(c)(1)(A). And, in any event, the factual circumstances of this case do

not support a finding of unwarranted disparities. I address these two points in order.

I

Congress has made clear that criminal judgments must remain final and may not be

opened by district judges except in specified, narrow circumstances. Section 3582(c)

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unequivocally so provides, stating that a court “may not modify a term of imprisonment

once it has been imposed” except as therein provided.

(c); accord Dillon

v. United States,

(2010). A motion for compassionate release under

§ 3582(c)(1)(A) is, however, one such exception. That provision authorizes a district court

to reduce a sentence based on developments that have occurred after the original sentence

was imposed.

Specifically, § 3582(c) authorizes a court to reduce a term of imprisonment only

after it has (1) considered the

(a) factors as they may be relevant, (2)

found that “extraordinary and compelling reasons warrant such a reduction,” and (3) found

that “such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.”

(c)(1)(A); see also United States v. Crawley,

___ F.4th ___, No. 24-6257,

, at *3 (4th Cir. June 10, 2025); United

States v. High,

, 185–86 (4th Cir. 2021). And to carry out the third

requirement, Congress directed the Sentencing Commission to promulgate and distribute

policy statements for the implementation of § 3582(c). See

(a)(2)(C). It

directed further that the Commission “describe what should be considered extraordinary

and compelling reasons for sentence reduction” under § 3582(c)(1)(A), “including the

criteria to be applied and a list of specific examples.”

(t) (emphasis added).

The Sentencing Commission has done just that, promulgating U.S.S.G. § 1B1.13, which

appropriately lists what may be considered as extraordinary and compelling reasons for a

sentence reduction under § 3582(c)(1)(A).

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The policy statement in § 1B1.13(b) lists six changes in circumstances following

the original sentencing that qualify as “extraordinary and compelling reasons”: (1) the

defendant’s medical circumstances, such as his suffering from a terminal illness or a serious

condition that substantially diminishes his ability to provide self-care; (2) the defendant’s

experiencing serious deterioration in physical or mental health because of his age; (3) the

defendant’s family circumstances, such as the need to care for a close family member and

the unavailability of another caregiver; (4) the defendant’s having suffered sexual abuse or

physical abuse at the hands of prison personnel; (5) other reasons of similar gravity; and

(6) a change in the law while the defendant is serving an unusually long sentence. See

U.S.S.G. § 1B1.13(b). Consistent with the finality of judgments, however, the list does not

purport to authorize a reassessment of the facts leading to the defendant’s conviction or the

factors considered in imposing the original sentence, such as sentencing disparities

addressable under § 3553(a)(6). Those matters fall within the purview of the court at trial,

and § 3582(c) does not authorize courts to review an underlying conviction or final

sentence. That is the role of a motion filed under

.

Because a motion for compassionate release serves to reduce a defendant’s already-

final sentence on the basis of post-sentence developments, the “facts that existed when the

defendant was sentenced cannot later be construed as ‘extraordinary and compelling’

justifications for a sentence reduction.” United States v. Hunter,

(6th Cir.

2021). As explained in the legislative history, Congress intended that the role of

§ 3582(c)(1)(A) was to address “unusual cases in which an eventual reduction in the length

of a term of imprisonment is justified by changed circumstances.” S. Rep. No. 98-225, at

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55 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3238 (emphasis added); see also

Hunter, 12 F.4th at 569–70. And while district courts are given discretion to grant motions

for compassionate release based on such subsequent developments, their discretion is

clearly limited. Hunter,

(noting § 3582(c)(1)(A)’s “narrow scope”).

More particularly, the courts have uniformly concluded that sentencing disparities,

such as those at issue here, are not a ground for granting a motion for compassionate

release, regardless of whether those disparities existed at the time of sentencing or arose

thereafter. See United States v. Fernandez,

(2d Cir. 2024) (holding that

the defendant’s “sentencing disparity [with his codefendants] is not an ‘extraordinary and

compelling reason[]’ to reduce his sentence under the plain meaning of the statute”

(alteration in original)), cert. granted on other grounds,

(May 27, 2025);

United States v. DeFoggi, No. 22-2327, 22-2394,

, at *2 (8th Cir. June

22, 2023) (per curiam) (holding that the disparity between the defendant’s sentence and

that of other defendants using the same child-pornography site was not an extraordinary

and compelling reason for compassionate release); Hunter, 12 F.4th at 571–72 (noting that

“even if the sentence disparity did not exist at the time Hunter was sentenced, subsequent

leniency in another defendant’s case says nothing about how Hunter’s personal

circumstances have changed since he was sentenced”); United States v. Arojojoye,

, 477–78 (7th Cir. 2020) (labeling as “dubious” the argument that a “disparity

between [the defendant’s] sentence and his codefendant’s” could be an extraordinary and

compelling reason for compassionate release). Indeed, in an unpublished opinion, we have

ruled similarly, rejecting a defendant’s argument that extraordinary and compelling

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circumstances existed because “his sentence was too harsh when compared to his

codefendants.” United States v. Melvin, No. 23-6011,

, at *2 (4th Cir.

Sept. 14, 2023) (per curiam). And this consensus exists for good reason — repackaging

the § 3553(a) sentencing factors, such as sentencing disparities, as “extraordinary and

compelling reasons” would negate § 3582(c)’s rule of finality and ignore its narrow scope.

The provision, so interpreted, would permit a court to alter any sentence with which it did

not agree in the first instance. In addition, such an interpretation would render most of

§ 3582(c) superfluous. Melvin,

, at *2 (quoting Hunter,

).

Despite the clear commands of § 3582(c) and the uniform array of relevant cases,

the district court engaged in a comprehensive review of the role of each defendant in the

conspiracy, reassessing their respective culpability and concluding that the sentences

imposed created unwarranted disparities. And yet more grievous, the majority now

approves this belated retrial. It states that “Damein and Rickey essentially received 20

years for . . . the Franklin killing, while Johnson received a life sentence for the Franklin

killing,” supra at 6, thus creating an unwarranted disparity. And as to Brown, the majority

holds that “[t]he district court was entitled to consider this disparity between Johnson and

Brown, especially considering the jury found that Johnson was not the trigger man, did not

substantially plan or premeditate Villa’s killing, or procure payment to Brown for the

killing.” Supra at 7 (emphasis added). In so holding, the majority, too, engages in a retrial,

reviewing the facts proved at trial, the charging decisions of the prosecutors, and the

original sentencing disparities. At bottom, it upholds what is essentially nothing more than

one district judge’s disagreement with Johnson’s mandatory life sentence, as well as its

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own. Doing so is plainly contrary to law. See

(c)(1)(A);

(t); U.S.S.G. § 1B1.13(b). And I would reverse on that basis.

II

Even if the majority were authorized to consider the evidence introduced at trial and

disparities in sentencing as reasons for affirming the district court’s reduction of Johnson’s

sentence 20 years later, it nonetheless erred in failing to recognize that a disparity between

a defendant who went to trial and his codefendants who pleaded guilty, cooperated, and

provided the government with substantial assistance is not unwarranted.

The district court looked at the sentences of five coconspirators in considering

Johnson’s disparity argument. They may be described as follows: (1) Johnson received

two life sentences, at least one of which was a statutory minimum sentence, for convictions

under

(a)(1) and

, plus 790 months for his remaining

convictions; (2) Johnson’s brother, Raheem Johnson, received eight life sentences,

including four statutory minimum life sentences for violations of § 1959(a)(1), and 528

months for his other counts of conviction; (3) Damein Piranti pleaded guilty to one count

of murder in aid of racketeering activity under § 1959(a)(1), and he too received the

statutory minimum life sentence for this conviction; (4) Rickey Piranti, likewise, pleaded

guilty to two counts of murder in aid of racketeering activity under § 1959(a)(1) and

accordingly received two statutory minimum life sentences for his convictions; and finally

(5) Eldon Brown, who was not prosecuted with the other coconspirators in the Eastern

District of Virginia, but rather in the Southern District of New York, pleaded guilty to,

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among other things, two counts of murder for hire under

and three counts

of using a firearm during a crime of violence, and he received a sentence of five years’

imprisonment. The record does not, however, provide any explanation of the New York

prosecutor’s charging decision with respect to Brown or the circumstances of his guilty

plea, other than to indicate that he had cooperated.

First, it is apparent that there was no unwarranted disparity with respect to the

sentence imposed on Johnson and the sentences imposed on Damein Piranti and Rickey

Piranti. They all received statutory minimum life sentences. Both Damein and Rickey,

however, chose to plead guilty and to cooperate with the government, and the government

in turn chose to file a motion under Rule 35 to reduce their sentences based on its judgment

that they provided “substantial assistance in investigating or prosecuting another person.”

Fed. R. Crim. P. 35(b)(1). Accordingly, the sentencing judge, after considering their

substantial assistance, reduced Rickey Piranti’s sentence to 40 years’ imprisonment and

Damein Piranti’s to 20 years’ imprisonment. Because of the difference in circumstances

created by their guilty pleas and cooperation, there was no unwarranted disparity; the

Piranti brothers were rewarded for pleading guilty and saving judicial resources and for

helping the government in other prosecutions, whereas Johnson went to trial and was found

guilty. See Fernandez,

(observing that our system “often results in

individuals who accept a plea bargain receiving shorter sentences than other individuals

who are less morally culpable but take a chance and go to trial” (quoting Missouri v. Frye,

(2012))).

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Had the district court actually assessed the Piranti brothers’ different circumstances,

it would have been left with the uncontrovertible conclusion that there was no unwarranted

disparity among the sentences.

This conclusion is well-supported by case law. For example, we have held that

“individuals who go to trial and those who plead guilty” are “not similarly situated for

sentencing purposes.” United States v. Susi,

(4th Cir. 2012). And we

have held similarly that defendants who cooperate are not in a similar position to persons

who go to trial — their cooperation is “more than sufficient to justify the different

sentences.” United States v. Jeffery,

(4th Cir. 2011); United States v.

Perez-Pena,

, 242–43 (4th Cir. 2006). Thus, a defendant who pleads guilty,

cooperates, and receives the blessing of both the prosecutor and the court under Rule 35 is

in a materially different circumstance from a defendant who goes to trial. See Pepper v.

United States,

(2011) (noting that a disparity arising from a prosecutor’s

exercise of discretion is not unwarranted (citing United States v. LaBonte,

,

761–62 (1997))). Yet, the district court and the majority not only fail to consider and apply

these principles, they have not even addressed them in any meaningful manner.

As to Eldon Brown, there is no basis in the record to understand whether there was

an unwarranted disparity or not, a reality that the district court appropriately recognized.

Brown was charged in New York with crimes different from those charged against

Shaheem Johnson, Raheem Johnson, Damein Piranti, and Rickey Piranti. The latter four

were all charged under § 1959(a)(1) and found guilty, thus receiving mandatory life

sentences. Brown, however, was charged with lesser offenses, and the record shows that

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he cooperated with the government and received a five-year sentence. No further details

were provided to the district court, and the court well recognized that Brown’s sentence

was “potentially not related to the underlying conduct in this case whatsoever.” Indeed, all

agree that Brown, unlike Johnson, may not even have been charged in New York with

Villa’s killing. Because the record does not reveal Brown’s circumstances, the district court

could not have concluded one way or the other whether there was an unwarranted disparity

between him and Johnson. The majority nonetheless concludes that “[t]he district court

was entitled to consider this disparity between Johnson and Brown,” supra at 7, even

though that disparity was not demonstrated to be unwarranted. And the majority can cite

nothing in the record suggesting otherwise.

* * *

The majority’s holding is extraordinary and an extreme outlier that is unsupported

by law or fact. It fails to abide by the legal limitations imposed by § 3582(c)(1)(A) for the

reduction of sentences, and it assumes that the mere existence of a disparity makes it

unwarranted. In the name of “discretion,” the majority blesses what can only be described

as the district court’s disagreement with Johnson’s mandatory minimum sentence of life

imprisonment as too harsh. But not even discretion can save the district court’s departure

from the law.

I would reverse.

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