United States v. Davis

99 F.4th 647

UNITED STATES of America, Plaintiff - Appellee, v. Antonio DAVIS, Defendant - Appellant.

No. 21-7325

United States Court of Appeals, Fourth Circuit

Argued: December 7, 2023

Decided: April 18, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:13-cr-00004-RGD-TEM-2)

ARGUED: Rachel A. Chung, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Aidan Taft Grano-Mickelsen, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael R. Dreeben, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Eric M. Hurt, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before GREGORY, WYNN, and RUSHING, Circuit Judges.

Affirmed in part, vacated and remanded in part by published opinion. Judge Gregory wrote the opinion, in which Judge Wynn joined. Judge Rushing wrote a dissenting opinion.

GREGORY, Circuit Judge:

Antonio Davis is currently serving a 210-month prison sentence for conspiracy to possess with intent to distribute heroin. After serving about half of his sentence, and in the midst of the COVID-19 pandemic, Davis petitioned the district court for compassionate release based on his elevated risk of severe COVID-19 and a change in the law regarding his career offender status. The Court denied that relief. Davis now appeals. We conclude that the district court fairly assessed that Davis was not due compassionate release based on his susceptibility to COVID-19. But because the district court did not fully consider each of Davis's arguments, we vacate the district court's denial of compassionate relief and remand for further proceedings.

I.

In January 2013, Davis was indicted on charges of conspiracy to distribute and conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846(a)(1) and 841(b)(1)(A), and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). In June of that year, he pled guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute heroin. According to the Statement of Facts attached to the plea agreement, Davis was "responsible for more than 400 grams and less than 700 grams of heroin." J.A. 336. Davis received a career offender enhancement under § 4B1.1 because he'd previously been convicted of certain other offenses and because the offense at issue here was a "controlled substance offense" at the time of conviction. J.A. 329. The prior offenses included a 1990 attempted murder conviction and a 2003 attempted robbery conviction. After applying a three-level reduction for acceptance of responsibility, the court adopted an advisory guidelines range of 188 to 235 months imprisonment. Ultimately, Davis was sentenced to 210 months imprisonment, with a four-year term of supervised release to follow.

In February 2021, Davis filed a pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), which requires that any reduction in a sentence is warranted by an "extraordinary and compelling reason[ ]." J.A. 186. Davis presented two extraordinary and compelling reasons for compassionate release. First, he argued that he was uniquely susceptible to the potential spread of COVID-19 due to his type-2 diabetes and hypertension. Second, he argued that this Court's holding in United States v. Norman, which was decided after Davis was sentenced, that Virginia robbery did not constitute a violent felony under the Armed Career Criminal Act invalidated his career offender Guidelines designation. See 935 F.3d 232, 239 (4th Cir. 2019) (holding that drug conspiracy offenses under 21 U.S.C. § 846 are not categorically controlled substance offenses for the purposes of applying the career offender Guideline).¹ Davis indicated that he had exhausted all his administrative remedies prior to filing the motion because he requested relief from the warden but received no response after thirty days. He asserted that his release was justified under the § 3553(a) factors because the conduct underlying the offense of conviction was not particularly severe, he no longer posed a danger to the public, and he had completed several rehabilitation programs since his sentencing. The government opposed the motion, arguing in part that Davis's change-in-law arguments sounded in habeas and therefore were not cognizable as a justification for compassionate release.

The district court (the same judge who originally sentenced Davis) denied the motion. The court found that Davis failed to show extraordinary and compelling reasons for release based on the pandemic because he did not make a significant showing of a particularized susceptibility to COVID-19 or a particularized risk of contracting the disease while in prison. The court noted Davis's health conditions but concluded that they were not particularly severe given that Davis was 46 and fully vaccinated.

The district court likewise rejected Davis's career offender argument, finding that § 2255 was the appropriate vehicle for Davis to request relief on this basis. And even if Davis had shown the necessary extraordinary and compelling reasons for relief, the court maintained that his release would not be justified under the § 3553(a) factors. The court noted that Davis had only served half of his sentence and determined that 210 months' imprisonment remained necessary to reflect the seriousness of his crimes and the risk of recidivism.²

Davis timely noted an appeal. He remains incarcerated at FCI Talladega. If Davis were sentenced today, his guidelines range would be 92 to 115 months—about half of his 210-month sentence.

II.

We review a district court's ruling on a motion for compassionate release for abuse of discretion. United States v. Kibble, 992 F.3d 326, 329 (4th Cir. 2021). "A district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law." United States v. Jenkins, 22 F.4th 162, 167 (4th Cir. 2021) (quoting United States v. Dillard, 891 F.3d 151, 158 (4th Cir. 2018)). In determining whether a district court has abused its discretion, we presume "that the district court sufficiently considered relevant factors in deciding a [§] 3582(c)(2) motion" or a § 3582(c)(1)(A) motion. United States v. Martin, 916 F.3d 389, 396 (4th Cir. 2019) (citing United States v. Legree, 205 F.3d 724, 729-30 (4th Cir. 2000)). However, we consider de novo whether a court ruling on a compassionate release motion must provide an individualized explanation. Martin, 916 F.3d at 395.

III.

We begin with some background. Generally, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). However, Congress created an exception to that general rule when "extraordinary and compelling reasons warrant such a reduction." § 3582(c)(1)(A)(i). Until the passage of the First Step Act in 2018, district courts could only entertain motions for compassionate release filed by the Bureau of Prisons (BOP). High, 997 F.3d at 185 (quoting 18 U.S.C. § 3582(c)(1)(A) (2002)). The First Step Act amended § 3582(c) to allow incarcerated persons to file their own motions for compassionate release after first requesting that the BOP move for compassionate release and waiting thirty days for the BOP to act. See First Step Act, Pub. L. 115-391 § 603(b), 132 Stat. 5194, 5339 (2018); see also 18 U.S.C. § 3532(c)(1)(A); United States v. Ferguson, 55 F.4th 262, 267-69 (4th Cir. 2022) (explaining that an appeal of the BOP's refusal to move for compassionate release requires exhaustion of administrative remedies). Section 3582(c)(1)(A) requires a district court first to find "extraordinary and compelling reasons" warranting a sentence reduction. Then, after considering any appropriate § 3553(a) factors, the court must determine whether the requested reduction in sentence is consistent with "applicable policy statements issued by the Sentencing Commission." Jenkins, 22 F.4th at 169; Kibble, 992 F.3d at 330-32.

But until recently—well after the district court in this case entered its order—there were no applicable policy statements to reference. This Court acknowledged that void, noting that "there is no applicable policy statement governing compassionate release motions filed by defendants." United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020); see also Jenkins, 22 F.4th at 169. Given this lack of guidance from the Commission, courts looked to relevant sentencing guidelines provisions to evaluate whether a motion presented an extraordinary and compelling circumstance warranting a sentence reduction. See Jenkins, 22 F.4th at 169-70; see also United States v. High, 997 F.3d 181, 187 (4th Cir. 2021).

In May 2023, the Sentencing Commission, having finally achieved a quorum, promulgated amendments to U.S.S.G. § 1B1.13, the section that governs § 3582 and discusses the contours of "extraordinary and compelling" reasons. 88 Fed. Reg. 28254 (May 3, 2023). That guidance reinforced that a defendant's increased risk of suffering complications or death from exposure to disease during a public health emergency can be an extraordinary and compelling reason for release.

Further, the amendment provides that if a defendant "received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason." Id. However, this consideration only applies where such a change in law "would produce a gross disparity between the sentence being served and the sentence likely to...