Petition for Writ of Certiorari — David Troy, III, Petitioner v. United States

No. __________

IN THE

Supreme Court of the United States

DAVID TROY, III,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Jeremy A. Thompson

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER’S OFFICE

1901 Assembly Street, Suite 200

Columbia, South Carolina 29201

Telephone: 803-765-5077

Email: Jeremy_Thompson@fd.org

Counsel of Record for Petitioner

TABLE OF CONTENTS

Published Opinion of

The United States Court of Appeals for the Fourth Circuit

Entered March 29, 2023 ...................................................................................1A

Judgment of

The United States Court of Appeals for the Fourth Circuit

Entered March 29, 2023 .................................................................................14A

Order of

The United States District Court for the District of South Carolina

Entered November 10, 2020 ...........................................................................15A

iA

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-7725

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DAVID TROY, III, a/k/a Buck Troy,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence.

Terry L. Wooten, Senior District Judge. (4:04-cr-00811-TLW-4)

Argued: January 27, 2023

Decided: March 29, 2023

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

Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge

Harris and Senior Judge Keenan joined.

ARGUED: Jeremy A. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Columbia, South Carolina, for Appellant. Amy Foster Bower, OFFICE OF THE UNITED

STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: M. Rhett

DeHart, Acting United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Charleston, South Carolina, for Appellee.

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DIANA GRIBBON MOTZ, Senior Circuit Judge:

David Troy III appeals the denial of his motion for a sentence reduction under § 404

of the First Step Act. Troy argues that the district court abused its discretion when it chose

to retain his original sentence despite reducing his Guidelines range to account for his

erroneous designation as a career offender. But the First Step Act does not permit a district

court to recalculate a defendant’s benchmark Guidelines range “in any way other than to

reflect the retroactive application of the Fair Sentencing Act.” Concepcion v. United

States, 142 S. Ct. 2389, 2402 n.6 (2022). Arguments based on other changes in law must

be considered after determining the benchmark Guidelines range that will “anchor” the

proceeding. Id. Since the Fair Sentencing Act did not affect Troy’s original Guidelines

range, that range provides the appropriate starting point for our review. Given that starting

point, the district court’s retention of his original sentence was both procedurally and

substantively reasonable. Accordingly, we affirm.

I.

In 2004, Troy participated in the attempted robbery of Clifton Blackstock, a drug

dealer in Georgetown County, South Carolina. Troy and his accomplices planned to

impersonate police officers, pull Blackstock over, and rob him of money and drugs. But

as Troy approached Blackstock’s door armed with a nine-millimeter handgun, he thought

he saw Blackstock reach for a gun of his own. Troy fired at Blackstock, hitting him in the

face. He and his accomplices fled empty-handed. Blackstock, though severely wounded,

survived.

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Troy pled guilty to conspiracy to possess with intent to distribute 5 grams of cocaine

base or 500 grams of cocaine, attempted Hobbs Act robbery, discharging a firearm in

furtherance of a drug trafficking crime and a crime of violence, and possession of a firearm

as a convicted felon.

As part of his plea agreement, Troy cooperated with the

Government’s investigation of a group of corrupt North Carolina police officers with

whom Troy had committed various crimes, including robbing other drug dealers.

In calculating a recommended sentence, the probation office determined Troy was

a career offender based in part on a North Carolina conviction for possession of cocaine

with intent to sell for which Troy received a ten-month suspended sentence. Because of

his career offender status, Troy’s initial Guidelines range was 382–447 months. The

district court then granted the Government’s motion for a four-level downward departure

based on Troy’s cooperation, which reduced his Guidelines range to between 235 and 293

months of imprisonment. Ultimately, the court imposed a total sentence of 276 months.

Almost 15 years after his initial sentencing, Troy moved for a sentence reduction

under § 404 of the First Step Act of 2018, which gives retroactive effect to “the provisions

of the Fair Sentencing Act of 2010 . . . that reduced sentencing disparities between cocaine

and crack cocaine offenses.” United States v. Swain, 49 F.4th 398, 399 (4th Cir. 2022).

Though the Government opposed Troy’s motion, the parties agreed on three key points:

(1) Troy was eligible for resentencing under the First Step Act, (2) Troy should not have

received a career offender enhancement because, pursuant to United States v. Simmons,

649 F.3d 237 (4th Cir. 2011) (en banc), his North Carolina conviction under that state’s

Structured Sentencing Act was not a valid predicate offense, and (3) absent the Simmons

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error, his Guidelines range would have been 121–151 months. 1

Nevertheless, the

Government urged the district court to decline to reduce Troy’s sentence because of his

criminal history and the violence of his offense.

The district court agreed. The court found Troy eligible for resentencing and

concluded that, after recalculating Troy’s Guidelines range to correct the Simmons error,

his “ultimate sentencing range would be 121 to 151 months.” But rather than immediately

rule on Troy’s motion for a sentence reduction, the court invited the parties to file

supplemental briefs because it was “considering an upward departure or variance . . . based

on the facts set forth in the Presentence Investigation Report and taken into consideration

at the original sentencing.”

In response, Troy argued that the factors listed in 18 U.S.C. § 3553(a) favored a

reduction of his sentence. He emphasized that his recalculated Guidelines range already

accounted for the violence of his offense, that the only other violent crime for which he

had been convicted — assault with a deadly weapon inflicting serious injury — occurred

when he was 17, that he had never served a sentence longer than six months before the

conduct that led to his current incarceration, that the public had already been protected

from him for 15 years, that his current age (48) reduced the likelihood of recidivism, and

In Simmons, we held that a conviction under North Carolina’s Structured

Sentencing Act is “punishable by imprisonment for a term exceeding one year” only if the

defendant himself was exposed to a potential prison sentence greater than one year. 649

F.3d at 243. At the time of Troy’s original sentencing, by contrast, we considered “the

maximum aggravated sentence that could be imposed for that crime upon a defendant with

the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.

2005), overruled by Simmons, 649 F.3d at 241.

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that in light of his corrected Guidelines range, retaining his original sentence would

effectively deny him credit for his cooperation.

The district court listed these arguments and stated that it had “carefully considered”

them but concluded that Troy’s proposed Guidelines range “fail[ed] to adequately address

the egregious conduct in this case, particularly when coupled with [Troy’s] criminal

history.” In addition to highlighting the details of the robbery and Troy’s prior record, the

court specifically rejected the “proposition that [Troy] ha[d] aged out of . . . violent

conduct,” in large part because Troy committed the violent acts for which he had been

sentenced while in his 30s. The court also recounted “the process” that led to Troy’s initial

sentence, explaining that because it granted Troy a reduction in his Guidelines range to

reward his cooperation, Troy’s sentence was significantly lower than his initial sentencing

range. The court then explained that when it imposed that sentence, “it had no expectation

that, years later, there would be a change in the law that provides for a possible reduction”

in Troy’s sentence. Accordingly, it denied Troy’s motion and retained his original 276month sentence.

Troy timely appealed, challenging the procedural and substantive reasonableness of

the district court’s decision.

II.

Before we can resolve the merits of Troy’s appeal, we must consider the effect of

the Supreme Court’s recent decision in Concepcion, 142 S. Ct. 2389.

Prior to Concepcion, we held that a district court considering a sentence reduction

motion under the First Step Act must correct retroactive Guidelines errors when

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recalculating a movant’s benchmark Guidelines range. See United States v. Chambers,

956 F.3d 667, 673–75 (4th Cir. 2020). Relying on Chambers, Troy, the Government, and

the district court in this case agreed that Troy’s Guidelines range had to be recalculated to

account for the Simmons error at his original sentencing.

But in Concepcion, decided after the briefing in this appeal, the Supreme Court held

that:

A district court cannot . . . recalculate a movant’s benchmark Guidelines

range in any way other than to reflect the retroactive application of the Fair

Sentencing Act. Rather, the First Step Act directs district courts to calculate

the Guidelines range as if the Fair Sentencing Act’s amendments had been in

place at the time of the offense. That Guidelines range “anchor[s]” the

sentencing proceeding. Peugh v. United States, 569 U.S. 530, 541, 133 S.

Ct. 2072, 186 L.Ed.2d 84 (2013). The district court may then consider

postsentencing conduct or nonretroactive changes in selecting or rejecting an

appropriate sentence, with the properly calculated Guidelines range as the

benchmark.

142 S. Ct. at 2402 n.6 (emphasis added) (alteration in original). 2

In other words, Concepcion instructs district courts exercising their discretion under

the First Step Act to proceed in two steps. First, they must recalculate the movant’s

Guidelines range “only to the extent it adjusts for the Fair Sentencing Act.” United States

v. Shields, 48 F.4th 183, 192 (3d Cir. 2022); see also Concepcion, 142 S. Ct. at 2402 n.6,

2403 n.8. Second, they may (and when raised by the parties, must) consider other legal

The parties submitted supplemental briefs as to “what effect, if any, Concepcion

has on calculating the ‘benchmark Guidelines range’ in a First Step Act sentencing

proceeding.” Order, United States v. Troy, No. 20-7725, ECF No. 41. Both Troy and the

Government maintain that Concepcion did not abrogate in any way our previous decision

in Chambers. For the reasons set forth within, we cannot agree.

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and factual changes when deciding whether to impose a reduced sentence. Concepcion,

142 S. Ct. at 2396, 2402 n.6.

Thus, while a district court may consider other changes in the law when determining

what reduction, if any, is appropriate in an individual case, 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. Id. at 2402 & n.6. Because Chambers instructed district

courts to recalculate a movant’s Guidelines range based on “intervening case law”

unrelated to the Fair Sentencing Act, 956 F.3d at 672–75, that holding of Chambers does

not survive Concepcion.

The district court did not err in acknowledging the impact of the Simmons error on

Troy’s Guidelines range — indeed, it was necessary to do so. Concepcion, 142 S. Ct. at

2404. But the court should not have done so until after it determined the appropriate

starting point for Troy’s First Step Act proceedings. Id. at 2402 n.6. The correct

benchmark was Troy’s original Guidelines range, 235 to 293 months, which was

unaffected by the retroactive application of the Fair Sentencing Act. 3

III.

With those principles in mind, we turn to the district court’s denial of Troy’s motion

for a sentence reduction, which we review for abuse of discretion. United States v. Reed,

58 F.4th 816, 819 (4th Cir. 2023). A district court abuses its discretion if its decision to

Though the district court erred by recalculating Troy’s benchmark Guidelines

range to correct the Simmons error, that error was harmless. Even using the lower

Guidelines range produced by correcting the Simmons error as its benchmark, the court still

found Troy’s original sentence warranted.

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retain or reduce a sentence under the First Step Act is procedurally or substantively

unreasonable. Id. at 820; Swain, 49 F.4th at 399.

A.

We begin by considering whether the district court’s denial of Troy’s motion was

procedurally reasonable. In resolving a motion under the First Step Act, a district court’s

discretion is broad and its burden light. Concepcion, 142 S. Ct. at 2404. 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.” Id. at 2402, 2404. But when district courts consider such motions, they must

still “sentence the whole person before them,” “explain their decisions,” and “demonstrate

that they considered the parties’ arguments.” Id. at 2398, 2404. Thus, 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.” United States v. Collington, 995 F.3d 347, 360 (4th Cir. 2021).

Troy contends that the district court committed three procedural errors. We address

each in turn.

1.

Troy initially claims that the district court should have responded more thoroughly

to his arguments about the length of his prior sentences, the amount of time he had already

served, and his current age. But the court considered each of these arguments and found

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them unconvincing. The court explained that it had considered “the length of [Troy’s]

prior sentences,” that “the public has been protected from [Troy] for almost 15 years,” and

that “his current age reduces the likelihood of recidivism.” It then explained why it

believed the nature of the offense and Troy’s lengthy and sometimes violent criminal

history justified his current sentence. Moreover, in addressing Troy’s arguments related to

his youth at the time of his previous assault conviction, the Court pointed to the conduct

underlying his current conviction (which occurred when Troy was in his 30s) to explicitly

reject the “proposition that [Troy] has aged out of . . . violent conduct.”

This explanation satisfies the “low bar” Concepcion set for district courts

considering First Step Act motions. Reed, 58 F.4th at 823. The court was not required to

“make a point-by-point rebuttal of the parties’ arguments.” Concepcion, 142 S. Ct. at 2405.

It is enough that its opinion made clear why it found Troy’s arguments unpersuasive. See

Reed, 58 F.4th at 823–24.

Troy also asserts that the district court should have explicitly addressed his

contention that, had he been charged with attempted murder, his Guidelines range would

have been comparable to the lower Guidelines range produced by correcting the Simmons

error. But Troy offered this counterfactual in support of his larger argument that the

Guidelines already accounted for the seriousness of his offense.

The district court

addressed that argument at length, concluding that the lower Guidelines range that would

have applied absent the Simmons error “fail[ed] to adequately address the egregious

conduct in this case,” particularly given Troy’s criminal history. Having rejected Troy’s

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“central thesis,” the court was not obliged “to address separately each supporting data point

marshalled on its behalf.” United States v. Nance, 957 F.3d 204, 214 (4th Cir. 2020).

2.

Troy next argues that the district court failed to provide a sufficient explanation for

rejecting “the First Step Act’s resentencing mechanism” and the lower Guidelines range

that correcting the Simmons error would have produced. Br. for Appellant at 20–21. In

particular, he objects to the court’s remark that “[a]t the time the Court imposed this 23year sentence, it had no expectation that, years later, there would be a change in the law

that provides for a possible reduction.”

Of course, the denial of a First Step Act motion may be unreasonable if based on a

disagreement with Congress’ decision to eliminate the sentencing disparity between

offenses involving crack and powder cocaine. See Swain, 49 F.4th at 403; United States v.

Smith, 959 F.3d 701, 703 (6th Cir. 2020). But eliminating that disparity had no impact

here. Accordingly, the district court’s rejection of this argument does not manifest any

disagreement with Congress’ “central goal” in enacting the First Step Act. Concepcion,

142 S. Ct. at 2402.

Nor did the district court refuse to consider Troy’s argument regarding the Simmons

error in his Guidelines range. Rather, the court emphasized the “process that occurred after

[Troy] pled Guilty,” to explain why it believed Troy’s original sentence was “the ‘right’

sentence,” even though correcting the Simmons error would have produced a lower

Guidelines range. Chavez-Meza v. United States, 138 S. Ct. 1959, 1966 (2018). Thus, the

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court found that Troy’s 23-year sentence was “still appropriate today when applying the

§ 3553(a) factors.” That finding was procedurally reasonable.

3.

Third, relying on United States v. Lymas, 781 F.3d 106 (4th Cir. 2015), Troy asserts

that the district court failed to sentence him individually. Troy bases this argument on the

district court’s comment that it would “impose the same sentence . . . on this defendant or

any other defendant who committed similar conduct with a similar criminal background.”

In Lymas, the district court imposed the same sentence on three codefendants,

despite their different roles in the offenses and distinct Guidelines ranges. Id. at 109–11.

It reasoned that the defendants “should receive the same sentence and should be punished

equally across the board for what they did.” Id. at 111. We vacated all three sentences,

explaining that the court had ignored many of the § 3553(a) factors and “essentially

sentenced the crime itself rather than the individual defendants.” Id. at 113.

Here, by contrast, examination of the record demonstrates that the district court

sentenced Troy individually. In denying Troy’s motion, the court emphasized Troy’s

specific role in the robbery and his individual criminal history. Indeed, at Troy’s original

sentencing, the court explicitly stated that the different “circumstances” of Troy and his

codefendants would (and did) produce different sentences. The court explained at the time

that Troy deserved the highest sentence because he was the one “who fire[d] the shots.”

Taken in context, the court’s comment was appropriately directed at justifying Troy’s

sentence, not at “sentenc[ing] the crime itself.” Lymas, 781 F.3d at 111.

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B.

Troy also challenges the substantive reasonableness of his sentence. 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).” Reed,

58 F.4th at 820 (quoting Swain, 49 F.4th at 402). “[D]isagreement with how a district court

balances the § 3553(a) factors is insufficient to overcome the district court’s discretion.”

Swain, 49 F.4th at 403. Because Troy’s original Guidelines range of 235 to 293 months is

the appropriate benchmark for our review, the 276-month sentence retained by the district

court is presumptively reasonable. See United States v. Blue, 877 F.3d 513, 519–20 (4th

Cir. 2017).

Troy relies on United States v. Howard, 773 F.3d 519 (4th Cir. 2014), to argue that

the district court placed too much weight on his conviction for an assault he committed

when he was 17. But unlike the defendant in Howard, Troy’s juvenile offense was “not

the sole, or even primary, basis for the district court’s decision.” See Nance, 957 F.3d at

216 (distinguishing Howard). Here, the district court emphasized not just Troy’s juvenile

assault conviction, but his “lengthy criminal record” that extended into adulthood.

Moreover, the violence of the offense for which Troy was convicted increased the

relevance of his earlier assault conviction. By contrast, the crime for which Howard was

sentenced did not involve “any assaultive or other physically violent behavior.” Howard,

773 F.3d at 535 n.12. Finally, while in Howard the district court deviated upwards from

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the Guidelines range of 120–121 months to impose a life sentence, id. at 524, here the

district court did not deviate from the proper Guidelines range at all.

Troy also claims that the district court’s emphasis on the violence of the offense

“cannot withstand serious scrutiny.” Br. for Appellant at 29. He argues that if he had been

sentenced for attempted murder, his Guidelines range would have been “comparable to his

correct sentencing range in this case.” Id. But again, Troy’s “correct sentencing range”

for the purposes of his First Step Act motion is 235 to 293 months. Furthermore, the district

court did not rely solely on the violence inherent in shooting a man in the face. Instead,

the court considered the shooting in conjunction with “the highly-orchestrated attempted

robbery itself” and Troy’s “prior conviction for violent conduct.” Moreover, Troy’s

hypothetical ignores the complexity of the sentencing process. For example, if Troy were

sentenced for attempted murder and discharging a firearm in furtherance of a drug

trafficking crime, his Guidelines range would be ten years higher than if he were sentenced

for attempted murder alone. See 18 U.S.C. § 924(c); U.S.S.G. § 2K2.4(b). Given these

facts, the weight the district court placed on the violence of Troy’s offense was

substantively reasonable.

IV.

The district court considered Troy’s arguments and provided an adequate

explanation for retaining his original sentence. Because its denial of Troy’s motion was

both procedurally and substantively reasonable, the judgment of the district court is

AFFIRMED.

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FILED: March 29, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 20-7725

(4:04-cr-00811-TLW-4)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DAVID TROY, III, a/k/a Buck Troy

Defendant - Appellant

___________________

JUDGMENT

___________________

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

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4:04-cr-00811-TLW

Date Filed 11/10/20

Entry Number 505

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

United States of America,

Crim. No. 4:04-cr-00811-TLW-4

v.

Order

David Troy III

This matter is before the Court on Defendant’s motion for a sentence reduction

pursuant to the First Step Act of 2018, passed by Congress and signed into law by the

President on December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194. The Court’s

prior order on this motion, filed August 19, 2020, provided a detailed explanation of

the factual and legal background of this case. ECF No. 498. The Court incorporates

that discussion here.

As a brief summary, the Court concluded that Defendant is eligible for a First

Step Act reduction. His recalculated statutory sentencing range on Count 1 is 5 to 40

years, followed by at least 4 years of supervised release. As discussed in detail in the

prior order, his ultimate Guidelines range is now 121 to 151 months (30/III), followed

by 4 to 5 years of supervised release. However, the Court notified the parties that it

was considering an upward variance from that range based on the facts set forth in

the Presentence Investigation Report. Defendant then filed a supplemental brief that

reiterates and expands on the arguments set forth in his prior briefs. ECF No. 500.

In considering whether or how much to reduce Defendant’s sentence, the Court

has considered the current statutory range, the Guidelines range, the § 3553(a)

factors, and evidence of post-sentencing mitigation. The Court has also carefully

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Entry Number 505

Page 2 of 7

considered the arguments he raises in his briefs, including (1) the length of his prior

sentences; (2) his age when he committed his most serious prior offense (an assault

that he committed when he was 17 years old); (3) that this prior assault offense would

not result in an adult conviction if it were committed today; (4) how his brain

development may have impacted that assault offense; (5) that the Guidelines already

account for the violence associated with the instant offense; (6) that his current

sentence was incorrect when imposed and should be corrected; (7) that his current

sentence creates an unwarranted sentencing disparity with those convicted of similar

conduct today; (8) that nothing in his history or characteristics warrants an upward

variance; (9) that he has already served 178 months on this offense, so the public has

been protected from him for almost 15 years; (10) that his current age reduces the

likelihood of recidivism; (11) that a Guidelines sentence would be just punishment

that would promote respect for the law; and (12) that an upward variance would not

give him credit for his cooperation. Having carefully considered these factors, the

Court concludes that a sentence reduction is not warranted in this case.

The facts of this case bear repeating.

Defendant—a drug dealer in his own right—and others devised a well-thoughtout plot to commit an armed robbery of another drug dealer. This was not a spur-ofthe-moment idea.

They rented a vehicle and outfitted it with a blue light to

impersonate law enforcement.1 With their newly outfitted vehicle, they located the

1 They originally planned to rent a Ford Crown Victoria—a vehicle frequently used

by police as a patrol car. But one was not available, so they settled for a large Buick.

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Page 3 of 7

intended victim, pulled in behind him, and activated the blue light. The victim,

presumably believing that it was law enforcement behind him, pulled over.

As Defendant—who was armed with a 9mm pistol—and others were

approaching the victim’s vehicle, another accomplice also approached the victim and

showed him a badge. Defendant unsuccessfully attempted to open the locked door to

restrain the victim. He thought he saw the victim reaching for a weapon. Defendant

then shot twice at the robbery victim from close range. One of the bullets struck the

victim in the head, entering his left cheek. The bullet then traveled through his

tongue and right jugular vein. It exited the right side of his neck. Defendant and his

accomplices immediately fled the scene, leaving the victim bleeding profusely, with

no concern other than avoiding being caught.

Once law enforcement and emergency personnel arrived on scene, the victim

was life-flighted to the hospital. He was fortunate to survive the shooting, though he

suffered significant injuries. As a result of being shot in the head, he has gunshot

wound scars on his face and the right side of his neck. He sustained damage to his

tongue. He had a C2 neck fracture caused by the bullet with laceration to his right

internal jugular vein. He had to undergo a stent placement in his jugular vein. He

had some residual difficulty with taste, right facial numbness, and an eyelid injury.

He also suffered significant pain. He has PTSD as a result of the shooting. He also

incurred substantial medical bills.

As to the facts, there is no question that Defendant shot with the intent to kill

the victim. He fired twice at the victim’s head from close range, hitting him with one

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Page 4 of 7

bullet and causing severe, life-threatening injuries. Again, the victim was fortunate

to survive the shooting. These facts alone warrant a substantial sentence. Defendant

is clearly violent and a danger to the public.

This case is also far from Defendant’s first brush with the law. His prior record

weights against a sentence reduction. He has a lengthy criminal record and at least

one prior conviction for violent conduct. That conviction involved him assaulting the

victim with a brick, resulting in a charge for Assault With Intent to Kill and a plea to

Assault With Deadly Weapon Inflicting Serious Injury. Defendant argues that he

was only 17 years old at the time of that offense and he cites research about brain

development to support the implied proposition that he has aged out of that type of

violent conduct. But that argument is not persuasive. The conduct in that case was

violent.

The conduct in his current federal case was extremely violent, and he

committed this conduct when he was 32 years old. Two significant acts of violence

warrant a significant punishment to provide adequate deterrence and protect the

public.

Defendant also argues that the violent conduct in this case is already factored

into the Guidelines calculation, primarily through application of a six-level

enhancement due to the victim sustaining permanent or life-threatening bodily

injury. While accurate, the Court concludes that the Guidelines, including the sixlevel enhancement, fail to adequately address the egregious conduct in this case,

particularly when coupled with his criminal history. The Court also notes that this

was very nearly a murder case. Again, the Court finds that Defendant shot the victim

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Page 5 of 7

from close range with the intent to kill him and he was fortunate to survive the

shooting.

The Court also notes the process that occurred after Defendant pled guilty.

The Government chose to allow him to cooperate against other co-conspirators, which

is their prerogative. He did so. At sentencing, he was facing an original Guidelines

range of 382 to 447 months. The Government filed a § 5K1.1 motion asking the Court

to reduce his sentence based on the substantial assistance he provided against others.

The Court granted a four-level reduction, which reduced his Guidelines range to 235

to 293 months. The Court imposed a 276-month (23-year) sentence. At the time the

Court imposed this 23-year sentence, it had no expectation that, years later, there

would be a change in the law that provides for a possible reduction. That 23-year

sentence is still appropriate today when applying the § 3553(a) factors.

The Court has carefully considered Defendant’s arguments as set forth above.

But for the reasons stated, the Court concludes that a reduction is not warranted

here.

His current sentence, which includes a reduction for his cooperation, is

appropriate when considering the facts of this case. After considering the facts of this

case and the reasons set forth above, the Court concludes that a sentence less than

23 years would be inadequate. It is an appropriate sentence for this violent conduct,

first the highly-orchestrated attempted robbery itself, and then shooting the victim

in the head. Defendant also has a prior conviction for violent conduct on his record.

Whether the Court’s decision is viewed as an upward variance from the amended

Guidelines range, a limitation on a First Step Act reduction after consideration of the

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§ 3553(a) factors, or an outright discretionary denial under § 404(c) of the First Step

Act, the bottom line is that a sentence within the amended range of 121 to 151 months

is not sufficient in this case. See United States v. Savillon-Matute, 636 F.3d 119, 124

(4th Cir. 2011).

The facts that his statutory and Guidelines ranges would be different today

and that he would no longer be a career offender do not provide a persuasive basis for

a reduction in light of his serious, violent conduct in this case. If the current statutory

and Guidelines ranges had been in place at the time of the original sentencing, after

considering the § 3553(a) factors, the Court would have varied upward to impose the

same sentence that it did originally on this defendant or any other defendant who

committed similar conduct with a similar criminal background. Section 404(c) of the

First Step Act also provides that “[n]othing in this section shall be construed to

require a court to reduce any sentence pursuant to this section.”

For these reasons, the Court concludes that the current sentence of 276 months

(23 years) is sufficient, but not greater than necessary, to comply with the purposes

of sentencing. Accordingly, no reduction is warranted and his motion, ECF No. 482,

is therefore DENIED.

IT IS SO ORDERED.2

s/ Terry L. Wooten

Terry L. Wooten

Senior United States District Judge

November 10, 2020

Columbia, South Carolina

2 In light of this order, the remaining outstanding motion in this case, ECF No. 475,

6

20A

4:04-cr-00811-TLW

Date Filed 11/10/20

is terminated as MOOT.

7

21A

Entry Number 505

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