Murderers fail to reduce sentences

Where two men sentenced for their roles in multiple murders argued their sentences should be reduced under the First Step Act, their motions were denied. In addressing drug offense sentencing disparities, Congress did not want a sentence reduction to apply to nine capital murder convictions.

Background

James Roane Jr. and Richard Tipton appeal the district court’s denial of their motion for a sentence reduction under the First Step Act. They argue that their convictions under 21 U.S.C. § 848(e)(1)(A) for drug-related murder are “covered offenses” pursuant to the First Step Act, and therefore their death and life imprisonment sentences can no longer be sustained. They also argue that their convictions for crack cocaine distribution offenses in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) are “covered,” and their sentences associated with these convictions should be reduced.

First Step Act

As an initial matter, 21 U.S.C. § 848(e)(1)(A), the offense of which appellants were convicted, is nowhere mentioned in the text of the Fair Sentencing Act. Congress carefully enumerated specific statutes whose penalties it modified in the Fair Sentencing Act – this court has no authority to add additional ones.

The reason for § 848(e)(1)(A)’s absence from the Fair Sentencing Act is obvious in context: prior to that Act, the U.S. Sentencing Commission found that the 100-to-1 ratio produced sentencing disparities which ran contrary to the “goal of punishing major drug traffickers more severely than low-level dealers.” On the other hand, 21 U.S.C. § 848, which covers continuing criminal enterprises, “is designed to reach the ‘top brass’ in the drug rings, not the lieutenants and foot soldiers.”

Appellants attempt to baldly rewrite the statutory scheme in arguing that Congress wanted a sentence reduction to apply to their nine capital murder convictions. The court cannot allow such a circumvention of congressional intent and the clearly expressed statutory means of implementing that intent.

Nevertheless, Roane and Tipton argue that “[b]ecause conviction of an offense punishable under 21 U.S.C. § 841(b)(1)(A) is incorporated as an element of 21 U.S.C. § 848(e)(1)(A), § 848(e)(1)(A) has been modified by the Fair Sentencing Act and is therefore covered under the First Step Act.” The gist of this argument is that appellants’ convictions for possession with intent to distribute 50 grams or more of crack cocaine under §§ 841(a)(1) and 841(b)(1)(A) served as the predicate offense to their § 848(e)(1)(A) murder convictions.

Pursuant to the Fair Sentencing Act, § 841(b)(1)(A) now requires a threshold drug quantity of 280 grams or more of crack cocaine to trigger its statutory penalties. After the Fair Sentencing Act, appellants argue, the threshold drug quantity required for a § 848(e)(1)(A) capital murder offense with a drug distribution predicate is 280 grams. Appellants’ convicted drug weight of 50 grams can no longer sustain a conviction under § 848(e)(1)(A), and therefore, appellants contend, its penalties are modified.

This argument, however, runs headlong into the Supreme Court’s recent decision in Terry v. United States, 141 S. Ct. 1858 (2021). Terry requires the court look to the “statutory penalties for [appellants’] offense, not the statute or statutory scheme.” The relevant offense here is 21 U.S.C. § 848(e)(1)(A), which is completely different from the 21 U.S.C. § 841(b)(1)(A) drug distribution predicate.

Most crucially for the Terry analysis, and most fatally to appellants’ argument, the statutory penalties associated with their § 848(e)(1)(A) convictions remain the same both before and after the Fair Sentencing Act. Thus, the penalties could not possibly have been modified by the Fair Sentencing Act, the essential requirement for First Step Act coverage.

Roane and Tipton resist this straightforward reasoning by pointing to this court’s recent decision in United States v. Thomas, 32 F.4th 420 (4th Cir. 2022) (per curiam). Thomas, however, is no help to them and, in fact, actually compels the court to hold against appellants in this case. Last, but certainly not least, holding in favor of appellants would create a stark circuit split.

Sentencing

The district court carefully considered appellants’ arguments and made a well-supported determination that the ends of justice would be disserved by any sentencing reductions for their drug distribution crimes. The proceeding did not run afoul of the First Step Act, nor did it evidence any procedural or substantive flaw.

Affirmed.

United States v. Roane, Case Nos. 20-14, 20-16, Oct. 18, 2022. 4th Cir. (Wilkinson), from EDVA at Richmond (Novak). Gerald Wesley King Jr. and Joanne Marie Heisey for Appellants. Richard Daniel Cooke for Appellee. VLW 022-2-223. 22 pp.