By Daniel Stratton

Today, the Fourth Circuit affirmed the sentence of an individual convicted of conspiracy and possession with intent to distribute cocaine in a published opinion in the criminal case United States v. McCoy. The appellant, Dilade McCoy, challenged the district court’s decision to impose a 188-month sentence, on the grounds that the sentence was substantively unreasonable. McCoy argued that the district court abused its discretion by imposing a sentence that was above the initial sentencing guidelines range of 135 to 168 months’ imprisonment. The Fourth Circuit, after reviewing McCoy’s arguments, affirmed his sentence, explaining that the upward departure to 188 months was not unreasonable and that the district court had not abused its discretion by departing from the initial Sentencing Guidelines.

McCoy’s Conviction and Sentencing

In 2014, a federal grand jury in the Eastern District of Virginia indicted McCoy on several charges, including possession with intent to distribute and conspiracy to distribute and possess 500 grams or more of cocaine. During the trial, a co-defendant testified that he had purchased cocaine from McCoy in early summer 2013, late summer 2013, and again in November 2013, in amounts ranging from one to three kilograms. The late summer sale was returned to McCoy because of the drug’s poor quality. The jury returned a guilty verdict against McCoy on the drug charges for an amount between five hundred grams and five kilograms.

Following his conviction, the probation office prepared McCoy’s Presentence Investigation Report (“PSR”), which calculated a sentencing range of 135 to 168 months’ imprisonment, pursuant the U.S. Sentencing Commission’s Sentencing Guidelines. The PSR counted all three of the cocaine sales in its analysis and determined the amount of cocaine attributed to McCoy to be seven kilograms, which was above the range found by the jury. The PSR also included a previous 2005 conviction for criminal possession of cocaine with intent to distribute in its analysis.

McCoy argued that the amount of cocaine attributed to him in the report was inaccurate, and that he should be held accountable only for the amount the jury found. This, McCoy argued, would lower his sentencing range under the Sentencing Guidelines to 108 to 120 months.

The government, by contrast, moved for an upward departure of the guidelines, pointing to McCoy’s previous criminal past. McCoy, at the ages of 15 and 17, had committed three felonies, including two armed robberies and assault with intent to cause serious injury with a weapon, in addition to the 2005 criminal possession charge. The PSR did not use the three felonies McCoy committed as a minor, because they had occurred more than 15 years earlier. At sentencing, the government requested that McCoy’s criminal history, including his juvenile felonies, should elevate McCoy to a sentencing range between 168 and 210 months. McCoy objected.

The district court rejected McCoy’s objection to how much cocaine had been attributed to him, and found that McCoy’s criminal history supported an upward departure in his sentencing range. The district court ultimately determined McCoy’s range to be 188 to 235 months’ imprisonment, and sentenced McCoy to serve 188 months. McCoy appealed to the Fourth Circuit on the grounds that his sentence was substantively unreasonable.

How Does the Fourth Circuit Determine When a Sentence is Reasonable?

When reviewing a sentence for its reasonableness, the Fourth Circuit deferentially applies an abuse-of-discretion standard. This standard means that the Circuit will defer to the trial court’s judgment and affirm a reasonable sentence, “even if the sentence would not have been” that court’s choice. When determining if a sentence is reasonable, the Fourth Circuit looks for a “more significant justification than a minor one” where there is a major departure from the advisory guidelines.

The Sentencing Guidelines allow for an upward departure when there is reliable information that the defendant’s criminal history is substantially more serious than the Guideline’s categories may indicate. Prior convictions that are too old to be counted in the Sentencing Guidelines’ calculations may still be considered by a court when determining an appropriate sentence.

Additionally, while district courts are not bound to impose a sentence within a sentence recommended by the prosecution, the prosecution’s recommendation serves an important function in helping avoid unwarranted sentencing disparities.

In the event that there is of a retroactive amendment made to the Sentencing Guidelines, the new amendment does not make a prior sentence unreasonable. Rather, a defendant may make a motion under 18 U.S.C. § 3582(c)(2) to allow the district court to “assess whether and to what extent” the defendant’s sentence is impacted by the new change.

McCoy made four arguments to the Fourth Circuit as to why his sentence was substantively unreasonable, each of which the court determined failed.

McCoy’s Arguments Fail to Persuade Fourth Circuit

First, McCoy argued that the court improperly considered his juvenile felonies. The district court found that the criminal history calculation of McCoy’s PSR was not reflective of McCoy’s actual history and his likelihood for recidivism. While the district court acknowledged the remoteness of his juvenile felonies, it believed the fact that McCoy committed another felony within five years of his initial release justified the inclusion of the juvenile felonies.

McCoy, relying on a recent Fourth Circuit decision in United States v. Howard, argued that the upward departure was unreasonable. In Howard, the district court had imposed a life sentence instead of the suggested 121-month maximum suggested by the Sentencing Guidelines, and the Fourth Circuit held that to be unreasonable. Here, the court explained that Howard was distinguishable because the actual sentence was only twenty months more than the top of the initially suggested range. Because the departure “pale[d] in comparison to” the unreasonable departure in Howard, the Fourth Circuit held that the district court did not abuse its discretion by considering the juvenile felonies.

Second, McCoy argued that his sentence was unreasonable because the district court had put his criminal history in a higher category than the prosecution had recommended. The Court found this argument to be unpersuasive; while the district court had imposed a higher category for McCoy’s criminal history than suggested, the overall 188 month sentence it imposed was lower than the 192 month one sought by the prosecution.

Third, McCoy argued that his sentence overstated the seriousness of his crime. He argued that the November 2013 sell of three kilograms of cocaine merely replaced the bad order that had been purchased in the summer of 2013. Because of this, McCoy argued that his sentence should have been subject to a departure downward, to reflect a smaller amount of cocaine that was actually trafficked. The Fourth Circuit pointed to the fact that McCoy himself conceded that all seven grams of cocaine could be considered in the “technical determination” of how much he had trafficked. The court also noted that the trial record did not support McCoy’s argument.

Fourth, McCoy argued that because a new retroactive amendment to the Sentencing Guidelines, which lowered the base offense levels for drug-related crimes, went into effect soon after he was sentenced, his sentence was substantively unreasonable. The Fourth Circuit explained that the amendment did not change the fact that the district court had correctly applied the Sentencing Guidelines at the time of the sentencing. If McCoy wanted the new amendment applied to his sentence, the Fourth Circuit explained, he would have to submit a motion to the district court, which would assess whether the amendment affected McCoy’s sentence. In a footnote in its opinion, the Fourth Circuit explicitly made clear that its determination here was “rendered without prejudice to McCoy’s right to pursue” relief under the new amendment in the district court.

McCoy’s Sentence is Affirmed

Because the district court did not abuse its discretion in departing from the Sentencing Guidelines to impose a higher sentence on McCoy, the Fourth Circuit affirmed the 188-month sentence.