United States of America v. Alton Ray Nicholson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6617
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALTON RAY NICHOLSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, District Judge. (4:07-cr-00044-D-1)
Submitted: July 26, 2021 Decided: September 15, 2021
Before WILKINSON, KING, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alton Ray Nicholson appeals the district court’s order denying his motion for a
sentence reduction pursuant to Section 404 of the First Step Act of 2018, Pub. L. No. 15-
391, 132 Stat. 5194. We vacate the district court’s order and remand for reconsideration
in light of United States v. Chambers, 956 F.3d 667, 672 (4th Cir. 2020), United States v.
Collington, 995 F.3d 347 (4th Cir. 2021), and United States v. Lancaster, 997 F.3d 171
(4th Cir. 2021).
“We review the scope of a district court’s sentencing authority under the First Step
Act de novo.” Chambers, 956 F.3d at 671. We review the district court’s decision whether
to grant a First Step Act reduction to an eligible defendant for abuse of discretion. See
United States v. Jackson, 952 F.3d 492, 497 (4th Cir. 2020); see also Collington, 995 F.3d
at 358 (applying reasonableness review to First Step Act sentence reductions). In
Chambers, we held that, “when imposing a new sentence” under the Act, “a court does not
simply adjust the statutory minimum; it must also recalculate the [Sentencing] Guidelines
range.” 956 F.3d at 672 (internal quotation marks omitted). “[A]ny Guidelines error
deemed retroactive . . . must be corrected in a First Step Act resentencing.” Id. at 668.
Moreover, the Act neither “constrain[s] courts from recognizing Guidelines errors,” id. at
668, nor “preclude[s] the court from applying intervening case law,” id. at 672, in making
its discretionary determination under the Act. In Collington, we clarified three steps that a
district court must take when considering a request for relief under Section 404 of the Act:
(1) “accurately recalculate the Guidelines sentence range,” (2) “correct original Guidelines
errors and apply intervening case law made retroactive to the original sentence,” and (3)

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“consider the [18 U.S.C.] § 3553(a) factors to determine what sentence is appropriate.”
995 F.3d at 355 (emphasis omitted). We further explained that “when a court exercises
discretion to reduce a sentence, the imposition of the reduced sentence must be
procedurally and substantively reasonable.” Id. at 358. Thus, 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.” Id. at 360; see also Gall v. United States, 552 U.S. 38,
51 (2007) (explaining, in context of original sentencing, that district court imposes
procedurally unreasonable sentence by miscalculating applicable Guidelines range).
We provided further guidance to district courts in Lancaster, holding that a district
“court must engage in a brief analysis that involves the recalculation of the Sentencing
Guidelines in light of intervening case law.” 997 F.3d at 175 (internal quotation marks
omitted). Thus, we concluded that the district court committed reversible error when it
declined to recalculate the appellant’s Guidelines range without the career offender
enhancement imposed at his original sentencing, which had been invalidated by
intervening, nonretroactive authority in United States v. Norman, 935 F.3d 232 (4th Cir.
2019). Lancaster, 997 F.3d at 176. We cautioned, however, that a First Step Act
proceeding is not intended to act as a plenary resentencing or “a complete or new
relitigation of Guidelines issues or the § 3553(a) factors,” but instead “is defined by the
gaps left from the original sentencing to enable the court to determine what sentence it

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would have imposed under the Fair Sentencing Act in light of intervening circumstances.”
Id. at 175.
Here, in support of his request for a First Step Act reduction, Nicholson argued—
correctly—that he no longer qualifies as a career offender in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Because the district court did not have
the benefit of our decisions in Chambers, Collington, and Lancaster, we vacate the district
court’s order and remand for reconsideration. By this disposition, we express no view on
the ultimate merits of Nicholson’s motion. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED AND REMANDED

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