                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 19-6186


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

DAVE ANDRAE TAYLOR,

                   Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:99-cr-00145-REP-2)


Submitted: March 17, 2020                                     Decided: May 12, 2020


Before KEENAN and RUSHING, Circuit Judges, and Thomas E. JOHNSTON, Chief
United States District Judge for the Southern District of West Virginia, sitting by
designation.


Vacated and remanded by unpublished opinion. Judge Keenan wrote the opinion, in which
Judge Rushing and Judge Johnston concurred.


Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Robert J. Wagner,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney,
Alexandria, Virginia, Heather Hart Mansfield, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
BARBARA MILANO KEENAN, Circuit Judge:

       Dave Andrae Taylor appeals from the district court’s denial of his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2). After considering the parties’ arguments,

we conclude that our decision in United States v. Martin, 916 F.3d 389 (4th Cir. 2019) is

controlling, and we hold that the district court erred by failing to address Taylor’s

mitigation evidence that accrued after his original sentencing. Therefore, we vacate the

district court’s judgment denying Taylor’s motion and remand the case for additional

consideration and explanation.


                                             I.

       In 1999, Taylor, who was 21 years old, pleaded guilty to (1) conspiracy to distribute

and possession with the intent to distribute 50 grams or more of cocaine base, in violation

of 21 U.S.C. § 846 (the drug conspiracy count), and (2) possession of a firearm in

furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (the firearm count). The

district court accepted Taylor’s guilty plea. However, before sentencing, Taylor moved to

withdraw his guilty plea, which the district court denied.

       In Taylor’s presentence report (PSR), the probation officer calculated Taylor’s

offense level at 43 and his criminal history category at II. These calculations resulted in a

Guidelines range of life imprisonment on the drug conspiracy count, and a consecutive 60-

month term of imprisonment on the firearm count. The offense level calculation included

a three-level enhancement for Taylor’s managerial role in the conspiracy and a two-level

enhancement for obstruction of justice.


                                             3
       Taylor objected to imposition of these enhancements. He also objected to the

probation officer’s recommendation that he be assigned responsibility for 2,759 grams of

cocaine base and to the probation officer’s criminal history calculation, which included a

conviction for unlawful wounding committed while Taylor was incarcerated and awaiting

sentencing. Finally, Taylor requested a downward departure because his coconspirators,

including the leader of the drug conspiracy, had received lower sentences.

       After conducting an evidentiary hearing, the district court overruled each of

Taylor’s objections and denied his motion for a downward departure. Addressing the

managerial role enhancement, the court found that Taylor served as “an enforcer in the

conspiracy,” by “threatening people” and “telling other people what to do,” and that Taylor

was “involved at every stage of the offense.”

       The district court also determined that the obstruction of justice enhancement was

warranted based on threatening statements Taylor had made concerning the lead

investigator working on Taylor’s case, including a statement threatening to harm the

investigator’s child. With respect to the amount of cocaine base for which Taylor was

responsible, the court found that Taylor “bought and/or sold,” “supervised,” and “collected

money” for at least 14.5 kilograms of cocaine base, a figure higher than the 2,759 grams

recommended by the probation officer in the PSR.

       In denying Taylor’s request for a downward departure, the court observed that

Taylor’s sentence was longer than his coconspirators’ sentences based on his enhancement

for obstruction of justice and because he was ineligible for an offense-level reduction for

acceptance of responsibility after seeking to withdraw his guilty plea. Ultimately, the

                                            4
district court imposed a sentence of life imprisonment on the drug conspiracy count, and a

60-month consecutive term of imprisonment on the firearm count. We upheld Taylor’s

conviction and sentence on appeal. United States v. Taylor, No. 00-4311, 2000 WL

1763466 (4th Cir. Nov. 30, 2000) (per curiam).

       In 2015, Taylor filed a pro se motion requesting a sentence reduction on the drug

conspiracy count based on Amendment 782 of the Guidelines, adopted in 2014, which

reduced the base offense level for certain drug offenses by two levels. 1 U.S.S.G. app. C.,

amend. 782 (2014) (Amendment 782). The district court denied the motion, observing that

Taylor recently had been accused of “threaten[ing] bodily harm” to another while in prison.

We affirmed the district court’s judgment. United States v. Taylor, 632 F. App’x 142 (4th

Cir. 2016) (per curiam).

       In 2016, Taylor filed a second pro se motion under Amendment 782 for reduction

of his sentence on the drug conspiracy conviction, arguing that his prior prison infraction

for threatening bodily harm had been expunged from his record. The district court

construed this pleading as a motion for reconsideration and held that the court lacked

jurisdiction to review such a motion. We vacated that decision, holding that the court had

authority to consider Taylor’s second motion under Amendment 782, and remanded the


       1
          Between 2008 and 2014, before Amendment 782 was adopted, Taylor filed four
pro se motions for a sentence reduction under 18 U.S.C. § 3582(c), each of which the
district court denied. Taylor appealed three of the district court’s rulings, and we affirmed
the district court’s judgment in each case in unpublished decisions. See United States v.
Taylor, 570 F. App’x 293 (4th Cir. 2014) (per curiam); United States v. Taylor, 443 F.
App’x 826 (4th Cir. 2011) (per curiam); United States v. Taylor, 323 F. App’x 229 (4th
Cir. 2009) (per curiam).

                                             5
case. United States v. Taylor, 700 F. App’x 313 (4th Cir. 2017) (per curiam) (citing United

States v. May, 855 F.3d 271, 274 (4th Cir. 2017)).

         On remand, the district court (1) ordered the probation office to prepare a “Cocaine

Base Amendment Application Worksheet” with a revised Guidelines range based on

Amendment 782; (2) appointed counsel to assist Taylor in filing a supplemental motion for

a sentence reduction; and (3) asked the government to file a “Statement of Position” in

response to Taylor’s supplemental motion. 2 Relying on the district court’s prior finding of

14.5 kilograms of cocaine base attributable to Taylor, the probation officer recommended

a revised sentencing range of 360 months’ to life imprisonment on the drug conspiracy

count.

         In Taylor’s supplemental motion for a sentence reduction, he disputed that he was

responsible for 14.5 kilograms of cocaine base. He also observed that his coconspirators

already had been released from prison, and argued that he would not be a danger to the

community if his sentence were reduced because he was subject to a pending immigration

order of removal directing that he be returned to Jamaica.

         Taylor further offered evidence in mitigation, including evidence that he had been

rehabilitated during his nearly 20 years in prison. First, he submitted letters written by

family members, a fellow inmate, his prison case manager, and Taylor himself, suggesting


         2
        The district court asked the government to address whether Taylor was eligible for
a sentence reduction, Taylor’s projected release date, the impact of an accelerated release
date on Taylor’s educational and vocational training, Taylor’s post-sentencing conduct
while in prison, public safety considerations, and the government’s overall position on
Taylor’s request.

                                              6
that he was “a loving and caring father,” “was not a violent person,” and was “immature”

when he committed the underlying offenses. In addition, a Rastafarian chaplain stated that

Taylor “leads the members of his religious community . . . mentoring younger inmates . . .

to be respectful to others” and advises those younger inmates to “stay out of trouble.”

       Taylor further submitted as mitigation evidence his prison record, which contained

only five minor infractions. He also presented evidence of his achievements in educating

himself while serving a life sentence, including completion of his GED, hundreds of hours

of additional courses, and thousands of hours of work programs.

       In response, the government agreed that Taylor was eligible for a sentence reduction

under Amendment 782, and did not object to his revised advisory Guidelines range.

However, the government opposed Taylor’s motion for a sentence reduction, arguing that

a term of life imprisonment was necessary to reflect the seriousness of Taylor’s original

criminal conduct and to protect the public. In particular, the government cited: (1) Taylor’s

acts of violence and threats of violence during the drug conspiracy, including his

involvement in an unsuccessful plan to kill rival drug distributors; (2) his threats directed

at individuals who owed him money for drugs; and (3) his threat involving the lead

investigator working on his case.

       The district court issued an order denying Taylor’s motion, stating that it had

considered his motion and addendums, the government’s response, and the revised

Guidelines range. The court explained:

       The defendant’s sentence is appropriate as originally imposed because of the
       defendant’s extensive involvement in the crimes of conviction and the
       volume of drugs distributed by the conspiracy of which the defendant was a

                                             7
       leader (14.5 kilograms of crack cocaine for which the defendant was
       determined to be held responsible); and because the conspiracy was a violent
       one and that the defendant participated in violence in several ways, including
       threatening the lives of other individuals to collect drugs; threatening the
       mother of one of his drug customers; and threatening the family of one of the
       investing [sic] agents. . . . Therefore, the Court concludes that in order to
       protect the public, to deter the defendant, to promote respect for the law, and
       to reflect the seriousness of the defendant’s offense, it would be inappropriate
       to grant a reduction of sentence . . . .

Taylor appeals from the district court’s ruling.



                                             II.

       A district court generally cannot “modify a term of imprisonment once it has been

imposed.” 18 U.S.C. § 3582(c). However, when the Sentencing Commission later reduces

a Guidelines sentencing range and makes that adjustment retroactive, a district court can

modify a prisoner’s previously imposed sentence after applying a two-step inquiry. Id.

§ 3582(c)(2). First, the court must determine whether the prisoner is eligible for a sentence

modification and to what extent his sentence may be reduced. United States v. Martin, 916

F.3d 389, 395 (4th Cir. 2019) (citing Dillon v. United States, 560 U.S. 817, 827 (2010)).

Second, the court must “consider any applicable” factors under 18 U.S.C. § 3553(a) to

“determine whether, in [the court’s] discretion, the reduction authorized . . . is warranted

in whole or in part under the particular circumstances of the case.” Id. (quoting Dillon,

560 U.S. at 827).

       In the present case, the parties do not dispute that Taylor was eligible under

Amendment 782 for a sentence reduction, nor do they dispute the extent of the potential

sentence reduction. Instead, this case raises the question whether the district court provided

                                              8
a sufficiently individualized explanation for its decision. We consider this issue de novo.

Martin, 916 F.3d at 395.

       When imposing a sentence, a district court must provide an adequate explanation

for its chosen sentence “to satisfy the appellate court that [the sentencing court] has

considered the parties’ arguments and has a reasoned basis for exercising” its authority.

United States v. Chavez-Meza, 138 S. Ct. 1959, 1964 (2018) (quoting Rita v. United States,

551 U.S. 338, 356 (2007)). The extent of that required explanation depends on “the

circumstances of the particular case.” Id. at 1965 (citing Rita, 551 U.S. at 356-57).

       At issue in the Supreme Court’s decision in Chavez-Meza was a defendant’s motion

for a sentence reduction under 18 U.S.C. § 3582(a)(2). Id. at 1965-67. The Court assumed,

without deciding, that a district court has “equivalent duties when initially sentencing a

defendant and when later modifying [a] sentence,” and ultimately held that the explanation

given by the district court was adequate. Id. at 1965-66.

       Recently, in United States v. Martin, 916 F.3d 389 (4th Cir. 2019), we referenced

the decision in Chavez-Meza in deciding whether a district court adequately had explained

its denial of certain requests for a reduced sentence under Amendment 782. Id. at 395-97.

We held that, in denying a motion for a reduction in sentence under Amendment 782, a

district court is required to “provide an individualized explanation” addressing the

substance of the defendant’s motion. Id. at 397.

       Like the defendant before us, the defendant in Martin had been convicted of leading

a conspiracy involving a large quantity of cocaine and heroin and had received a life



                                             9
sentence. 3 Id. at 392. Upon application of Amendment 782, Martin’s sentencing range

was computed at 360 months to life in prison. Id. The district court declined to reduce

Martin’s sentence, stating that it had considered the severe nature of Martin’s underlying

crime, and had weighed the sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 393.

       We concluded that the district court’s explanation was inadequate because Martin

had submitted a “mountain of new mitigating evidence,” including evidence that she had

completed her GED, had served as a tutor to other prisoners, and had exhibited “exemplary

behavior” while in prison. Id. at 396. We also observed that the district court had failed

to address the fact that Martin would be 84 years old if released after serving a reduced

sentence of 360 months in prison. Id. at 393, 396. We explained that despite Martin’s life

sentence, she had “str[ived] to better herself,” and that the district court under these

circumstances was required to “provide an individualized explanation for why Martin’s

steps toward rehabilitation are meaningless.” Id. at 397.

       Similarly, here, the district court did not address Taylor’s evidence in mitigation,

but merely recited Taylor’s “original criminal behavior” and failed to assess the many

“redemptive measures” that had occurred post-conviction during the long period of

Taylor’s incarceration. 4 Id. Although the district court plainly found persuasive the nature


       3
         In Martin, we also considered whether the district court adequately explained its
denial of a similar motion made under Amendment 782 by a second defendant. 916 F.3d
at 394-95, 397-98.
       4
        The government also asserts that the court “clearly considered” Taylor’s post-
sentencing mitigation evidence because the court had requested a variety of information
from the parties. But merely requesting evidence does not demonstrate that the district
(Continued)
                                             10
of Taylor’s role in the drug conspiracy, including his prior threats of violence, the court’s

order lacked an individualized explanation regarding Taylor’s efforts to rehabilitate

himself.

       Like Martin, Taylor presented evidence that, despite his life sentence, he had sought

to improve himself by completing his GED, taking numerous classes, and performing work

in prison. He also presented evidence that he was viewed as a leader in his prison

community and had encouraged other inmates to improve themselves. In addition to this

evidence, the district court also failed to address the impact of Taylor’s pending order of

removal to Jamaica, namely, whether he still would be a threat to the public if he were

released earlier than originally ordered. Thus, we conclude that the district court erred in

failing to explain why Taylor’s mitigation evidence was outweighed by the nature of the

original criminal conduct committed two decades earlier. See id. at 398.

       Our conclusion is not affected by the government’s assertion that Taylor’s case is

distinguishable from Martin because Taylor sought to “relitigate” the district court’s prior

factual findings regarding attributable drug quantity and the alleged disparity in his

sentence when compared to the sentences of his coconspirators.            Apart from these

unsuccessful challenges to the district court’s original judgment, Taylor’s arguments in

mitigation reflected evidence that accrued after his original sentencing 5 and warranted




court considered the weight of such evidence, thereby making the court’s rationale
reviewable on appeal.
        5
          This evidence includes that Taylor’s coconspirators now have been released. The
district court should consider this on remand under 18 U.S.C. § 3553(a)(6).

                                             11
consideration by the district court in a manner sufficient to permit our review of its decision

on appeal. 6


                                             III.

       For these reasons, we vacate the district court’s judgment, and remand the case for

further proceedings in the district court.


                                                                             VACATED AND
                                                                               REMANDED




       6
         The government also maintains that “any error in the district court’s sentencing
explanation [was] harmless.” We disagree. On this record, which leaves us guessing
regarding the sentencing court’s evaluation of Taylor’s evidence in mitigation, we
conclude that the government has failed to carry its burden to establish harmless error. See
United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (explaining that a
determination of harmless error requires us to conclude “with fair assurance that the district
court’s consideration of the defendant’s arguments would not have affected the sentence
imposed” (citation and alterations omitted)); see also United States v. Patterson, — F.3d
— , No. 18-4402, 2020 WL 1966842, at *9 (4th Cir. Apr. 24, 2020) (rejecting the
government’s harmless error analysis, stating that “nothing in the record explicitly
indicates that [the district court] would have imposed the same sentence regardless of
whether it considered any specific mitigation factors”).
                                              12
