                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4352


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

LAVON M. WILLIAMS,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00220-FDW-DSC-2)


Submitted: April 24, 2018                                         Decided: June 15, 2018


Before WYNN, FLOYD, and HARRIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Steven T. Meier, STEVEN T. MEIER, P.L.L.C., Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Lavon M. Williams pled guilty to conspiracy to distribute and possess with intent

to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, 851 (2012),

and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (2012).

Williams was sentenced to 292 months’ imprisonment for the drug conspiracy, the low end

of the Sentencing Guidelines sentence, and a concurrent term of 20 years for the money

laundering conspiracy, the statutory maximum sentence, and 8 years’ supervised release.

The district court also entered a separate criminal money judgment ordering Williams to

forfeit $1,500,000 in accordance with 21 U.S.C. § 853 (2012). Williams’ counsel filed a

brief under Anders v. California, 386 U.S. 738 (1967), asserting that there were no

meritorious issues for appeal, but raising for the court’s consideration whether Williams

should have received an additional one-level decrease to his offense level for acceptance

of responsibility, and whether one of his prior convictions was improperly counted for

career offender purposes. Williams was informed of the opportunity to file a pro se brief,

but did not do so.

       After Williams filed his appeal, the Supreme Court decided Honeycutt v. United

States, 137 S. Ct. 1626, 1631-32 (2017), holding that a defendant may not be held jointly

and severally liable under 21 U.S.C. § 853 for property that his coconspirator derived from

the crime, but that the defendant did not acquire. We ordered supplemental briefing on the

issue of whether Williams’ criminal money judgment was improper in light of Honeycutt.

Williams filed a brief requesting that the money judgment be vacated while the

Government filed an unopposed motion to remand the criminal money judgment. We will

                                            2
grant the Government’s motion to remand, vacate the criminal money judgment, remand

for further proceedings, and, finding no other meritorious issues on appeal, affirm the

judgment of conviction.

       When Williams was sentenced, a defendant could be “jointly and severally liable

for the forfeiture of proceeds from a conspiracy.” United States v. Chittenden, 848 F.3d

188, 204 (4th Cir.) (internal quotation marks omitted), cert. granted, 138 S. Ct. 447 (2017)

(vacating judgment and remanding in light of Honeycutt).            Because Williams was

sentenced prior to the issuance of Honeycutt, and his appeal was pending when the decision

was announced, the rule in Honeycutt applies to his circumstance. Griffith v. Kentucky,

479 U.S. 314, 328 (1987). It appears that Williams’ criminal money judgment was based

on an estimate of the proceeds of the drug distribution conspiracy, somewhat more than

Williams may have acquired through his participation in the conspiracy.            Thus, we

conclude that it is appropriate for the district court to consider the criminal money judgment

anew with Honeycutt’s guidance. Accordingly, we grant the Government’s unopposed

motion to remand, vacate the criminal money judgment, and remand for further

proceedings consistent with this court’s opinion.

       We review the remainder of Williams’ sentence for reasonableness under a

deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 51 (2007);

United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In doing so, we first examine

the sentence for procedural error, which includes “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence based on clearly erroneous

                                              3
facts, or failing to adequately explain the chosen sentence—including an explanation for

any deviation from the Guidelines range.” Lymas, 781 F.3d at 111-12 (internal quotation

marks omitted). We then review the substantive reasonableness of the sentence, “tak[ing]

into account the totality of the circumstances.” Gall, 552 U.S. at 51. Any sentence within

or below a properly calculated Guidelines range is presumptively substantively reasonable.

United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). “Such a presumption can

only be rebutted by showing that the sentence is unreasonable when measured against the

18 U.S.C. § 3553(a) factors.” Id.

       We conclude that there was no clear error in the district court’s decision not to agree

to an additional one-level adjustment for acceptance of responsibility. United States v.

Dugger, 485 F.3d 236, 239 (4th Cir. 2007) (stating standard of review). Under U.S.

Sentencing Guidelines Manual § 3E1.1(a) (2015), the sentencing court should decrease the

offense level by two levels if the defendant clearly demonstrates acceptance of

responsibility for his offense. When the district court determines that the defendant

qualifies for a decrease under subsection (a), the offense level may be decreased by one

additional level under USSG § 3E1.1(b), if the government so moves, “stating that the

defendant has assisted authorities in the investigation or prosecution of his own misconduct

by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting

the government to avoid preparing for trial and permitting the government and the court to

allocate their resources efficiently[.]”   The Government elected not to move for an

additional one-level decrease after Williams waited until jury selection to enter his guilty

plea. There is no evidence that the Government’s decision not to move for an additional

                                              4
reduction was due to an unconstitutional motive or illegitimate purpose. See United

States v. Salas, 756 F.3d 1196, 1204 (10th Cir. 2014) (noting that court may remedy

Government’s refusal to move if refusal was based on unconstitutional motive); United

States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994) (noting that on issue of timeliness,

district court has substantial discretion).

       We also conclude that there was no error with Williams’ career offender

designation. Under the Guidelines:

       A defendant is a career offender if (1) the defendant was at least eighteen
       years old at the time the defendant committed the instant offense of
       conviction; (2) the instant offense of conviction is a felony that is either a
       crime of violence or a controlled substance offense; and (3) the defendant
       has at least two prior felony convictions of either a crime of violence or a
       controlled substance offense.

USSG § 4B1.1(a).

       The term “two prior felony convictions” means (1) the defendant committed
       the instant offense of conviction subsequent to sustaining at least two felony
       convictions of either a crime of violence or a controlled substance offense
       (i.e., two felony convictions of a crime of violence, two felony convictions
       of a controlled substance offense, or one felony conviction of a crime of
       violence and one felony conviction of a controlled substance offense), and
       (2) the sentences for at least two of the aforementioned felony convictions
       are counted separately under the provisions of §4A1.1(a), (b), or (c). The
       date that a defendant sustained a conviction shall be the date that the guilt of
       the defendant has been established, whether by guilty plea, trial, or plea of
       nolo contendere.


USSG § 4B1.2(c). A sentence “imposed more than fifteen years prior to the defendant’s

commencement of the instance offense is not counted unless the defendant’s incarceration

extended into this fifteen-year period.” USSG § 4A1.1 cmt. n.1.



                                              5
       Here, Williams was charged with participating in the drug conspiracy that was in

operation as early as August 2014. According to the PSR, in 1996, Williams was convicted

of criminal sale of a controlled substance and was released from incarceration in July 2000,

clearly within the applicable 15-year period. Williams was convicted again of criminal

sale of controlled substance in 2003, and released in 2006. Because both convictions were

properly counted separately toward Williams’ criminal history category, the convictions

could be used as predicate offenses for Williams’ career offender status.

       Accordingly, we grant the Government’s motion to remand, vacate the criminal

money judgment, and remand the money judgment for further consideration by the district

court in light of Honeycutt. In accordance with Anders, we have reviewed the entire record

in this case and have found no other meritorious issues for appeal. We therefore affirm

Williams’ judgment of conviction. This court requires that counsel inform Williams, in

writing, of the right to petition the Supreme Court of the United States for further review.

If Williams requests that a petition be filed, but counsel believes that such a petition would

be frivolous, then counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof was served on Williams.

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.

                          AFFIRMED IN PART, VACATED IN PART, AND REMANDED




                                              6
