                                UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                                  No. 17-4758


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLYDE NAQUAN HAMPTON, a/k/a One Loyal Shooter,

                Defendant - Appellant.



                                  No. 17-4763


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTOPHER SEAN BROWN, a/k/a Roughish,

                Defendant - Appellant.



                                  No. 18-4077


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
             v.

MATTHEW RASHAUN JONES, a/k/a Boogie Mac,

                    Defendant - Appellant.



Appeals from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:16-cr-00122-DCN-3; 2:16-cr-00122-
DCN-5; 2:16-cr-00122-DCN-6)


Submitted: August 31, 2018                                  Decided: September 13, 2018


Before AGEE and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.


No. 17-4758 affirmed in part, vacated in part, and remanded; Nos. 17-4763 and 18-4077
dismissed by unpublished per curiam opinion.


Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston South
Carolina; Cameron L. Marshall, CAMERON L. MARSHALL, LLC, Charleston, South
Carolina; Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC,
Irmo, South Carolina, for Appellants. John P. Cronan, Acting Assistant Attorney
General, Matthew S. Miner, Deputy Assistant Attorney General, Leshia Lee-Dixon,
Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                             2
PER CURIAM:

      Clyde Naquan Hampton, Matthew Rashaun Jones, and Christopher Sean Brown

(collectively, Appellants), pled guilty to charges arising out of their membership in the

Cowboys gang. 1 On appeal, Appellants contend that the district court erred in denying

their discovery motions and, relatedly, that the Government violated its obligations under

Brady v. Maryland, 373 U.S. 83 (1963). Appellants also argue that their sentences are

procedurally and substantively unreasonable. We dismiss Jones’ and Brown’s appeals as

barred by the waiver of appellate rights in their plea agreements. We affirm Hampton’s

conviction, vacate his sentence, and remand for resentencing.

                                            I.

      The Government contends that Jones’ and Brown’s appeals are barred by the

waiver of appellate rights in their plea agreements. We review de novo the issue of

whether a defendant validly waived his right to appeal. United States v. Cohen, 888 F.3d

667, 678 (4th Cir. 2018). Where, as here, the Government seeks to enforce the appeal

waiver and has not breached the plea agreement, we will enforce the waiver if it is valid

and the issue being appealed falls within the waiver’s scope. United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005). Brown and Jones waived their appellate rights “except for

a sentence that is above the advisory guideline range.” We have determined that “the


      1
         Hampton and Jones pled guilty to conspiracy to participate in a pattern of
racketeering activity, in violation of 18 U.S.C. § 1962(d) (2012), and Brown pled guilty
to attempted murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5)
(2012).


                                            3
natural reading of the phrase applicable guideline range [in a plea agreement] is the

guideline range found by the district court, because it is clearly the district court that is

assigned the task of determining the applicable guideline range.” United States v. Tate,

845 F.3d 571, 576 (4th Cir. 2017) (internal quotation marks omitted). Here, although the

agreement uses the word advisory as opposed to applicable, this is a distinction without a

difference; the district court is similarly tasked with setting the “advisory guideline

range.”

       Brown also contends that his appellate waiver is unenforceable because he entered

a plea pursuant to Fed. R. Crim. P. 11(c)(1)(C) that was rejected by the district court. A

defendant’s waiver of rights is valid if he entered it “knowingly and intelligently.”

United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                In making this

determination, we consider “the totality of the circumstances, including the experience

and conduct of the accused, as well as the accused’s educational background and

familiarity with the terms of the plea agreement.” United States v. Thornsbury, 670 F.3d

532, 537 (4th Cir. 2012) (internal quotation marks omitted). “Generally, if a district court

questions a defendant regarding the waiver [provision] during the [plea] colloquy and the

record indicates that the defendant understood the full significance of the waiver, the

waiver is valid.” Id.

       A plea agreement pursuant to Rule 11(c)(1)(C) must state that the parties “agree

that a specific sentence or sentencing range is the appropriate disposition of the case, or

that a particular provision of the Sentence Guidelines . . . does or does not apply.”

Brown’s plea agreement contains no such language. Instead, the plea agreement stated

                                             4
that the Government agreed that a reduction for acceptance of responsibility was

appropriate, but that such a promise was not binding on the district court. This is

consistent with a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(B). Brown does

not contend that he did not knowingly plead guilty nor that he did not understand that he

was waiving his appellate rights, and the district court reviewed the terms of the appellate

waiver with Brown.

       Accordingly, we will enforce the appellate waiver and dismiss Brown’s and Jones’

appeals.

                                            II.

       Hampton asserts that the district court erred in denying his motion for discovery

and that the Government breached its Brady obligations. Hampton filed a motion for

discovery prior to pleading guilty, and filed a second motion after his plea seeking details

on his codefendants’ guilty pleas and presentence reports (PSRs).

       A valid guilty plea generally waives all antecedent nonjurisdictional defects; thus,

a defendant who pleads guilty generally has no nonjurisdictional ground upon which to

attack his conviction except the inadequacy of his plea. Tollet v. Henderson, 411 U.S.

258, 267 (1973); United States v. Bundy, 392 F.3d 641, 644-45 (4th Cir. 2004). Thus, by

pleading guilty, Hampton has waived review of his claim that the Government violated

its discovery obligations under the Federal Rules of Criminal Procedure.           Even if

Hampton’s guilty plea did not waive his pre-plea Brady claim, see United States v.

Moussaoui, 591 F.3d 263, 286 (4th Cir. 2010), to succeed on his claim, Hampton “must

show that (1) the evidence is either exculpatory or impeaching, (2) the government

                                             5
suppressed the evidence, and (3) the evidence was material to the defense.” United States

v. Catone, 769 F.3d 866, 871 (4th Cir. 2014) (internal quotation marks omitted).

Hampton fails to cite any evidence that the Government failed to disclose. Instead, he

relies on mere conjecture and assumptions that there must have been favorable evidence

if his codefendants received more favorable plea deals.      To the extent that Jencks 2

material would have also been discoverable under Brady, Brady and Jencks “only require

disclosure in time for effective use at trial.” United States v. Presser, 844 F.2d 1275,

1285 (6th Cir. 1988). Hampton knowingly pled guilty before the production of the

Jencks material. Thus, we discern no Brady violation that occurred prior to the entry of

Hampton’s plea.

      Turning to Hampton’s post-plea motion, a defendant is not entitled to disclosure of

a codefendant’s PSR unless he can show how the information contained in the PSR will

be both material and favorable to his defense. United States v. Trevino, 89 F.3d 187, 192

(4th Cir. 1996). Here, Hampton sought his codefendants’ Guidelines ranges, information

that he eventually obtained from other sources. See United States v. Kelly, 35 F.3d 929,

937 (4th Cir. 1994) (“[W]hen defense counsel could have discovered the evidence

through reasonable diligence, there is no Brady violation if the Government fails to

produce it.”). To the extent that Hampton was thwarted from obtaining his codefendants’

plea agreements by the district court sealing the agreements, 3 the district court offered


      2
          Jencks Act, 18 U.S.C. § 3500 (2012).
      3
          We previously denied Hampton’s motion to unseal these records.


                                            6
Hampton an alternative method of obtaining this information—by attending his

codefendants’ sentencing hearings. Indeed, Hampton used information learned at these

hearings to make an argument for a below-Guidelines sentence. Moreover, it was the

district court, rather than the Government, that decided to seal the materials that

prevented Hampton from discovering his codefendants’ Rule 11(c)(1)(C) agreements.

Accordingly, we affirm Hampton’s conviction.

                                            III.

       Hampton contends that the district court committed two procedural errors at

sentencing. First, he argues that the district court erred in applying the Sentencing

Guideline for attempted first-degree murder. Second, Hampton contends that the district

court failed to address his nonfrivolous argument for a downward variance or a

recommendation to the Bureau of Prisons (BOP) to credit time he served on state

charges. We agree with both contentions.

       We review a defendant’s sentence “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Under the Gall standard, a

sentence is reviewed for both procedural and substantive reasonableness. Gall, 552 U.S.

at 51. In determining procedural reasonableness, this Court considers whether the district

court properly calculated the defendant’s advisory Guidelines range, gave the parties an

opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)

(2012) factors, and sufficiently explained the selected sentence. Id. at 49-51. If a

sentence is free of “significant procedural error,” then we review it for substantive

reasonableness, “tak[ing] into account the totality of the circumstances.” Id. at 51.

                                             7
       We review the factual findings underlying a district court’s application of a

Guidelines cross-reference for clear error and its legal conclusions de novo. United

States v. Ashford, 718 F.3d 377, 380, 383 (4th Cir. 2013). In the event of a conviction for

participating in a RICO conspiracy, 4 U.S. Sentencing Guidelines Manual § 2E1.1(a)

(2016) provides for a base offense level of 19 or the offense level applicable to the

underlying racketeering activity—in this case, attempted murder.          Section 2A2.1(a)

provides for a base offense level of 33 if the attempted murder would have constituted

first-degree murder, as defined in 18 U.S.C. § 1111 (2012); otherwise, the offense level is

27. Section 1111, in turn, defines first degree murder, as relevant here, as a “willful,

deliberate, malicious, and premediated killing.”       Thus, the court must find by a

preponderance of the evidence both that the defendant acted with malice and that the

attempted killing was premeditated. United States v. Williams, 342 F.3d 350, 356 (4th

Cir. 2003); see United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012) (“[T]he

Government has the burden to prove a cross-referenced offense by a preponderance of

the evidence.”).

       Malice aforethought “may be established by evidence of conduct which is reckless

and wanton and a gross deviation from a reasonable standard of care, of such a nature

that a jury is warranted in inferring that defendant was aware of a serious risk of death or

serious bodily harm.” Ashford, 718 F.3d at 384 (alteration and internal quotation marks


       4
        Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961
to 1968 (2012).


                                             8
omitted). “Premeditation requires planning and deliberation beyond the simple conscious

intent to kill. There must be an appreciable elapse of time between the formation of a

design and the fatal act, although no specific period of time is required.” United States v.

Bell, 819 F.3d 310, 319 (7th Cir. 2016) (citations omitted). In order for the cross-

reference to apply, the defendant must have the specific intent to kill the victim. See,

e.g., Braxton v. United States, 500 U.S. 344, 351 n.* (1991); United States v. Morgan,

687 F.3d 688, 697 (6th Cir. 2012).

       At sentencing, the district court relied on a May 30, 2013, shooting incident to

support application of the cross-reference. 5 We conclude that the district court erred in

relying on that incident because the record does not demonstrate that the Appellants had

the specific intent to kill. While the record shows that the Appellants opened fire on a

residence, there is no evidence in the record to indicate that they acted with the intent to

kill anyone inside the residence, or even if there were any individuals inside the residence

at the time of the shooting. Additionally, there are no specific details about the shooting

in the record that would allow a court to infer the Appellants’ intent.

       Hampton also contends that the district court procedurally erred in failing to

explain why it denied his request for a downward variance or recommendation to the

BOP to credit his sentence for time served on an assault and battery conviction that was

related to the conspiracy and for a second, unrelated charge that was ultimately


       5
         Although the district court’s written order relied on two other shootings, we
cannot rely on this order because it was entered after Hampton filed his notice of appeal.


                                              9
dismissed. In evaluating a sentencing court’s explanation of a selected sentence, we

consistently have held that, although the district court must consider the statutory factors

and explain the sentence, “it need not robotically tick through the § 3553(a) factors.”

United States v. Helton, 782 F.3d 148, 153 (4th Cir. 2015) (internal quotation marks

omitted). “Regardless of whether the district court imposes an above, below, or within-

Guidelines sentence, it must place on the record an ‘individualized assessment’ based on

the particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th

Cir. 2009) (quoting Gall, 552 U.S. at 50). “Where the defendant or prosecutor presents

nonfrivolous reasons for imposing a different sentence than that set forth in the advisory

Guidelines, a district judge should address the party’s arguments and explain why he has

rejected those arguments.” United States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015)

(internal quotation marks omitted). In these cases, “[a] sentencing court’s explanation is

sufficient if it, although somewhat briefly, outlines the defendant’s particular history and

characteristics not merely in passing or after the fact, but as part of its analysis of the

statutory factors and in response to defense counsel’s arguments for a downward

departure.” United States v. Blue, 877 F.3d 513, 519 (4th Cir. 2017) (alterations and

internal quotation marks omitted).      If the district court’s explanation could have

supported a different sentence, then the explanation is inadequate, and we will remand for

resentencing. Id.

       We conclude that the district court procedurally erred in failing to address

Hampton’s request for a downward variance or recommendation for credit. The district

court’s rejection of Hampton’s Guidelines objection to the inclusion of his assault and

                                            10
battery conviction in his criminal history score could be construed to reject Hampton’s

request for a downward variance for the same conduct. However, this explanation would

not address Hampton’s request for a downward variance or recommendation to the BOP

for the time served on the dismissed charge. We will “not assume that a sentencing court

truly considered a defendant’s nonfrivolous arguments . . . when the record fails to make

it patently obvious.” Id. at 521 (internal quotation marks omitted). Thus, we conclude

that Hampton’s sentence is procedurally unreasonable. 6

                                                IV.

      Accordingly, we dismiss Jones’ and Brown’s appeals. We affirm Hampton’s

conviction, but vacate his sentence and remand for resentencing. 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.



          No. 17-4758 - AFFIRMED IN PART, VACATED IN PART, AND REMANDED;
                                            Nos. 17-4763, 18-4077 - DISMISSED




      6
         Because we conclude that the district court procedurally erred, we do not
consider Hampton’s additional contentions addressing the substantive reasonableness of
his sentence.


                                           11
