                                    UNPUBLISHED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 25, 2019                                         Decided: May 9, 2019


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Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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. R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
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Unpublished opinions are not binding precedent in this circuit.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

                                            2
granted the Government’s motion to remand, vacated the criminal money judgment,

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

affirmed the judgment of conviction. United States v. Williams, 736 F. App’x 389 (4th

Cir. 2018) (No. 17-4352).

       The court subsequently granted Williams’ petition for rehearing on the issue of

whether it was plain error for Williams to be designated a career offender. See U.S.

Sentencing Guidelines § 4B1.1 (2015). The parties have filed supplemental briefs on the

issue and this appeal is ripe for disposition.

       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.



                                                 3
       With regard to Williams’ career offender designation in light of postsentencing

decisions in United States v. McCollum, 885 F.3d 300, 304-05 (4th Cir. 2018) (holding

that conspiracy to commit murder in aid of racketeering is not a crime of violence), and

United States v. Whitley, 737 F. App’x 147 (4th Cir. 2018) (No. 17-4343(L)) (concluding

that conspiracy to distribute and possess with intent to distribute cocaine base is not a

controlled substance offense for determining career offender status), we conclude that

there was no plain error. In reaching this conclusion, we rely on the reasoning in United

States v. Chavez-Lopez, No. 18-4183, 2019 WL 1562352 (4th Cir. Apr. 11, 2019) (argued

but unpublished), which, after considering McCollum and Whitley, decided that it was not

plain error for Chavez-Lopez to have been sentenced as a career offender. Williams’

designation as a career offender occurred under very similar circumstances. Because this

court has repeatedly concluded that a § 846 drug conspiracy is a controlled substance

offense, and neither McCollum nor Whitney distinguished this court’s precedent on the

issue, we conclude that it was not plain error for Williams to have been considered

eligible for career offender status.

       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 facts, or failing to adequately explain the chosen sentence—

                                            4
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 it was not clear error for the district court to not provide an

additional one-level reduction for acceptance of responsibility. United States v. Dugger,

485 F.3d 236, 239 (4th Cir. 2007) (stating standard of review). Under USSG § 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 reduction was due to an

unconstitutional motive or illegitimate purpose. See United States v. Salas, 756 F.3d

                                            5
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 Williams had two prior controlled substance offenses in

order to qualify for career offender status. 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.

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

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


                                             6
convicted of criminal sale of a controlled substance and was released from incarceration

in July 2000, 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




                                            7
