United States v. Richard Tipton

Citation: Not availableDocket: 20-016

Court: Court of Appeals for the Fourth Circuit; October 18, 2022; Federal Appellate Court

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James H. Roane, Jr. and Richard Tipton appeal the denial of their motion for sentence reduction under the First Step Act. They contend that their convictions for drug-related murder under 21 U.S.C. § 848(e)(1)(A) qualify as “covered offenses,” thereby invalidating their death and life sentences. They also argue that their sentences for crack cocaine distribution offenses under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) should be reduced. However, the court affirms the district court's ruling, determining that the murder convictions are not covered offenses since their penalties were not altered by the Fair Sentencing Act. Additionally, the court finds the district court's decision to deny sentence reduction for the drug distribution offenses to be both substantively and procedurally reasonable. The appeal is rooted in Roane and Tipton's roles in a drug-trafficking conspiracy in Richmond, Virginia, from 1990 to 1992, where they were involved in acquiring and distributing large quantities of crack cocaine and committing several violent acts, including murders and maimings.

On January 4, 1992, Tipton and Roane fatally attacked Douglas Talley, a subordinate in their drug operation, stabbing him eighty-four times. Nine days later, they targeted rival drug dealer Douglas Moody, with Tipton shooting him twice before Roane fatally stabbed him eighteen times. This violent spree resulted in ten deaths and multiple critical injuries. On July 20, 1992, both were charged in the Eastern District of Virginia with a 33-count indictment related to federal drug laws. Roane faced 15 counts, including three counts of capital murder in connection with a Continuing Criminal Enterprise (CCE), and was sentenced to death on one count and life imprisonment on two others, along with forty years for drug distribution. Tipton was charged with 29 counts, including eight counts of capital murder, and was sentenced to three death sentences and life imprisonment on other counts, with significant penalties for drug distribution. Both convictions were upheld on appeal, and since then, Roane and Tipton have made numerous unsuccessful collateral attacks on their sentences. Recently, they filed motions for sentence reductions under the First Step Act, which were denied by the district court, stating that their murder convictions did not qualify as "covered offenses" under the Act.

The retroactive benefits of the First Step Act apply only to specific "covered offenses," defined as violations of federal criminal statutes whose penalties were modified by Sections 2 or 3 of the Fair Sentencing Act for offenses committed before August 3, 2010. The district court identified that the Fair Sentencing Act modified penalties for statutes including 21 U.S.C. 841(b)(1), 21 U.S.C. 960(b), and 21 U.S.C. 844(a), which are considered covered offenses. Roane and Tipton's conviction under 21 U.S.C. 848(e)(1)(A) was not modified by the Fair Sentencing Act, as its penalties remained unchanged—allowing for death or life imprisonment with a minimum of 20 years. Consequently, the court could not impose a reduced sentence under the First Step Act, which Congress intended to apply to lower-level drug offenses, excluding those involving drug-related murders. The court also dismissed their argument that 848(e)(1)(A) should qualify as a covered offense due to its connection to predicate offenses, clarifying that it constitutes a distinct crime of murder related to drug trafficking. While acknowledging their convictions for possession with intent to distribute as covered offenses, the court exercised discretion under section 404(c) of the First Step Act to deny a sentence reduction, citing 18 U.S.C. 3553(a) factors against it. Roane and Tipton appealed this denial, asserting their murder convictions should be considered covered offenses, but the court concluded that 21 U.S.C. 848(e)(1)(A) does not qualify under the First Step Act.

In 1986, Congress enacted the Anti-Drug Abuse Act in response to rising crack cocaine-related violence, establishing mandatory minimum sentences for drug offenses, with significantly lower thresholds for crack compared to powder cocaine. Specifically, distribution of 5 grams of crack or 500 grams of powder cocaine triggered a 5-year minimum sentence, while 50 grams of crack or 5 kilograms of powder resulted in a 10-year minimum, creating a 100-to-1 disparity between the two. Concerns arose over this ratio, particularly its disproportionate impact on African American communities, leading to the Fair Sentencing Act of 2010, which adjusted the ratio to 18-to-1 by raising the quantity triggers for minimum sentences and eliminating mandatory minimums for simple crack possession. Despite these changes, the Fair Sentencing Act was not retroactive, leaving pre-2010 sentences unaffected. The First Step Act of 2018 subsequently allowed for retroactive application of the Fair Sentencing Act to certain prior offenses, providing an opportunity for individuals sentenced under the previous law to seek reductions. Section 404 of the First Step Act is relevant to this appeal.

The term "covered offense" refers to violations of Federal criminal statutes whose penalties were altered by sections 2 or 3 of the Fair Sentencing Act of 2010, specifically for offenses committed prior to August 3, 2010. A defendant sentenced for a covered offense may petition the court for a reduced sentence as if the Fair Sentencing Act had been in effect at the time of the offense. However, courts will not consider motions for sentence reduction if the sentence was previously imposed or reduced under the Fair Sentencing Act or if a prior motion for reduction was denied after a full review. 

Appellants' eligibility for a sentence reduction hinges on whether their capital murder convictions under 21 U.S.C. 848(e)(1)(A) qualify as "covered offenses" under the First Step Act. The Fair Sentencing Act does not mention 21 U.S.C. 848(e)(1)(A); it only modifies penalties for specific offenses related to crack cocaine possession and distribution. Consequently, the explicit enumeration of modified offenses in the Fair Sentencing Act indicates that additional offenses cannot be included. The nature of 21 U.S.C. 848(e)(1)(A) pertains to intentional killings related to criminal enterprises, distinct from the offenses addressed by the Fair Sentencing Act, which focus on crack cocaine. Thus, the penalties for 848(e)(1)(A) have not changed since before the enactment of the Fair Sentencing Act, suggesting it does not meet the criteria for a "covered offense" under the First Step Act.

The absence of 21 U.S.C. § 848(e)(1)(A) from the Fair Sentencing Act stems from the U.S. Sentencing Commission's findings that the prior 100-to-1 sentencing ratio resulted in inequities, undermining the objective of differentiating punishments for major traffickers versus low-level dealers. Congress adopted these findings in the Fair Sentencing Act, which raised drug quantity thresholds for mandatory minimums, increased penalties for major traffickers, and introduced enhancements for violent offenses. The First Step Act continued this focus on proportionality by allowing courts to remedy sentences disproportionately affecting low-level crack dealers. In contrast, § 848 targets high-level drug offenders involved in serious crimes, leading to the conclusion that Congress likely did not intend to permit sentence reductions for capital offenses under § 848(e)(1)(A). 

Appellants Roane and Tipton contended that their convictions under 21 U.S.C. § 841(b)(1)(A), now requiring a minimum of 280 grams of crack cocaine, should modify the penalties under § 848(e)(1)(A) based on the Fair Sentencing Act. They argued that since their convictions were based on 50 grams, the new threshold invalidates their capital murder convictions under § 848(e)(1)(A). However, this interpretation conflicts with the Supreme Court's decision in Terry v. United States, which clarified that the relevant inquiry for sentence modification under the First Step Act is whether the Fair Sentencing Act altered the statutory penalties for the specific offense. The term "statutory penalties" encompasses the complete phrase "a violation of a Federal criminal statute," indicating that it refers to the offense itself, not merely the underlying drug quantity.

Terry mandates focusing on the statutory penalties for the specific offense rather than the broader statutory scheme. In this case, the relevant offense is 21 U.S.C. § 848(e)(1)(A), which is distinct from the drug distribution offense under 21 U.S.C. § 841(b)(1)(A). The Fifth Circuit has affirmed that § 848(e)(1)(A) constitutes a separate offense that can lead to distinct prosecutions and penalties. The penalties for § 848(e)(1)(A) remain unchanged pre- and post-Fair Sentencing Act, imposing a minimum 20-year sentence up to life imprisonment or death, disqualifying it as a "covered offense" under the First Step Act.

Appellants Roane and Tipton argue based on a previous ruling in United States v. Thomas, but that case did not address § 848(e)(1)(A) and involved different statutory provisions. Moreover, Thomas’s findings ultimately support the position against the appellants, as it determined that other related convictions were not “covered offenses.” The indictment for Roane and Tipton explicitly ties their murder convictions to their involvement in a Continuing Criminal Enterprise (CCE) under § 848(a), solidifying the stance that their convictions under § 848(e)(1)(A) stem from the substantive CCE offense. The court previously affirmed this connection in direct appeals, reinforcing that the penalties associated with their convictions do not qualify for reduction under the First Step Act.

Roane and Tipton's argument attempts to equate a drug distribution offense with a more serious killing related to a continuing criminal enterprise (CCE), revealing a fundamental flaw in their appeal. They aim to compare fundamentally different offenses, which is inappropriate. Upholding their argument would result in a circuit split, as both the Sixth and Second Circuits have determined that 21 U.S.C. § 848(e)(1)(A) is not a covered offense under the First Step Act, as seen in United States v. Snow and United States v. Fletcher. These circuits clarified that the First Step Act does not eliminate criminal liability under this statute merely due to changes in predicate drug weights.

The appellants seek sentence reductions for crack cocaine distribution offenses under 21 U.S.C. § 841(b)(1)(A), which are indeed covered by the First Step Act due to modifications made by the Fair Sentencing Act. Recent decisions confirm that proceedings under section 404 of the First Step Act warrant both procedural and substantive reasonableness reviews. Courts must evaluate the totality of circumstances, considering the defendant's arguments and characteristics against the factors outlined in 18 U.S.C. § 3553(a). The district court was found to have met its obligations under this standard, as section 404(c) grants discretion in reducing sentences for covered offenses.

In examining Roane's 40-year sentence for possession of 50 grams of crack cocaine, the district court concluded that the sentence fell within the revised statutory penalty range established post-Fair Sentencing Act. It assessed the relevant § 3553(a) factors, noting Roane's violent criminal history, including multiple murders in furtherance of drug trafficking, which weighed against a sentence reduction.

The court evaluated Roane's good conduct and rehabilitative efforts in prison, alongside mitigating evidence and claims of actual innocence in his sentence reduction motion. Despite acknowledging the "laudable" mitigating evidence, the court found it insufficient, stating that reducing Roane's sentence would fail to reflect the seriousness of his offenses, promote just punishment, respect for the law, or deter criminal conduct. The court highlighted Roane's leadership in a drug trafficking ring and his involvement in multiple murders, including one that led to a death sentence. No supportive policy statement from the Sentencing Commission for a sentence reduction was found, and concerns about potential unwarranted sentence disparities were raised.

In a parallel assessment of Tipton’s case, who faced two convictions under 841(b)(1)(A) resulting in a forty-year and a twenty-year sentence, the court established that his sentences remained within current statutory limits. After evaluating the factors outlined in § 3553(a), the court acknowledged Tipton's mitigating evidence but concluded that the nature of his offenses and his criminal history weighed heavily against him. The court noted the violence he inflicted on innocent bystanders and determined that reducing his sentence would undermine the goals of sentencing, given his dangerous role in a violent drug trafficking operation. Similar to Roane, Tipton's death sentence and extensive prison disciplinary record were seen as factors against a reduction. The court found that Tipton's sentences were consistent with those of his co-conspirators and noted the absence of any policy statement favoring a reduction. Ultimately, the district court rejected the appellants' arguments, affirming that any sentence reductions would contravene justice. The court confirmed that the proceedings complied with the First Step Act and showed no procedural or substantive flaws, leading to the affirmation of the judgment.