UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-7128

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERRON ROBINSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior 

District Judge. (1:04-cr-00501-TSE-1)

Argued: September 23, 2010 Decided: February 4, 2011

Before GREGORY and AGEE, Circuit Judges, and Richard L. 

VOORHEES, United States District Judge for the Western District 

of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Voorhees wrote the 

majority opinion, in which Judge Agee joined. Judge Gregory 

wrote a dissenting opinion.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Alexandria, Virginia, for Appellant. Stephen Wiley Miller, 

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for 

Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Alexandria, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Lawrence J. Leiser, Assistant 

United States Attorney, Lore A. Unt, Special Assistant United 
2

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

VOORHEES, District Judge:

Appellant-Defendant Erron Robinson appeals the district 

court’s denial of a motion for reduction of sentence pursuant to 

18 U.S.C. § 3582(c)(2) based upon retroactive application of 

Amendment 706 to the United States Sentencing Guidelines, which 

altered the drug quantity table set forth in U.S.S.G. § 2D1.1 to 

effectively lower the base offense level for offenses involving 

crack cocaine by two levels. Robinson argues on appeal that the 

district court’s failure to articulate his rationale in greater 

detail amounts to an abuse of discretion. Defendant advocates 

for remand to the district court for further explanation. For 

the reasons stated herein, we affirm the district court. 

I.

In June 2005, Robinson pled guilty to violations of 21 

U.S.C. § 841(a)(1) (Count II) and 18 U.S.C. § 924(c) (Count 

III).1

 1 Robinson was originally indicted with co-conspirator, Alex 

Wilson, in a five-count Superseding Indictment on April 7, 2005. 

Count One alleged a conspiracy to possess with intent to 

distribute 50 grams or more of a substance containing a 

detectable amount of cocaine base, commonly known as “crack” 

cocaine. Robinson ultimately pled guilty and accepted 

responsibility for possession with intent to distribute 5 or 

more grams of crack cocaine.

On November 4, 2005, Robinson was sentenced to 132 months 

on the drug offense plus 60 months on the gun offense, 
4

consecutive to the sentence imposed on Count II, for a total 

term of 192 months imprisonment. 

In arriving at the original sentence, the sentencing judge 

noted the advisory guideline range (168-210 months for the 

substantive drug offense), but elected to impose a variant 

sentence based upon the history and characteristics of the 

defendant, the need for deterrence, and the need to avoid 

unwarranted disparities in sentencing.2

In December 2008, Robinson sought a reduction of sentence 

pursuant to Amendment 706 and 18 U.S.C. § 3582(c)(2).

(J.A. 86-90) The defense 

was unsuccessful in its attempt to have the Court adjust 

Robinson’s criminal history category based upon his juvenile

record. However, Defense counsel made persuasive arguments 

about the history and characteristics of the Defendant, 

particularly, Robinson’s youth (age 19) and his prior criminal 

history, which was comprised solely of juvenile adjudications. 

(J.A. 75, 80-84, 91, 133-38) The variance resulted in a sentence 

on the drug offense 36 months below the bottom of the advisory 

guideline range. Judgment was entered on November 4, 2005.

3

 2 The 2004 Edition of the United States Sentencing 

Guidelines was used in calculating Defendant’s advisory 

guideline sentence.(¶70 PSR)

On June 1, 

2009, the district court denied the motion.

3 Amendment 706 to the United States Sentencing Guidelines 
5

Robinson filed a timely appeal. Our jurisdiction arises 

out of 18 U.S.C. § 3742. See United States v. Legree, 205 F.3d 

724, 727 (4th Cir. 2000) (appeals of § 3582 (c)(2) rulings are 

governed by 18 U.S.C. § 3742(a)(1)); United States v. Bowers, 

615 F.3d 715, 722-23 (6th Cir. 2010).

II

We review the district court’s decision to deny relief 

pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. 

United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004).

III. 

We first consider generally the requisite level of 

justification in explaining the denial of a Section 3582 motion. 

Section 3582(c)(2), which supplies the statutory authority for 

the relief sought here, establishes an exception to the general 

rule of finality that governs criminal judgments of conviction. 

See Dillon v. United States, 130 S. Ct. 2683, 2690 (2010); 18 

U.S.C. § 3582(b). Accordingly, we emphasize that proceedings to 

modify sentence under Section 3582 are limited in nature and, 

 

“altered the drug quantity table set forth in U.S.S.G. § 2D1.1 

to effectively lower the base offense level for offenses 

involving crack cocaine by two levels.” United States v. Dunphy, 

551 F.3d 247, 249 (4th Cir. 2009).
6

therefore, are not intended to be full resentencings. As the 

Supreme Court recently explained in Dillon, “Section 

3582(c)(2)'s text, together with its narrow scope, shows that

Congress intended to authorize only a limited adjustment to an 

otherwise final sentence and not a plenary resentencing 

proceeding.” Dillon, 130 S. Ct. at 2691. Like Section 3582, 

U.S.S.G. § 1B1.10(a)(3) expressly identifies the same 

limitation, namely, that proceedings under 18 U.S.C. §

3582(c)(2) and this policy statement do not constitute a full 

resentencing of the defendant. U.S.S.G. § 1B1.10(a)(3). In 

addition, as Dillon makes clear, Section 3582(c)(2) proceedings

“do not implicate the interests identified in Booker,” because 

Booker involved application of the guidelines at an original 

sentencing. Dillon, 130 S. Ct. at 2692; Bowers, 615 F.3d at 727.

As a result, our Section 3582(c)(2) analysis is limited to 

this two-step inquiry: “A court must first determine that a 

reduction is consistent with [§]1B1.10 before it may consider 

whether the authorized reduction is warranted, either in whole 

or in part, according to the factors set forth in §3553(a).”4

 

4 Under 18 U.S.C. § 3553(a), “[t]he court, in determining 

the particular sentence to be imposed, shall consider –

Dillon, 130 S. Ct. at 2691. 

(1) the nature and circumstances of the offense and the 

history and characteristics of the defendant; 

(2) the need for the sentence imposed –
7

Prior to Dillon, we held in United States v. Legree, that

in deciding a Section 3582(c)(2) motion, Section 1B1.10(b) of 

the Sentencing Guidelines does not require the district court to 

engage in this prescribed two-pronged analysis on the record. 

See United States v. Legree, 205 F.3d 724, 728-30 (4th Cir.

2000)(affirming denial of § 3582(c)(2) motion for sentence 

reduction based upon U.S.S.G., Am. 505). We also held that due 

process does not require appointment of counsel beyond direct 

appeal or an evidentiary hearing as “[a] motion pursuant to 

 

(A) to reflect the seriousness of the offense, to 

promote respect for the law, and to provide just 

punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the 

defendant; and

(D) to provide the defendant with needed educational 

or vocational training, medical care, or other 

correctional treatment in the most effective manner; 

(3) the kinds of sentences available

(4) the kind of sentence and the sentencing range 

established for –

(A) the applicable category of offense committed by 

the applicable category of defendant as set forth in 

the guidelines . . . 

(5) any pertinent policy statement –

(A) issued by the Sentencing Commission . . . subject 

to any amendments made to 

such policy statement by act of 

Congress . . .

(6) the need to avoid unwarranted sentence disparities 

among defendants with similar records who have been found 

guilty of similar conduct; and 

(7) the need to provide restitution to any victims of the 

offense. 

18 U.S.C. § 3553(a).
8

[§]3582(c) is not a do-over of an original sentencing proceeding 

where a defendant is cloaked in rights mandated by statutory law 

and the Constitution.” Legree, 205 F.3d at 728-29. We further 

held that under certain circumstances, a presumption existed 

that the sentencing judge considered all pertinent matters in 

denying relief. Id.5

“A court need not engage in ritualistic 

incantation in order to establish its consideration of 

a legal issue. It is sufficient if ... the district 

court rules on issues that have been fully presented 

for determination. Consideration is implicit in the 

court’s ultimate ruling.”

We stated: 

Legree, 205 F.3d at 728-29 (quoting United States v. Davis, 53 

F.3d 638, 642 (4th Cir. 1995)). More specifically, where the 

motion and legal issues are adequately presented, and absent a 

contrary indication, we are to presume that the district court 

considered all pertinent matters in arriving at a decision.6

 5 During oral argument, Defendant made much of the fact that 

Legree relied in part on United States v. Davis, which dealt 

with a supervised release violation. 53 F.3d 638, 642 (4th Cir.

1995). We were cognizant of the distinction between supervised 

release proceedings and § 3582(c)(2) when we decided Legree but 

found the situations analogous notwithstanding. Legree, 205 F.3d 

at 728 (internal citations omitted). We are not persuaded 

otherwise now. Moreover, in Legree, we also found analogous an 

original sentencing decision where we held that a presumption 

exists in non-departure cases that, absent “a contrary 

indication,” a district court considered the factors enumerated 

in 18 U.S.C.A. § 3553(a). Id. at 728-29 (citing United States v. 

Johnson, 138 F.3d 115, 119 (4th Cir. 1998)).

Id. 

6 The legal issues may be deemed adequately presented where 

the district judge is fully aware and familiar with the record 
9

Significantly, we held that this presumption was not overcome by 

sympathetic statements made by the district court during the 

original sentencing. Id. at 729.

Our decision in Legree remains good law as we discern 

nothing from our reading of Dillon to cast doubt upon the 

reasoning adopted in Legree. In sum, due to the “limited 

nature” of the proceedings, Section 3582 determinations are not 

subject to the same kind of scrutiny as imposition of an 

original sentence. Dillon, 130 S. Ct. at 2691-93; United States 

v. Dunphy, 551 F.3d 247, 252-53 (4th Cir. 2009) (Booker had no 

direct effect on § 3582(c)(2)); Legree, 205 F.3d at 729. 

IV.

We turn next to application of the relevant principles in 

this case. Here, the judge exercising discretion under Section 

3582(c)(2) presided over Robinson’s original sentencing and, 

thus, entertained written and oral arguments made by both the 

prosecution and defense concerning the § 3553(a) factors and an 

appropriate sentence. The sentencing court had access to a 

“Statement of Facts” consisting of the Government’s evidentiary 

 

and the Defendant, where the sentencing judge also presided over 

the jury trial, and where some of the same factual and legal 

issues were presented at the time of original sentencing. 

Legree, 205 F.3d at 729. 
10

proffer as to the essential elements of the offenses being pled 

to, sentencing memoranda from the Government and the defense, 

the Presentence Report and Recommendation, and other responsive 

materials. (J.A. 30-57) In deciding not to authorize a reduction 

of sentence pursuant to § 3582(c)(2), the district court 

likewise heard from the Defendant and the Government regarding 

the relevant criteria. (J.A. 102-117) The district court was 

fully aware and familiar with Robinson’s case. As such, we find 

that the issues were adequately presented to the district court.

Because the issues were adequately presented and no contrary 

indication exists, we conclude that the presumption adopted in 

Legree applies here as well. 

Even if the Legree presumption did not apply, the district 

court sufficiently explained its analysis. In its Order denying 

relief, the district court recited the relevant procedural 

history, noting the significance of the fact that at the time of 

his original sentencing, Robinson received a 36-month variance 

in light of Booker and § 3553(a) factors. (J.A. 118)

The district correctly set forth the applicable law, 

focusing on USSG §§ 1B1.10(a)(1) and (b)(2)(B).7

 

7 Section 1B1.10(a)(1) makes clear that the district court 

is faced with a discretionary decision to reduce defendant’s 

sentence pursuant to 18 U.S.C. § 3582(c)(2).

 Section 

1B1.10(b)(2)(B) provides as a general rule: 
11

“[I]f the original term of imprisonment constituted a 

non-guideline sentence determined pursuant to 18 

U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 

200 (2005), a further reduction generally would not be 

appropriate.” 

The district court then concisely explained his reasoning 

for denying the defense motion: 

“Such is the case here, as a review of the record, as 

well as the factors set forth in 18 U.S.C. [§]3553(a), 

confirms that an additional reduction in defendant’s 

variant sentence is not warranted ....” 

(J.A. 119) Finding this general rule determinative, the 

district court explained that if the 2-level reduction was 

allowed, “the variant sentence of 132 months imposed on the drug 

charge ... was below even the amended guidelines range.” (J.A. 

119 n.1) (emphasis in original). We conclude that the district 

court more than satisfied Legree. 

V.

For the same reasons, we likewise reject Defendant’s 

argument that the district court “contravened a Guideline 

requirement” in failing to explain expressly whether Defendant’s 

early release might pose a danger to any person or to the 

community as a whole.
12

Under USSG § 1 B1.10, in evaluating whether to authorize a 

reduction of sentence pursuant to 18 U.S.C. § 3582 based upon a 

retroactive amendment to the guidelines, a district court: 

“shall consider the nature and seriousness of the 

danger to any person or the community that may be 

posed by a reduction in the defendant’s term of 

imprisonment ....” 

USSG 1B1.10, comment. (n.1(B)(ii) (public safety consideration)) 

(emphasis added). 

Citing Gall v. United States, Robinson argues that the 

district court committed a Gall-like procedural error when it 

failed to provide a detailed analysis concerning the public 

safety factor. See Gall v. United States, 128 S. Ct. 586 (2009). 

Robinson claims that failure to discuss the public safety factor 

is akin to a failure to apply the guidelines properly. Robinson 

contends that because this factor is set apart from other §

3553(a) factors, at minimum, thorough discussion of this factor 

is required.8

 

8 It is worth noting that the district court explicitly 

stated that he considered all of the Section 3553(a) factors, 

which include public safety, or the need “to protect the public 

from further crimes of the defendant.” See 18 U.S.C. §

3553(a)(2)(C), infra n. 4.

 Applying the rule of law announced by the Supreme 

Court in Dillon, Gall, like Booker, involved application of the 
13

guidelines at an original sentencing and does not control.9

Rather, consideration of the public safety factor is 

implicit in the district court’s ruling. See Legree, 205 F.3d 

at 728-29. In this case, there is record evidence that Robinson 

was a “central participant” in a violent drug conspiracy and 

Robinson possessed firearms (at least a .38-caliber handgun) in 

furtherance of his drug trafficking. (J.A. 31-32, 50-52) There 

is also evidence that Robinson belonged to a gang called the 

Fordson Road Crew, and that members of Robinson’s gang were 

involved in a long-running feud with a rival gang. (J.A. 50-51)

Robinson, by his own admission, participated in one or more 

shootings where he discharged his weapon and gunshot wounds were 

sustained by members of the rival gang. (J.A. 31-32, 53) The 

 See

Dillon, 130 S. Ct. at 2692. Likewise, Defendant’s reliance on 

United States v. Carter is misplaced given that Carter involved 

review of an original variance sentence as opposed to a 

modification or reduction pursuant to § 3582(c)(2). United 

States v. Carter, 564 F.3d 325 (4th Cir. 2009).

 9 Because Gall does not govern § 3582 proceedings, the 

district court’s alleged failure to provide sufficient 

explanation does not amount to procedural or substantive error 

triggering de novo review. United States v. Dunphy, 551 F.3d 

247, 250 (4th Cir. 2009)(“The district court’s determination 

that it lacked authority to reduce [defendant’s] sentence to a 

term below the amended guideline range is a question of law that 

we review de novo.) 
14

Government’s sentencing memorandum indicates that Robinson, 

along with other members of the Fordson Road Crew, chose to 

“terrorize his neighborhood through drug dealing and gun 

violence.” (J.A. 53) We would be hard-pressed to find that the 

record itself did not contain sufficient support for the 

district court’s discretionary ruling.

Finally, although only portions of the record are relied 

upon by the parties, the district court had access to the entire 

record at the time of his decision-making. In other words, the

court had before it a wealth of information within the record 

and likely materials beyond those items specifically cited or 

included within the Joint Appendix. 

VI. 

For all of these reasons, we affirm the district court’s 

denial of Defendant Robinson’s Section 3582(c)(2) motion. In 

doing so, we hold that the decision of the district court, and 

the explanation of that decision on the record, is consistent 

with our decision in Legree.

AFFIRMED
15

GREGORY, Circuit Judge, dissenting:

I respectfully dissent because I believe courts’ general 

duty to explain their reasoning applies to this case, is 

supported by case law and statute, and enhances appellate 

review. The Supreme Court has reiterated courts’ responsibility 

to explicate their decisions in the sentencing context: “a 

district judge must give serious consideration to the extent of 

any departure from the Guidelines and must explain his 

conclusion that an unusually lenient or an unusually harsh 

sentence is appropriate in a particular case with sufficient 

justifications.” Gall v. United States, 552 U.S. 38, 46 (2007). 

Gall linked courts’ responsibility to explain their logic with 

the duty to “consider” certain sentencing factors. 552 U.S. at 

50 n.6, 52, 53.

Similarly, our Court has concluded that “[t]he sentencing 

judge should set forth enough to satisfy the appellate court 

that he has considered the parties’ arguments and has a reasoned 

basis for exercising his own legal decisionmaking authority.” 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) 

(emphasis added) (citing Rita v. United States, 127 S. Ct. 2456, 

2468 (2007). Otherwise, “a talismanic recitation of the 

§ 3553(a) factors without application to the defendant being 

sentenced does not demonstrate reasoned decisionmaking or 
16

provide an adequate basis for appellate review.” Carter, 564 

F.3d at 329 (citing United States v. Stephens, 549 F.3d 459, 

466-7 (6th Cir. 2008)).

The applicable statute in this case also requires courts to 

rule on sentence reductions “after considering the factors set 

forth in section 3553(a) to the extent that they are applicable, 

if such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission.” 18 U.S.C. 

§ 3582(c)(2) (emphasis added). The term ‘consider’ surely 

means the same thing in § 3582(c)(2) as it did in Gall, Carter, 

and 18 U.S.C. § 3553(a). Compare 18 U.S.C. § 3582(c)(2) (“the 

court may reduce the term of imprisonment, after considering the 

factors set forth in section 3553(a) . . .”) (emphasis added), 

with 18 U.S.C. § 3553(a) (“The court, in determining the 

particular sentence to be imposed, shall consider. . . .”). 

Notably, both provisions were originally enacted on the same day 

and in nearby sections of the same act. Compare 18 U.S.C. 

§ 3582(c)(2) (added Oct. 12, 1984, P.L. 98-473, Title II, Ch II, 

§ 212(a)(2), 98 Stat. 1998), with 18 U.S.C. § 3553(a) (added 

Oct. 12, 1984, P.L. 98-473, Title II, Ch II, § 212(a)(2), 98 

Stat. 1989). “Undoubtedly, there is a natural presumption that 

identical words used in different parts of the same act are 

intended to have the same meaning.” Atlantic Cleaners & Dyers, 
17

Inc. v. United States, 286 U.S. 427, 433 (U.S. 1932) (citations 

omitted). Here, by not providing an individualized explanation 

for its decision, the district court did not show that it 

meaningfully ‘considered’ the motion.

The rationale for requiring courts to explain their 

sentencing decisions applies similarly to § 3582(c) and 

§ 3553(a). As we stated in Carter, explaining sentencing 

decisions “not only ‘allow[s] for meaningful appellate review’ 

but it also ‘promote[s] the perception of fair sentencing.’” 564 

F.3d at 328 (citing Gall, 128 S. Ct. at 597). This is 

especially true for sentence reductions made pursuant to the new 

crack-cocaine ratio, which was enacted to correct structural 

flaws in the law, rather than to inure to the benefit of any 

single defendant. See, e.g., Kimbrough v. United States, 552 

U.S. 85, 98 (2007) (“the severe sentences required by the 

[prior] 100-to-1 ratio [we]re imposed ‘primarily upon black 

offenders.’”) (citations omitted). Generally, “Amendment 706 

retroactively reduce[s] the base offense level for most crackcocaine cases by two levels.” United States v. Fennell, 592 

F.3d 506, 509 (4th Cir. 2010). In the occasional case when a 

court chooses not to retroactively apply the new ratio, it would 

be even more valuable for the court to explain why that 

defendant was exceptional.
18

The majority, by contrast, relies on two cases for the 

proposition that district courts need not explain their 

reasoning with any particularity in sentencing modifications. 

Neither is compelling. First, the majority cites United States 

v. Legree, for the proposition that a “court need not engage in 

ritualistic incantation in order to establish its consideration 

of a legal issue.” 205 F.3d 724, 729 (4th Cir. 2000) (quoting 

(United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)). But 

that broad holding is cabined by Gall, which requires a judge to 

“explain his conclusion that an unusually lenient or an 

unusually harsh sentence is appropriate in a particular case 

with sufficient justifications.” 552 U.S. at 46. Moreover, our 

Court in Carter explicitly rejected just these sorts of 

‘ritualistic incantations.’ Carter repeatedly invoked Gall, 

while omitting Legree, and concluded that “a talismanic 

recitation of the § 3553(a) factors without application to the 

defendant being sentenced does not demonstrate reasoned 

decisionmaking or provide an adequate basis for appellate 

review.” 564 F.3d at 329 (citing United States v. Stephens, 549 

F.3d 459, 466-7 (6th Cir. 2008)).

Secondly, the majority relies heavily upon Dillon because 

it espoused a “narrow view of [3582(c)(2)] proceedings.” Dillon 

v. United States, 130 S. Ct. 2683, 2691 (2010). But nothing in 
19

Dillon suggests we should abrogate district courts’ general 

responsibility to provide some individualized legal reasoning. 

Nor does the majority cite any authority for the proposition 

that courts’ duty to explain varies with the “scope” of a 

proceeding. To the contrary -- our sister circuits have 

continued to require legal explanations in ‘narrower’ 

proceedings which adjudicated various types of motions. See 

e.g., Kicklighter v. United States, 281 Fed. Appx. 926 (11th 

Cir. 2008) (motion to vacate, set aside, or correct a sentence); 

Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery 

Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 2007) (motion to stay); 

United States v. Groll, 992 F.2d 755, 760 (7th Cir. 1993) 

(motion to withdraw plea); Eizonas, Inc. v. Dollar Sav. & Trust 

Co., 1993 U.S. App. LEXIS 31607 (6th Cir. 1993) (motion for 

sanctions).

Without at least some specific reasoning for sentencing 

reduction decisions, circuit courts will have to start guessing 

why district courts reached certain outcomes. The majority does 

just that here, speculating about various reasons “implicit in 

the district court’s ruling.” Slip op. at 13-14. But “an 

appellate court may not guess at the district court’s rationale, 

searching the record for statements by the Government or defense 
20

counsel or for any other clues that might explain a sentence.” 

Carter, 564 F.3d at 329-30.

Ultimately, “[a] body of law is more rational and more 

civilized when every rule it contains is referred articulately 

and definitely to an end which it subserves and when the grounds 

for desiring that end are stated, or are ready to be stated, in 

words.” Justice Oliver Wendell Holmes, Address of 1897, quoted 

in A Dictionary of Legal Quotations (Simon James, et al., eds., 

1987). Here, the district court should have stated specific 

reasons for denying Appellant’s motion to reduce his sentence.