UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-7795

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHN JACKSON, a/k/a Aaron Green,

Defendant – Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at 

Huntington. Robert C. Chambers, District Judge. (3:05-cr-00184-1)

Argued: October 25, 2022 Decided: July 11, 2023

Before RICHARDSON and RUSHING, Circuit Judges, and Sherri A. LYDON, United 

States District Judge for the District of South Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Rushing wrote the majority opinion, in which 

Judge Lydon joined. Judge Richardson wrote a dissenting opinion. 

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Charleston, West Virginia, for Appellant. Negar M. Kordestani, OFFICE OF THE 

UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: 

Wesley P. Page, Federal Public Defender, Lex A. Coleman, Assistant Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West 

Virginia, for Appellant. Michael B. Stuart, United States Attorney, Lisa G. Johnston, 

Acting United States Attorney, John J. Frail, Assistant United States Attorney, OFFICE 

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OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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RUSHING, Circuit Judge:

Pursuant to the First Step Act, the district court reduced John Jackson’s prison 

sentence by 27 months and his supervised release by two years. Jackson appeals, 

contending that the district court committed two procedural errors that warrant remand.

We affirm.

In 2006, Jackson pleaded guilty to possession with intent to distribute 5 grams or 

more of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). After determining that

Jackson was a career offender, the district court calculated an advisory Sentencing 

Guidelines range of 262 to 327 months’ imprisonment. The court sentenced Jackson to 

262 months’ imprisonment, eight years of supervised release, a $100 special assessment, 

and a $7,500 fine. 

In 2019, Jackson moved for a sentence reduction under the First Step Act of 2018, 

Pub. L. No. 115-391, 132 Stat. 5194. Section 404 of the First Step Act, 132 Stat. at 5222,

permits a district court to reduce a sentence previously imposed for certain crack cocaine 

offenses by retroactively applying Sections 2 and 3 of the Fair Sentencing Act of 2010, 

Pub. L. No. 111-220, 124 Stat. 2372. Through counsel, Jackson argued that he was eligible 

for a sentence reduction, that he no longer qualified as a career offender, and that his 

amended Guidelines range was 57 to 71 months. Because he had already served more than 

12 years in prison, Jackson urged the district court to impose a sentence of time served with 

no supervised release. In response, the Government agreed that Jackson was eligible for 

Section 404 relief but contended he still qualified as a career offender. The Government 

calculated Jackson’s amended Guidelines range as 188 to 235 months and urged the court 

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to reduce his sentence to within that range, followed by six years of supervised release. 

Jackson did not file a reply. 

The district court determined that Jackson was eligible for a sentence reduction and 

that his new Guidelines range was 188 months to 235 months. After considering the 18 

U.S.C. § 3553(a) factors, the court concluded “that a sentence at the high end of the 

[G]uideline range is appropriate.” United States v. Jackson, No. 3:05-00184-01, 2019 WL 

5681191, at *4 (S.D. W. Va. Oct. 31, 2019). The court specifically noted that Jackson “has 

been sanctioned repeatedly over the entire term of his imprisonment without any sign of 

improved institutional adjustment,” citing a probation memorandum. Id. When describing 

the background facts of the case, the district court elaborated that Jackson had “completed 

two drug education programs” while incarcerated but had “also been subject to sanctions

on at least thirty-five separate occasions,” including “numerous instances of engaging in 

sexual acts, refusing work assignments, and threatening bodily harm,” citing the same 

memorandum. Id. at *1. The court reduced Jackson’s sentence to “235 months of 

imprisonment, but not less than time served, to be followed by six years of supervised 

release” and did not change Jackson’s fine or special assessment. Id. at *4 & n.5. 

Jackson appealed. We held his appeal in abeyance on two separate occasions 

pending decisions from our Court and the Supreme Court clarifying a district court’s 

procedural obligations when deciding a Section 404 motion and our standards for 

reviewing those decisions. The primary contours of First Step Act procedure having been 

drawn, what remains of this appeal is a narrower, fact-specific dispute. 

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We review a district court’s grant or denial of Section 404 relief for abuse of 

discretion. United States v. Reed, 58 F.4th 816, 819–820 (4th Cir. 2023); United States v. 

Collington, 995 F.3d 347, 358–359 (4th Cir. 2021). “A district court abuses its discretion 

if its decision to retain or reduce a sentence under the First Step Act is procedurally or 

substantively unreasonable.” United States v. Troy, 64 F.4th 177, 184 (4th Cir. 2023). But 

“[a]s a general matter, it is not the role of an appellate court to substitute its judgment for 

that of the sentencing court as to the appropriateness of a particular sentence,” and, “[o]ther 

than legal errors in recalculating the Guidelines to account for the Fair Sentencing Act’s 

changes, appellate review should not be overly searching.” Concepcion v. United States, 

142 S. Ct. 2389, 2404 (2022) (internal quotation marks omitted). 

When assessing whether a district court’s Section 404 decision was procedurally

reasonable, we evaluate whether the district court committed “significant procedural error, 

such as failing to calculate (or improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . .” 

Reed, 58 F.4th at 820 (internal quotation marks omitted). As we have recently explained

in the context of procedural reasonableness, “[i]n resolving a motion under the First Step 

Act, a district court’s discretion is broad and its burden light.” Troy, 64 F.4th at 184. 

Jackson contends that his reduced sentence is procedurally unreasonable because

(1) the district court did not solicit further argument from the parties after it determined the 

applicable Guidelines range and (2) the district court relied on information about Jackson’s 

prison conduct that was not disclosed to him. We find neither argument persuasive.

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As to the first contention, Jackson concedes on appeal that the district court correctly 

calculated the applicable Guidelines range. The Government calculated the same correct 

range in its district court filing. Jackson chose not to reply to that filing or to present an 

alternative argument based on that sentencing range. Instead, he argued exclusively for a 

sentence within what he now concedes was an incorrectly calculated Guidelines range. 

Jackson nevertheless contends that, after the district court resolved the Guidelines dispute, 

it was required to solicit a second round of argument from the parties so that he could 

present arguments recalibrated to that corrected range. Although this is the typical 

sequence of events during a plenary sentencing hearing, see United States v. Pauley, 511 

F.3d 468, 473 (4th Cir. 2007), defendants are not entitled to hearings on their Section 404 

motions, see Collington, 995 F.3d at 360. Acknowledging that no hearing was requested 

or required, Jackson suggests that another round of briefing would have been appropriate 

because of the wide gulf between the parties’ Guidelines calculations. But as Jackson 

admits, the reason for that gulf was his own erroneous calculation. The district court gave 

Jackson and the Government the opportunity through briefing to present their Guidelines 

calculations, to discuss the § 3553(a) factors, and to advocate for whatever sentence they 

deemed appropriate. That procedure was sufficient.

Jackson bases his second assignment of error on the district court’s consideration of 

his postsentencing conduct. Despite urging the district court to evaluate the § 3553(a) 

factors and all information concerning his “background, character, and conduct,” 18 U.S.C. 

§ 3661, Jackson made no argument to the district court about his postsentencing conduct. 

Neither did the Government. The court nevertheless considered Jackson’s prison conduct, 

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both positive and negative, in reaching its decision. The record suggests that the district 

court expected that the memorandum detailing this information would be disclosed to the 

parties, but apparently it was not. 

It is reversible procedural error to select a sentence based on clearly erroneous facts. 

See Reed, 58 F.4th at 820; cf. Gall v. United States, 552 U.S. 38, 51 (2007). But Jackson 

does not contend that what the district court said about his postsentencing conduct is untrue, 

so he is not entitled to relief on that basis. Cf. United States v. Vestal, 716 Fed. App. 512, 

514 (6th Cir. 2017) (“Given that neither [defendant] asserts that the district court was 

mistaken about his post-sentencing conduct, we can discern no abuse of discretion.”). 

Indeed, at oral argument, Jackson’s counsel explained that his prison disciplinary record 

was filed on the docket in subsequent proceedings in this case and, having reviewed it, he 

did not dispute its accuracy. Oral Arg. at 35:09–35:15. 

Jackson argues that because his prison disciplinary record was “never disclosed” to 

him, he was given “no opportunity to counter” it. Supp. Opening Br. at 9. “Yet it was his 

history; who knew it better?” United States v. Neal, 611 F.3d 399, 401 (7th Cir. 2010). 

And postsentencing conduct is invariably relevant at resentencing, see, e.g., Concepcion, 

142 S. Ct. at 2402–2403; Pepper v. United States, 562 U.S. 476, 490–491 (2011), as 

Jackson’s seasoned counsel acknowledged, see Oral Arg. at 3:38–5:01. Jackson had the 

opportunity to explain his extensive disciplinary record and tout his positive postsentencing 

conduct in his briefing to the district court but he did not, instead making the strategic 

choice to focus exclusively on what he now realizes was an incorrect argument for a timeserved sentence. Jackson notes that at an original sentencing hearing, defense counsel has 

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the chance to comment on the presentence report and any other information on which the 

court will rely. See Fed. R. Crim. P. 32(e), (i)(1). But again, procedural reasonableness 

does not require a resentencing hearing for Section 404 motions. See Collington, 995 F.3d 

at 360. Nor does Jackson claim there was any factual dispute to resolve. On this record, 

we cannot find that the district court denied Jackson an opportunity to address his 

disciplinary record or based its sentence on clearly erroneous facts.

Confining our review to the arguments Jackson has made on appeal, we conclude 

the district court did not commit “significant procedural error.” Reed, 58 F.4th at 820

(internal quotation marks omitted). And Jackson does not challenge the substantive 

reasonableness of his reduced sentence. So the judgment of the district court is

AFFIRMED.

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RICHARDSON, Circuit Judge, dissenting:

In resentencing this defendant, the district court got prison disciplinary records from 

the executive branch (the Bureau of Prisons) and relied on them. Typically, there is nothing 

wrong with this common occurrence. But here, the defendant received no notice that the 

district court received that information or intended to rely on it. The majority says that this 

is ok because, even without notice, the defendant had the opportunity to preemptively inject 

his own prison disciplinary records. I respectfully disagree: A district court cannot—

unbeknownst to the defendant—obtain information from the government and then—still 

unbeknownst to the defendant—consider that information when fashioning a sentence.

First, a brief retelling of the circumstances. John Jackson moved to reduce his 

sentence under the First Step Act. In his motion, he made no argument about his 

postsentencing conduct. In response, the United States Attorney agreed that Jackson was 

eligible for resentencing but opposed the requested, reduced sentence. Like Jackson, the 

United States Attorney didn’t mention postsentencing conduct. The district court granted 

Jackson’s motion for resentencing. Yet the court did not reduce his 262-month sentence 

as much as Jackson wanted. To Jackson’s surprise, the court’s order relied on Jackson’s 

postsentencing conduct in prison to justify the new 235-month sentence. United States v. 

Jackson, No. 3:05-00184-01, 2019 WL 5681191, at *4 (S.D. W. Va. Oct. 31, 2019).

In the order, the district court underscored that Jackson had “been subject to 

sanctions on at least thirty-five separate occasions.” Id. at *1. It later reiterated that 

Jackson had “been sanctioned repeatedly” while in prison. Id. at *4. And the district court 

didn’t hide the ball on where it got that information: the government. See id. at *1 n.1. 

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But not the government through a filing from the United States Attorney’s Office, which 

Jackson could see and respond to; instead, the district court had directed the United States 

Probation Office to file a memorandum on Jackson. And Probation, in turn, collected 

information from the Bureau of Prisons. 

The majority sees no problem. They say that Jackson—even without disclosure of 

the information—knew his own prison record and thus had the opportunity to address it. 

See Maj. Op. at 7. But his knowledge and opportunity to interject his prison record is not 

enough. Even in a First Step Act resentencing, a defendant has a right to notice of the 

factual information that the court is relying on to impose the sentence. Without that notice, 

the defendant’s opportunity to respond—whether to contest or contextualize—is illusory. 

To be clear, the issue is not that this information—Jackson’s prison disciplinary 

record—was not disclosed to him. On that point, the majority and I agree: Jackson likely 

knew his disciplinary record better than anyone. It was his record after all. The issue, 

rather, is that Jackson had no idea that the information had been disclosed to the district 

court, let alone that the district court was considering it in when fashioning his sentence.

Since our founding, sentencing judges have appropriately possessed wide discretion 

to consider aggravating and mitigating information in crafting the right sentence. See 

generally Concepcion v. United States, 142 S. Ct. 2389 (2022). That discretion permits 

considering prison behavior in a First Step Act resentencing. And resentencing regularly 

does in fact address prison behavior. 

But that’s because prison behavior is regularly addressed by the parties. (What new 

factual information, you might wonder, can a criminal defendant point to when they are 

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back before a judge on resentencing other than how they’ve shaped up?) That didn’t 

happen here. Unbeknownst to the defendant, the district court obtained and considered 

information that the defendant had no reason to believe that the district court had. Neither 

party had mentioned it, nor did the district court have a standing order that prison records 

would be considered as part of any First Step Act resentencing. So Jackson had no idea—

until it popped up in the sentencing order—that the district court was even considering that 

information.

In fairness to the district court, the docket suggests that the court expected 

Probation’s memorandum—presumably containing Jackson’s prison disciplinary record—

to be filed, and thus provided to the parties. But it appears that never occurred. Given that 

lack of notice, I would vacate Jackson’s sentence. I thus respectfully dissent.

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