United States Court of Appeals

 For the Eighth Circuit 

___________________________

No. 19-2145

___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Fontaine Demmond Sherman,

lllllllllllllllllllllDefendant - Appellant.

 ____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

 ____________

 Submitted: January 13, 2020

Filed: May 28, 2020

____________

Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges. 

____________

COLLOTON, Circuit Judge.

In 2004, a jury convicted Fontaine Sherman of conspiring to distribute 50

grams or more of cocaine base. See 21 U.S.C. §§ 846, 841(b)(1)(A) (1997). The

district court sentenced him to 240 months in prison, and this court affirmed the

conviction on appeal. United States v. Sherman, 440 F.3d 982 (8th Cir. 2006). 
In 2019, Sherman moved to reduce his sentence under the First Step Act of

2018, which gives a district court discretion to reduce a sentence imposed for an

offense whose penalties were reduced by the Fair Sentencing Act of 2010. Pub. L.

No. 115-391, § 404(b), 132 Stat. 5194, 5222. The district court* concluded that

Sherman’s 240-month sentence was appropriate and should not be reduced. Sherman

argues on appeal that the court committed errors in denying the motion.

Sherman’s original sentencing in 2004 set the stage for his later motion under

the First Step Act. The district court in 2004 found by a preponderance of the

evidence that Sherman was responsible for “in excess of 1.5 kilograms of cocaine

base.” That quantity was the threshold for a base offense level of 38, and would have

resulted in a sentencing guideline range of 292 to 365 months’ imprisonment. But

in light of unsettled law under the Sixth Amendment after Blakely v. Washington, 542

U.S. 296 (2004), and before United States v. Booker, 543 U.S. 220 (2005), the court

decided to hold Sherman accountable for only fifty grams of cocaine base and to

apply a base offense level of 32. The court explained that the indictment charged

Sherman with conspiring to distribute fifty grams or more, and the jury did not find

a larger quantity beyond a reasonable doubt. 

Because the government filed a notice that Sherman had sustained a prior

conviction for a felony drug offense, the statutory minimum sentence was twenty

years’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 851 (1997). The court then

sentenced Sherman to the statutory minimum term of 240 months. But the court also

made clear that if Sherman should have been sentenced under the guidelines based

on the greater drug quantity proved at sentencing, then the court would have imposed

a term of 292 months’ imprisonment. R. Doc. 749.

*The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

-2-
When Sherman moved for a reduction under the First Step Act, he argued that

the statutory minimum of 240 months no longer applied, and urged the court to

impose a reduced sentence of 180 months in light of his efforts at post-sentencing

rehabilitation. The district court assumed that in light of the Fair Sentencing Act,

Sherman’s statutory minimum sentence for conspiring to distribute 50 grams or more

of cocaine base—after a prior conviction for a serious drug felony—was ten years’

imprisonment. See 21 U.S.C. §§ 841(b)(1)(B), 851. But the court found that the trial

testimony indicated that the conspiracy involved over 30 kilograms of cocaine base,

which corresponded to a base offense level of 38 and an advisory range of 292 to 365

months’ imprisonment under the current sentencing guidelines.

Based on the presentence report, the evidence presented at trial, and the

sentencing transcripts, the court concluded that “the original 240-month [sentence]

satisfies the goals of the factors in 18 U.S.C. § 3553(a)(2).” The court cited the

amount of drugs involved, Sherman’s gang affiliation, and Sherman’s long history of

drug dealing. The court observed that the 240-month sentence was fifty-two months

below the advisory guideline range, and decided that “a sentence even further below

the guideline range is not appropriate here.” It was permissible for the district court

to resolve the motion without a hearing. United States v. Williams, 943 F.3d 841,

843-44 (8th Cir. 2019).

Sherman argues that the district court improperly calculated his advisory

guideline range, because the court erred in finding that he was accountable for more

than 30 kilograms of cocaine base. Sherman complains that the court’s finding was

inconsistent with its determination in 2004 that he was responsible for in excess of

1.5 kilograms. There was no inconsistency: a quantity of 30 kilograms is “in excess

of 1.5 kilograms.” Because base offense level 38 is the highest possible level for a

drug conspiracy under USSG § 2D1.1, there was no need for the court in 2004 to

address the extent to which the drug quantity exceeded the then-applicable threshold

of 1.5 kilograms. The threshold for level 38 under the current guidelines has been

-3-
raised to 25.2 kilograms of cocaine base, and it was appropriate for the court to

address whether Sherman was responsible for that quantity.

Sherman also asserts that the record does not support a finding that he was

responsible for over 30 kilograms of cocaine base, which placed him over the

threshold of 25.2 kilograms for a base offense level of 38. During the five-day trial

in 2004, many witnesses testified about the scope of the drug trafficking conspiracy,

Sherman’s role in the conspiracy, and the quantity of drugs involved. This court

already determined that the record supports a finding that Sherman obtained cocaine

from a Mexican source and served as a source of supply for co-conspirator Scoggins,

who redistributed the drugs in Arkansas. 440 F.3d at 991. One witness testified that

over a five-year period he and Scoggins distributed over 20 kilograms of cocaine

base. Another witness estimated that Scoggins sold him approximately 29 kilograms

of cocaine base during that time. The district court presided at trial and was in a

position to make findings about the credibility of witnesses. Given the testimony at

trial, and Sherman’s role as a supplier for the conspiracy, the district court did not

clearly err in applying a base offense level of 38. The record supports a finding that

Sherman was accountable for over 25.2 kilograms of cocaine base. See USSG

§ 1B1.3(a)(1)(B).

Sherman last contends that the court abused its discretion by failing to consider

mitigating factors, particularly his post-sentencing rehabilitation efforts. He relies on

Pepper v. United States, 562 U.S. 476 (2011), which held that a district court at a

resentencing may consider evidence of a defendant’s post-sentencing rehabilitation,

id. at 504, but did not imply that a court “must reduce a defendant’s sentence upon

any showing of postsentencing rehabilitation.” Id. at 505 n.17. In applying Pepper

under the First Step Act, this court similarly has recognized that a “district court may

consider evidence of a defendant’s postsentencing rehabilitation at resentencing,” but

“it need not adjust a sentence based on rehabilitation.” Williams, 943 F.3d at 844

(internal quotation omitted). Indeed, the First Step Act is explicit that “[n]othing in

-4-
this section shall be construed to require a court to reduce any sentence pursuant to

this section.” Section 404(c), 132 Stat. at 5222.

The district court did not specifically mention Sherman’s rehabilitative efforts,

but as at an original sentencing, “not every reasonable argument advanced by a

defendant requires a specific rejoinder by the judge.” United States v. Gray, 533 F.3d

942, 944 (8th Cir. 2008). The court here implicitly rejected Sherman’s argument that

mitigating factors warranted a sentence reduction. That approach was

understandable, for Sherman’s brief on the motion said little about rehabilitative

efforts. He asserted that he has been a “model prisoner,” with only one disciplinary

infraction, but did not elaborate. His own exhibit reflected “GED progress

unsatisfactory.” R. Doc. 1203-1, at 2. The district court cited the sentencing factors

set forth in § 3553(a) and focused on the considerations that it believed were

“paramount” in determining the appropriate sentence. The court did not err by

declining to respond explicitly to Sherman’s plea based on alleged post-sentencing

rehabilitation.

* * *

The judgment of the district court is affirmed.

______________________________

-5-