United States of America v. JAVIS SHERARD MCKENZIE, a/k/a Jay Rock

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-7796

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVIS SHERARD MCKENZIE, a/k/a Jay Rock,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:07-cr-00155-JFA-3)

Submitted: May 5, 2020 Decided: May 19, 2020

Before GREGORY, Chief Judge, WILKINSON and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Javis Sherard McKenzie, Appellant Pro Se. Stacey Denise Haynes, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Javis Sherard McKenzie appeals the district court’s order denying his motion to
reduce his sentence under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
Following a jury trial in 2008, McKenzie was convicted of conspiracy to possess with
intent to distribute and to distribute 50 grams or more of cocaine base (“crack”) and 5
kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (2018) (Count 1); use of a
communication facility to facilitate the commission of a felony, in violation of 21 U.S.C.
§§ 843(b), 2 (2018), (Counts 7-9); and possession of firearms and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) (2018) (Count
79). McKenzie received concurrent terms of 480 months on Count 1, 48 months each on
Counts 7 through 9, and 120 months on Count 79. In 2019, McKenzie moved for a
reduction of sentence pursuant to the First Step Act. The court concluded that McKenzie’s
conviction for Count 1 was not a “covered offense” within the meaning of the First Step
Act because McKenzie was convicted of conspiring to distribute 50 grams of crack and 5
kilograms of cocaine, and the First Step Act did not change the statutory penalties for
cocaine offenses. We vacate and remand for further proceedings.
Section 404(b) of the First Step Act provides that “[a] court that imposed a sentence
for a covered offense may, on motion of the defendant . . . impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law, 111-220; 124 Stat. 2372),
were in effect at the time the covered offense was committed.” § 404(b). “Section 404(a)
defines a ‘covered offense’ as a violation of a federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010,

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that was committed before August 3, 2010.” United States v. Gravatt, 953 F.3d 258, 260
(4th Cir. 2020). Section 404(c) contains limitations on the application of § 404(b) and
“provides that ‘nothing in the section is to be construed to require a court to reduce any
sentence.’” Id. at 261 (quoting § 404(c)).
When the district court considered McKenzie’s First Step Act motion, it did not
have the benefit of our recent decision in Gravatt, where we held that a defendant convicted
of conspiracy to possess with intent to distribute crack cocaine and powder cocaine was
convicted of a covered offense under the FSA. Id. at 264. Under Gravatt, McKenzie is
eligible to have his First Step Act motion reviewed on the merits. Accordingly, we vacate
the district court’s order and remand for further proceedings. “[O]ur decision . . . only
requires that [Gravatt’s] sentence receive a substantive review.” Id. We express no view
as to “how the district court should rule.” Id.
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.
VACATED AND REMANDED