In the United States Court of Appeals For the Second Circuit

August Term, 2020 No. 20-1180

UNITED STATES, Appellee,

v.

HUEYE FLETCHER, AKA HERBIE, AKA GRAY GOOSE, SHAWN SHAW, AKA CHEESE, Defendants,

RICHARD GILLIAM, AKA BUJU, AKA MAN, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of New York No. 08-cr-742 — Ann M. Donnelly, Judge.

SUBMITTED: MARCH 25, 2021 DECIDED: MAY 7, 2021

Before: KATZMANN, WESLEY, and NARDINI, Circuit Judges. Defendant-Appellant Richard Gilliam appeals from an order of the United States District Court for the Eastern District of New York (Ann M. Donnelly, J.), entered on March 18, 2020, denying his motion for a sentence reduction under Section 404(b) of the First Step Act. We hold that Gilliam is ineligible for a sentence reduction because his offense of conviction, drug- related murder in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” under the First Step Act. Thus, we AFFIRM the order below.

Richard Gilliam, pro se, White Deer, PA, for Defendant-Appellant

Amy Busa and Gillian Kassner, Assistant United States Attorneys, for Mark J. Lesko, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee

WILLIAM J. NARDINI, Circuit Judge:

In 2010, Congress passed the Fair Sentencing Act, which increased the quantities of crack cocaine that trigger certain statutory penalty ranges. Pub. L. No. 111-220, 124 Stat. 2372. Eight years later, Congress passed the First Step Act, which afforded district judges discretion to give the benefit of those higher quantity thresholds to defendants who had been sentenced

2 before the Fair Sentencing Act was enacted. Pub. L. No. 115-391, 132 Stat. 5194. Section 404(b) of the First Step Act allows district courts to consider whether to reduce sentences for a narrowly defined set of “covered offenses.” Defendant-Appellant Richard Gilliam moved under the First Step Act for a reduction of his sentence for drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), on the ground that his murder offense was premised on a violation of 21 U.S.C. § 841(b)(1)(A). The district court denied his motion, holding that his murder conviction was not for a “covered offense” under Section 404(b), and that he was thus ineligible for a sentence reduction. We agree and AFFIRM the decision of the district court. I. Background

This appeal arises from the torture and killing of Jose Machicote. Machicote was a rival drug dealer to Gilliam who robbed Gilliam about two weeks before his death. On November 13, 2006, Gilliam and his associates kidnapped, tortured, and killed Machicote, leaving his body lying in a vacant lot.

3 Gilliam immediately fled New York, but eventually he returned and was arrested in October 2008. In February 2010, he pleaded guilty to one count of drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), in the United States District Court for the Eastern District of New York (Gleeson, J.). In October 2010, the district court sentenced Gilliam principally to 528 months of imprisonment. We affirmed his sentence on direct appeal. 1 See United States v. Gilliam, 441 F. App’x 42 (2d Cir. 2011).

In November 2019, Gilliam moved for a sentence