PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6829

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

DANNY DAMON SMITH, a/k/a Duke,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:07-cr-00433-HEH-1)

Argued: May 3, 2023 Decided: August 3, 2023

Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Rushing and Senior Judge Floyd joined.

ARGUED: Robert James Wagner, ROBERT J. WAGNER PLC, Richmond, Virginia, for Appellant. Daniel J. Honold, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Peter S. Duffey, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-6829 Doc: 41 Filed: 08/03/2023 Pg: 2 of 16

DIAZ, Chief Judge:

Danny Smith is fifteen years into his twenty-year prison sentence for conspiring to

distribute crack cocaine. A few years after he was sentenced, Congress passed the Fair

Sentencing Act, which reduced the crack-to-powder cocaine disparity. If sentenced today,

Smith’s mandatory minimum would be half his current sentence.

Under the retroactivity provisions of the First Step Act, Smith moved for a sentence

reduction to time served. The district court denied his motion, determining that twenty

years remained appropriate. Smith appealed, claiming among other things that the district

court miscalculated his Guidelines range and that our recent decision in United States v.

Swain, 49 F.4th 398 (4th Cir. 2022), reveals substantive errors in the district court’s

analysis.

Because we find no reversible error, we affirm.

I.

A.

Facing a five-count indictment, including a charge of murdering an FBI informant,

Smith pleaded guilty to a single count of conspiracy to distribute fifty grams or more of

cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (2006). His presentence

report attributed to him 270.63 grams of cocaine base, colloquially known as “crack

cocaine,” and calculated his criminal history category as V.

At that time, the Sentencing Guidelines subjected “a drug trafficker dealing in crack

cocaine . . . to the same sentence as one dealing in 100 times more powder cocaine.”

2 USCA4 Appeal: 21-6829 Doc: 41 Filed: 08/03/2023 Pg: 3 of 16

Kimbrough v. United States, 552 U.S. 85, 91 (2007). Had Smith been held responsible for

270.63 grams of powder cocaine, his Sentencing-Guidelines range would have been 63 to

78 months in prison, with no statutory minimum. But since Smith was convicted of

conspiracy to distribute crack cocaine, his presentence report calculated a Guidelines range

of 188 to 235 months. Smith had a prior felony drug conviction, and the government gave

notice of its intent to enhance his penalties under 21 U.S.C. § 851, resulting in a statutory

minimum of 240 months.

The government also sought to apply a first-degree murder cross-reference for the

killing of an FBI informant. That cr

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