USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12860 Non-Argument Calendar ________________________
D.C. Docket No. 0:18-cr-60323-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERND ZALKE RIND,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 17, 2020)
Before MARTIN, BRANCH, and BLACK, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 2 of 8
Bernd Rind, a federal prisoner at Miami Federal Correctional Institution
(Miami FCI), appeals the district court’s denial of compassionate release under
Section 603 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (First
Step Act) and 18 U.S.C. § 3582(c)(1)(A) for failing to establish that his health
conditions, in light of the risk of COVID-19, were extraordinary and compelling
reasons to warrant his release. Rind asserts the district court abused its discretion
by denying compassionate release because the record does not reflect the court
considered the 18 U.S.C. § 3553(a) factors and does not otherwise allow for
meaningful appellate review. No reversible error has been shown, and we affirm.
I. BACKGROUND
In 2019, Rind pled guilty to one count of wire fraud, in violation of 18
U.S.C. § 1343, and one count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1). The district judge imposed a 66-month sentence of imprisonment.
This sentence consisted of 42 months’ imprisonment as to the wire fraud count and
a consecutive 24 months’ imprisonment as to the aggravated identity fraud count.
Rind was also sentenced to 3 years’ supervised release.
In June 2020, Rind filed a motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A). He requested that he be released to home confinement based on
his medical conditions and age. Rind asserted that he was an overweight, 64-year-
old man who suffered from type II diabetes, hypertension, and high blood
2 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 3 of 8
pressure—all of which placed him in the highest risk group for death or life-
threatening complications if he contracted COVID-19. He asserted he requested
release to home confinement, based on his medical conditions and risk factors,
from the warden at Miami FCI in April 2020. Rind asserted the Federal Bureau of
Prisons (BOP) responded that he did not meet the criteria for priority consideration
and that Rind had not since received any further information.
Rind argued his health issues and age constituted “extraordinary and
compelling reasons” in support of his request for compassionate release. He
contended the massive risk that COVID-19 poses to incarcerated individuals
generally, and to him specifically due to his health issues and obesity, established
an extraordinary and compelling reason for his immediate release. Rind argued the
Centers for Disease Control and Prevention (CDC) identified, in part, age,
diabetes, and hypertension as risk factors for severe illness, complications, and
death from COVID-19. He asserted that social distancing was not possible in
prison and the conditions in BOP facilities provided a uniquely hospitable
environment for COVID-19 to spread. Rind claimed he posed no threat to anyone
and that his wife had the ability to assume care for him if he were placed in home
detention.
Subsequently, Rind moved to stay the ruling on his motion for
compassionate release, noting the BOP moved him into a period of quarantine
3 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 4 of 8
pending release to home confinement while awaiting a decision from the warden at
Miami FCI. The district court granted the motion to stay.
Rind then filed a motion requesting the court terminate the stay and renew
his motion for compassionate release. Rind asserted the BOP explained that it had
denied his administrative request before he was placed in quarantine and placed
him back in the general population at Miami FCI, and told him a mistake was
made and he was not going to be released. He argued the situation at Miami FCI
had deteriorated since he filed his first motion for release and the virus was
spreading seemingly uncontrolled within the facility. Rind argued that, due to the
emergency situation at Miami FCI and its unexplained administrative actions, the
court should grant him immediate release to home confinement under
§ 3582(c)(1)(A)(i). He argued the CDC had revised its guidelines since he filed his
first motion for release, and under those guidelines, his risk factors were especially
high, particularly due to his type II diabetes.
The district court denied Rind’s renewed motion and denied his original
motion as moot. The court noted Rind had served approximately 9 months of his
66-month custodial sentence, which was less than 15% of his sentence. It found
that while Rind’s conditions of type II diabetes, hypertension, high blood pressure,
and asthma placed him at a higher risk of contracting a severe case of COVID-19,
he had not provided sufficient information regarding the severity of his medical
4 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 5 of 8
conditions nor had he supported his allegations with medical records. The court
found that Rind’s condition did “not appear to be at an acute level that would
warrant his release after completing less than 15% of his sentence.” In
comparison, the court noted a case in which it granted compassionate release for a
defendant with end-stage renal failure, heart failure, diabetes, and a history of
respiratory illnesses after he completed 60% of his sentence. See United States v.
Oreste, No. 14-20349-CR, 2020 WL 4343774 (S.D. Fla. Apr. 6, 2020). The court
declined to find that extraordinary and compelling reasons warranted Rind’s
release.
Rind filed a motion for reconsideration, which he supplemented with his
medical records. The court denied Rind’s motion for reconsideration, finding the
medical records showed he suffered from diabetes and hypertension. The court
found that, nevertheless, Rind’s conditions were not acute enough to warrant his
release after serving less than 15% of his sentence, again citing its decision in
Oreste.
II. DISCUSSION
18 U.S.C. § 3582(c)(1)(A) states that a district court “may” reduce a
defendant’s sentence. Thus, a district court’s decision whether to grant or deny a
defendant’s reduction is discretionary and reviewed for abuse of discretion. See
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020) (explaining the
5 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 6 of 8
standard of review for a motion for reduction of sentence under an analogous
provision of the First Step Act); see also United States v.
Free access — add to your briefcase to read the full text and ask questions with AI
USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12860 Non-Argument Calendar ________________________
D.C. Docket No. 0:18-cr-60323-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERND ZALKE RIND,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 17, 2020)
Before MARTIN, BRANCH, and BLACK, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 2 of 8
Bernd Rind, a federal prisoner at Miami Federal Correctional Institution
(Miami FCI), appeals the district court’s denial of compassionate release under
Section 603 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (First
Step Act) and 18 U.S.C. § 3582(c)(1)(A) for failing to establish that his health
conditions, in light of the risk of COVID-19, were extraordinary and compelling
reasons to warrant his release. Rind asserts the district court abused its discretion
by denying compassionate release because the record does not reflect the court
considered the 18 U.S.C. § 3553(a) factors and does not otherwise allow for
meaningful appellate review. No reversible error has been shown, and we affirm.
I. BACKGROUND
In 2019, Rind pled guilty to one count of wire fraud, in violation of 18
U.S.C. § 1343, and one count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1). The district judge imposed a 66-month sentence of imprisonment.
This sentence consisted of 42 months’ imprisonment as to the wire fraud count and
a consecutive 24 months’ imprisonment as to the aggravated identity fraud count.
Rind was also sentenced to 3 years’ supervised release.
In June 2020, Rind filed a motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A). He requested that he be released to home confinement based on
his medical conditions and age. Rind asserted that he was an overweight, 64-year-
old man who suffered from type II diabetes, hypertension, and high blood
2 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 3 of 8
pressure—all of which placed him in the highest risk group for death or life-
threatening complications if he contracted COVID-19. He asserted he requested
release to home confinement, based on his medical conditions and risk factors,
from the warden at Miami FCI in April 2020. Rind asserted the Federal Bureau of
Prisons (BOP) responded that he did not meet the criteria for priority consideration
and that Rind had not since received any further information.
Rind argued his health issues and age constituted “extraordinary and
compelling reasons” in support of his request for compassionate release. He
contended the massive risk that COVID-19 poses to incarcerated individuals
generally, and to him specifically due to his health issues and obesity, established
an extraordinary and compelling reason for his immediate release. Rind argued the
Centers for Disease Control and Prevention (CDC) identified, in part, age,
diabetes, and hypertension as risk factors for severe illness, complications, and
death from COVID-19. He asserted that social distancing was not possible in
prison and the conditions in BOP facilities provided a uniquely hospitable
environment for COVID-19 to spread. Rind claimed he posed no threat to anyone
and that his wife had the ability to assume care for him if he were placed in home
detention.
Subsequently, Rind moved to stay the ruling on his motion for
compassionate release, noting the BOP moved him into a period of quarantine
3 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 4 of 8
pending release to home confinement while awaiting a decision from the warden at
Miami FCI. The district court granted the motion to stay.
Rind then filed a motion requesting the court terminate the stay and renew
his motion for compassionate release. Rind asserted the BOP explained that it had
denied his administrative request before he was placed in quarantine and placed
him back in the general population at Miami FCI, and told him a mistake was
made and he was not going to be released. He argued the situation at Miami FCI
had deteriorated since he filed his first motion for release and the virus was
spreading seemingly uncontrolled within the facility. Rind argued that, due to the
emergency situation at Miami FCI and its unexplained administrative actions, the
court should grant him immediate release to home confinement under
§ 3582(c)(1)(A)(i). He argued the CDC had revised its guidelines since he filed his
first motion for release, and under those guidelines, his risk factors were especially
high, particularly due to his type II diabetes.
The district court denied Rind’s renewed motion and denied his original
motion as moot. The court noted Rind had served approximately 9 months of his
66-month custodial sentence, which was less than 15% of his sentence. It found
that while Rind’s conditions of type II diabetes, hypertension, high blood pressure,
and asthma placed him at a higher risk of contracting a severe case of COVID-19,
he had not provided sufficient information regarding the severity of his medical
4 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 5 of 8
conditions nor had he supported his allegations with medical records. The court
found that Rind’s condition did “not appear to be at an acute level that would
warrant his release after completing less than 15% of his sentence.” In
comparison, the court noted a case in which it granted compassionate release for a
defendant with end-stage renal failure, heart failure, diabetes, and a history of
respiratory illnesses after he completed 60% of his sentence. See United States v.
Oreste, No. 14-20349-CR, 2020 WL 4343774 (S.D. Fla. Apr. 6, 2020). The court
declined to find that extraordinary and compelling reasons warranted Rind’s
release.
Rind filed a motion for reconsideration, which he supplemented with his
medical records. The court denied Rind’s motion for reconsideration, finding the
medical records showed he suffered from diabetes and hypertension. The court
found that, nevertheless, Rind’s conditions were not acute enough to warrant his
release after serving less than 15% of his sentence, again citing its decision in
Oreste.
II. DISCUSSION
18 U.S.C. § 3582(c)(1)(A) states that a district court “may” reduce a
defendant’s sentence. Thus, a district court’s decision whether to grant or deny a
defendant’s reduction is discretionary and reviewed for abuse of discretion. See
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020) (explaining the
5 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 6 of 8
standard of review for a motion for reduction of sentence under an analogous
provision of the First Step Act); see also United States v. Webb, 565 F.3d 789, 792
(11th Cir. 2009) (applying the abuse of discretion standard to a court’s denial of a
reduction under 18 U.S.C.§ 3582(c)(2)). We also review the denial of a motion for
reconsideration for an abuse of discretion. United States v. Llewlyn, 879 F.3d
1291, 1294 (11th Cir. 2018). A court abuses its discretion if it “fails to apply the
proper legal standard or to follow proper procedures in making its determination.”
United States v. Jules, 595 F.3d 1239, 1241-42 (11th Cir. 2010) (quotations and
alteration omitted).
In 2018, Congress enacted the First Step Act, which, in part, amended 18
U.S.C. § 3582(c)(1)(A) to increase the use and transparency of compassionate
release of federal prisoners. See First Step Act § 603. The statute provides that a
“court may not modify a term of imprisonment once it has been imposed” except
under certain circumstances. 18 U.S.C. § 3582(c). Section 3582(c)(1)(A)(i)
currently provides:
[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment . . . if it finds that extraordinary and compelling reasons warrant such a reduction[.]
6 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 7 of 8
The district court did not abuse its discretion in denying Rind’s motion for
compassionate release or motion for reconsideration. While Rind contends the
district court did not explain its denial sufficiently to allow for appellate review,
the record shows the court denied his motion initially after considering his medical
conditions and finding that he had not provided enough information regarding their
severity for it to grant relief. Furthermore, the court supported its conclusion that
Rind’s conditions did not appear to be “at an acute level” such that they constituted
extraordinary and compelling reasons to warrant his release by comparing Rind’s
case to one where it granted compassionate release when a defendant suffered from
objectively more severe medical conditions than Rind and had completed more
than 60% of his sentence.
As to Rind’s argument the district court did not consider the § 3553(a)
factors, even assuming that the district court was required to consider those factors,
the district court’s initial order (1) discussed Rind’s medical conditions, which are
part of his history and characteristics; (2) emphasized that Rind had completed
only 15% of his sentence, which relates to the factors that his sentence reflect the
seriousness of his offense, promote respect for the law, and provide just
punishment; and (3) compared Rind’s circumstances to another defendant’s, which
relates to the need to avoid sentencing disparities with similarly situated
defendants. See 18 U.S.C. § 3553(a). That the court reiterated in its order denying
7 USCA11 Case: 20-12860 Date Filed: 12/17/2020 Page: 8 of 8
Rind’s motion for reconsideration that his conditions were “not acute enough to
warrant his release” after serving less than 15% of his sentence and again cited its
decision in Oreste shows that it placed great weight on those factors, which was
within its sound discretion See United States v. Croteau, 819 F.3d 1293, 1309
(11th Cir. 2016) (stating the weight given to any of the § 3553(a) factors is
committed to the sound discretion of the district court). In sum, the district court
did not abuse its discretion in denying Rind’s motions because the record shows
that it did not find an extraordinary and compelling reason to grant his release
based on its consideration of the § 3553(a) factors.
AFFIRMED.