USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10380 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CEDRICK PONDER,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:05-cr-20664-DLG-1 ____________________ USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 2 of 7
2 Opinion of the Court 21-10380
Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges. PER CURIAM: Cedrick Ponder appeals the district court’s denial of compas- sionate release under 18 U.S.C. § 3582(c)(1)(A) and its denial of re- consideration. He argues that the district court abused its discre- tion when it found that the 18 U.S.C. § 3553(a) factors did not sup- port reducing his sentence and his susceptibility to COVID-19 did not constitute extraordinary and compelling reasons for his release. We review de novo whether a defendant is eligible for a sen- tence reduction under 18 U.S.C. § 3582(c)(1)(A). United States v. Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021). After eligibility is es- tablished, we review a district court’s decision as to whether to re- duce a sentence under § 3582(c)(1)(A) for abuse of discretion. Id. A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determina- tion, or makes findings of fact that are clearly erroneous. United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). We may affirm on any ground supported by the record. United States v. Gibbs, 917 F.3d 1289, 1294 n.1 (11th Cir. 2019). We 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). The only grounds for granting a motion for re- consideration are newly discovered evidence or manifest errors of USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 3 of 7
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law or fact and such a motion cannot be used to relitigate old mat- ters. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). 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 transpar- ency 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 and further provides: [T]he court, upon motion of the Director of the Bu- reau 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 ear- lier, may reduce the term of imprisonment . . . if it finds that extraordinary and compelling reasons war- rant such a reduction.
18 U.S.C. § 3582(c)(1)(A). Section 3582(c)(1)(A)’s exhaustion re- quirement is not jurisdictional and is instead a claims-processing rule. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). A district court is required to consider the applicable factors in § 3553(a), and any reduction in sentence must be consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A); United States v. Cook, 998 F.3d 1180, 1184 (11th Cir. 2021). USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 4 of 7
4 Opinion of the Court 21-10380
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G. § 1B1.13, which states that the court must deter- mine that the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g), before it can determine whether extraordinary and compelling rea- sons exist. See U.S.S.G. § 1B1.13; id., comment. (n.1). The district court is to consider the following factors when determining whether an individual is a danger to another person or the commu- nity: the nature and circumstances of the offense charged; the weight of the evidence against the individual; the history and char- acteristics of the individual, including his past conduct, criminal his- tory, and health; and the nature and seriousness of the danger that would be posed by the individual’s release. 18 U.S.C. § 3142(g). An application note to § 1B1.13 lists four categories of ex- traordinary and compelling reasons: “(A) Medical Condition of the Defendant”; “(B) Age of the Defendant”; “(C) Family Circum- stances”; and “(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an ex- traordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13, comment. (n.1). Relevant here, a defendant’s medical condition may warrant a sentence reduction if he (1) has a terminal disease or (2) is suffering from a physical or mental condi- tion that diminishes his ability to provide self-care in prison and from which he is not expected to recover. Id., comment. (n.1(A)). The commentary also provides, under the “catch-all” provision, USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 5 of 7
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that a prisoner may be eligible for a sentence reduction if the BOP Director determines that there are extraordinary and compelling reasons other than, or in combination with, the other specific ex- amples listed. Id., comment. (n.1(D)). A prisoner’s rehabilitation is not, by itself, an extraordinary and compelling reason. Id., com- ment. (n.3). In Bryant, we concluded that § 1B1.13 is applicable to all mo- tions filed under § 3582(c)(1)(A), including those filed by prisoners. 996 F.3d at 1251-59. We thus held that § 1B1.13 continues to con- strain a district court’s ability to evaluate whether there are extraor- dinary and compelling reasons warranting a sentence reduction. Id. at 1252. Next, we held that the catch-all provision in Application Note 1(D) “does not grant discretion to courts to develop ‘other reasons’ that might justify a reduction in a defendant’s sentence.” Id. at 1248, 1263-65.
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USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10380 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CEDRICK PONDER,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:05-cr-20664-DLG-1 ____________________ USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 2 of 7
2 Opinion of the Court 21-10380
Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges. PER CURIAM: Cedrick Ponder appeals the district court’s denial of compas- sionate release under 18 U.S.C. § 3582(c)(1)(A) and its denial of re- consideration. He argues that the district court abused its discre- tion when it found that the 18 U.S.C. § 3553(a) factors did not sup- port reducing his sentence and his susceptibility to COVID-19 did not constitute extraordinary and compelling reasons for his release. We review de novo whether a defendant is eligible for a sen- tence reduction under 18 U.S.C. § 3582(c)(1)(A). United States v. Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021). After eligibility is es- tablished, we review a district court’s decision as to whether to re- duce a sentence under § 3582(c)(1)(A) for abuse of discretion. Id. A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determina- tion, or makes findings of fact that are clearly erroneous. United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). We may affirm on any ground supported by the record. United States v. Gibbs, 917 F.3d 1289, 1294 n.1 (11th Cir. 2019). We 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). The only grounds for granting a motion for re- consideration are newly discovered evidence or manifest errors of USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 3 of 7
21-10380 Opinion of the Court 3
law or fact and such a motion cannot be used to relitigate old mat- ters. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). 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 transpar- ency 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 and further provides: [T]he court, upon motion of the Director of the Bu- reau 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 ear- lier, may reduce the term of imprisonment . . . if it finds that extraordinary and compelling reasons war- rant such a reduction.
18 U.S.C. § 3582(c)(1)(A). Section 3582(c)(1)(A)’s exhaustion re- quirement is not jurisdictional and is instead a claims-processing rule. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). A district court is required to consider the applicable factors in § 3553(a), and any reduction in sentence must be consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A); United States v. Cook, 998 F.3d 1180, 1184 (11th Cir. 2021). USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 4 of 7
4 Opinion of the Court 21-10380
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G. § 1B1.13, which states that the court must deter- mine that the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g), before it can determine whether extraordinary and compelling rea- sons exist. See U.S.S.G. § 1B1.13; id., comment. (n.1). The district court is to consider the following factors when determining whether an individual is a danger to another person or the commu- nity: the nature and circumstances of the offense charged; the weight of the evidence against the individual; the history and char- acteristics of the individual, including his past conduct, criminal his- tory, and health; and the nature and seriousness of the danger that would be posed by the individual’s release. 18 U.S.C. § 3142(g). An application note to § 1B1.13 lists four categories of ex- traordinary and compelling reasons: “(A) Medical Condition of the Defendant”; “(B) Age of the Defendant”; “(C) Family Circum- stances”; and “(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an ex- traordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13, comment. (n.1). Relevant here, a defendant’s medical condition may warrant a sentence reduction if he (1) has a terminal disease or (2) is suffering from a physical or mental condi- tion that diminishes his ability to provide self-care in prison and from which he is not expected to recover. Id., comment. (n.1(A)). The commentary also provides, under the “catch-all” provision, USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 5 of 7
21-10380 Opinion of the Court 5
that a prisoner may be eligible for a sentence reduction if the BOP Director determines that there are extraordinary and compelling reasons other than, or in combination with, the other specific ex- amples listed. Id., comment. (n.1(D)). A prisoner’s rehabilitation is not, by itself, an extraordinary and compelling reason. Id., com- ment. (n.3). In Bryant, we concluded that § 1B1.13 is applicable to all mo- tions filed under § 3582(c)(1)(A), including those filed by prisoners. 996 F.3d at 1251-59. We thus held that § 1B1.13 continues to con- strain a district court’s ability to evaluate whether there are extraor- dinary and compelling reasons warranting a sentence reduction. Id. at 1252. Next, we held that the catch-all provision in Application Note 1(D) “does not grant discretion to courts to develop ‘other reasons’ that might justify a reduction in a defendant’s sentence.” Id. at 1248, 1263-65. Finally, we held that, because Bryant’s motion did not fall within any of the reasons that § 1B1.13 identified as ex- traordinary or compelling, the district court correctly denied his motion for a reduction in sentence. Id. at 1265. In Cook, we held that a district court abuses its discretion if it fails to consider all applicable § 3553(a) factors before granting or denying a motion for compassionate release. 998 F.3d at 1184-86. A district court must explain its decision sufficiently to allow for meaningful appellate review, i.e., to allow a court of appeals to de- termine whether the district court considered the applicable fac- tors. Id. at 1184-85. In United States v. Tinker, we held that a dis- trict court does not procedurally err when it denies a request for USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 6 of 7
6 Opinion of the Court 21-10380
compassionate release based on the § 3553(a) factors or § 1B1.13’s policy statement without first explicitly determining whether the defendant has demonstrated extraordinary and compelling circum- stances. 14 F.4th 1234, 1240 (11th Cir. 2021). We also held that a court is not required to expressly discuss all of the defendant’s mit- igating evidence regarding COVID-19 and his medical conditions, or even every § 3553(a) factor. Id. at 1241. A sentence may be affirmed if the record indicates that the court considered a number of the § 3553(a) factors. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (concluding that, while the district court did not specifically state that it had considered the factors, it necessarily considered a number of them by entertaining the defendant’s objections and motion for a down- ward departure). The weight given to any of the § 3553(a) factors is committed to the sound discretion of the district court. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Under § 3553(a), a district court’s sentence must be suffi- cient, but not greater than necessary, to achieve the goals of sen- tencing, which are: reflecting the seriousness of the offense, pro- moting respect for the law, providing just punishment, deterring future criminal conduct, protecting the public, and providing the defendant with any needed training or treatment. 18 U.S.C. § 3553(a). Section 3553(a) also requires district courts to consider the nature and circumstances of the offense, the defendant’s history and characteristics, the kinds of sentences available, the Sentencing Guidelines, any pertinent policy statement, the need to avoid USCA11 Case: 21-10380 Date Filed: 01/07/2022 Page: 7 of 7
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disparate sentences for defendants with similar records, and the need to provide restitution to any victims. Id. Here, the district court did not abuse its discretion in deny- ing Ponder’s motion for compassionate release because it suffi- ciently addressed the § 3553(a) factors and explained its decision to allow for meaningful appellate review. The district court was per- mitted to consider the § 3553(a) factors or § 1B1.13’s policy state- ment without first explicitly determining whether Ponder was eli- gible for relief. Consistent with Cook, the district court noted that it had considered the § 3553(a) factors, it was not required to state that it considered each of them, and it had discretion to give more weight to certain factors. We further conclude that the district court did not abuse its discretion in denying Ponder’s motion for reconsideration. While the district court may have misstated when Ponder had been sen- tenced for his previous state crimes, the court in its order denying reconsideration clarified that its emphasis was on Ponder’s danger- ousness and that he committed three violent crimes. We therefore affirm the district court’s denial of compassionate release under 18 U.S.C. § 3582(c)(1)(A) and its denial of reconsideration order. AFFIRMED.