United States v. General Lee Johnson, III

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 20, 2021
• Docket: 20-13919
• Status: Unpublished

Opinion

USCA11 Case: 20-13919 Date Filed: 08/20/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13919 Non-Argument Calendar ________________________

D.C. Docket No. 6:01-cr-00004-JRH-CLR-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GENERAL LEE JOHNSON, III,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(August 20, 2021)

Before WILSON, JILL PRYOR, and TJOFLAT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13919 Date Filed: 08/20/2021 Page: 2 of 12

General Lee Johnson, III, proceeding pro se, appeals the District Court’s

denial of his motion for compassionate release, filed pursuant to 18 U.S.C.

§ 3852(c)(1)(A). He argues that the District Court erred by finding that it could

not consider an extraordinary and compelling circumstance outside of the

Sentencing Guidelines policy statement. And he claims for the first time on appeal

that the change in the mandatory minimum sentences for his convictions warranted

a sentence reduction. Neither of these arguments is convincing, and the District

Court did not err by denying Johnson’s motion.

Below, Johnson also contended that the COVID-19 pandemic was an

extraordinary and compelling circumstance warranting his compassionate release.

The District Court disagreed. But because he does not raise that argument on

appeal, he has abandoned it. We accordingly affirm.

I.

Back in 2001, a grand jury in the Southern District of Georgia indicted

Johnson on one count of conspiracy to commit armed bank robbery (Count 1), four

counts of bank robbery while assaulting the tellers with a dangerous weapon

(Counts 2, 4, 6, and 8), and four counts of possessing a firearm during a crime of

violence (Counts 3, 5, 7, and 9). He pled guilty to Counts 1, 2, 3, 5, 6, and 8, but

Counts 4, 7, and 9 were dismissed. The District Court sentenced Johnson to 370

months’ imprisonment.

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Nearly twenty years later, in July 2020, Johnson filed a pro se motion for

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Johnson stated that

he was filing for compassionate release based on his vulnerability to contract

COVID-19 while imprisoned. Though Johnson had filed a request with the

Warden, that request was denied because the Warden determined that Johnson did

not meet the criteria for compassionate release. So, before the District Court,

Johnson argued that the compassionate release statute permitted the Court to grant

him relief and that case law—at least at that time—suggested that the District

Court had the same discretion as the Bureau of Prisons (“BOP”) to independently

evaluate whether a defendant has demonstrated an extraordinary and compelling

reason for his release. He then claimed that, among other things: (1) the COVID-

19 pandemic posed a particular threat to those in prison because of the general lack

of hygiene and quality medical care, and overcrowding; (2) 156 inmates and 16

staff in the prison had contracted COVID-19 as of July 20, 2020; (3) he lived in a

dorm-like setting with 70 other inmates who were unable to social distance; (4) one

dorm-mate died recently, possibly due to COVID-19; (5) the 18 U.S.C. § 3553(a)

factors supported a sentence reduction in his situation because he was non-violent

and posed little risk of recidivism; and (6) he had served approximately three-

quarters of his 370-month sentence, had shown remorse, and had turned his life

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around for good and earned his GED and a college certificate while in prison. So,

Johnson asked for a reduced sentence of 260 to 275 months.

In support of his motion, Johnson attached a few documents, including a

safety plan that detailed how he would protect himself from COVID-19, a “Re-

entry/Release plan” that outlined where he would live and work, an Individualized

Reentry Plan that showed his work and disciplinary history, and the Warden’s

response to his request for compassionate release.

The District Court denied Johnson’s motion. To start, the Court noted that

Johnson did not claim that he had any special family circumstance, and because he

was 45 years old, the Court was left to consider only whether Johnson had a

qualifying medical condition under U.S.S.G. § 1B1.13—the relevant policy

statement. But Johnson merely expressed generalized concerns about COVID-19,

and the Court reasoned that his concern about its spread in prison alone could not

justify compassionate release. The District Court concluded by noting that the

catch-all provision of § 1B1.13 required a determination by the Director of the

BOP, and the Court would therefore not consider circumstances outside of those

listed in the policy statement.

Johnson appealed. He first disagrees with the District Court’s conclusion

that the First Step Act does not allow the Court to consider whether an

extraordinary and compelling reason existed outside of those listed in U.S.S.G.

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§ 1B1.13. In other words, Johnson believes that the compassionate release

provisions grant the Court the same discretion they do the BOP. He then argues—

for the first time—that the elimination of harsh mandatory sentences and the

passage of the First Step Act are extraordinary and compelling reasons for a

sentence reduction. And if he is entitled to a sentence reduction, he contends that

the 18 U.S.C. § 3553(a) factors support a reduction in his case from his 370-month

sentence to the 240 months that he has already served.

In response, the Government states that Johnson has abandoned his claim

that the COVID-19 pandemic was an extraordinary and compelling reason for

granting compassionate release. Alternatively, even if the argument is not

abandoned, the Government argues that the District Court did not abuse its

discretion in concluding that COVID-19 was not an extraordinary and compelling

reason. And because Johnson’s claim that his unfair sentence and post-conviction

rehabilitation were extraordinary and compelling reasons justifying his

compassionate release was not administratively exhausted, the Government

contends that the District Court did not plainly err in denying the motion.

Johnson did not file a reply brief.

II.

We review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion

for abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir.

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2021). A district court abuses its discretion if it applies an incorrect legal standard,

follows improper procedures in making the determination, or makes clearly

erroneous factual findings. United States v. Barrington, 648 F.3d 1178, 1194 (11th

Cir. 2011).

We review arguments raised for the first time on appeal only for plain error.

United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017). To establish plain

error, the defendant must show (1) an error, (2) that is plain, and (3) that affected

his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.

2007). If the defendant satisfies these conditions, we may exercise our discretion

to recognize the error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

And an appellant’s failure to plainly and prominently raise an issue on

appeal by not “devot[ing] a discrete, substantial portion of his argumentation to

that issue” abandons the issue. United States v. Jernigan, 341 F.3d 1273, 1283 n.8

(11th Cir. 2003). While briefs by pro se litigants are construed liberally, issues

that a pro se litigant does not brief are deemed abandoned. Timson v. Sampson,

518 F.3d 870, 874 (11th Cir. 2008).

III.

We’ll break down Johnson’s arguments into three parts. First, we’ll discuss

Johnson’s claim—raised below but not on appeal—that the COVID-19 pandemic

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was an extraordinary and compelling reason to grant his compassionate release.

Then, we’ll move to Johnson’s argument that the District Court is not constrained

by the reasons listed in U.S.S.G. § 1B1.13. And, to wrap up, we’ll address

Johnson’s contention that the elimination of harsh mandatory sentences constitutes

an extraordinary and compelling reason for a sentence reduction.

A.

In the District Court, Johnson argued that the COVID-19 pandemic was a

“national health emergency” that posed a particular threat to inmates due to the

manner in which they are housed, overcrowding, and “the general lack of hygiene

and quality medical care.” The pandemic was, Johnson contended, an

extraordinary and compelling reason for granting him compassionate release.

But Johnson does not renew that argument on appeal—indeed, his lone

appellate brief fails to mention it at all. Though we must read briefs filed by pro se

litigants liberally, issues not brief by a pro se litigant on appeal are still considered

abandoned. Timson, 518 F.3d at 874. Johnson has accordingly abandoned his

claim that the COVID-19 pandemic was an extraordinary and compelling reason

for granting him compassionate release.

B.

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Now, we’ll shift to Johnson’s argument that the District Court is not

constrained by the extraordinary and compelling reasons listed in U.S.S.G.

§ 1B1.13.

First, the fundamentals. It is well established that a district court has no

inherent authority to modify a defendant’s sentence and may do so “only when

authorized by a statute or rule.” United States v. Puentes, 803 F.3d 597, 605-06

(11th Cir. 2015). Prior to the First Step Act, 18 U.S.C. § 3582(c)(1)(A) allowed

the district court to reduce a prisoner’s term of imprisonment upon motion of the

Director of the Bureau of Prisons, after considering the factors set forth in

§ 3553(a), if it found that extraordinary and compelling reasons warranted such a

reduction. 18 U.S.C. § 3582(c)(1)(A) (effective Nov. 2, 2002, to Dec. 20, 2018).

The First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow the court to reduce

a defendant’s term of imprisonment also upon motion of the defendant, after the

defendant has fully exhausted all administrative rights to appeal a failure of the

BOP 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. See First Step Act § 603; 18 U.S.C. § 3582(c)(1)(A). The court must find

that extraordinary and compelling reasons warrant such a reduction, consider the

§ 3553(a) factors “to the extent that they are applicable,” and find that a reduction

is consistent with applicable policy statements issued by the Sentencing

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Commission. Id. The exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A) is not

jurisdictional. Harris, 989 F.3d at 911.

The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G.

§ 1B1.13, which, notably, has not been amended since the First Step Act was

passed and refers only to a sentence reduction upon a motion from the BOP

Director. See U.S.S.G. § 1B1.13. The commentary to § 1B1.13 states that

extraordinary and compelling reasons exist under any of the circumstances listed,

provided that the court determines 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). See

id. § 1B1.13 & comment. (n.1). The commentary lists a defendant’s medical

condition, his age, and family circumstances as possible “extraordinary and

compelling reasons” warranting a sentence reduction. Id. § 1B1.13, comment.

(n.1). The commentary also contains a catch-all provision for “other reasons,”

which provides that a prisoner may be eligible for a sentence reduction if, “[a]s

determined by the Director of the Bureau of Prisons, there exists in the defendant’s

case an extraordinary and compelling reason other than, or in combination with,”

the other specific examples listed. Id., comment. (n.1(D)).

We recently held in United States v. Bryant that U.S.S.G. § 1B1.13 “is an

applicable policy statement that governs all motions under Section 3582(c)(1)(A)”

and, accordingly, “district courts may not reduce a sentence under Section

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3582(c)(1)(A) unless a reduction would be consistent with 1B1.13.” United

States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021). We further held in Bryant

that § 1B1.13 governs a motion for compassionate release—whether it is filed by

the BOP or by a prisoner—and that a district court cannot “develop ‘other reasons’

that might justify a reduction in a defendant’s sentence.” Id. at 1248. So, a district

court is stuck with the three considerations listed in U.S.S.G. § 1B1.13, while the

discretion to determine whether “other reasons” exist under the fourth “catch-all”

provision is left to the discretion of the BOP. Id. at 1248, 1263.

But Johnson—whose appeal was filed before we decided Bryant—argues

otherwise. Specifically, he claims that the District Court is not constrained by “the

three examples in the application notes to § 1B1.13,” and he cites a number of

cases from our sister circuits in support. But in this Circuit, Bryant now controls,

and the District Court thus did not abuse its discretion by declining to consider

circumstances beyond those expressly listed in § 1B1.13.

C.

Finally, we turn to Johnson’s contention that the elimination of harsh

mandatory sentences and the passage of the First Step Act constitute an

extraordinary and compelling reason for a sentence reduction. Because Johnson

raises this argument for the first time on appeal, we review it for plain error.

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Lange, 862 F.3d at 1293. And the District Court did not plainly err for at least two

reasons.

To start, it does not appear the Johnson exhausted his administrative

remedies for this claim. Johnson’s request for a reduced sentence to the BOP was

grounded in “being potentially exposed to, or possibly contracting, COVID-19.”

But before this Court, he claims for the first time that the District Court should

have considered the elimination of harsh mandatory sentencing an extraordinary

and compelling reason for reducing his sentence. Because he did not raise that

claim before the District Court, it is not administratively exhausted, see

Woodford v. Ngo, 548 U.S. 81, 89 (2006), and the District Court did not plainly err

in denying Johnson’s motion.

But even assuming Johnson exhausted the claim, there is a second problem:

a change in harsh mandatory sentencing is not one of the three considerations listed

in U.S.S.G. § 1B1.13. As discussed in part III.B, courts in this Circuit are bound to

consider only the three criteria listed in the Application Notes to § 1B1.13. So, the

District Court could not have plainly erred by failing to take into account factors it

is flatly forbidden from considering.

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IV.

For the foregoing reasons, the District Court’s denial of Johnson’s motion

for compassionate release is affirmed.

AFFIRMED.