United States v. Jerome Edward Morgan

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 31, 2021
• Docket: 20-14089
• Status: Unpublished

Opinion

USCA11 Case: 20-14089 Date Filed: 08/31/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14089 Non-Argument Calendar ________________________

D.C. Docket No. 3:08-cr-00102-MCR-CJK-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEROME EDWARD MORGAN,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(August 31, 2021)

Before LUCK, BRASHER, and BLACK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-14089 Date Filed: 08/31/2021 Page: 2 of 5

Jerome Morgan, proceeding pro se, appeals the district court’s denial of his

motion for reconsideration of its denial of his motion for a sentence reduction

under the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194,

5222 (2018) (First Step Act). He asserts the district court abused its discretion in

denying his motion for reconsideration because (1) he exhausted his administrative

remedies; (2) COVID-19’s effect on his medical conditions, combined with his

excessive sentence, constitutes an extraordinary and compelling reason justifying

his relief; and (3) the court failed to consider the 18 U.S.C. § 3553(a) factors.

After review, we affirm the district court.

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 “upon motion of the defendant, after

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

Bureau of Prisons [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); see also United States v. Harris, 989 F.3d 908, 911 (11th Cir.

2021) (clarifying that exhaustion is a non-jurisdictional claims-processing rule).

The district court must find that extraordinary and compelling reasons warrant such

a reduction, consider the § 3553(a) factors to the extent they are applicable, and

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find a reduction is consistent with applicable policy statements issued by the

Sentencing Commission. First Step Act § 603; 18 U.S.C. § 3582(c)(1)(A).

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

§ 1B1.13. 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 the court determines the defendant is not a danger to the safety of any

other person or to the community. See id. § 1B1.13 comment. (n.1). The policy

statements list four circumstances which may constitute extraordinary and

compelling reasons: (1) a prisoner’s medical condition, if he has a terminal disease

or is suffering from a physical or mental condition that diminishes his ability to

provide self-care in prison; (2) a prisoner’s age, if he is at least 65 years old, is

experiencing a significant decline in health because of his age, and has served at

least 10 years or 75 percent of his term; (3) if a prisoner becomes the only potential

caregiver for a minor child or spouse; and (4) if, as determined by the Director of

the BOP, there exists in the defendant’s case an extraordinary and compelling

reason other than, or in combination with, the other three reasons. See id. We held

that § 1B1.13 is the applicable policy statement that must be considered when a

defendant moves for compassionate release. United States v. Bryant, 996 F.3d

1243, 1262 (11th Cir. 2021). Thus, district courts may not reduce a sentence under

Section 3582(c)(1)(A) unless a reduction would be consistent with § 1B1.13. Id.

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As for § 1B1.13’s catch-all provision, we determined that we cannot replace the

phrase “[a]s determined by the Director of the [BOP]” with “as determined by a

district court,” and accordingly, courts may not develop other reasons that might

justify a reduction in a defendant’s sentence. Id. at 1248, 1263.

The district court did not abuse its discretion by denying Morgan’s motion

for reconsideration. See United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir.

2018) (reviewing the denial of a motion for reconsideration for an abuse of

discretion). As an initial matter, at the time Morgan filed his motion for a reduced

sentence on April 28, 2020, he had not yet exhausted his administrative remedies

as he did not file his request with the warden of his facility until June 24, 2020.

See 18 U.S.C. § 3582(c)(1)(A). Second, Morgan’s motion did not allege an

extraordinary and compelling reason for a reduction under § 1B1.13 comment.

(n.1(A)-(C)), and his “stacking” argument could not have been brought under

§ 1B1.13 comment. (n.1(D)) because motions under that provision must be

initiated by the BOP. See Bryant, 996 F.3d at 1262-63.

Morgan argues for the first time on appeal that his prison’s response to

COVID-19 could worsen his medical conditions, but he cannot show the district

court plainly erred by not considering this fact because he did not make the district

court aware of this fact. See United States v. Longoria, 874 F.3d 1278, 1281 (11th

Cir. 2017) (stating issues not raised before the district court are reviewed for plain

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error). Further, it is irrelevant that the district court did not consider Congress’s

general policy in enacting the First Step Act and Fair Sentencing Act because the

court was only required to consider the Sentencing Commission’s policy

statements, which it did. See 18 U.S.C. § 3582(c)(1)(A). Lastly, even assuming

the district court should have considered the § 3553(a) factors before denying

Morgan’s motion, any error would be harmless because Morgan did not exhaust

his administrative remedies at the time of his motion or allege an extraordinary and

compelling reason for the reduction. See United States v. Mathenia, 409 F.3d

1289, 1292 (11th Cir. 2005) (explaining an error is harmless if, viewing the

proceedings in their entirely, a court determines the error did not affect the

outcome, or had but very slight effect). Accordingly, the district court did not

abuse its discretion in denying Morgan’s motion for reconsideration, and we

affirm.

AFFIRMED.