USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10893 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUSTIN LAVAR MORROW,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:08-cr-00399-SCB-TGW-1 ____________________ USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 2 of 7
2 Opinion of the Court 21-10893
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Justin Lavar Morrow, a federal prisoner proceeding pro se, appeals following the district court’s denial of his motion for a sen- tence reduction under 18 U.S.C. § 3582(c)(1)(A), as amended by Section 603(b) of the First Step Act of 2018. 1 He argues that the district court erred in determining that his combined factors did not constitute an extraordinary and compelling reason for compassion- ate release. He asserts that § 1B1.13 only applies to motions filed by the Director of the Bureau of Prisons (“BOP”). He also argues that the district court’s passing reference to the 18 U.S.C. § 3553(a) factors was insufficient. 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), cert. denied, 2021 WL 5763191 (U.S. Dec. 6, 2021). After eligibility is established, we re- view 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. 2021). An abuse of discretion occurs when a district court applies an incorrect legal standard, applies the law in an incorrect or unreasonable fashion, fails to follow proper procedures in mak- ing a determination, or makes clearly erroneous factual findings. Id. It is the defendant’s burden to show that his circumstances
1 Pub. L. No. 115-391, 132 Stat. 5192, 5239 (Dec. 21, 2018) (“First Step Act”). USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 3 of 7
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warranted a reduction. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). Pro se pleadings will be liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). An appellant abandons a claim when he fails to plainly and prominently raise it on appeal, makes only a passing reference to it, or presents it in a perfunctory manner without authority or argument in support. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). District courts lack the inherent authority to modify a term of imprisonment but may do so to the extent that a statute ex- pressly permits. 18 U.S.C. § 3582(c)(1)(B). In 2018, Congress en- acted the First Step Act, which, in part, amended § 3582(c)(1)(A) to increase the use and transparency of compassionate release of fed- eral 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). In the context of compassionate release, the statute provides that: [T]he court, upon motion of the Director of the [BOP], or upon motion of the defendant after the de- fendant 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 defend- ant’s facility, whichever is earlier, may reduce the USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 4 of 7
4 Opinion of the Court 21-10893
term of imprisonment . . . after considering the fac- tors set forth in [18 U.S.C.] section 3553(a) to the ex- tent that they are applicable, if it finds that—extraor- dinary and compelling reasons warrant such a reduc- tion.
Id. § 3582(c)(1)(A)(i) (emphasis added). The § 3553(a) factors include, among other things, the na- ture and circumstances of the defendant’s offense, his history and characteristics, and the need to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a). Section 3582(c)(1)(A) also requires that any reduction be consistent with applicable policy statements issued by the Sentenc- ing Commission. 18 U.S.C. § 3582(c)(1)(A). Section 1B1.13 of the Sentencing Guidelines provides the applicable policy statement for § 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application notes to § 1B1.13 list four categories of extraordinary and compelling rea- sons: (A) the defendant’s medical condition, (B) his age, (C) his family circumstances, and (D) “other reasons.” Id., cmt. (n.1(A)– (D)). If there are “extraordinary and compelling reasons” for com- passionate release, the district court has the discretion to reduce the defendant’s term of imprisonment after considering the applicable § 3553(a) factors. Id. In addition to determining that extraordinary and compel- ling reasons warrant a reduction, § 1B1.13 states that the district court must also determine that the defendant is not a danger to the safety of others or to the community, as provided in 18 U.S.C. USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 5 of 7
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§ 3142(g), and that the reduction is consistent with the policy state- ment. Id. In Bryant, decided both after the district court’s denial of compassionate release and after Morrow filed his initial brief, we held that § 1B1.13 was applicable to all motions filed under that statute, including those filed by prisoners, and, thus, a district court may not reduce a sentence unless a reduction would be consistent with the categories of “extraordinary and compelling reasons” con- tained in § 1B1.13, as set forth above. Bryant, 996 F.3d at 1254-62. We also held that “Application Note 1(D) [did] not grant discretion to courts to develop ‘other reasons’ that might justify a reduction in a defendant’s sentence.” Id. at 1248. In United States v. Cook, 998 F.3d 1180 (11th Cir. 2021), we held that a district court, in addition to determining whether a mo- vant had offered extraordinary and compelling reasons and whether a reduction or release would be consistent with the policy statement found in § 1B1.13, must also consider “all applicable” § 3553(a) factors. Id. at 1184. Although the district court need not exhaustively analyze every factor in its order, it must provide enough analysis for meaningful appellate review. Id.
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USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-10893 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUSTIN LAVAR MORROW,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:08-cr-00399-SCB-TGW-1 ____________________ USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 2 of 7
2 Opinion of the Court 21-10893
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Justin Lavar Morrow, a federal prisoner proceeding pro se, appeals following the district court’s denial of his motion for a sen- tence reduction under 18 U.S.C. § 3582(c)(1)(A), as amended by Section 603(b) of the First Step Act of 2018. 1 He argues that the district court erred in determining that his combined factors did not constitute an extraordinary and compelling reason for compassion- ate release. He asserts that § 1B1.13 only applies to motions filed by the Director of the Bureau of Prisons (“BOP”). He also argues that the district court’s passing reference to the 18 U.S.C. § 3553(a) factors was insufficient. 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), cert. denied, 2021 WL 5763191 (U.S. Dec. 6, 2021). After eligibility is established, we re- view 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. 2021). An abuse of discretion occurs when a district court applies an incorrect legal standard, applies the law in an incorrect or unreasonable fashion, fails to follow proper procedures in mak- ing a determination, or makes clearly erroneous factual findings. Id. It is the defendant’s burden to show that his circumstances
1 Pub. L. No. 115-391, 132 Stat. 5192, 5239 (Dec. 21, 2018) (“First Step Act”). USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 3 of 7
21-10893 Opinion of the Court 3
warranted a reduction. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). Pro se pleadings will be liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). An appellant abandons a claim when he fails to plainly and prominently raise it on appeal, makes only a passing reference to it, or presents it in a perfunctory manner without authority or argument in support. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). District courts lack the inherent authority to modify a term of imprisonment but may do so to the extent that a statute ex- pressly permits. 18 U.S.C. § 3582(c)(1)(B). In 2018, Congress en- acted the First Step Act, which, in part, amended § 3582(c)(1)(A) to increase the use and transparency of compassionate release of fed- eral 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). In the context of compassionate release, the statute provides that: [T]he court, upon motion of the Director of the [BOP], or upon motion of the defendant after the de- fendant 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 defend- ant’s facility, whichever is earlier, may reduce the USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 4 of 7
4 Opinion of the Court 21-10893
term of imprisonment . . . after considering the fac- tors set forth in [18 U.S.C.] section 3553(a) to the ex- tent that they are applicable, if it finds that—extraor- dinary and compelling reasons warrant such a reduc- tion.
Id. § 3582(c)(1)(A)(i) (emphasis added). The § 3553(a) factors include, among other things, the na- ture and circumstances of the defendant’s offense, his history and characteristics, and the need to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a). Section 3582(c)(1)(A) also requires that any reduction be consistent with applicable policy statements issued by the Sentenc- ing Commission. 18 U.S.C. § 3582(c)(1)(A). Section 1B1.13 of the Sentencing Guidelines provides the applicable policy statement for § 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application notes to § 1B1.13 list four categories of extraordinary and compelling rea- sons: (A) the defendant’s medical condition, (B) his age, (C) his family circumstances, and (D) “other reasons.” Id., cmt. (n.1(A)– (D)). If there are “extraordinary and compelling reasons” for com- passionate release, the district court has the discretion to reduce the defendant’s term of imprisonment after considering the applicable § 3553(a) factors. Id. In addition to determining that extraordinary and compel- ling reasons warrant a reduction, § 1B1.13 states that the district court must also determine that the defendant is not a danger to the safety of others or to the community, as provided in 18 U.S.C. USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 5 of 7
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§ 3142(g), and that the reduction is consistent with the policy state- ment. Id. In Bryant, decided both after the district court’s denial of compassionate release and after Morrow filed his initial brief, we held that § 1B1.13 was applicable to all motions filed under that statute, including those filed by prisoners, and, thus, a district court may not reduce a sentence unless a reduction would be consistent with the categories of “extraordinary and compelling reasons” con- tained in § 1B1.13, as set forth above. Bryant, 996 F.3d at 1254-62. We also held that “Application Note 1(D) [did] not grant discretion to courts to develop ‘other reasons’ that might justify a reduction in a defendant’s sentence.” Id. at 1248. In United States v. Cook, 998 F.3d 1180 (11th Cir. 2021), we held that a district court, in addition to determining whether a mo- vant had offered extraordinary and compelling reasons and whether a reduction or release would be consistent with the policy statement found in § 1B1.13, must also consider “all applicable” § 3553(a) factors. Id. at 1184. Although the district court need not exhaustively analyze every factor in its order, it must provide enough analysis for meaningful appellate review. Id. At a mini- mum, we must be able to understand from the record how the dis- trict court arrived at its conclusion, including what factors it relied upon. Id. at 1185. The weight due to each § 3553(a) factor lies within the district court’s sound discretion, and we will not substi- tute our judgment for that of the district court. United States v. Joseph, 978 F.3d 1251, 1266 (11th Cir. 2020). USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 6 of 7
6 Opinion of the Court 21-10893
A district court is not required to conduct the compassionate release analysis in any particular order and because all three find- ings required by § 3582(c)(1)(A) are necessary conditions for grant- ing release, the absence of even one forecloses a sentence reduc- tion. See United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021); see also United States v. Giron, 15 F.4th 1343, 1347 (11th Cir. 2021). As an initial matter, Morrow’s arguments—that § 1B1.13 is only applicable to BOP-filed motions and that a combination of fac- tors support his release under § 1B1.13 cmt. n.1(D)—are foreclosed by our decision in Bryant. See Bryant, 996 F.3d 1243. The district court did not err in in determining that COVID-19, high blood pressure, and prison conditions did not con- stitute extraordinary and compelling reasons because his condition was managed with medication and FCI Jesup had a low number of confirmed COVID-19 cases. As to family circumstances, Morrow has arguably abandoned any argument that the district court erred as to this determination. Even if he had implicitly preserved this argument, the district court did not err in determining that he failed to establish an extraordinary and compelling reason for release be- cause he failed to show that his parents were elderly or that there were no other suitable caregivers for his son. Nor did the district court abuse its discretion by denying Morrow’s motion based on the § 3553(a) factors. The district court’s analysis was sufficient to allow us to understand how it determined that the § 3553 factors weighed against granting his motion because it considered the USCA11 Case: 21-10893 Date Filed: 01/06/2022 Page: 7 of 7
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nature of Morrow’s offense, his classification as a career offender, his sentencing history, his post-sentencing rehabilitation, and the fact that he had only served 60% of his total sentence. Accordingly, we affirm. AFFIRMED.