United States v. Kadeem Willingham

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 10, 2021
• Docket: 20-13727
• Status: Unpublished

Opinion

USCA11 Case: 20-13727 Date Filed: 09/10/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13727 Non-Argument Calendar ________________________

D.C. Docket No. 0:15-cr-60079-JIC-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KADEEM WILLINGHAM,

Defendant - Appellant. ________________________

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

(September 10, 2021)

Before JORDAN, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Kadeem Willingham, a federal prisoner, appeals the district court’s denial of

his motion for reconsideration of his compassionate release motion under 18 U.S.C. USCA11 Case: 20-13727 Date Filed: 09/10/2021 Page: 2 of 6

§ 3582(c)(1)(A). Willingham argues that he has presented extraordinary and

compelling reasons to justify a sentence reduction and that the district court erred in

holding that it did not have jurisdiction over his motion. Because he has not

presented extraordinary and compelling reasons, we affirm.

I.

Willingham pleaded guilty to two counts of brandishing a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 942(c)(1)(A)(ii), and

the district court sentenced him to 32 years in prison. Willingham eventually filed a

pro se motion for compassionate release, seeking a reduction in sentence. He argued

in part that non-retroactive sentencing changes in the First Step Act created

“extraordinary and compelling reasons” for relief under 18 U.S.C. § 3582(c)(1)(A).

The district court denied that motion. It reasoned that Congress directed the

Sentencing Commission to determine “what should be considered extraordinary and

compelling reasons for a sentencing reduction,” 28 U.S.C. § 994(t), and that it

instructed the Commission to do so in an “applicable policy statement,” 18 U.S.C. §

3582(c)(1)(A). That policy statement is found at U.S.S.G. § 1B1.13. United States

v. Bryant, 996 F.3d 1243, 1252 (11th Cir. 2021).

Note 1 of that policy statement states that extraordinary and compelling

reasons include medical condition, age, or family circumstances of the defendant.

Under Subsection 1(D), a reduction might also be based on “other reasons”

2 USCA11 Case: 20-13727 Date Filed: 09/10/2021 Page: 3 of 6

determined by the Director of the Bureau of Prisons. Because post-sentencing

developments in law are not an extraordinary and compelling reason under Section

1B1.13 or under the BOP’s program statement, the district court concluded that a

reduction would be “inconsistent with the Sentencing Commission’s policy

statements,” and it thus lacked jurisdiction to grant the motion. Willingham then

filed a counseled motion for reconsideration, which the district court denied.

Willingham now appeals.

II.

We review a district court’s denial of a motion for reconsideration for abuse

of discretion. United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). But

we “review de novo both determinations about a defendant’s eligibility for a Section

3582(c) sentence reduction and questions of statutory interpretation.” Bryant, 996

F.3d at 1251. If an asserted error is non-constitutional, then we also review it for

harmlessness. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009). That

means that the defendant cannot prevail if “viewing the proceedings in their entirety,

a court determines that the error did not affect the sentence, or had but very slight

effect.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (cleaned

up). In other words, “if one can say with fair assurance that the sentence was not

substantially swayed by the error, the sentence is due to be affirmed even though

there was error.” Id. (cleaned up).

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III.

Willingham makes three arguments on appeal. First, he argues that the district

court erroneously concluded that it lacked jurisdiction to reduce his sentence.

Second, he argues that Section 1B1.13 did not limit the district court’s authority to

reduce his sentence. Third, he argues that the combination of factors he argued

before the district court amounted to extraordinary and compelling reasons to reduce

his sentence. We review each of these arguments in turn.

First, Willingham argues that the district court erred in concluding that it

lacked “jurisdiction” to reduce his sentence under Section 3582(c)(1)(A). He asserts

that any limitations in that statute are instead non-jurisdictional in nature. It is true

that the text of Section 3582(c)(1)(A) does not contain any jurisdictional restrictions

and that the district court did have jurisdiction over Willingham’s Section

3582(c)(1)(A) motion. But the district court’s references elsewhere to “authority”

show that its denial was based on its lack of statutory authority to reduce

Willingham’s sentence, not a lack of jurisdiction. So although the court’s reference

to “jurisdiction” was inaccurate, that error was harmless because the district court

did lack statutory authority to reduce Willingham’s sentence.

Second, Willingham disagrees with the conclusion that the district court

lacked statutory authority under Section 3582(c)(1)(A) to reduce his sentence. He

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argues that Section 1B1.13 is not controlling in his case. This Court’s decision in

Bryant forecloses that argument. Bryant, 996 F.3d at 1252. There, we held that “the

commonsense reading of ‘applicable policy statements’ includes U.S.S.G. § 1B1.13,

no matter who files the motion.” Id. We also concluded that “Application Note 1(D)

is not at odds with the amended Section 3582(c)(1)(A).” Id. at 1263. We are bound

by that precedent. See United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th

Cir. 2012).

Willingham’s counseled reply brief also attacks the validity of Section 1B1.13

on various other grounds. But none of those arguments were raised in Willingham’s

initial brief, and, except in limited circumstances that do not apply here, see United

States v. Durham, 795 F.3d 1329, 1331 (11th Cir. 2015), we have “repeatedly . . .

refused to consider issues raised for the first time in an appellant’s reply brief,”

United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004). We therefore refuse to

consider the arguments raised in Willingham’s reply brief.

Third, Willingham asserts in his reply brief that the combination of factors he

argued before the district court, which are based on his view of the initial sentencing

factors under 28 U.S.C.§ 3553(a), rise to the level of extraordinary and compelling

reasons for compassionate release under Section 1B1.13. The district court correctly

held that such routine sentencing arguments, unrelated to medical conditions, family

circumstances, or advanced age, do not satisfy the policy statement’s eligibility

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criteria. Moreover, this argument was not raised in Willingham’s counseled initial

brief. See Levy, 379 F.3d at 1244.

The district court correctly concluded that Willingham had not presented an

extraordinary and compelling reason and that it thus lacked authority to grant him

relief under 18 U.S.C. § 3582(c)(1)(A).

AFFIRMED.