United States v. Marc Valme

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 11, 2024
• Docket: 23-11314
• Status: Unpublished

Opinion

USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 1 of 7

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11314 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARC VALME,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:97-cr-06007-RNS-5 ____________________ USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 2 of 7

2 Opinion of the Court 23-11314

Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges. PER CURIAM: Marc Valmé, proceeding pro se on appeal, appeals the district court’s denial of his counseled motion for a reduced sentence un- der 18 U.S.C. § 3582(c)(2) based on the retroactive amendment to the Guidelines in Amendment 782 and under § 3582(c)(1)(A) based on the extraordinary and compelling reasons of his medical condi- tions. In response, the government moves for summary affir- mance, arguing that Valmé’s request based on Amendment 782 and § 3582(c)(2) is barred by the law-of-the-case doctrine, and as to his request under § 3582(c)(1)(A), the district court did not abuse its discretion in determining that Valmé posed a continuing threat to the community based on his offense conduct. Summary disposition is appropriate either where time is of the essence, such as “situations where important public policy is- sues are involved or those where rights delayed are rights denied,” or where “the position of one of the parties is clearly right as a mat- ter of law so that there can be no substantial question as to the out- come of the case, or where, as is more frequently the case, the ap- peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). A motion for summary affirmance postpones the due date for the filing of any remaining brief until we rule on the motion. 11th Cir. R. 31-1(c). We review de novo whether a defendant is eligible for a sen- tence reduction under 18 U.S.C. § 3582(c)(1)(A) and, if eligible, will USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 3 of 7

23-11314 Opinion of the Court 3

review a district court’s denial of a prisoner’s § 3582(c)(1)(A) mo- tion for an abuse of discretion. United States v. Giron, 15 F.4th 1343, 1345 (11th Cir. 2021). “A district court abuses its discretion if it ap- plies an incorrect legal standard, follows improper procedures in making its determination, or makes clearly erroneous factual find- ings.” Id. We review de novo whether the district court properly ap- plied the law-of-the-case doctrine. United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005). The First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to al- low a court to reduce a defendant’s term of imprisonment upon motion of a defendant. See First Step Act § 603; 18 U.S.C. § 3582(c)(1)(A). Section 1B1.13, the policy statement applicable to § 3582(c)(1)(A), states that a court may reduce a term of imprison- ment if extraordinary and compelling reasons warrant the reduc- tion, the defendant is not a danger to the safety of any other person or to the community, and the reduction is otherwise consistent with the policy statement. U.S.S.G. § 1B1.13(a)(1). The Sentencing Commission did not immediately amend § 1B1.13 to incorporate the statutory amendments in the First Step Act, 1 but we

1 Because the district court denied Valmé’s motion under § 3582(c)(1)(A) based on its discretionary weighing of the § 3553(a) factors, we need not decide whether the recent amendments to § 1B1.13, effective on November 1, 2023, regarding what circumstances qualify as extraordinary and qualifying apply to pending cases on direct appeal. See Sentencing Guidelines for United States Courts, 88 Fed. Reg. 28,254, 28,255 (May 3, 2023); see also United States v. Jer- chower, 631 F.3d 1181, 1184 (11th Cir. 2011) (discussing when amendments to the Guidelines apply retroactively on direct appeal). USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 4 of 7

4 Opinion of the Court 23-11314

determined that § 1B1.13 applied to all motions for compassionate release filed under § 3582(c)(1)(A), including those filed by prison- ers, and thus a district court may not reduce a sentence unless a reduction would be consistent with § 1B1.13’s definition of “ex- traordinary and compelling reasons.” United States v. Bryant, 996 F.3d 1243, 1252-62 (11th Cir.), cert. denied, 142 S. Ct. 583 (2021). A district court may grant compassionate release if: (1) an extraordi- nary and compelling reason exists; (2) a sentencing reduction would be consistent with U.S.S.G. § 1B1.13; and (3) the § 3553(a) factors weigh in favor of compassionate release. United States v. Tinker, 14 F.4th 1234, 1237-38 (11th Cir. 2021). When the district court finds that one of these three prongs is not met, it need not examine the other prongs. Giron, 15 F.4th at 1348. Factors under § 3553(a) that the district court must consider in determining whether a sentence reduction is warranted include the nature and circumstances of the offense, the defendant’s history and characteristics, the need for the sentence to reflect the serious- ness of the crime, promote respect for the law, provide just punish- ment, protect the public from the defendant’s crimes, and afford adequate deterrence, the kinds of sentences available, the guideline range, and the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a). When the district court analyzes the § 3553(a) factors, the weight it gives to any specific factor is committed to the sound discretion of the court. Tinker, 14 F.4th at 1241. A district court abuses its discretion when it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives signif- icant weight to an improper or irrelevant factor, or (3) commits a USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 5 of 7

23-11314 Opinion of the Court 5

clear error of judgment in considering the proper factors.” Id. (quo- tation marks omitted). Where consideration of the § 3553(a) factors is mandatory, district courts need not address each of the § 3553(a) factors nor all of the mitigating evidence. Id. Instead, an acknowl- edgement by the district court that it considered the § 3553(a) fac- tors and the parties’ arguments is sufficient. Id. The record must indicate that the district court considered a number of the factors. Id. In Concepcion v. United States, the Supreme Court concluded that district courts deciding motions for a reduced sentence under § 404 of the First Step Act, which allowed the district courts to im- pose a reduced sentence for those sentenced for crack cocaine of- fenses before the Fair Sentencing Act changed the enhanced statu- tory penalties for crack cocaine offenses, may consider intervening changes of law or fact in exercising their discretion. See 597 U.S. 481, 494-502 (2022). The Supreme Court noted evidence of post-sentencing rehabilitation, violence, or prison infractions and nonretroactive Guidelines amendments as factors that a district court could consider. Id. at 496-99. The Supreme Court also noted that Congress had imposed express statutory limitations on district courts in sentence modification proceedings under § 3582(c)(1) and (c)(2) by providing that they may only grant a sentence reduction if it is consistent with applicable policy statements issued by the Sentencing Commission. Id. at 494-95. Under § 3582(c)(2), where a defendant has been sentenced to an imprisonment term based on a sentencing range that was USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 6 of 7

6 Opinion of the Court 23-11314

later lowered by the Sentencing Commission, a district court may reduce the defendant’s imprisonment term after considering the applicable § 3553(a) factors if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A defendant is eligible for a sentence reduc- tion under § 3582(c)(2) only when an amendment listed in U.S.S.G. § 1B1.10(d) lowers his guideline range that was calculated by the sentencing court. U.S.S.G. § 1B1.10(a)(1) & comment. (n.1(A)). Amendment 782, which reduced by two levels the base offense lev- els that apply to most drug offenses under §§ 2D1.1 and 2D1.11, is listed in § 1B1.10(d). U.S.S.G. App. C, Amend. 782 (2014). If a dis- trict court determines that a defendant is eligible for a sentence re- duction under § 3582(c)(2) because his guideline range was lowered by a retroactive amendment, the district court must decide whether, in its discretion, to impose a reduced sentence under the amended guideline range or retain the original sentence after con- sidering the § 3553(a) factors. United States v. Smith, 568 F.3d 923, 927 (11th Cir. 2009). The commentary to § 1B1.10 specifies that a district court shall consider the § 3553(a) factors and the danger to any person or the community and may consider post-sentencing conduct of the defendant when determining whether a sentence reduction is warranted. U.S.S.G. § 1B1.10, comment. (n.1(B)). Under the law-of-the-case doctrine, district and appellate courts are generally bound to follow a prior appellate decision in the same case and cannot revisit issues that were decided explicitly or by necessary implication. Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009). There are three exceptions to the USCA11 Case: 23-11314 Document: 23-1 Date Filed: 01/11/2024 Page: 7 of 7

23-11314 Opinion of the Court 7

law-of-the-case doctrine: (1) the evidence in a subsequent trial is substantially different; (2) there is a change in controlling law; or (3) the prior decision was clearly erroneous and would work man- ifest injustice. United States v. Stein, 964 F.3d 1313, 1323 (11th Cir. 2020). We have determined that we may raise the law-of-the-case doctrine sua sponte and have affirmed a district court’s denial of a § 3582(c)(2) motion under the law-of-the-case doctrine where we had previously affirmed the denial of a sentence reduction based on the same Guidelines amendment. United States v. Anderson, 772 F.3d 662, 668-70 (11th Cir. 2014). Here, the government’s position is clearly correct as a mat- ter of law. Valmé’s request under Amendment 782 and § 3582(c)(2) was barred by the law-of-the-case doctrine because we previously upheld the district court’s denial of his earlier identical request based on Amendment 782 and Valmé failed to show that any of the exceptions to the doctrine applied. As to his request based on § 3582(c)(1)(A), the district court did not abuse its discretion in de- termining that Valmé posed a continuing threat to the community based on his offense conduct and refusal to accept responsibility for his actions. Further, the court considered the evidence Valmé sub- mitted when it denied his motion. Accordingly, because the government’s position is clearly correct as a matter of law, we GRANT the government’s motion for summary affirmance. Groendyke Transp., Inc., 406 F.2d at 1162. AFFIRMED.