United States v. Marco Laureti

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 11, 2021
• Docket: 20-11099
• Status: Unpublished

Opinion

USCA11 Case: 20-10994 Date Filed: 06/11/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10994 Non-Argument Calendar ________________________

D.C. Docket No. 0:16-cr-60340-BB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO LAURETI,

Defendant-Appellant.

________________________

No. 20-11099 Non-Argument Calendar ________________________

Plaintiff-Appellee, USCA11 Case: 20-10994 Date Filed: 06/11/2021 Page: 2 of 6

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

(June 11, 2021)

Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM:

Marco Laureti, a federal prisoner proceeding pro se, appeals the district

court’s orders denying (1) his motion for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A); (2) his motion for reconsideration of the same; and (3) his motion

to correct the record pursuant to Federal Rule of Criminal Procedure 36. He raises

two arguments on appeal. First, he argues that the district court erred in denying

his motion for compassionate release and its reconsideration because it improperly

conflated “custody” with “caregiver” when finding that he failed to establish

extraordinary or compelling reasons for his release. Second, he argues that the

district court erred in finding that it lacked authority to change portions of his

presentence investigation report (“PSI”) on the grounds that his proposed

modifications were untimely.

2 USCA11 Case: 20-10994 Date Filed: 06/11/2021 Page: 3 of 6

I

We review the denial of an eligible movant’s request for a reduced sentence

solely for an abuse of discretion. See United States v. Jones, 962 F.3d 1290, 1296

(11th Cir. 2020). We also review the denial of a motion for reconsideration solely

for an abuse of discretion. United States v. Llewlyn, 879 F.3d 1291, 1294 (11th

Cir. 2018).

An abuse of discretion occurs when a district court (1) does not apply the

correct legal standard, (2) applies the law in an incorrect or unreasonable fashion,

(3) fails to follow proper procedures in making a determination, or (4) makes

clearly erroneous findings of fact. United States v. McLean, 802 F.3d 1228, 1233

(11th Cir. 2015). A factual finding is not clearly erroneous if it represents a choice

between two permissible views of the evidence. United States v. Ndiaye, 434 F.3d

1270, 1305 (11th Cir. 2006). Pro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and must be liberally construed. Tannenbaum

v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

In 2018, Congress enacted the First Step Act, which amended 18 U.S.C.

§ 3582(c)(1)(A) to increase the use and transparency of compassionate release of

federal prisoners. See First Step Act § 603. Specifically, the statute provides that:

[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted 3 USCA11 Case: 20-10994 Date Filed: 06/11/2021 Page: 4 of 6

all administrative rights to appeal a failure of the Bureau of Prisons 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, may reduce the term of imprisonment . . . if it finds that extraordinary and compelling reasons warrant such a reduction[.]

18 U.S.C. § 3582(c)(1)(A)(i).

In determining whether such extraordinary and compelling circumstances

exist, the district court must consider the § 3553(a) factors and find that a reduction

is consistent with applicable policy statements issued by the Sentencing

Commission. Id. § 3582(c)(1)(A). Section 3553(a) requires the district court to

consider the nature and circumstances of the offense; the history and characteristics

of the defendant; the need for the sentence imposed to reflect the seriousness of the

offense, to promote respect for the law, to provide just punishment for the offense,

to afford adequate deterrence to criminal conduct, and to protect the public from

further crimes of the defendant. See 18 U.S.C. § 3553(a)(1)–(2).

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

§ 1B1.13, which states that the court must determine 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), before it can determine whether extraordinary and compelling

reasons exist. See U.S.S.G. § 1B1.13; id., comment. (n.1). Section 1B1.13 lists

several examples of extraordinary and compelling reasons for release, including

4 USCA11 Case: 20-10994 Date Filed: 06/11/2021 Page: 5 of 6

the death or incapacitation of the caregiver of the defendant’s minor child. Id.,

comment. (n.1(C)).

Here, the district court did not abuse its discretion in denying Laureti’s

motion for compassionate release, either initially or on reconsideration, because

Laureti failed to meet his burden of showing that his former mother-in-law was

incapable of providing care for his minor children or that he was the only available

alternative caregiver, such that it would be unreasonable not to find an

extraordinary circumstance warranting compassionate release. We therefore affirm

as to this issue.

II

We review de novo the district court’s application of Federal Rule of

Criminal Procedure 36. United States v. Davis, 841 F.3d 1253, 1261 (11th Cir.

2016). Rule 36 states that the district court may at any time correct a clerical error

in a judgment, order, or other part of the record, or correct an error in the record

arising from oversight or omission. Fed. R. Crim. P. 36. Rule 36 cannot be used

to make substantive alterations to a criminal sentence. Davis, 841 F.3d at 1261.

Rule 36 covers only minor or uncontroversial errors, and a district court has no

authority to correct a defendant’s PSI where the corrections are aimed at

remedying errors of law or fact, rather than mere transcription. United States v.

Portillo, 363 F.3d 1161, 1164 (11th Cir. 2004). Substantive objections to the PSI

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must be raised within 14 days of the party’s receipt of it. See Fed. R. Crim. P.

32(f).

Here, the district court did not err in denying Laureti’s motion under Rule 36

because his modifications to the PSI were substantive changes, not merely

transcription corrections. Specifically, Laureti sought to change information used

within the PSI to support his offense description, personal characteristics, and

ability to pay. Laureti failed to request these substantive modifications within 14

days of receiving his PSI, and thus they were untimely raised. We therefore affirm

as to this issue as well.

AFFIRMED.1

1 The pending motion with respect to the misfilings is denied as moot. 6