United States v. Mark Morrow

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 4, 2021
• Docket: 20-13929
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13929 Non-Argument Calendar ________________________

D.C. Docket No. 1:15-cr-00458-LMM-AJB-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK MORROW,

Defendant-Appellant. ________________________

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

(June 4, 2021)

Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges.

PER CURIAM:

Mark Morrow appeals the district court’s order denying his motion for

compassionate relief under 18 U.S.C. § 3583(c)(1)(A). Morrow argues that the USCA11 Case: 20-13929 Date Filed: 06/04/2021 Page: 2 of 10

district court abused its discretion in denying his motion, contending that the district

court relied on two clearly erroneous factual findings. First, he argues that the district

court improperly calculated the length of his remaining sentence. Second, he argues

that the district court incorrectly stated that his crime had over 300 victims with

financial losses of approximately $28 million. After careful review, we conclude that

those findings were not clearly erroneous and that the district court did not otherwise

abuse its discretion in denying relief. Accordingly, we affirm.

I.

Mark Morrow and his co-defendant were charged with two counts of

conspiracy to commit mail and wire fraud, fourteen counts pertaining to specific

instances of mail or wire fraud, and one count of conspiracy to commit money

laundering. In all, their fraudulent conspiracy caused the loss of over $30 million

dollars amongst over 300 victims. Morrow ultimately pleaded guilty to one count of

conspiracy to commit wire fraud, which charged him with knowingly and

intentionally devising a scheme to defraud note holders and equity investors in

Detroit Medical Partner, LLC. This count outlined losses of over $28 million.

Although only pleading guilty to that one count, his written plea explicitly stated

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that the court could consider the conduct underlying the dismissed counts at

sentencing.

At sentencing, the district judge adopted the factual findings in the

presentence investigation report (“PSR”). The guidelines range was between 121

and 151 months. The government requested a downward variance to 96 months to

avoid sentencing disparities with his co-defendant. Defense counsel argued for a

variance all the way down to thirty months. The court granted the motion for a

downward variance and sentenced Morrow to 66 months imprisonment, to be

followed by a three-year term of supervised release. In addition, the court required

Morrow to pay $7 million dollars in restitution to 175 victims, jointly and severally

with his co-defendant. His co-defendant, on the other hand, was sentenced to 96

months and directed to pay $24 million in restitution to 336 victims.

In delivering this sentence, the district judge discussed several Section

3553(a) factors. Specifically, the judge rejected the defendant’s 30-month sentence

request due to the substantial monetary loss and number of victims. Additionally,

the judge noted that Morrow did not appreciate the full extent of his guilt and had

ample opportunity to disengage during the scheme but failed to do so. The judge did

however decide to vary downward because Morrow was less culpable than his co-

defendant, he was not primarily motivated by greed, and he had made some attempt

to return losses to the investors. The judge also considered personal characteristics

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of Morrow, including that he had no criminal history, was heavily involved in the

community, and was not likely to be a recidivist. The judge stated that she had

considered all Section 3553(a) factors in determining that a 66-month sentence was

sufficient but not greater than necessary.

After serving 30 months of his sentence, Morrow submitted a pro se motion

for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). This motion was later

supplemented by counsel. In this motion, Morrow asserted that there was an

extraordinary and compelling reason for his early release in light of the COVID-19

pandemic. He argued that he was at increased risk for serious illness from COVID-

19 due to his underlying conditions, including poorly controlled diabetes, Charcot-

Marie Tooth disorder, and a history of MRSA infection. In support, defendant cited

cases from various jurisdictions, as well as a variety of health authorities.

The same district judge who sentenced Morrow denied this motion. The

district court made clear that, even assuming that Morrow’s medical conditions were

extraordinary and compelling, relief was not warranted based on the Section 3553(a)

factors. The district court succinctly explained:

Here, Defendant engaged in a serious fraudulent investment scheme, which, along with his co-defendant, caused over 300 victims to suffer losses of approximately $28 million dollars. Further, at this time, Defendant has served less than half of his 66-months sentence, which the Court imposed after granting a substantial downward variance at sentencing. Given these circumstances, the Court finds that reducing Defendant’s sentence by 36 months “would not be consistent with the statutory purposes of sentencing under § 3553(a).” 4 USCA11 Case: 20-13929 Date Filed: 06/04/2021 Page: 5 of 10

Morrow timely appealed, arguing that the district court relied on clearly erroneous

factual findings.

II.

This Court reviews for abuse of discretion the denial of an eligible prisoner’s

request for a reduced sentence under Section 3582(c)(1)(A). United States v. Jones,

929 F.3d 1290, 1296 (11th Cir. 2020). When reviewing for abuse of discretion, we

cannot reverse just because we may have arrived at a different conclusion. See Sloss

Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007). “A district court abuses

its discretion if it applies an incorrect legal standard, follows improper procedures

in making the determination, or makes findings of fact that are clearly erroneous.”

Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019). “A factual

finding is clearly erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” United States v. Robinson, 493 F.3d 1322, 1330

(11th Cir. 2007) (internal citation and quotation marks omitted).

III.

Under 18 U.S.C. § 3582, a district court can reduce a prisoner’s sentence for

“extraordinary and compelling reasons” if it finds that such a reduction is warranted

after considering the Section 3553(a) factors. Here, the district court denied

Morrow’s motion based on the Section 3553(a) factors. Under the district court’s

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view, relief was not warranted because of the serious nature and magnitude of

Morrow’s crime, the proportion of the sentence yet to be served, and the substantial

downward variance granted at the original sentencing. Morrow argues that the

factual findings undergirding the first two considerations were clearly erroneous.

We address each in turn.

We turn first to the district court’s consideration of the length of the sentence

yet to be served. The district court stated that Morrow had served less than half of

his sentence. In doing so, the court noted that Morrow had served 30 months of a

66-month sentence. Morrow argues that this was clearly erroneous as he had been

awarded ten months of good-time credit. He contends that he has therefore served

30 months of what will ultimately be 56 months in prison. In turn, the government

argues that the “sentence” is the term of imprisonment imposed at sentencing, and

so the amount of good-time credit is irrelevant to its calculation. It thus concludes

that the district court did not err, clearly or otherwise, in its “calculation or recitation

of the remaining portion of Morrow’s sentence.”

“There is no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence.” Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). However, under 18

U.S.C. § 3624, the Bureau of Prisons has discretion to credit an inmate for good

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time, allowing an inmate to be released prior to the end of his sentence. Good-time

credit does not vest until the inmate is released from custody, 18 U.S.C. § 3624(b)(2).

Morrow received a valid sentence of 66-months. Sentence length and time

served are not synonymous. See Barber v. Thomas, 560 U.S. 474, 483–87 (2010).

Good-time credit does not reduce the length of the sentence imposed. Pepper v.

United States, 562 U.S. 476, 501 n.14 (2011) (“An award of good time credit by the

Bureau of Prisons does not affect the length of a court-imposed sentence; rather, it

is an administrative reward to provide an incentive for prisoners to comply with

institutional disciplinary regulations.” (cleaned up)); see also Barber, 560 U.S. at

481–83 (distinguishing between the sentence imposed and the time “actually

served,” which must be the same “with the sole statutory exception for good time

credits” (emphasis omitted)). Further, Morrow’s good-time credit has not yet vested

and “may be revoked at any time before the date of [his] release.” Pepper, 562 U.S.

at 501 n.14; see 18 U.S.C. 3624(b)(2). The district court’s factual finding that

Morrow had only served half of his 66-month sentence was not clearly erroneous.

Next, we consider Morrow’s argument that the district court’s statement that

“Defendant engaged in a serious fraudulent investment scheme, which, along with

his co-defendant, caused over 300 victims to suffer losses of approximately $28

million” was clearly erroneous. Specifically, Morrow asserts that this is clearly

erroneous because he was only responsible for a loss of approximately $7 million

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among 175 victims. Morrow points to the PSR, which specifies that the restitution

owed by Morrow was $7 million dollars among 175 victims. The government argues

that Morrow is relying on an “overly technical” reading of the district court’s use of

the phrase “engaged in.” The government further asserts that the record is clear that

the transgressions of Morrow and his co-defendant were heavily intertwined.

In the district court’s order denying Morrow’s Section 3582(c)(1)(A) motion,

it stressed the seriousness of Morrow and his co-defendant’s fraudulent scheme.

Even though Morrow pleaded guilty to only one count, the plea agreement explicitly

stated that the district court could consider other parts of the conspiracy as relevant

conduct. And in the indictment, the count to which Morrow pleaded guilty outlined

losses of more than $28 million. The district court’s statement that through the

“serious fraudulent investment scheme,” Morrow “along with his co-defendant,

caused over 300 victims to suffer losses of approximately $28 million” was not

clearly erroneous, even though Morrow pleaded guilty to only a portion of that

scheme.

Additionally, the same district judge who denied Morrow’s Section

3582(c)(1)(A) motion originally sentenced Morrow. When analyzing a district

court’s sentence-modification order, we do “not turn a blind eye to what the judge

said at petitioner’s initial sentencing,” especially when the judge deciding the

sentence-modification motion is “the same judge who had sentenced the petitioner

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originally.” Chavez-Meza v. United States, 138 S. Ct. 1959, 1967 (2018). Instead,

we look to “the record as a whole” because the record, and specifically “the record

of the initial sentencing[,] sheds light on” the district court’s sentence-modification

order. Id.

Here, reading the denial order and sentencing hearing transcript together

reveals that the district court understood the scope of Morrow’s involvement and

thoroughly reviewed the relevant Section 3553(a) factors. See United States v.

Garey, 546 F.3d 1359, 1363 (11th Cir. 2008) (“[I]ndications in the record that the

district court considered facts and circumstances falling within § 3553(a)’s factors

will suffice.”)

The district court stated that “this was a very large amount of fraud with a

large amount of losses that went on for a long period of time.” It then noted that

Morrow’s co-defendant “was more culpable” and that Morrow was involved in the

scheme to a lesser extent. The district court’s understanding of Morrow’s degree of

culpability was indeed reflected in its decision to sentence Morrow to just 66 months.

Morrow’s sentence was a significant downward variance from the 121 to 151 month

sentencing guideline range and 30 months less than the sentence his co-defendant

received. Indeed, that “substantial downward variance at sentencing” was one of the

reasons that the district court gave for denying Morrow’s Section 3582(c)(1)(A)

motion. Because the district court did not base its decision on clearly erroneous

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factual findings and gave adequate reasons for denying Morrow’s Section

3582(c)(1)(A) motion, the district court did not abuse its discretion.

IV.

For these reasons, we AFFIRM the district court’s denial of Morrow’s

Section 3582(c)(1)(A) motion.