United States v. Messiah Green

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 12, 2021
• Docket: 20-14463
• Status: Unpublished

Opinion

USCA11 Case: 20-14463 Date Filed: 08/12/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14463 Non-Argument Calendar ________________________

D.C. Docket No. 1:08-cr-00171-RWS-RGV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MESSIAH GREEN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________ (August 12, 2021)

Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.

PER CURIAM:

Messiah Green, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for compassionate release pursuant to 18 U.S.C. USCA11 Case: 20-14463 Date Filed: 08/12/2021 Page: 2 of 9

§ 3582(c)(1)(A). The Government, in turn, moves to dismiss Green’s appeal as

untimely, arguing he filed his notice of appeal 37 days after the district court

entered the order he is appealing. Alternatively, the Government moves for

summary affirmance of the district court’s order and for a stay of the briefing

schedule, arguing the district court’s denial of Green’s motion was a proper

exercise of its discretion in light of his prior violent crime, his medical records, and

the 18 U.S.C. § 3553(a) sentencing factors.

We first address the Government’s motion to dismiss, followed by its

motion for summary affirmance.

(I)

A post-judgment motion for a reduced sentence under § 3582(c) is criminal

in nature. United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003). In a

criminal case, a defendant’s notice of appeal must be filed in the district court

within 14 days after the entry of the judgment or order being appealed. Fed. R.

App. P. 4(b)(1)(A)(i). A pro se prisoner’s notice of appeal is deemed filed on the

date when he delivers it to prison authorities for mailing. Fed. R. App. P. 4(c)(1);

Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015). Absent evidence to

the contrary, we will assume that a prisoner delivered a filing to prison authorities

on the day when he signed it. Daniels, 809 F.3d at 589.

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The deadline in Rule 4(b) for a defendant to file a notice of appeal in a

criminal case is not jurisdictional. United States v. Lopez, 562 F.3d 1309, 1313

(11th Cir. 2009). Instead, the filing deadline is considered a claims-processing

rule, and the government can waive an objection to an untimely notice of appeal in

a criminal case. See id. at 1312-13. Nevertheless, if the government raises the

issue of timeliness, which it may do as late as its merits brief, then we “must apply

the time limits of Rule 4(b).” Id. at 1313-14. Even so, Rule 4(b)(4) authorizes the

district court to grant a 30-day extension of the 14-day appeal period in a criminal

case based on a finding of good cause or excusable neglect. Fed. R. App. P.

4(b)(4). In criminal cases, we have customarily treated a late notice of appeal filed

within the 30 days during which an extension is permissible as a motion for an

extension of time and remanded to the district court for a ruling on the motion.

United States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir. 1983).

While Green filed his notice of appeal outside the typical 14-day appeal

period, the notice is still timely because Mr. Green filed it within 30 days of the

expiration of the 14-day deadline and the district court extended the appeal period

based on a finding of excusable neglect. See Fed. R. App. P. 4(b)(4), (c)(1);

Daniels, 809 F.3d at 589; Ward, 696 F.2d at 1317-18. Accordingly, the

Government’s motion to dismiss this appeal as untimely is DENIED.

(II)

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Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.

1969). 1

District courts lack the inherent authority to modify a defendant’s sentence

and “may do so only when authorized by a statute or rule.” United States v.

Puentes, 803 F.3d 597, 606 (11th Cir. 2015). In the context of compassionate

release, § 3582(c)(1)(A)(i) 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 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 . . . after considering the factors set forth in [18 U.S.C.] section 3553(a) to the extent that they are applicable, if it finds that—extraordinary and compelling reasons warrant such a reduction[.]

18 U.S.C. § 3582(c)(1)(A)(i).

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 4 USCA11 Case: 20-14463 Date Filed: 08/12/2021 Page: 5 of 9

The policy statements applicable to § 3582(c)(1)(A) are found in § 1B1.13.

U.S.S.G. § 1B1.13. The commentary to § 1B1.13 states that extraordinary and

compelling reasons exist under any of the circumstances listed, provided the court

determines 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), and the reduction is consistent

with the policy statement. See id. § 1B1.13 & cmt. n.1.

Section 3142(g), in turn, lists several factors for the district court to consider

in determining whether a defendant is a danger to another person or the

community, including: (1) the nature and circumstances of the offense charged,

including whether the offense involved a firearm; (2) the weight of evidence

against the person; (3) the history and characteristics of the person, including their

criminal history and whether, at the time of the current offense or arrest, the person

was on probation, on parole, or on other release pending trial, sentencing, appeal,

or completion of sentence for an offense; and (4) the nature and seriousness of the

danger to any person or the community that would be posed by the person's

release. 18 U.S.C. § 3142(g).

Commentary to § 1B1.13 lists a defendant’s medical condition, age, and

family circumstances as possible “extraordinary and compelling reasons”

warranting a sentence reduction. U.S.S.G. § 1B1.13 cmt. n.1(A)-(C). For

example, a defendant’s medical condition may warrant a sentence reduction if he

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(1) has a terminal disease, or (2) is suffering from a physical or mental condition

that diminishes his ability to provide self-care in prison and from which he is not

expected to recover. Id. § 1B1.13 cmt. n.1(A). The commentary also contains a

catch-all provision for “other reasons,” which provides that a prisoner may be

eligible for a sentence reduction if “[a]s determined by the Director of the Bureau

of Prisons, there exists in the defendant’s case an extraordinary and compelling

reason other than, or in combination with,” the other specific examples listed. Id.

§ 1B1.13 cmt. n.1(D). The policy statements in § 1B1.13 are applicable to all

motions filed under § 3582(c)(1)(A), including those filed by prisoners, and, thus,

a district court can only reduce a sentence if a reduction is consistent with

§ 1B1.13’s definition of “extraordinary and compelling reasons.” United States v.

Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021). Furthermore, “other reasons” are

limited to those determined by the Bureau of Prisons, not by courts. Id. at 1263.

A district court, in addition to determining whether a movant has 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. United States v. Cook, 998 F.3d 1180, 1183-84

(11th Cir. 2021). Therefore, an order granting or denying compassionate release,

in light of the record, must indicate that the court considered the applicable

§ 3553(a) factors. Id. at 1184. Accordingly, a district court abuses its discretion

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when it decides a motion under § 3582(c)(1)(A)(i) without considering the

applicable factors. Id.

Under § 3553(a)(2), the district court must impose a sentence “sufficient, but

not greater than necessary” to achieve its purposes. 18 U.S.C. § 3553(a). These

purposes include the need for a sentence to reflect the seriousness of the offense,

promote respect for the law, provide just punishment, deter criminal conduct, and

protect the public from future criminal conduct. Id. § 3553(a)(2). Additional

considerations include the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentence disparities, and the need to provide restitution

to any victims. Id. § 3553(a)(1)–(7). A defendant’s criminal history fits

“squarely” into the § 3553(a) category that requires the district court to consider

the history and characteristics of the defendant. United States v. Williams, 526

F.3d 1312, 1324 (11th Cir. 2008).

The district court did not abuse its discretion in denying Green’s motion for

compassionate release. 2 First, the court’s order expressly stated it had considered

2 A district court’s determination about a defendant’s eligibility for a § 3582(c) sentence reduction is reviewed de novo. Bryant, 996 F.3d at 1251. However, we review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for an abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021).

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the relevant § 3553(a) factors, and it was not required to analyze each factor

individually. See Cook, 998 F.3d at 1184. In any event, the court addressed

Green’s criminal history, which “fits squarely” into his history and characteristics,

by discussing his convictions. See Williams, 526 F.3d at 1324. Further, the district

court noted that his crime was a crime of violence, which concerned the nature and

circumstances of his offense and the need to protect the public.

Additionally, although the court did not cite to any specific § 3142(g)

factors, its order demonstrated it considered the relevant factors. As previously

mentioned, the court noted Green’s crime was a crime of violence, which

concerned the nature and circumstances of his offense, as well as the nature and

seriousness of the danger that his release would have posed to any other person or

the community. See id. § 3142(g)(1), (4). It also discussed how the jury

unanimously found that Green both used and carried a firearm during the bank

robbery, which concerned the weight of the evidence against him. See id.

§ 3142(g)(2).

Second, even though the district court stated it was unnecessary to determine

whether Green had established extraordinary and compelling reasons warranting

compassionate release, it nevertheless found his medical conditions were not

serious enough to warrant compassionate release. In doing so, the court followed

the policy statement in § 1B1.13 to determine whether the reasons he provided

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were consistent with § 1B1.13’s definition of “extraordinary and compelling

reasons.” See Bryant, 996 F.3d at 1262. For example, the court noted none of

Green’s conditions were recognized as making him particularly vulnerable to

COVID-19 and his last respiratory infection occurred over three years ago.

Accordingly, the district court correctly determined Green had not established

extraordinary and compelling reasons warranting compassionate release because

he was not (1) diagnosed with a terminal disease, or (2) suffering from a physical

or mental condition that diminished his ability to provide self-care in prison and

from which he was not expected to recover. See U.S.S.G. § 1B1.13 cmt. n.1(A);

Bryant, 996 F.3d at 1262.

Additionally, although the district court did not address Green’s arguments

regarding his rehabilitation and reentry plans, his rehabilitation alone was not an

extraordinary and compelling reason warranting a sentence reduction. See

U.S.S.G. § 1B1.13 cmt. n.3. Further, Green’s argument the district court was not

bound by the commentary to § 1B1.13 is foreclosed by Bryant. See Bryant, 996

F.3d at 1263.

Thus, because the Government’s position is correct as a matter of law, we

GRANT the Government’s motion for summary affirmance. See Groendyke

Transp., Inc., 406 F.2d at 1162. Accordingly, we DENY the accompanying

motion to stay the briefing schedule as moot.