USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-13566 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OLU VICTOR ALONGE, a.k.a. Serge Damessi, a.k.a. Didier Baraze,
Defendant-Appellant. USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 2 of 8
2 Opinion of the Court 21-13566
Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:18-cr-00092-TCB-LTW-1 ____________________
Before WILSON, GRANT, and ANDERSON, Circuit Judges. PER CURIAM: Olu Victor Alonge, a federal prisoner proceeding pro se, ap- peals the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by section 603(b) of the First Step Act. 1 After Alonge filed his initial brief, the government moved for summary affirmance or to stay the briefing schedule. Alonge, in turn, has move to file a response to the government’s motion out of time, and a second motion to supplement the for- mer. For ease of reference, we will discuss the summary affir- mance motion first, and then Alonge’s motions. I. In its motion for summary affirmance, the government ar- gues that the district court did not abuse its discretion because it was bound by United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), and Alonge does not express any qualifying extraordinary
1 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”). USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 3 of 8
21-13566 Opinion of the Court 3
and compelling reason. It also asserts that the district court reason- ably concluded that the § 3553(a) factors did not warrant release. Summary disposition is appropriate 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). 2 We review de novo whether a district court had the author- ity to modify a term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). We will review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). A district court has no inherent authority to modify a de- fendant’s sentence and may do so “only when authorized by a stat- ute or rule.” United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015). The First Step Act expressly permits district courts to reduce a previously imposed term of imprisonment. Jones, 962 F.3d at 1297. However, the statute provides that a “court may not modify a term of imprisonment once it has been imposed” ex- cept under certain circumstances. 18 U.S.C. § 3582(c).
2 We are bound by decisions of the former Fifth Circuit handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 4 of 8
4 Opinion of the Court 21-13566
A district court may reduce a prisoner’s term of imprison- ment under the compassionate release statute “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.” Id. § 3582(c)(1)(A)(i). The § 3553(a) factors include, among other things, the na- ture and circumstances of the defendant’s offense, his history and characteristics, and the need to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a). It is the defendant’s burden to show that his circumstances warrant a reduction. 18 U.S.C. § 3582(c)(1)(A)(i). The weight given to any specific § 3553(a) factor is committed to the sound distraction of the district court. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Generally, when a district court considers the § 3553(a) fac- tors, it need not state on the record that it has explicitly considered each of them or discuss each of them. See United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The compassionate release statute also requires that any re- duction be consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A). Section 1B1.13 of the Sentencing Guidelines provides the applicable policy statement for § 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application notes to § 1B1.13 list four categories of extraordinary and compel- ling reasons: (A) the defendant’s medical condition, (B) his age, (C) his family circumstances, including the death of a caregiver of a mi- nor child, and (D) “other reasons.” Id., cmt. n.1(A)–(D). USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 5 of 8
21-13566 Opinion of the Court 5
Subsection D serves as a catch all provision, providing that a pris- oner may be eligible for relief if, “[a]s determined by the Director of the [BOP], there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the rea- sons described in subdivisions (A) through (C).” Id., cmt. n.1(D). If there are extraordinary and compelling reasons for com- passionate release, the district court has the discretion to reduce the defendant’s term of imprisonment after considering the applicable § 3553(a) factors. Id. Commentary also states that extraordinary and compelling reasons exist under any of the circumstances listed, provided that the court determines that the defendant is not a dan- ger to the safety of any other person or to the community, as pro- vided in 18 U.S.C. § 3142(g). See § 1B1.13, cmt. n.1. However, we explained that the catch-all provision in the commentary to § 1B1.13 did not grant to district courts the discretion to develop other reasons outside those listed in § 1B1.13 that might justify a reduction in a defendant’s sentence. Bryant, 996 F.3d at 1248. First, procedurally, Alonge does not challenge the district court’s finding that he did not provide evidence of exhausting his administrative remedies. Therefore, this issue is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). Even if Alonge had not abandoned this issue, he did not al- lege any facts before the district court showing that he had ex- hausted his administrative remedies before filing for compassion- ate release.
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USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-13566 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OLU VICTOR ALONGE, a.k.a. Serge Damessi, a.k.a. Didier Baraze,
Defendant-Appellant. USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 2 of 8
2 Opinion of the Court 21-13566
Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:18-cr-00092-TCB-LTW-1 ____________________
Before WILSON, GRANT, and ANDERSON, Circuit Judges. PER CURIAM: Olu Victor Alonge, a federal prisoner proceeding pro se, ap- peals the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as amended by section 603(b) of the First Step Act. 1 After Alonge filed his initial brief, the government moved for summary affirmance or to stay the briefing schedule. Alonge, in turn, has move to file a response to the government’s motion out of time, and a second motion to supplement the for- mer. For ease of reference, we will discuss the summary affir- mance motion first, and then Alonge’s motions. I. In its motion for summary affirmance, the government ar- gues that the district court did not abuse its discretion because it was bound by United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), and Alonge does not express any qualifying extraordinary
1 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”). USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 3 of 8
21-13566 Opinion of the Court 3
and compelling reason. It also asserts that the district court reason- ably concluded that the § 3553(a) factors did not warrant release. Summary disposition is appropriate 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). 2 We review de novo whether a district court had the author- ity to modify a term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). We will review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). A district court has no inherent authority to modify a de- fendant’s sentence and may do so “only when authorized by a stat- ute or rule.” United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015). The First Step Act expressly permits district courts to reduce a previously imposed term of imprisonment. Jones, 962 F.3d at 1297. However, the statute provides that a “court may not modify a term of imprisonment once it has been imposed” ex- cept under certain circumstances. 18 U.S.C. § 3582(c).
2 We are bound by decisions of the former Fifth Circuit handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 4 of 8
4 Opinion of the Court 21-13566
A district court may reduce a prisoner’s term of imprison- ment under the compassionate release statute “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.” Id. § 3582(c)(1)(A)(i). The § 3553(a) factors include, among other things, the na- ture and circumstances of the defendant’s offense, his history and characteristics, and the need to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a). It is the defendant’s burden to show that his circumstances warrant a reduction. 18 U.S.C. § 3582(c)(1)(A)(i). The weight given to any specific § 3553(a) factor is committed to the sound distraction of the district court. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Generally, when a district court considers the § 3553(a) fac- tors, it need not state on the record that it has explicitly considered each of them or discuss each of them. See United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The compassionate release statute also requires that any re- duction be consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A). Section 1B1.13 of the Sentencing Guidelines provides the applicable policy statement for § 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application notes to § 1B1.13 list four categories of extraordinary and compel- ling reasons: (A) the defendant’s medical condition, (B) his age, (C) his family circumstances, including the death of a caregiver of a mi- nor child, and (D) “other reasons.” Id., cmt. n.1(A)–(D). USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 5 of 8
21-13566 Opinion of the Court 5
Subsection D serves as a catch all provision, providing that a pris- oner may be eligible for relief if, “[a]s determined by the Director of the [BOP], there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the rea- sons described in subdivisions (A) through (C).” Id., cmt. n.1(D). If there are extraordinary and compelling reasons for com- passionate release, the district court has the discretion to reduce the defendant’s term of imprisonment after considering the applicable § 3553(a) factors. Id. Commentary also states that extraordinary and compelling reasons exist under any of the circumstances listed, provided that the court determines that the defendant is not a dan- ger to the safety of any other person or to the community, as pro- vided in 18 U.S.C. § 3142(g). See § 1B1.13, cmt. n.1. However, we explained that the catch-all provision in the commentary to § 1B1.13 did not grant to district courts the discretion to develop other reasons outside those listed in § 1B1.13 that might justify a reduction in a defendant’s sentence. Bryant, 996 F.3d at 1248. First, procedurally, Alonge does not challenge the district court’s finding that he did not provide evidence of exhausting his administrative remedies. Therefore, this issue is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). Even if Alonge had not abandoned this issue, he did not al- lege any facts before the district court showing that he had ex- hausted his administrative remedies before filing for compassion- ate release. USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 6 of 8
6 Opinion of the Court 21-13566
Second, Alonge’s proposed extraordinary and compelling reason did not meet the definition of such as defined in U.S.S.G. § 1B1.13. In Bryant, we held that the § 1B1.13 policy statement ap- plied to prisoners requesting compassionate release, and district courts lacked discretion to develop extraordinary and compelling reasons outside of what was in the policy statement. Bryant, 996 F.3d at 1262, 1263. Therefore, his argument that his sentencing disparity qualified as an extraordinary and compelling reason war- ranting release fails because it does not fit within the policy state- ment. See U.S.S.G. § 1B1.13 cmt. n.1. As this was a necessary con- dition for the district court to grant compassionate release, the lack of this condition means that compassionate release cannot be granted. See United States v. Tinker, 14 F.4th 1234, 1237–38 (11th Cir. 2021). Third, the district court did not abuse its discretion when it found that the § 3553(a) factors did not merit release. Although the district court did not discuss each factor explicitly, it did not need to, and it considered the seriousness of the offense in its order. Kuhlman, 711 F.3d at 1326. The district court had the discretion to give great weight to that factor over any other potential factor too. Croteau, 819 F.3d at 1309. Therefore, it did not abuse its discretion when it found that the factors did not weigh in Alonge’s favor. Accordingly, because the government’s position is “clearly right as a matter of law” we grant its motion for summary affir- mance and deny as moot Alonge’s motion to hold this appeal in USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 7 of 8
21-13566 Opinion of the Court 7
abeyance and the government’s motion to stay the briefing sched- ule. See Groendyke Transp., Inc., 406 F.2d at 1162. II. In his motions for leave to file an out of time response to the government’s motion for summary affirmance, Alonge argues that he should be allowed to file a response out of time due to limited access to the law library because of the pandemic and that the gov- ernment’s motion for summary affirmance was flawed. A response to a motion must be filed within 10 days after service of the motion unless we shorten or extends the time. Fed. R. App. P. 27(a)(3)(A). However, we may permit an act to be done after the requisite time expires for good cause. Id. 26(b). Here, we deny Alonge’s motions as moot. Although a pro se litigant should ordinarily be given a fair opportunity to present his arguments on appeal, Alonge raises arguments in his proposed supplemental brief that would not change the outcome of the case, especially as he does not address the independent grounds the dis- trict court had for denying his motion for compassionate release. Thus, we deny his motions as moot. III. In sum, we GRANT the government’s motion for summary affirmance and DENY as moot its motion to stay the briefing sched- ule as well as DENY as moot Alonge’s motions to file an out of time response and to supplement the out of time response motion. USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 8 of 8
8 Opinion of the Court 21-13566
AFFIRMED.