United States v. Wayne Burcks

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 31, 2022
• Docket: 20-14865
• Status: Unpublished

Opinion

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 1 of 14

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-14865 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WAYNE BURCKS, a.k.a. Wayne Burkes,

Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15-cr-60330-WPD-1 ____________________ USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 2 of 14

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Before ROSENBAUM, ANDERSON, and JULIE CARNES, Circuit Judges. PER CURIAM: Defendant Wayne Burcks, an inmate at FCI Jesup who is serving a 180-month sentence arising from his Hobbs Act robbery conviction in 2016, appeals the district court’s denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We find no error in the district court’s order denying Defendant’s motion, and thus affirm. BACKGROUND Defendant was indicted in 2015 for committing a robbery by means of actual and threatened force (Hobbs Act robbery), in vio- lation of 18 U.S.C. § 1951(a). He pled guilty pursuant to a plea agreement and was convicted of the Hobbs Act robbery charge in 2016. Based on the factual proffer supporting Defendant’s guilty plea, the robbery occurred on May 31, 2015. On that date, four individuals wearing masks and gloves entered a Mayors jewelry story in the Fort Lauderdale Galleria Mall and began smashing the display counters with large hammers and removing high-end watches. Two customers and three employees who were in the store at the time ran in fear to take shelter in offices and underneath furniture. The four masked individuals eventually left the store with 48 watches, including 25 Rolexes and 5 Tag Heuers, whose total USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 3 of 14

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retail value exceeded $250,000. They exited the mall and entered a Hyundai Elantra that was waiting by the exit doors in the mall parking garage with its passenger doors open. A witness followed the Hyundai from the parking garage, maintaining sight of the ve- hicle until police arrived. Shortly thereafter, five individuals were seen exiting the Hyundai and entering an Infiniti QX56 parked just off the highway. As they changed cars, the group dropped a bag containing several watches, gloves, a ski cap, and a hammer, all of which were collected as evidence. A high-speed chase ensued, during which multiple police and civilian vehicles were damaged. The Infiniti eventually crashed into a fence, at which time all the vehicle’s occupants fled on foot. Two of the occupants, Malcolm Williams and Zavier McGee, were apprehended, and several pieces of clothing were ob- tained from inside the Infiniti and along the flight paths of the flee- ing individuals. Williams and McGee identified Defendant as being involved in the planning of the Mayors robbery and as the getaway driver of the Hyundai and the Infiniti. DNA testing on the items recovered from the Infiniti indicated that Defendant was the major contributor of DNA located on a bandana recovered from the driver’s seat as well as DNA found on gloves recovered near the scene where the Infiniti crashed. A PSR was prepared following Defendant’s guilty plea. The PSR assigned Defendant a base offense level of 20, and applied a four-level enhancement under USSG § 2B3.1(b)(2)(D) because a dangerous weapon was used to commit the robbery and a two- USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 4 of 14

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level enhancement under § 2B3.1(b)(7)(C) because the loss ex- ceeded $95,000. In addition, Defendant was determined to be a career offender pursuant to USSG § 4B1.1(a) based on his prior con- victions for Hobbs Act conspiracy, assaulting a federal corrections officer, and burglary of an occupied dwelling. The career offender designation increased Defendant’s offense level to 32. After apply- ing a three-level reduction for acceptance of responsibility, Defend- ant’s total offense level was calculated to be 29, which with Defend- ant’s criminal history category of VI yielded a recommended guide- lines range of 151 to 188 months in prison. Defendant objected to his classification as a career offender, arguing that neither Hobbs Act conspiracy nor assault on a federal corrections officer was a crime of violence. The district court sus- tained the objection. The court also sustained Defendant’s objec- tion to the dangerous weapon enhancement applied in the PSR. Without the career offender and dangerous weapon enhance- ments, the court determined that Defendant’s offense level was 22 and his criminal history category VI, resulting in a recommended Guidelines range of 84 to 105 months. Nevertheless, the court granted the Government’s request for an upward variance and imposed a sentence of 180 months based on Defendant’s extensive criminal history. In support of the upward variance, the court noted that Defendant had 23 prior fel- ony convictions for crimes similar to the Hobbs Act robbery that led to his conviction in this case, including prior “smash and grab” crimes that ended in high-speed chases, and that Defendant had USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 5 of 14

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spent most of his adult life in a near constant cycle of crime sprees interrupted only by prison sentences. For example, the court noted that Defendant had been sentenced to 114 months on a Hobbs Act robbery charge in 2005, during which sentence Defendant had as- saulted a federal corrections officer, and that just four months after his release from that sentence in 2014, Defendant was arrested for stealing over $500 from a local Wal-Mart. Given Defendant’s his- tory, and applying the § 3553(a) factors, the court concluded that an upward variance to 180 months was required to act as a deter- rent and to promote respect for the law. This Court affirmed De- fendant’s sentence on appeal, holding that the district court had committed no procedural error and that the sentence was substan- tively reasonable and below the statutory maximum of 20 years for Defendant’s offense in this case. Defendant filed a timely motion under 28 U.S.C. § 2255 to vacate his sentence, arguing that his guilty plea was based on the promise of a shorter sentence, that the Government had breached the plea agreement, and that defense counsel was ineffective for failing to raise the issue. The district court denied Defendant’s § 2255 motion, concluding that Defendant’s plea was voluntary and that he had not been promised a lower sentence than he re- ceived. The district court, and subsequently this Court, declined to issue a certificate of appealability (“COA”). Thereafter, Defend- ant filed a Rule 60(b)(6) motion, again challenging the legality of the upward variance and asserting other procedural errors in his conviction and sentence. The district court dismissed that motion, USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 6 of 14

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concluding that it was in substance an unauthorized successive mo- tion to vacate Defendant’s sentence, for which Defendant must ob- tain permission from this Court to file. Defendant has filed various other motions during his imprisonment, all of which likewise have been denied. In December 2020, Defendant filed a pro se motion for com- passionate release from prison pursuant to 18 U.S.C. § 3582(c)(1)(A), which authorizes a district court to reduce a de- fendant’s sentence if the reduction is warranted by “extraordinary and compelling reasons” and if the defendant’s release is consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a) and the applicable Guidelines policy statements. See 18 U.S.C. § 3582(c)(1)(A)(i). 1 In support of his motion, Defendant stated that he is on medication for high cholesterol and an enlarged prostate, that he has a history of asthma and bronchitis, and that he tested positive for COVID-19 in July 2020, with lingering symptoms such as chest pains, shortness of breath, and high blood pressure. De- fendant advised the district court that there was another outbreak of COVID at FCI Jesup in November 2020, and that he did not be- lieve he would survive a second wave of the disease. As a separate issue, Defendant noted in his motion that he had been convicted of Hobbs Act robbery, which since the time he was sentenced had

1 A sentence reduction is also permitted by § 3582(c) under certain circum- stances if the defendant is 70 years old or older and has served at least 30 years in prison, but those conditions are not met in this case. See 18 U.S.C. § 3582(c)(1)(A)(ii). USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 7 of 14

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been determined by the Eleventh Circuit not to be a crime of vio- lence. In support of his motion, Defendant enclosed letters of com- munity support, a positive COVID test from July 2020, and various medical records. The records documented one incident of bron- chitis in August 2020, an enlarged prostate, and prescriptions for a cholesterol medication, aspirin, and prednisone. The district court denied Defendant’s § 3582(c) motion. The court noted that, at the time of his motion, Defendant was 44 years old and he had only served about one-third of his 180-month sen- tence. The court determined that Defendant had not shown that any of his health complaints constituted “extraordinary and com- pelling” reasons for relief. In addition, the court concluded that the COVID-19 conditions at FCI Jesup did not warrant relief as a gen- eral matter or even when considering the specific facts proffered by Defendant. The court determined in the alternative that the § 3553(a) factors did not support Defendant’s release, because a re- duced sentence in Defendant’s case “would not promote respect for the law or act as a deterrent” given Defendant’s extensive crim- inal history. The court declined to consider Defendant’s sentenc- ing argument based on the status of Hobbs Act robbery as a crime of violence, stating that such extraneous issues are not relevant to a ruling on compassionate release under § 3582(c). Defendant subsequently sent a letter in which he advised the district court that FCI Jesup was on lockdown after 80 out of 116 inmates in his dormitory tested positive for COVID-19, including Defendant’s roommate. Defendant acknowledged that he had USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 8 of 14

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tested negative, but he argued that the conditions at FCI Jesup were not stable. Defendant now appeals the district court’s denial of his mo- tion for compassionate release, arguing that the court erred by fail- ing to recognize that his health conditions—asthma, bronchitis, hy- pertension, and lingering symptoms from a previous bout of COVID-19—put him at higher risk for COVID complications and thus justify his release under § 3582(c), reiterating that FCI Jesup was (at the time Defendant filed his appellate brief in early 2021) experiencing its third outbreak of COVID, and repeating his argu- ment that an intervening change in the law regarding the status of Hobbs Act robbery as a crime of violence warranted his release. Defendant does not expressly address in his brief the district court’s alternative ground for denying his motion for compassionate re- lease based on its consideration of the relevant § 3553(a) factors, beyond his proffer of argument and letters of community support suggesting that Defendant has been rehabilitated and is “willing[] to change.” As discussed below, we find no error in the district court’s order denying Defendant’s motion for compassionate re- lease, and thus affirm. DISCUSSION We review de novo whether a defendant is eligible for a sen- tence reduction under § 3582(c). United States v. Giron, 15 F.4th 1343, 1345 (11th Cir. 2021). Once eligibility is established, we re- view the denial of a defendant’s § 3582(c) motion under the abuse of discretion standard. See id. “A district court abuses its discretion USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 9 of 14

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if it applies an incorrect legal standard, follows improper proce- dures in making the determination, or makes findings of fact that are clearly erroneous.” United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019) (quotation marks omitted)). The abuse of discretion standard allows the district court a “range of choice” that we will not reverse “just because we might have come to a different conclusion had it been our call to make.” See id. at 912 (quotation marks omitted). As amended by the First Step Act, § 3582(c) authorizes the district court to reduce a defendant’s sentence if the court finds that: (1) “extraordinary and compelling reasons warrant such a re- duction” and (2) the reduction is consistent with the sentencing fac- tors of § 3553(a) and the “applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The appli- cable policy statement, found in USSG § 1B1.13, echoes the statu- tory requirements, stating that a district court may reduce a de- fendant’s sentence “if, after considering the factors set forth in . . . § 3553(a),” the court determines that: (1) “[e]xtraordinary and com- pelling reasons warrant the reduction” and (2) “[t]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).” U.S.S.G. § 1B1.13. See also United States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021) (hold- ing that “1B1.13 is an applicable policy statement for all [§ 3582(c)(1)(A)] motions” and that district courts do not have dis- cretion “to develop other reasons that might justify a reduction in USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 10 of 14

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a defendant’s sentence” (quotation marks omitted)); United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021) (listing three neces- sary conditions for a sentence reduction under § 3582(c): support in the § 35553(a) factors, extraordinary and compelling reasons, and adherence to U.S.S.G. § 1B1.13’s policy statement). The district court denied Defendant’s § 3582(c) motion for two reasons. First, the court found that Defendant had failed to show extraordinary and compelling reasons for his release. Alter- natively, the court determined that the § 3553(a) sentencing factors militated against Defendant’s release. Either ground is adequate to support the district court’s decision to deny Defendant’s § 3582(c) motion. As to the first ground, we agree with the district court that Defendant did not provide adequate support for his claim that he has medical conditions that satisfy the extraordinary and compel- ling reason standard and thus justify his release from prison. The relevant policy statement provides that a defendant’s medical con- dition is an extraordinary and compelling reason for a sentence re- duction if the defendant: (1) has a terminal illness such as cancer, ALS, or end-stage organ disease or (2) suffers from a serious physi- cal or mental condition that “substantially diminishes” his ability “to provide self-care” in prison and from which he is not expected to recover. U.S.S.G. § 1B1.13 cmt. n.1(A). Defendant has made no showing of either. In addition, Defendant fails to explain how any of his claimed conditions increase his risk of severe disease from COVID- USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 11 of 14

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19 or otherwise constitute an extraordinary and compelling reason for his release from prison. At 44, Defendant is below the age iden- tified by the CDC to trigger an increased risk from COVID-19. De- fendant’s medical records indicate that he has contracted and re- covered from COVID-19, and that he is now vaccinated against the virus, having received his first dose of the Moderna vaccine on March 25, 2021 and his second dose on April 21, 2021. Accordingly, we discern no error in the district court’s conclusion that the COVID-19 pandemic does not, by itself, require Defendant’s re- lease pursuant to § 3582(c)(1). See Giron, 15 F.4th at 1346 (affirm- ing the district court’s holding that the defendant’s high choles- terol, high blood pressure, and coronary artery disease were not extraordinary and compelling reasons for early release where all those conditions were “manageable in prison, despite the existence of the COVID-19 pandemic”); Harris, 989 F.3d at 912 (upholding the district court’s denial of compassionate release to an inmate with hypertension, despite the possible increased risk from COVID-19). The Government concedes that, in certain circumstances, an inmate not expected to recover from a condition identified by the CDC as increasing the risk of severe disease from COVID-19 might satisfy the extraordinary and compelling- reason standard, even if the condition would not support compassionate release in ordinary times. And in a supplemental filing, the Government ad- vises the Court that it has revised its position to include in this cat- egory conditions that the CDC had previously indicated “might” USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 12 of 14

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entail a greater risk of severe illness from COVID—as opposed to those conditions identified by the CDC as definitively entailing such a risk—such as asthma and hypertension, but only if the in- mate has not been offered the COVID vaccine or has not already been infected with the virus. Although Defendant’s medical rec- ords arguably support his claim to have hypertension, the records also show that Defendant has not only had and recovered from COVID, but he is also fully vaccinated against the COVID-19 vi- rus. 2 Thus, notwithstanding the Government’s expanded position as to what condition can potentially give rise to an extraordinary and compelling reason for compassionate release during the COVID-19 pandemic, we find no error in—nor any reason to re- visit—the district court’s determination that Defendant’s medical conditions do not satisfy the standard. Defendant’s failure to demonstrate an extraordinary and compelling reason is alone enough to foreclose a sentence reduc- tion under § 3582(c). See Giron, 15 F.4th at 1347 (“When denying a request for compassionate release, a district court need not ana- lyze the § 3553(a) factors if it finds either that no extraordinary and

2 Defendant’s medical records do not support his claim to have asthma and they show only one documented incident of bronchitis. Other conditions claimed by Defendant, such as his enlarged prostate, are not included in the Government’s revised position as to the medical conditions that can constitute an extraordinary and compelling reason for early reason because of the COVID pandemic. Furthermore, Defendant’s records indicate that Defend- ant is being treated for all his documented conditions, including his enlarged prostate. USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 13 of 14

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compelling reason exists or that the defendant is a danger to the public.”). But the district court also held, in the alternative, that Defendant’s release was not consistent with the § 3553(a) factors because of Defendant’s extensive criminal history. See United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (noting that “discretion in weighing sentencing factors is particularly pro- nounced when it comes to weighing criminal history”). To that end, the district court noted that Defendant “is 44 years old and has served about one-third” of his 180-month sentence on a Hobbs Act robbery conviction that followed 23 prior felony convictions by Defendant. Under the circumstances, the court concluded, “a re- duced sentence would not promote respect for the law[] or act as a deterrent”—two § 3553(a) factors that weighed heavily in the court’s initial sentencing decision as to Defendant as well as in the court’s alternative ruling denying Defendant’s § 3582(c) motion. We find no abuse of discretion in the court’s application of the § 3553(a) factors as an alternative ground to deny Defendant’s mo- tion for compassionate release in this case. Finally, that Hobbs Act robbery is no longer designated a crime of violence does not warrant Defendant’s early release under § 3582(c). As discussed above, the district court agreed with De- fendant’s argument, raised at sentencing, that Hobbs Act robbery did not qualify as a crime of violence, and thus sustained Defend- ant’s objection to his career offender designation. Nevertheless, the court applied an upward variance and sentenced Defendant to 180 months because of his extensive criminal history. This Court USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 14 of 14

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upheld the sentence on appeal, and the district court and this Court have now several times rejected variations of Defendant’s argu- ment that he was improperly sentenced for the Hobbs Act robbery in this case. Reconsideration of the argument yet again on Defend- ant’s motion for compassionate release is not warranted. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (“This Circuit has been very clear in holding that a sentencing adjustment undertaken pursuant to [§ 3582(c)] does not constitute a de novo resentencing.”). In short, the district court did not abuse its discretion when it concluded that Defendant had failed to show an extraordinary and compelling reason to support his § 3582(c) motion for compas- sionate release. Likewise, the court acted within its discretion when it determined, in the alternative, that the § 3553(a) sentenc- ing factors do not support Defendant’s early release from prison. For both reasons, the district court’s order denying Defendant’s § 3582(c) motion is AFFIRMED.