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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13490
Non-Argument Calendar
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D.C. Docket No. 1:17-tp-20082-RLR-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
VINCENT FLEITAS,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 14, 2021)
Before LAGOA, BRASHER and TJOFLAT, Circuit Judges.
PER CURIAM:
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Vincent Fleitas, a pro se federal prisoner, appeals the District Court’s denial
of his motion for a reduced sentence under
18 U.S.C. § 3582(c)(1)(A), as amended
by § 603(b) of the First Step Act of 2018.1 Because we find the District Court did
not abuse its discretion in denying the motion, we affirm.
I.
On July 9, 2003, Fleitas pled guilty to robbing two banks in New Orleans,
Louisiana. The United States District Court for the Eastern District of Louisiana
sentenced Fleitas to 140-months imprisonment followed by a three-year term of
supervised release.
Fleitas was extradited to Florida custody in 2013 and was released to
supervised release on June 4, 2017. Within days, Fleitas began robbing banks
again. On June 12, he passed a note to a bank teller in Fort Lauderdale that read “I
GOT A GUN GIVE ME ALL 100 – 50 AND 20’S NO DIE PACK OR
TRACERS! OR I WILL KILL SOMEBODY — HURRY.” The teller gave
Fleitas $1,010 from her bank drawer. Two days later, Fleitas handed a similar note
to a bank teller in West Palm Beach: “I got a gun, don’t make me use it! Give me
all 100’s and 50’s. No die pack or tracers or I kill somebody!” The teller gave
Fleitas $10,150. Police arrested Fleitas at a nearby CVS store later that day.
1
Pub. L. No. 115-391,
132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”).
2
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On June 29, 2017, a Southern District of Florida grand jury charged Fleitas
with two counts of bank robbery in violation of
18 U.S.C. § 2113(a). 2 Fleitas pled
guilty to one count of bank robbery and the government agreed to seek dismissal of
the second count.
Meanwhile, jurisdiction over Fleitas’s supervised release for the New
Orleans robberies was transferred from the Eastern District of Louisiana to the
Southern District of Florida. The District Court granted the government’s motion
to dismiss the second robbery count and sentenced Fleitas to 151-months
imprisonment on the remaining robbery count and 24-months imprisonment for
violating his supervised release, to run consecutively. Fleitas’s significant criminal
history made him a career offender under the guidelines,3 and the 151-month
sentence was at the bottom of the guidelines range.
2
Section 2113(a) provides:
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from
the person or presence of another, or obtains or attempts to obtain by extortion any
property or money or any other thing of value belonging to, or in the care, custody,
control, management, or possession of, any bank, credit union, or any savings and
loan association; or Whoever enters or attempts to enter any bank, credit union, or
any savings and loan association, or any building used in whole or in part as
a bank, credit union, or as a savings and loan association, with intent to commit in
such bank, credit union, or in such savings and loan association, or building, or part
thereof, so used, any felony affecting such bank, credit union, or such savings and
loan association and in violation of any statute of the United States, or any
larceny—
Shall be fined under this title or imprisoned not more than twenty years, or both.
3
See U.S.S.G. § 4B1.1. In addition to the two New Orleans robberies, the presentence
investigation report showed Fleitas’s criminal history included (1) a 1990 conviction for second-
3
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On August 24, 2020, Fleitas moved the court to reduce his sentence to time
served under § 3582(c)(1)(A). He claimed he had requested compassionate relief
from the warden of the prison where he was confined and hadn’t received a
response within 30 days. Accordingly, he was now requesting relief from the
Court on the basis of “the heightened risk of death or other poor outcome” that
COVID-19 posed because of his age, which was 66, and his medical conditions,
which included high blood pressure, high cholesterol, and hepatitis C. Finding that
Fleitas might pose a danger to others if he were released and that his release would
be inconsistent with the sentencing factors in
18 U.S.C. § 3553(a), the District
Court denied his motion.
On appeal, Fleitas now argues the District Court abused its discretion in
denying his motion. We hold the District Court did not abuse its discretion and
accordingly affirm the denial of Fleitas’s § 3582(c)(1)(A) motion.
II.
We 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) (citation omitted). “A district court abuses its discretion if it applies an
incorrect legal standard, follows improper procedures in making the determination,
degree murder, (2) a 1995 conviction for first-degree battery, (3) a 2000 theft conviction, and (4)
a 2004 bank robbery conviction and a nolle prossed grand-theft charge.
4
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or makes findings of fact that are clearly erroneous.” United States v. Khan,
794
F.3d 1288, 1293 (11th Cir. 2015) (citation and quotation marks omitted). “[W]hen
the Congress expressly requires consideration of § 3553(a) factors, a district court
abuses its discretion if it fails to consider them.” United States v. Cook,
998 F.3d
1180, 2 (11th Cir. 2021). The abuse of discretion standard recognizes that the
district court has a range of choice, and we cannot reverse just because we might
have come to a different conclusion had it been our call to make. United States v.
Frazier,
387 F.3d 1244, 1259 (11th Cir. 2004) (citation omitted).
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent permitted under § 3582(c)’s provisions. United States
v. Jones,
962 F.3d 1290, 1297 (11th Cir. 2020). Prior to the enactment of the First
Step Act in December 2018, § 3582(c)(1)(A) allowed a district court to reduce a
prisoner’s term of imprisonment only upon motion of the Bureau of Prisons
(“BOP”) Director.
18 U.S.C. § 3582(c)(1)(A) (effective Nov. 2, 2002, to Dec.
20, 2018). As amended by § 603(b) of the First Step Act, that section now
provides, in relevant part, that:
[T]he court, upon motion of the Director of the [BOP], or upon motion
of the defendant after the defendant has fully exhausted all
administrative rights to appeal a failure of the [BOP] 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 section 3553(a) to the extent that they are applicable,
if it finds that . . . extraordinary and compelling reasons warrant such a
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reduction . . . and that such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
§ 3582(c)(1)(A).
In sum, § 3582(c)(1)(A) now allows a district court to reduce a defendant’s
sentence on the defendant’s own motion if (1) he has taken the required
administrative steps,4 (2) the court considers the applicable § 3553(a) factors, (3)
the court finds “extraordinary and compelling reasons,” and (4) the court finds that
reduction is consistent with applicable policy statements.
What constitutes “extraordinary and compelling reasons” isn’t to be found in
§ 3582, but instead in the Sentencing Commission’s policy statement. The policy
statement applicable here is U.S.S.G. § 1B1.13, United States v. Bryant,
996 F.3d
1243, 1262 (11th Cir. 2021), which lists the following reasons, among a few others
not relevant here, as extraordinary and compelling: 5 (1) the defendant is terminally
ill; (2) the defendant is otherwise suffering from “a serious physical or medical
condition,” “a serious functional or cognitive impairment,” or is “experiencing
4
Whether Fleitas satisfied this requirement is disputed. But we don’t decide the issue
because we conclude the District Court was within its discretion to deny his motion in any case.
5
We noted in Bryant that § 1B1.13 contains language in tension with the First Step
Act—namely, though the Act now allows defendants to move on their own for a sentence
reduction, § 1B1.13 “still opens with the prefatory clause ‘[u]pon motion of the Director of the
Bureau of Prisons under
18 U.S.C. § 3582(c)(1)(A)’ and later states that ‘[a] reduction under this
policy statement may be granted only upon motion by the Director of the Bureau of Prisons
pursuant to
18 U.S.C. § 3582(c)(1)(A).’” 996 F.3d at 1252 (quoting § 1B1.13 & cmt. n.4)
(alterations in original). Notwithstanding this tension, we rejected the argument that § 1B1.13 is
inapplicable to post-FSA § 3582(c)(1)(A) motions. Id. at 1262.
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deteriorating physical or mental health because of the aging process”—to the
extent his condition is intractable and “substantially diminishes [his ability] . . . to
provide self-care within the environment of a correctional facility”; (3) “[t]he
defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in
physical or mental health because of the aging process; and (iii) has served at least
10 years or 75 percent of his or her term of imprisonment, whichever is less.”
§ 1B1.13, cmt. n.1 (A)–(B).
The policy statement also requires something beyond what § 3582(c)(1)(A)
requires: Before a court can reduce a defendant’s sentence, it must determine “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).”6 § 1B1.13(2).
6
Section 3142(g) provides:
The judicial officer shall, in determining whether there are conditions of release
that will reasonably assure the appearance of the person as required and the safety
of any other person and the community, take into account the available information
concerning—
(1) the nature and circumstances of the offense charged, including whether
the offense is a crime of violence, a violation of section 1591, a Federal crime of
terrorism, or involves a minor victim or a controlled substance, firearm, explosive,
or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person’s character, physical and mental condition, family ties, employment,
financial resources, length of residence in the community, community ties, past
conduct, history relating to drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
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III.
In denying Fleitas’s § 3582(c)(1)(A) motion, the District Court didn’t decide
whether Fleitas’s age (66) together with his medical conditions (high blood
pressure, high cholesterol, and hepatitis C) and the COVID-19 pandemic
constituted extraordinary and compelling reasons for his release. Instead, the
Court denied the motion because it was “unable to conclude that [Fleitas’s] release
would be consistent with the sentencing factors in
18 U.S.C. § 3553(a), and . . .
that [Fleitas] is not a danger to the safety of any other person or to the community.”
The Court noted that (1) Fleitas had at that time served under half of his 175-month
sentence for the bank robbery conviction and violation of supervised release, (2)
that he committed the Florida robbery while on supervised release for the New
Orleans robberies, (3) that he told the bank teller during the Florida robbery that he
had a gun and would kill someone, (4) that he qualified as a career offender under
the guidelines, (5) that the 151-month sentence he received for the Florida robbery
(B) 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 under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that
would be posed by the person’s release. In considering the conditions of release
described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial
officer may upon his own motion, or shall upon the motion of the Government,
conduct an inquiry into the source of the property to be designated for potential
forfeiture or offered as collateral to secure a bond, and shall decline to accept the
designation, or the use as collateral, of property that, because of its source, will not
reasonably assure the appearance of the person as required.
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was at the bottom of the guidelines range, and (6) that his criminal history included
“multiple other violent felonies.”
We cannot conclude that the District Court abused its discretion in denying
Fleitas’s motion. The order reflects that the Court considered the applicable §
3553(a) factors as it was required to do—particularly the “nature and
circumstances of the offense and the history and characteristics of the defendant”
and the applicable sentencing range under the guidelines. § 3553(a)(1), (a)(4); see
United States v. Dorman,
488 F.3d 936, 944–45 (11th Cir. 2007) (affirming
defendant’s sentence because even though the district court did not discuss each of
the sentencing factors, the record showed that it considered several of them). The
Court also considered the right factors in determining that Fleitas might pose a
danger to others were he to be released—i.e., the nature and circumstances of the
charged bank robbery, Fleitas’s criminal history, and the fact that he was on
supervised release when he committed the robbery. See § 3142(g). Fleitas’s brief
doesn’t demonstrate that the Court otherwise applied the wrong legal standard or
made any clearly erroneous fact findings. The denial of Fleitas’s § 3582(c)(1)(A)
motion is therefore
AFFIRMED.
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