United States v. Collier ( 2023 )

Case: 22-40573 Document: 00516613211 Page: 1 Date Filed: 01/17/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-40573 January 17, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Kerry Lynn Collier,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CR-42-4
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Kerry Lynn Collier, federal prisoner # 16347-078, was convicted of
one count of conspiracy to possess with intent to distribute 1,000 kilograms
or more of marijuana and was sentenced to 240 months of imprisonment, the
mandatory minimum sentence after application of an enhancement under 21
U.S.C. § 851. In this appeal, Collier challenges the denial of his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He contends that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40573
a change in the sentencing laws, both individually and in conjunction with
other factors, and a disparity between his and a codefendant’s sentence are
extraordinary and compelling circumstances warranting relief. Collier also
challenges the district court’s determination that relief was not warranted
after consideration of the sentencing factors of 18 U.S.C. § 3553(a).
The denial of a motion for compassionate release is reviewed for abuse
of discretion. United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
A district court abuses its discretion when its decision is based on a legal error
or a clearly erroneous assessment of the evidence. Id. at 693–94.
The parties agreed that, pursuant to the First Step Act of 2018, Pub.
L. No. 115-391, § 401, 132 Stat. 5194, 5220–21, if Collier were sentenced
today, he would no longer be subject to the Section 851 enhancement and
240-month mandatory minimum sentence. In denying relief, the district
court did not categorically refuse to consider this change in the sentencing
laws, and we find no abuse of discretion in the district court’s conclusion that
the change in the sentencing laws under the extant facts was not an
extraordinary and compelling circumstance warranting relief. Additionally,
Collier’s argument that the district court did not consider the change in the
sentencing laws in conjunction with other circumstances he raised has no
merit. Even if the district court did not expressly address Collier’s argument,
the issue was raised in Collier’s compassionate release motion, and the
district court stated that it considered the motion and a subsequent reply. See
Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022). Finally, we find
that Collier has not shown any abuse of discretion in the district court’s
conclusion that any sentencing disparity between Collier and a codefendant
was not an extraordinary or compelling circumstance.
Collier has also failed to show the district court abused its discretion
in determining the Section 3553(a) factors did not warrant compassionate
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No. 22-40573
release. See Chambliss, 948 F.3d at 693–94. In explaining its determination,
the district court relied on Collier’s troubled criminal history; the nature and
circumstances of his offense of conviction; and the need to protect the public,
afford adequate deterrence, provide just punishment, and promote respect
for the law. Collier’s challenge to the district court’s balancing of the Section
3553(a) factors is not a sufficient ground for reversal. See id. at 694. He
argues for the first time on appeal that changes in the sentencing laws are
relevant to the balancing of various Section 3553(a) factors that favor his early
release. That argument is raised too late. See United States v. Thompson, 984F.3d 431, 432 n.1 (5th Cir.), cert. denied, 141 S. Ct. 2688 (2021).
AFFIRMED.
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