United States v. Jerome Edward Morgan

USCA11 Case: 20-14089 Date Filed: 08/31/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-14089
Non-Argument Calendar
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D.C. Docket No. 3:08-cr-00102-MCR-CJK-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEROME EDWARD MORGAN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 31, 2021)
Before LUCK, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
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Jerome Morgan, proceeding pro se, appeals the district court’s denial of his
motion for reconsideration of its denial of his motion for a sentence reduction
under the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194,
5222 (2018) (First Step Act). He asserts the district court abused its discretion in
denying his motion for reconsideration because (1) he exhausted his administrative
remedies; (2) COVID-19’s effect on his medical conditions, combined with his
excessive sentence, constitutes an extraordinary and compelling reason justifying
his relief; and (3) the court failed to consider the 18 U.S.C. § 3553(a) factors.
After review, we affirm the district court.
The First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow the court to
reduce a defendant’s term of imprisonment “upon motion of the defendant, after
the defendant has fully exhausted all administrative rights to appeal a failure of the
Bureau of Prisons [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.” See First Step Act § 603; 18 U.S.C.
§ 3582(c)(1)(A); see also United States v. Harris, 989 F.3d 908, 911 (11th Cir.
2021) (clarifying that exhaustion is a non-jurisdictional claims-processing rule).
The district court must find that extraordinary and compelling reasons warrant such
a reduction, consider the § 3553(a) factors to the extent they are applicable, and
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find a reduction is consistent with applicable policy statements issued by the
Sentencing Commission. First Step Act § 603; 18 U.S.C. § 3582(c)(1)(A).
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G.
§ 1B1.13. See 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. See id. § 1B1.13 comment. (n.1). The policy
statements list four circumstances which may constitute extraordinary and
compelling reasons: (1) a prisoner’s medical condition, if he has a terminal disease
or is suffering from a physical or mental condition that diminishes his ability to
provide self-care in prison; (2) a prisoner’s age, if he is at least 65 years old, is
experiencing a significant decline in health because of his age, and has served at
least 10 years or 75 percent of his term; (3) if a prisoner becomes the only potential
caregiver for a minor child or spouse; and (4) if, as 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 other three reasons. See id. We held
that § 1B1.13 is the applicable policy statement that must be considered when a
defendant moves for compassionate release. United States v. Bryant, 996 F.3d
1243, 1262 (11th Cir. 2021). Thus, district courts may not reduce a sentence under
Section 3582(c)(1)(A) unless a reduction would be consistent with § 1B1.13. Id.
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As for § 1B1.13’s catch-all provision, we determined that we cannot replace the
phrase “[a]s determined by the Director of the [BOP]” with “as determined by a
district court,” and accordingly, courts may not develop other reasons that might
justify a reduction in a defendant’s sentence. Id. at 1248, 1263.
The district court did not abuse its discretion by denying Morgan’s motion
for reconsideration. See United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir.
2018) (reviewing the denial of a motion for reconsideration for an abuse of
discretion). As an initial matter, at the time Morgan filed his motion for a reduced
sentence on April 28, 2020, he had not yet exhausted his administrative remedies
as he did not file his request with the warden of his facility until June 24, 2020.
See 18 U.S.C. § 3582(c)(1)(A). Second, Morgan’s motion did not allege an
extraordinary and compelling reason for a reduction under § 1B1.13 comment.
(n.1(A)-(C)), and his “stacking” argument could not have been brought under
§ 1B1.13 comment. (n.1(D)) because motions under that provision must be
initiated by the BOP. See Bryant, 996 F.3d at 1262-63.
Morgan argues for the first time on appeal that his prison’s response to
COVID-19 could worsen his medical conditions, but he cannot show the district
court plainly erred by not considering this fact because he did not make the district
court aware of this fact. See United States v. Longoria, 874 F.3d 1278, 1281 (11th
Cir. 2017) (stating issues not raised before the district court are reviewed for plain
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error). Further, it is irrelevant that the district court did not consider Congress’s
general policy in enacting the First Step Act and Fair Sentencing Act because the
court was only required to consider the Sentencing Commission’s policy
statements, which it did. See 18 U.S.C. § 3582(c)(1)(A). Lastly, even assuming
the district court should have considered the § 3553(a) factors before denying
Morgan’s motion, any error would be harmless because Morgan did not exhaust
his administrative remedies at the time of his motion or allege an extraordinary and
compelling reason for the reduction. See United States v. Mathenia, 409 F.3d
1289, 1292 (11th Cir. 2005) (explaining an error is harmless if, viewing the
proceedings in their entirely, a court determines the error did not affect the
outcome, or had but very slight effect). Accordingly, the district court did not
abuse its discretion in denying Morgan’s motion for reconsideration, and we
affirm.
AFFIRMED.
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