United States v. Kadeem Willingham

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13727
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60079-JIC-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KADEEM WILLINGHAM,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 10, 2021)
Before JORDAN, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Kadeem Willingham, a federal prisoner, appeals the district court’s denial of
his motion for reconsideration of his compassionate release motion under 18 U.S.C.
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§ 3582(c)(1)(A). Willingham argues that he has presented extraordinary and
compelling reasons to justify a sentence reduction and that the district court erred in
holding that it did not have jurisdiction over his motion. Because he has not
presented extraordinary and compelling reasons, we affirm.
I.
Willingham pleaded guilty to two counts of brandishing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 942(c)(1)(A)(ii), and
the district court sentenced him to 32 years in prison. Willingham eventually filed a
pro se motion for compassionate release, seeking a reduction in sentence. He argued
in part that non-retroactive sentencing changes in the First Step Act created
“extraordinary and compelling reasons” for relief under 18 U.S.C. § 3582(c)(1)(A).
The district court denied that motion. It reasoned that Congress directed the
Sentencing Commission to determine “what should be considered extraordinary and
compelling reasons for a sentencing reduction,” 28 U.S.C. § 994(t), and that it
instructed the Commission to do so in an “applicable policy statement,” 18 U.S.C. §
3582(c)(1)(A). That policy statement is found at U.S.S.G. § 1B1.13. United States
v. Bryant, 996 F.3d 1243, 1252 (11th Cir. 2021).
Note 1 of that policy statement states that extraordinary and compelling
reasons include medical condition, age, or family circumstances of the defendant.
Under Subsection 1(D), a reduction might also be based on “other reasons”
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determined by the Director of the Bureau of Prisons. Because post-sentencing
developments in law are not an extraordinary and compelling reason under Section
1B1.13 or under the BOP’s program statement, the district court concluded that a
reduction would be “inconsistent with the Sentencing Commission’s policy
statements,” and it thus lacked jurisdiction to grant the motion. Willingham then
filed a counseled motion for reconsideration, which the district court denied.
Willingham now appeals.
II.
We review a district court’s denial of a motion for reconsideration for abuse
of discretion. United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). But
we “review de novo both determinations about a defendant’s eligibility for a Section
3582(c) sentence reduction and questions of statutory interpretation.” Bryant, 996
F.3d at 1251. If an asserted error is non-constitutional, then we also review it for
harmlessness. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009). That
means that the defendant cannot prevail if “viewing the proceedings in their entirety,
a court determines that the error did not affect the sentence, or had but very slight
effect.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (cleaned
up). In other words, “if one can say with fair assurance that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.” Id. (cleaned up).
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III.
Willingham makes three arguments on appeal. First, he argues that the district
court erroneously concluded that it lacked jurisdiction to reduce his sentence.
Second, he argues that Section 1B1.13 did not limit the district court’s authority to
reduce his sentence. Third, he argues that the combination of factors he argued
before the district court amounted to extraordinary and compelling reasons to reduce
his sentence. We review each of these arguments in turn.
First, Willingham argues that the district court erred in concluding that it
lacked “jurisdiction” to reduce his sentence under Section 3582(c)(1)(A). He asserts
that any limitations in that statute are instead non-jurisdictional in nature. It is true
that the text of Section 3582(c)(1)(A) does not contain any jurisdictional restrictions
and that the district court did have jurisdiction over Willingham’s Section
3582(c)(1)(A) motion. But the district court’s references elsewhere to “authority”
show that its denial was based on its lack of statutory authority to reduce
Willingham’s sentence, not a lack of jurisdiction. So although the court’s reference
to “jurisdiction” was inaccurate, that error was harmless because the district court
did lack statutory authority to reduce Willingham’s sentence.
Second, Willingham disagrees with the conclusion that the district court
lacked statutory authority under Section 3582(c)(1)(A) to reduce his sentence. He
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argues that Section 1B1.13 is not controlling in his case. This Court’s decision in
Bryant forecloses that argument. Bryant, 996 F.3d at 1252. There, we held that “the
commonsense reading of ‘applicable policy statements’ includes U.S.S.G. § 1B1.13,
no matter who files the motion.” Id. We also concluded that “Application Note 1(D)
is not at odds with the amended Section 3582(c)(1)(A).” Id. at 1263. We are bound
by that precedent. See United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th
Cir. 2012).
Willingham’s counseled reply brief also attacks the validity of Section 1B1.13
on various other grounds. But none of those arguments were raised in Willingham’s
initial brief, and, except in limited circumstances that do not apply here, see United
States v. Durham, 795 F.3d 1329, 1331 (11th Cir. 2015), we have “repeatedly . . .
refused to consider issues raised for the first time in an appellant’s reply brief,”
United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004). We therefore refuse to
consider the arguments raised in Willingham’s reply brief.
Third, Willingham asserts in his reply brief that the combination of factors he
argued before the district court, which are based on his view of the initial sentencing
factors under 28 U.S.C.§ 3553(a), rise to the level of extraordinary and compelling
reasons for compassionate release under Section 1B1.13. The district court correctly
held that such routine sentencing arguments, unrelated to medical conditions, family
circumstances, or advanced age, do not satisfy the policy statement’s eligibility
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criteria. Moreover, this argument was not raised in Willingham’s counseled initial
brief. See Levy, 379 F.3d at 1244.
The district court correctly concluded that Willingham had not presented an
extraordinary and compelling reason and that it thus lacked authority to grant him
relief under 18 U.S.C. § 3582(c)(1)(A).
AFFIRMED.
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