United States v. Frank Pierre

USCA11 Case: 22-10747 Document: 28-1 Date Filed: 01/23/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10747
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK PIERRE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:09-cr-14007-KMM-7
____________________
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2 Opinion of the Court 22-10747
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Frank Pierre, a federal prisoner counseled on appeal, appeals
the denial of his motions for a sentence reduction under 18 U.S.C.
§ 3582(c)(2), pursuant to Amendment 782 to the Sentencing Guide-
lines, and for compassionate release under § 3582(c)(1)(A), as
amended by § 603(b) of the First Step Act. 1 He asserts the district
court should have given more consideration to his motions based
on his attempt to assist the State of Florida in a murder investiga-
tion, his health and medical issues, the 18 U.S.C. § 3553(a) factors,
the impact of COVID-19, the applicability of Amendment 782, and
his adjustment to prison life. After review, 2 we affirm.
1 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21,
2018) (First Step Act).
2 We review de novo the district court’s legal conclusions about the scope of
its authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson, 686 F.3d
1317, 1319 (11th Cir. 2012). If § 3582(c)(2) applies, we review the district
court’s decision to grant or deny a sentence reduction for abuse of discretion.
United States v. Caraballo-Martinez, 866 F.3d 1233, 1238 (11th Cir. 2017). We
also review a district court’s denial of a prisoner’s 18 U.S.C.
§ 3582(c)(1)(A) motion under an abuse of discretion standard. United States v.
Harris, 989 F.3d 908, 911 (11th Cir. 2021).
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22-10747 Opinion of the Court 3
I. DISCUSSION
A. 18 U.S.C. § 3582(c)(2) and Amendment 782
A district court may modify a defendant’s term of imprison-
ment if the defendant was sentenced based on a sentencing range
that has subsequently been lowered by the Sentencing Commis-
sion. 18 U.S.C. § 3582(c)(2). “This authority is limited to those
guideline amendments listed in U.S.S.G. § 1B1.10(c) that have the
effect of lowering the defendant’s applicable guideline range.”
United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009)
(quotation marks omitted). Further, any reduction in sentence
must be consistent with the Sentencing Commission’s policy state-
ments. 18 U.S.C. § 3582(c)(2).
Amendment 782 to the Sentencing Guidelines altered the
base offense levels applicable to certain drug offenses and is one of
the listed guideline amendments that provides eligibility for relief
under 18 U.S.C. § 3582(c)(2). See U.S.S.G. App. C, Amend.
782 (2014); U.S.S.G. § 1B1.10(d). Under the Amendment, if a court
attributes 150 to 450 kilograms of cocaine to a defendant, his base
offense level is 36. U.S.S.G. App. C, Amend. 782 (2014).
A district court must engage in a two-step analysis when
considering a motion for a sentence reduction under § 3582(c)(2).
United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the
court must determine the sentence it would have imposed, given
the defendant’s amended guideline range and holding all other
guideline findings made at the original sentencing constant. Id.USCA11 Case: 22-10747 Document: 28-1 Date Filed: 01/23/2023 Page: 4 of 9
4 Opinion of the Court 22-10747
Second, the court must determine, in its discretion, whether to re-
duce the defendant’s sentence and, if so, to what extent. Id. at 781.
In exercising that discretion, the court must consider the § 3553(a)
factors. 3 Id.; U.S.S.G. § 1B1.10, comment. (n.1(B)(i)). The court
also must consider the nature and seriousness of any danger a re-
duction poses to persons or to the community and may consider a
defendant’s post-sentencing conduct. Williams, 557 F.3d at 1256;
U.S.S.G. § 1B1.10, comment. (n.1(B)((ii)-(iii)).
Pierre has not established the district court abused its discre-
tion when it denied his motion for a reduced sentence under
§ 3582(c)(2). Although Pierre was eligible for a sentence reduction
under § 3582(c)(2), the district court found the § 3553(a) factors
weighed against reducing his sentence.
The district court explained that, because of Pierre’s “sub-
stantial and violent criminal history,” his leadership role in the co-
caine distribution organization, the seriousness of his crimes, and
his possession of a firearm in furtherance of his crimes, he was not
entitled to a reduced sentence under § 3582(c)(2). Additionally, it
3 The § 3553(a) factors include: (1) the offense’s nature and circumstances and
the defendant’s history and characteristics; the need to (2) reflect the offense’s
seriousness; (3) afford adequate deterrence; (4) protect the public; (5) provide
the defendant with educational or vocational training or medical care; to re-
flect (6) the kinds of sentences available; (7) the advisory guideline range;
(8) the pertinent U.S. Sentencing Commission policy statements; the need to
(9) avoid unwarranted sentencing disparities; and (10) provide victims with
restitution. 18 U.S.C. § 3553(a).
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22-10747 Opinion of the Court 5
found Pierre’s sentence was “necessary to reflect the seriousness of
the offense, to promote respect for the law, to provide just punish-
ment for the offense, . . . to provide adequate deterrence of criminal
conduct,” and to protect the public. Although Pierre was willing
to assist the State of Florida in an ongoing murder investigation,
that fact did not outweigh the § 3553(a) factors. The district court
had the discretion to determine how much weight to give each of
the § 3553(a) factors, and Pierre’s disagreement with the weight
given to each factor is insufficient to show the district court abused
its discretion when it weighed the factors. See United States v. Fra-
zier, 823 F.3d 1329, 1333 (11th Cir. 2016) (explaining “[t]he district
court has discretion to determine how much weight to grant to a
specific § 3553(a) factor”).
The record reflects the district court considered the perti-
nent § 3553(a) factors and does not indicate the district court ap-
plied an incorrect legal standard, followed improper procedures in
making its determination, or made clearly erroneous findings of
fact. See United States v. Jordan, 582 F.3d 1239, 1249 (11th Cir.
2009) (stating a district court abuses its discretion if it “applies an
incorrect legal standard, follows improper procedures in making
the determination, or makes findings of fact that are clearly erro-
neous” (quotation marks omitted)); United States v. Eggersdorf,
126 F.3d 1318, 1322 (11th Cir. 1997) (stating a district court does
not need to specifically articulate the applicability of each of the
§ 3553(a) factors, “as long as the record demonstrates that the per-
tinent factors were taken into account by the district court”).
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6 Opinion of the Court 22-10747
Because Pierre has failed to establish the district court abused its
discretion when it denied his motion for a reduced sentence under
§ 3582(c)(2), we affirm.
B. 18 U.S.C. § 3582(c)(1)(A)
In the context of compassionate release, the statute provides
that:
[T]he court, upon motion of the Director of the Bu-
reau of Prisons [(BOP)], or upon motion of the de-
fendant after the defendant has fully exhausted all ad-
ministrative 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 ear-
lier, 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
reduction . . . .
18 U.S.C. § 3582(c)(1)(A)(i). Section 1B1.13 of the Sentencing
Guidelines provides the applicable policy statement for
§ 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application notes to
U.S.S.G. § 1B1.13 list four categories of extraordinary and compel-
ling reasons: (A) the defendant’s medical condition, (B) his age,
(C) his family circumstances, and (D) other reasons. Id., comment.
n.1(A)–(D). Moreover, in addition to determining that extraordi-
nary and compelling reasons warrant a reduction, U.S.S.G.
§ 1B1.13 states the district court must also determine the defendant
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22-10747 Opinion of the Court 7
is not a danger to the safety of others or the community, as pro-
vided in 18 U.S.C. § 3142(g). Id. § 1B1.13(2).
To grant a reduction under § 3582(c)(1)(A), district courts
must find three necessary conditions are satisfied, which are: “sup-
port in the § 3553(a) factors, extraordinary and compelling reasons,
and adherence to § 1B1.13’s policy statement.” United States v.
Tinker, 14 F.4th 1234, 1237-38 (11th Cir. 2021). District courts do
not need to address these three conditions in any particular se-
quence, as the absence of even one forecloses a sentence reduction.
Id. at 1238.
Pierre has not sufficiently challenged each of the district
court’s independent grounds for denying his motion for compas-
sionate release. See United States v. Maher, 955 F.3d 880, 885 (11th
Cir. 2020) (“To obtain reversal of a district court judgment that is
based on multiple, independent grounds, [an appellant] must con-
vince us that every stated ground for the judgment against him is
incorrect.” (quotation marks omitted)). Although Pierre chal-
lenges the district court’s finding the § 3553(a) factors did not sup-
port his early release, he fails to plainly and prominently argue the
district court abused its discretion when it found he did not estab-
lish an extraordinary and compelling reason for compassionate re-
lease. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003) (stating an issue on appeal must be plainly and promi-
nently raised in the party’s brief, and the brief must devote a dis-
crete, substantial portion of the argument to that issue, or the issue
will be deemed abandoned); see also United States v. Campbell, 26
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8 Opinion of the Court 22-10747
F.4th 860, 873 (11th Cir. 2022) (en banc) (holding issues not raised
in an initial brief are deemed forfeited and will not be addressed
absent extraordinary circumstances). Because a court “must find
that all necessary conditions are satisfied before it grants a reduc-
tion” under § 3583(c), the district court’s finding that Pierre did not
establish extraordinary and compelling reasons to reduce his sen-
tence was sufficient to preclude relief. See Tinker, 14 F.4th at 1237-
38.
Pierre argues the district court should have considered his
health when it denied his motion. Pierre fails to assert his medical
conditions rose to the level of an extraordinary and compelling rea-
son to obtain compassionate release, or that the district court erred
when it found he had not established an extraordinary and compel-
ling reason to reduce his sentence. See Jernigan, 341 F.3d at 1283
n.8; Campbell, 26 F.4th at 873. Likewise, Pierre does not contend
the district court abused its discretion when it found he did not
have a terminal illness that precluded his ability to provide self-care
within the prison environment. See id.
In any case, Pierre’s challenge to the district court’s assess-
ment of the § 3553(a) factors fails for the same reasons as discussed
with respect to his motion filed under § 3582(c)(2).
II. CONCLUSION
The district court did not abuse its discretion when it found
that, although Pierre was eligible for a reduced sentence under
3582(c)(2), the 18 U.S.C. § 3553(a) factors did not support a
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22-10747 Opinion of the Court 9
sentence reduction. Additionally, Pierre failed to adequately chal-
lenge the district court’s finding he did not establish extraordinary
and compelling reasons for compassionate release, which was one
of the court’s independent grounds for denying his pro se motion
under § 3582(c)(1)(A). Accordingly, we affirm.
AFFIRMED.