USA v. Glen Spearing Matthews

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14597
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLEN SPEARING MATTHEWS,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:01-cr-00018-MTT-CHW-1
____________________
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2 Opinion of the Court 20-14597
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Glen Matthews appeals the district court’s order denying his
motion for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A). Mr. Matthews argues that the district court erred
in concluding that the sentencing disparity in his case was not an
“extraordinary and compelling” reason for compassionate release
under U.S.S.G. § 1B1.13. He asserts that
United States v. Bryant,
996 F.3d 1243 (11th Cir. 2021),
petition for cert. denied, No. 20-1732
(U.S. Dec. 6, 2021), was erroneously decided because § 1B1.13 and
its enabling clause, 28 U.S.C. § 994(t), are unconstitutional and thus
non-binding on district courts. After review of the parties’ briefs
and the record, we affirm.1
I
In 2001, a jury convicted Mr. Matthews of three counts of
armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and
2113(d); three counts of possession of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c); and one count of pos-
session of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g) and 924(e)(1). The district court sentenced him to 1,047
months in prison.
1 Because we write for the parties, and assume their familiarity with the rec-
ord, we set out only what is necessary to explain our decision.
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20-14597 Opinion of the Court 3
Following the Supreme Court’s decision in
Johnson v.
United States, 576 U.S. 591 (2015), we granted Mr. Matthews leave
to file a successive 28 U.S.C. § 2255 motion based on his argument
that the enhanced portion of his sentence under the Armed Career
Criminal Act was no longer valid. In March of 2017, the district
court granted Mr. Matthews’ § 2255 motion and resentenced him
to 840 months in prison.
On October 6, 2020, Mr. Matthews filed a motion for com-
passionate release. He argued that the portion of his new sentence
pertaining to the three § 924(c) counts was 45 years longer than it
would have been had he been sentenced after Congress’ enactment
of the First Step Act. This sentencing disparity, Mr. Matthews con-
tended, presented an “extraordinary and compelling” reason to re-
duce his sentence.
The district court denied Mr. Matthews’ motion, finding
that he had “failed to provide extraordinary and compelling cir-
cumstances that would warrant relief.” D.E. 258 at 2. The district
court explained that the issues raised by Mr. Matthews were “not
governed by the compassionate release statute found at 18 U.S.C.
§ 3582(c)(1)(A) and [the] sentencing guidelines found at [U.S.S.G.]
§ 1B1.13 . . . [because] § 1B1.13 primarily deals with grounds for
compassionate release based on the defendant’s medical condition,
family circumstances and whether the defendant is a danger to the
safety of any other person or the community.”
Id.
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4 Opinion of the Court 20-14597
This appeal followed.2
II
A
Typically, we review a district court’s denial of a
§ 3582(c)(1)(A) motion under an abuse of discretion standard.
See,
e.g., United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021).
Where a party fails to raise an objection before the district court,
however, our review of the challenge on appeal is for plain error.
See United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006).
Mr. Matthews argues, for the first time on appeal, that 28
U.S.C. § 994(t) constitutes an unconstitutional delegation of au-
thority to the United States Sentencing Commission. Thus, he con-
tends that U.S.S.G. § 1B1.13 is void and did not bind the district
court. Because Mr. Matthews did not object to the
2 Mr. Matthews’ notice of appeal was untimely—he deposited his notice of
appeal in the prison’s mailbox two days after the 14-day period to appeal had
lapsed.
See Fed. R. App. P. 4(b)(1). We “customarily treat a late notice of
appeal in a criminal case as a motion for an extension of time pursuant to Fed.
R. App. P. 4(b) and remand the case to the district court for a determination
of excusable neglect.”
Sanders v. United States, 113 F.3d 184, 186 (11th Cir.
1997). In this case, however, the government has explicitly waived the un-
timeliness argument and asked us to consider Mr. Matthews’ arguments ra-
ther than remand for an excusable neglect determination.
See Answer Br. at
4–6. Because the deadlines in Rule 4(b) are not jurisdictional, and given the
government’s explicit waiver, we consider Mr. Matthews’ appeal on the mer-
its.
See United States v. Lopez, 562 F.3d 1309, 1312–13 (11th Cir. 2009).
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20-14597 Opinion of the Court 5
constitutionality of either § 994(t) or § 1B1.13 in the district court,
plain error review applies.
See id.
Under plain error review, an error is reversible only if we
conclude that (1) an error occurred, (2) the error was plain, and
(3) the error affected substantial rights.
See id. “An error is not
plain unless it is contrary to explicit statutory provisions or to on-
point precedent in this Court or the Supreme Court.”
United
States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009). If the three
criteria are met, we may reverse for plain error if the error seriously
affected the fairness, integrity, or public reputation of the judicial
proceedings.
See Nash, 438 F.3d at 1304.
B
Mr. Matthews’ arguments are foreclosed by our decision in
Bryant—a fact he concedes.
See Initial Br. at 36. Nevertheless, he
“maintains that § 1B1.13 was not an ‘applicable policy statement’
to his motion,”
id. at 37, and urges us to conclude that § 994(t) and
Application Note 1(D) to § 1B1.13 are unconstitutional despite
Bry-
ant.3
In
Bryant, we held that “a district court cannot grant a mo-
tion for reduction if it would be inconsistent with the [Sentencing]
3 Mr. Matthews argues that we decided
Bryant incorrectly, citing to opinions
from eight of our sister circuits. We acknowledge that other circuits have
reached different results, but as a later panel
Bryant is binding on us and applies
to Mr. Matthews’ motion. We note that the Supreme Court denied certiorari
in
Bryant, thereby declining an opportunity to resolve the circuit split.
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6 Opinion of the Court 20-14597
Commission’s policy statement defining ‘extraordinary and com-
pelling reasons.’” 996 F.3d at 1249. The Commission’s definition,
we concluded, is binding on district courts.
See id. at 1251–52. We
explained that in § 994(t) Congress commanded the Sentencing
Commission to publish a policy statement that defines “extraordi-
nary and compelling” reasons for compassionate release, which the
Sentencing Commission did in § 1B1.13.
See id. at 1247, 1251.
Further, we stated that Application Note 1(D) to § 1B1.13,
which allows the Director of the BOP to determine “extraordinary
and compelling” reasons to reduce a defendant’s sentence that fall
outside the scope of the reasons in subdivisions (A) through (C),
does not conflict with § 3582(c)(1)(A).
See 996 F.3d at 1263. Be-
cause “[t]he BOP can . . . take a position on a defendant-filed mo-
tion, . . . Application Note 1(D) has a field of application there as
well.”
Id. at 1264. As such, in considering defendant-filed
§ 3582(c)(1)(A) motions, district courts must still follow the “ex-
traordinary and compelling” reasons as determined by the BOP
and may not independently determine what “extraordinary and
compelling” reasons exist for reducing a defendant’s sentence.
See
id.
Mr. Matthews’ challenge to the constitutionality of 28
U.S.C. § 994(t) and U.S.S.G. § 1B1.13 fails under the plain error
standard because he has not identified any statute or controlling
precedent declaring these provisions unconstitutional.
See Schultz,
565 F.3d at 1357. Additionally, based on our holding in
Bryant, the
district court did not err in denying Mr. Matthews’ motion for
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20-14597 Opinion of the Court 7
compassionate release because a sentencing disparity is not one of
the “extraordinary and compelling” grounds for which the district
court may grant relief under § 1B1.13.
III
We affirm the district court’s order denying Mr. Matthews’
motion for compassionate release.
AFFIRMED.
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