USA v. Gregory Nesbitt

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10109
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY NESBITT,
a.k.a. Spooky,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:02-cr-20518-DMM-1
____________________
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2 Opinion of the Court 21-10109
Before GRANT, LAGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Gregory Nesbitt appeals the district court’s denial of his mo-
tion for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A)(i). He argues that the district court erred by “con-
sidering itself bound by U.S.S.G. § 1B1.13” in determining whether
he was eligible for release under the statute. This argument is fore-
closed by our recent precedent. We therefore affirm.
I.
In 2002, a jury found Nesbitt guilty of nine drug and firearm
charges arising from his participation in planning and preparing for
home-invasion robberies in which the robbers hoped to steal
money and drugs. The district court sentenced Nesbitt to 660
months in prison, consisting of 360 months for two drug-trafficking
charges involving cocaine, 240 months concurrent for four charges
of robbery, robbery conspiracy, and firearm conspiracy, 60 months
concurrent for one charge of attempted possession with intent to
distribute marijuana, 60 months consecutive for a first charge of
using or carrying a firearm during or in relation to a drug trafficking
crime or a crime of violence in violation of 18 U.S.C. § 924(c), and
240 months consecutive for a second § 924(c) violation. The dis-
trict court stated that it regretted the length of Nesbitt’s sentence,
but it was constrained by the applicable minimum penalties under
§ 924(c).
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21-10109 Opinion of the Court 3
At the time Nesbitt committed his crimes, § 924(c) imposed
mandatory minimum consecutive sentences of 5 years for a first
violation of § 924(c) and 20 years for “second or subsequent”
§ 924(c) offenses. The 20-year consecutive minimum applied to
every violation of § 924(c) after the first, even if the defendant—
like Nesbitt—was a first-time offender charged with multiple
§ 924(c) violations in the same indictment.
See 18 U.S.C. § 924(c)
(1994);
Deal v. United States, 508 U.S. 129, 130–37 (1993). In the
First Step Act of 2018, however, Congress amended § 924(c) to pro-
vide that the minimum consecutive penalty for second or subse-
quent offenses (now 25 years) applied only after a prior § 924(c)
conviction had become final. Pub. L. 115-391, § 403(b), 132 Stat.
5194, 5221–22. This change means that if Nesbitt were sentenced
today, he would face mandatory minimum 5-year consecutive sen-
tences for each of the two § 924(c) violations charged in his indict-
ment, for a total minimum consecutive sentence of 10 years rather
than 25 years for those offenses. But the First Step Act amendment
to § 924(c) was not made retroactively applicable, so it offered Nes-
bitt no relief.
See id., 132 Stat. at 5222.
The First Step Act also amended 18 U.S.C. § 3582(c)(1)(A),
sometimes called the “compassionate release” statute. That provi-
sion allows a district court to reduce a defendant’s sentence, “after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if it finds that” (as relevant here) (1) “extraordi-
nary and compelling reasons warrant such a reduction,” and
(2) “such a reduction is consistent with applicable policy statements
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4 Opinion of the Court 21-10109
issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(1)(A)(i). The applicable Sentencing Commission policy
statement, in turn, requires that the district court find that the “de-
fendant is not a danger to the safety of any other person or to the
community” before granting a motion for compassionate release.
U.S.S.G. § 1B1.13(2). The policy statement’s application notes also
list specific circumstances related to a defendant’s age, medical con-
ditions, or family circumstances in which “extraordinary and com-
pelling reasons” for a sentence reduction exist, along with a catch-
all category for other reasons determined by the Director of the
Bureau of Prisons to be extraordinary and compelling.
Id. § 1B1.13,
cmt. n.1. Initially, the statute required all compassionate-release
motions to be filed by the Director of the Bureau of Prisons; the
First Step Act amended the statute to permit prisoners to file mo-
tions for compassionate release themselves if they first exhausted
administrative remedies within the prison system. Pub. L. 115-391,
§ 603(b), 132 Stat. 5194, 5239.
In December 2020, Nesbitt filed a motion for compassionate
release pursuant to § 3582(c)(1)(A)(i). In his motion, he argued that
the policy statement in U.S.S.G. § 1B1.13 was rendered partly ob-
solete by the First Step Act’s amendment to § 3582(c)(1)(A) and did
not apply to motions for compassionate release filed by prisoners.
The district court was not bound by the policy statement when
considering his motion, he argued, and could therefore find that his
risk of serious illness from COVID-19 and the harshness of his sen-
tence amounted to “extraordinary and compelling reasons” for his
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21-10109 Opinion of the Court 5
release under the statute even though his circumstances did not fall
within those set out in the policy statement’s application notes.
The district court found that Nesbitt had not presented an extraor-
dinary and compelling reason justifying his release and that, more-
over, the nature of his crime and his violent criminal history sug-
gested that his release would endanger the community. The court
therefore denied his motion.
On appeal, Nesbitt argues that the district court erred by ad-
hering to the limitations in § 1B1.13 when considering his motion
for compassionate release. His argument is foreclosed by our re-
cent precedent.
II.
In
United States v. Bryant, we considered whether § 1B1.13
remained the “applicable policy statement[]” for compassionate-re-
lease motions filed by prisoners under the amended statute, or
whether the policy statement’s requirements and limitations ap-
plied only to motions filed by the Director of the Bureau of Prisons.
996 F.3d 1243, 1252–62 (11th Cir. 2021). We concluded that
“1B1.13 is an applicable policy statement that governs all motions
under Section 3582(c)(1)(A). Accordingly, district courts may not
reduce a sentence under Section 3582(c)(1)(A) unless a reduction
would be consistent with 1B1.13.”
Id. at 1262. Under
§ 3582(c)(1)(A)(i), therefore, “a district court may reduce a term of
imprisonment if (1) the § 3553(a) sentencing factors favor doing so,
(2) there are ‘extraordinary and compelling reasons’ for doing so,
and, as relevant here, (3) doing so wouldn't endanger any person
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6 Opinion of the Court 21-10109
or the community within the meaning of § 1B1.13’s policy state-
ment.”
United States v. Tinker, ___ F.4th ___, 2021 WL 4434621,
at *2 (11th Cir. Sept. 28, 2021). If any one of the necessary condi-
tions is not satisfied, the defendant is not eligible for compassionate
release and the district court cannot grant his motion for a sentence
reduction.
Id.
Here, the district court found that Nesbitt failed to meet two
prerequisites for relief: First, the court found that Nesbitt did not
present an extraordinary and compelling reason for release, ex-
plaining that an “intervening reduction in statutory penalties does
not provide a basis for compassionate release, especially where
[C]ongress chose not to make the change retroactive.” Second, the
court found that “the nature of the Defendant’s crime and violent
criminal history suggests his release would endanger the commu-
nity.”
Nesbitt does not contest the district court’s finding that he
would be a danger to the community if released early. Nor does
he contend that the nonretroactive statutory sentencing changes or
his fears of contracting COVID-19 qualify as “extraordinary and
compelling reasons” for compassionate release under § 1B1.13; in-
deed, he concedes that they do not. He argues instead that the
court should not have considered itself bound by § 1B1.13 at all,
and that, freed from the limitations in the policy statement, the
court should have determined that he met the statutory criteria for
compassionate release—without regard to whether he would pre-
sent a danger to the community upon release.
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21-10109 Opinion of the Court 7
We rejected similar arguments in
Bryant. 996 F.3d at 1250–
51, 1257, 1262. The district court here did not err in considering
whether Nesbitt’s release would be consistent with the “applicable
policy statement[]”—that is, § 1B1.13; to the contrary, it was re-
quired to do so. And because the court determined that (1) Nesbitt
did not present an “extraordinary and compelling” reason for his
release as that term is explained in the policy statement, and
(2) Nesbitt would be a danger to the community, his release would
not be consistent with § 1B1.13 and he was not eligible for a sen-
tence reduction under § 3582(c)(1)(A).
See Tinker, 2021 WL
4434621 at *2;
Bryant, 996 F.3d at 1248. We therefore affirm the
denial of Nesbitt’s motion for compassionate release.
AFFIRMED.
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