USA v. Bernard David Dixon

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11061
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD DAVID DIXON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cr-20784-MGC-2
____________________
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2 Opinion of the Court 21-11061
Before L UCK , LAGOA , and J ULIE C ARNES, Circuit Judges.
PER CURIAM:
Defendant Bernard Dixon, an inmate at FCI Coleman Me-
dium who is serving a 146-month sentence arising from his bank
robbery conviction in 2017, appeals the district court’s denial of his
motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A).
We find no error in the district court’s order denying Defendant’s
motion, and thus affirm.
BACKGROUND
Defendant was indicted in October 2016 in a two-count in-
dictment charging him with conspiracy to commit bank robbery in
violation of 18 U.S.C. § 371 and bank robbery in violation of 18
U.S.C. § 2113(a). He pled guilty to both counts.
Based on the factual proffer supporting Defendant’s guilty
plea, Defendant and his girlfriend Joy Braxton robbed a Miami
Shores TD Bank on September 26, 2016. On that day, Braxton en-
tered the bank, approached a teller with a white plastic bag, and
demanded that the teller put money in the bag, stating, “I am rob-
bing the bank.” The teller put a GPS dye-pack of money in the bag,
after which Braxton left the bank with the bag of money and
headed to an adjacent parking lot. The bank manager, who had
been alerted to the robbery through an internal messaging system,
followed Braxton out of the bank and saw her get onto the back of
a motorcycle driven by Defendant.
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21-11061 Opinion of the Court 3
Within minutes, a Miami Shores police officer saw the mo-
torcycle being ridden by Braxton and Defendant. The officer fol-
lowed the motorcycle for several blocks before it wrecked in front
of him when it struck the back of a police car. Braxton was imme-
diately detained, and the stolen bank money and GPS pack, still in
her purse, were recovered. Defendant fled from the crash, but he
eventually was apprehended. The TD Bank manager, who was
brought to the scene, instantly identified Braxton as the woman
who had robbed the bank, and he identified the motorcycle Brax-
ton and Defendant had been driving as the vehicle he saw driving
away from the bank after the robbery.
The PSR determined that Defendant should be sentenced as
a career offender under USSG § 4B1.1(a) because bank robbery is a
crime of violence, and Defendant had prior convictions for both a
crime of violence (aggravated assault with a deadly weapon) and a
controlled substance offense (possession with intent to sell co-
caine). With the career offender enhancement, Defendant was as-
signed a total offense level of 29. The PSR described a long history
of prior offenses committed by Defendant beginning in 1989, in-
cluding several controlled substance offenses, theft, robbery by
force, burglary, grand theft, armed robbery with a deadly weapon,
battery, aggravated assault with a deadly weapon, and habitual
driving with a suspended license. Based on his status as a career
offender, Defendant was assigned a criminal history category of VI,
which in conjunction with his offense level of 29 yielded a recom-
mended advisory guidelines range of 151 to 188 months.
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4 Opinion of the Court 21-11061
Defendant originally objected to his classification as a career
offender, but he withdrew the objection during the sentencing
hearing and acknowledged that his recommended guidelines range
was 151 to 188 months. Defendant asked for a downward depar-
ture, arguing that he had not been convicted of a serious offense
since 2008 and that his participation in the bank robbery was not
violent, as he was merely the getaway driver. The district court
determined that Defendant’s advisory guidelines range somewhat
overrepresented his criminal culpability and thus applied a slight
downward variance, sentencing Defendant to 146 months for the
bank robbery conviction, to be served concurrently with a 60-
month sentence for the conspiracy conviction. This Court af-
firmed Defendant’s convictions and sentence on appeal.
In 2018, Defendant filed a motion to vacate his sentence pur-
suant to 28 U.S.C. § 2255, arguing that he was mentally ill, that de-
fense counsel had promised him a shorter sentence if he pled guilty,
and that counsel was ineffective for not challenging Defendant’s
career offender status. The district court denied Defendant’s § 2255
motion and declined to issue a certificate of appealability (“COA”).
Defendant did not file a motion in this Court for a COA.
In November 2020, Defendant filed a
pro se motion for com-
passionate release from prison pursuant to 18 U.S.C.
§ 3582(c)(1)(A), which authorizes a district court to reduce a de-
fendant’s sentence if the reduction is warranted by “extraordinary
and compelling reasons” and if it is consistent with the sentencing
factors set forth in 18 U.S.C. § 3553(a) and the applicable Guidelines
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21-11061 Opinion of the Court 5
policy statements.
See 18 U.S.C. § 3582(c)(1)(A)(i).1 In support of
his motion, Defendant stated that he was a “chronic care inmate”
with various ailments, including schizoaffective disorder, chronic
depression, mood swings, an acute upper respiratory infection
(bronchitis), an HIV-positive diagnosis, high blood pressure,
chronic breathing problems, and respiratory insufficiencies. As
such, Defendant argued that he was particularly vulnerable to
COVID-19 while in prison and should therefore be released. De-
fendant attached to his motion medical records spanning from
April 2015 to March 2020.
In response to Defendant’s Motion, the Government de-
scribed the significant measures taken by the BOP to protect the
health of inmates during the COVID-19 pandemic, including social
distancing, the provision of masks to inmates and staff, cancelling
staff travel and training, screening of newly admitted inmates,
quarantining symptomatic inmates and asymptomatic inmates
with exposure risk, and restricting contractor access and social and
legal visits to BOP facilities. Given those measures, and based on
Defendant’s medical records and criminal history, the Government
argued that: (1) Defendant failed to demonstrate extraordinary and
1 A sentence reduction is also permitted by § 3582(c) under certain circum-
stances if the defendant is at least 70 years old and has served at least 30 years
in prison, but those conditions are not met in this case.
See 18 U.S.C.
§ 3582(c)(1)(A)(ii).
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6 Opinion of the Court 21-11061
compelling reasons warranting a sentence reduction, and (2) the
§ 3553(a) factors did not favor Defendant’s release.
The district court denied Defendant’s § 3582(c) motion. The
court noted that Defendant’s medical records confirmed that he
was HIV positive, but that the records also showed that Defend-
ant’s HIV was well-controlled with medication. According to the
court, the records also showed that Defendant did not have sus-
tained hypertension, acute respiratory issues, or any other relevant
health concerns. Citing Defendant’s extensive criminal history, the
court determined in the alternative that the § 3553(a) factors did
not support Defendant’s release.
Defendant appeals, arguing that the district court erred by
determining that his health conditions did not constitute an ex-
traordinary and compelling reason justifying his release. According
to Defendant, the district court did not thoroughly examine his
medical records in making that determination. Defendant only
briefly addresses in his appellate brief the district court’s alternative
ground for denying his motion for compassionate release based on
its consideration of the relevant § 3553(a) factors, citing his “reha-
bilitative efforts” in prison that support his release under those fac-
tors. As discussed below, we find no error in the district court’s
order denying Defendant’s motion for compassionate release, and
thus affirm.
DISCUSSION
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21-11061 Opinion of the Court 7
We review de novo whether a defendant is eligible for a sen-
tence reduction under § 3582(c).
United States v. Giron, 15 F.4th
1343, 1345 (11th Cir. 2021). Once eligibility is established, we re-
view the denial of a defendant’s § 3582(c) motion under the abuse
of discretion standard.
See id. “A district court abuses its discretion
if it applies an incorrect legal standard, follows improper proce-
dures in making the determination, or makes findings of fact that
are clearly erroneous.”
United States v. Harris, 989 F.3d 908, 911
(11th Cir. 2021) (quoting
Cordoba v. DIRECTV, LLC, 942 F.3d
1259, 1267 (11th Cir. 2019) (quotation marks omitted)). The abuse
of discretion standard allows the district court a “range of choice”
that we will not reverse “just because we might have come to a
different conclusion had it been our call to make.”
See id. at 912
(quotation marks omitted).
As amended by the First Step Act, § 3582(c) authorizes the
district court to reduce a defendant’s sentence if the court finds
that: (1) “extraordinary and compelling reasons warrant such a re-
duction” and (2) the reduction is consistent with the sentencing fac-
tors of § 3553(a) and the “applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The appli-
cable policy statement, found in USSG § 1B1.13, echoes the statu-
tory requirements, stating that a district court may reduce a de-
fendant’s sentence “if, after considering the factors set forth in . . .
§ 3553(a),” the court determines that: (1) “[e]xtraordinary and com-
pelling reasons warrant the reduction” and (2) “[t]the [d]efendant
is not a danger to the safety of any other person or to the
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8 Opinion of the Court 21-11061
community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13.
See also United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021)
(listing three necessary conditions for a sentence reduction under
§ 3582(c): support in the § 3553(a) factors, extraordinary and com-
pelling reasons, and adherence to U.S.S.G. § 1B1.13’s policy state-
ment).
The district court denied Defendant’s § 3582(c) motion for
two reasons. First, the court found that Defendant had failed to
show extraordinary and compelling reasons for his release. In that
regard, the court noted that Defendant’s medical records showed
that his HIV is well-controlled by medication and that the records
did not reveal any other health concerns that would warrant De-
fendant’s release from prison. Alternatively, the court determined
that the § 3553(a) sentencing factors militated against Defendant’s
release because of the serious nature of the bank robbery underly-
ing Defendant’s conviction in this case and his extensive criminal
history prior to the bank robbery, which dated back to 1989 and
included convictions for robbery by force, burglary, grand theft,
armed robbery with a deadly weapon, and battery, among other
offenses. Either ground is adequate to support the district court’s
decision to deny Defendant’s § 3582(c) motion.
As to the first ground, Defendant argues that he has medical
conditions that provide an “extraordinary and compelling reason”
for his release, including “schizoaffective [disorder], chronic de-
pression [and] mood swings, an acute upper respiratory infection
commonly known as Bronchitis and . . . [his] HIV positive” status.
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21-11061 Opinion of the Court 9
Defendant argues further that he has “high blood pressure, suffers
chronic breathing problems, and [has] numerous complication[s]
stemm[ing] from being HIV positive.” According to Defendant,
these conditions make him more susceptible to COVID-19.
We agree with the district court that Defendant did not pro-
vide adequate support for his claim that he has medical conditions
that satisfy the extraordinary and compelling reason standard and
thus justify his release from prison. The relevant Guidelines policy
statement provides that a defendant’s medical condition is an ex-
traordinary and compelling reason for a sentence reduction if the
defendant: (1) has a terminal disease, or (2) suffers from a serious
physical or mental condition that “substantially diminishes” his
ability “to provide self-care” in prison and from which he is not ex-
pected to recover. U.S.S.G. § 1B1.13 cmt. n.1(A). Defendant has
made no showing of either.
Defendant’s medical records show that he is HIV-positive,
but that his HIV is well-controlled with anti-retroviral medication,
that he has a high T-cell count, and that he has never suffered from
an HIV-related illness or any other complication from HIV. It is
not clear from the records that Defendant suffers from any of the
other ailments he claims in support of his motion, such as signifi-
cant mental health issues, breathing problems, or high blood pres-
sure. Indeed, Defendant’s prison medical records for the year prior
to when he filed his § 3582(c) motion are relatively unremarkable.
Those records confirm that Defendant’s HIV is well-controlled by
medication, and that Defendant does not suffer from any other
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10 Opinion of the Court 21-11061
significant physical or mental health issues that would be consid-
ered terminal or that diminish Defendant’s ability to provide self-
care in prison.
In addition, Defendant fails to explain how any of his
claimed conditions increase his risk of severe disease from COVID-
19 or otherwise constitute an extraordinary and compelling reason
for his release from prison. Given that failure, we see no error in
the district court’s conclusion that the COVID-19 pandemic does
not require Defendant’s release pursuant to § 3582(c).
See Giron,
15 F.4th at 1346 (affirming the district court’s holding that the de-
fendant’s high cholesterol, high blood pressure, and coronary ar-
tery disease were not extraordinary and compelling reasons for
early release where all of those conditions were “manageable in
prison, despite the existence of the COVID-19 pandemic”);
Harris,
989 F.3d at 912 (upholding the district court’s denial of compassion-
ate release to an inmate with hypertension, despite the possible in-
creased risk from COVID-19).
Defendant’s failure to demonstrate an extraordinary and
compelling reason is alone enough to “foreclose a sentence reduc-
tion” under § 3582(c).
See Giron, 15 F.4th at 1347 (“When denying
a request for compassionate release, a district court need not ana-
lyze the § 3553(a) factors if it finds either that no extraordinary and
compelling reason exists or that the defendant is a danger to the
public.”). But the district court also held, in the alternative, that
Defendant’s release was not consistent with the § 3553(a) factors
because of Defendant’s extensive criminal history. Defendant only
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21-11061 Opinion of the Court 11
summarily challenges this alternative holding, which clearly was
within the district court’s discretion based on Defendant’s criminal
history as described in the PSR.
See United States v. Riley, 995 F.3d
1272, 1279 (11th Cir. 2021) (noting that “discretion in weighing sen-
tencing factors is particularly pronounced when it comes to weigh-
ing criminal history”).
In short, Defendant failed to show an extraordinary and
compelling reason to support his release under § 3582(c), and the
district court acted within its discretion when it determined, in the
alternative, that the § 3553(a) sentencing factors did not support
Defendant’s release from prison. For both reasons, the district
court’s order denying Defendant’s § 3582(c) motion is AFFIRMED.
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