USA v. Pierre J. Cannon

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13570
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PIERRE J. CANNON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:95-cr-00030-CDL-MSH-1
____________________
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2 Opinion of the Court 21-13570
Before WILSON, LAGOA, and EDMONDSON, Circuit Judges.
PER CURIAM:
Pierre Cannon, a federal prisoner represented by a lawyer
on appeal, appeals the district court’s denial of his counseled mo-
tion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). No
reversible error has been shown; we affirm.
I.
In 1995, a jury found Cannon guilty of ten offenses: (1) four
counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951
(Counts 1, 3, 5, 9); (2) one count of carjacking, in violation of 18
U.S.C. § 2119 (Count 7); and (3) five counts of using a firearm dur-
ing the commission of a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Counts 2, 4, 6, 8, 10).
Under the Sentencing Guidelines then in effect, Cannon was
subject to mandatory consecutive sentences for his firearm of-
fenses: 5 years on Count 2 and 20 years each on Counts 4, 6, 8, and
10. The sentencing court imposed a total sentence of 1,313
months’ imprisonment: a sentence that included the “stacked”
mandatory consecutive sentences for Cannon’s firearm offenses.
The district court later reduced Cannon’s total sentence to 1,171
months based on an earlier retroactive amendment to the Sentenc-
ing Guidelines.
In July 2020, Cannon moved
pro se for compassionate re-
lease under section 3582(c)(1)(A), as amended by the First Step
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21-13570 Opinion of the Court 3
Act.1 Cannon was later appointed counsel and filed the counseled
compassionate-release motion underlying this appeal. In his mo-
tion, Cannon asserted two grounds for compassionate release.
First, Cannon said he had been diagnosed with pulmonary arterial
hypertension: a condition Cannon said put him at increased risk of
serious illness or death if he were to be reinfected with COVID-
19.2 Second, Cannon argued that the “disparate” nature of his
stacked sentences on the section 924(c) firearm offenses constituted
an extraordinary and compelling reason warranting a reduced sen-
tence. Cannon also argued that the 18 U.S.C. § 3553(a) sentencing
factors weighed in favor of compassionate release.
A magistrate judge issued a report and recommendation
(“R&R”) recommending that the district court deny Cannon’s mo-
tion. The magistrate judge first determined that Cannon failed to
demonstrate “extraordinary and compelling reasons” warranting
relief within the meaning of U.S.S.G. § 1B1.13. About Cannon’s
medical condition, the magistrate judge said Cannon had not
shown that he suffered from a terminal illness or that his pulmo-
nary arterial hypertension constituted a serious medical condition
that substantially diminished Cannon’s ability to provide self-care
while in prison. Relying on this Court’s decision in
United States
1 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).
2 Cannon tested positive for COVID-19 in December 2020. Cannon was
asymptomatic when he tested positive but says he later developed shortness
of breath, chest pain, and fatigue.
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4 Opinion of the Court 21-13570
v. Bryant, 996 F.3d 1243 (11th Cir. 2021), the magistrate judge also
stated that the district court was bound by the policy statement in
U.S.S.G. § 1B1.13 and, thus, lacked authority to consider whether
Cannon’s stacked sentence qualified as an extraordinary and com-
pelling reason.
The magistrate judge next decided that -- even if Cannon
could show an extraordinary and compelling reason -- compassion-
ate release was inappropriate in the light of the 18 U.S.C. § 3553(a)
factors.3 The magistrate judge noted the violent nature of Can-
non’s offenses, that Cannon committed those offenses while on
probation for his earlier state robbery and aggravated assault con-
victions, and that Cannon had engaged in violent conduct while in
prison. Given those circumstances, the magistrate judge found
that the section 3553(a) factors -- including the factors pertaining to
the nature and circumstances of the offense, the defendant’s history
and characteristics, the need to protect the public, and the need for
the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide adequate deterrence -
3 Under section 3553(a), a sentence must be sufficient (but not greater than
necessary) to reflect the seriousness of the offense, promote respect for the
law, provide just punishment, deter criminal conduct, and to protect the pub-
lic from future crimes.
See 18 U.S.C. § 3553(a)(2). A sentencing court should
also consider the nature and circumstances of the offense, the defendant’s his-
tory and characteristics, the kinds of available sentences, the guidelines range,
the policy statements of the Sentencing Commission, and the need to avoid
unwarranted sentencing disparities.
Id. § 3553(a)(1), (3)-(7).
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21-13570 Opinion of the Court 5
- “weigh[ed] heavily” against a sentence reduction. The magistrate
judge also determined that no unwarranted sentencing disparity
existed between Cannon’s sentence and the sentences of other de-
fendants who -- like Cannon -- were convicted of multiple section
924(c) offenses and sentenced before the First Step Act was en-
acted.4
Cannon filed objections to the R&R. The district court over-
ruled Cannon’s objections, adopted the R&R, and denied Cannon’s
amended motion for compassionate release. This appeal followed.
II.
We review for abuse of discretion the district court’s deci-
sion about whether to grant or to deny a defendant compassionate
release.
See United States v. Harris, 989 F.3d 908, 911 (11th Cir.
2021). “A district court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures in making the deter-
mination, or makes findings of fact that are clearly erroneous.”
United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015).
District courts lack the inherent authority to modify a term
of imprisonment but may do so to the extent permitted under sec-
tion 3582(c).
See 18 U.S.C. § 3582(c);
United States v. Jones, 962
4 The First Step Act eliminated the mandatory stacking penalties for multiple
violations of section 924(c) charged in the same criminal indictment.
See First
Step Act, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22 (2018). That
amendment, however, was not made retroactive to defendants sentenced be-
fore the Act’s enactment.
See id. § 403(b).
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6 Opinion of the Court 21-13570
F.3d 1290, 1297 (11th Cir. 2020). As amended by the First Step Act,
section 3582(c)(1)(A) authorizes a district court to modify a term of
imprisonment under these circumstances:
[T]he court . . . may reduce the term of impris-
onment . . . after considering the factors set forth in
section 3553(a) to the extent that they are applicable,
if it finds . . . extraordinary and compelling reasons
warrant such a reduction . . . and that such a reduction
is consistent with applicable policy statements issued
by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A)(i).
We have said that a district court may reduce a defendant’s
term of imprisonment under section 3582(c)(1)(A) only if each of
these three conditions is met: “(1) the § 3553(a) sentencing factors
favor doing so, (2) there are ‘extraordinary and compelling reasons’
for doing so, and (3) doing so [would be consistent with] § 1B1.13’s
policy statement.”
See United States v. Tinker, 14 F.4th 1234, 1237
(11th Cir. 2021). If the district court determines that a movant fails
to satisfy one of these conditions, the district court may deny com-
passionate release without addressing the remaining conditions.
Id. at 1237-38, 1240.
The policy statements applicable to section 3582(c)(1)(A) are
found in U.S.S.G. § 1B1.13.
See U.S.S.G. § 1B1.13;
United States v.
Bryant, 996 F.3d 1243, 1247 (11th Cir. 2021). The commentary to
section 1B1.13 identifies four categories -- including a prisoner’s
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21-13570 Opinion of the Court 7
medical condition -- that might constitute “extraordinary and com-
pelling reasons” warranting a reduced sentence.
See U.S.S.G. §
1B1.13 comment. (n.1).
Pertinent to this case, Application Note 1(A) of section
1B1.13 provides that a prisoner’s medical condition may warrant a
sentence reduction if the prisoner (1) has a terminal illness, or (2)
suffers from “a serious physical or medical condition” or from age-
related deterioration in physical or mental health “that substan-
tially diminishes the ability of the defendant to provide self-care
within” prison.
Id. § 1B1.13 comment. (n.1(A)). Application Note
1(D) provides that a prisoner may be eligible for a sentence reduc-
tion if, “[a]s determined by the Director of the Bureau of Prisons,
there exists in the defendant’s case an extraordinary and compel-
ling reason other than, or in combination with, the reasons de-
scribed” in the other categories.
See id. § 1B1.13 comment.
(n.1(D)).
A.
We first address Cannon’s arguments that the district court
erred by relying on U.S.S.G. § 1B1.13 in determining that Cannon
had demonstrated no “extraordinary and compelling reasons” war-
ranting relief. Cannon’s argument that the district court was not
bound by the policy statement in section 1B1.13 is foreclosed by
our decision in
Bryant.
See Bryant, 996 F.3d at 1247 (concluding
that section 1B1.13 remains the applicable policy statement for all
motions filed under section 3582(c)(1)(A), including those filed by
prisoners). We are bound by our decision in
Bryant and will not
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8 Opinion of the Court 21-13570
address Cannon’s arguments about the correctness of that decision.
See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)
(“[A] prior panel’s holding is binding on all subsequent panels un-
less and until it is overruled or undermined to the point of abroga-
tion by the Supreme Court or by this court sitting
en banc.”).
Cannon also raises three arguments challenging the validity
of U.S.S.G. § 1B1.13: (1) that 28 U.S.C. § 994(t)5 constitutes an un-
constitutional delegation of legislative authority to the Sentencing
Commission; (2) that Application Note 1(D) constitutes an uncon-
stitutional sub-delegation of legislative power to the Bureau of Pris-
ons; and (3) that Application Note 1(D) exceeds the limits of defer-
ence to agency interpretations of agency rules. We review these
arguments -- raised for the first time on appeal -- only for plain er-
ror.
See United States v. Lange, 862 F.3d 1290, 1293 (11th Cir.
2017).
Cannon has identified no controlling authority establishing
that the policy statement in U.S.S.G. § 1B1.13 is void as an uncon-
stitutional delegation of authority. Cannon thus cannot show that
5 28 U.S.C. § 994(t) contains this language:
The Commission, in promulgating general policy statements
regarding the sentencing modification provision in section
3582(c)(1)(A) of title 18, shall describe what should be consid-
ered extraordinary and compelling reasons for sentence reduc-
tion, including the criteria to be applied and a list of specific
examples. Rehabilitation of the defendant alone shall not be
considered an extraordinary and compelling reason.
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21-13570 Opinion of the Court 9
the district court committed an error that was plain when it relied
on our decision in
Bryant and treated as binding the policy state-
ment in section 1B1.13.
See id. at 1296 (describing a plain error as
“an error that is ‘obvious’ and is ‘clear under current law’” and ex-
plaining that “there can be no plain error where there is no prece-
dent from the Supreme Court or this Court directly resolving it”).
B.
The district court committed no error in determining that
Cannon failed to demonstrate an extraordinary and compelling
reason within the meaning of section 1B1.13. Never has Cannon
asserted -- and nothing evidences -- that his pulmonary arterial hy-
pertension has diminished substantially his ability to provide self-
care while in prison.
Nor has Cannon satisfied his burden of demonstrating that
his pulmonary arterial hypertension currently constitutes a termi-
nal illness.
Cf. 18 U.S.S.G. § 1B1.13 comment. (n.1(A)(i)) (describ-
ing a terminal illness as “a serious and advanced illness with an end
of life trajectory”). Cannon makes general statements about the
average life expectancy for persons with untreated pulmonary ar-
terial hypertension. But Cannon’s medical records indicate only
that Cannon was diagnosed in July 2019 with “early to mild pulmo-
nary artery hypertension.”6 Cannon has offered no evidence
6 We reject Cannon’s arguments (1) that the district court erred in re-
lying on an outdated medical record and (2) that -- absent more recent data --
the district court lacked a sufficient factual basis to conclude that Cannon’s
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10 Opinion of the Court 21-13570
demonstrating a worsening of his condition or demonstrating that
he has been denied adequate medical testing or treatment for his
condition. Based on the record before the district court, we cannot
conclude that the district court erred in determining that Cannon’s
pulmonary arterial hypertension did not qualify as a terminal ill-
ness for purposes of section 1B1.13.
The district court also concluded properly that it lacked au-
thority to consider Cannon’s argument that his stacked sentence
constituted an extraordinary and compelling reason under Applica-
tion Note 1(D).
See Bryant, 996 F.3d at 1248 (“Application Note
1(D) does not grant discretion to courts to develop ‘other reasons’
that might justify a reduction in a defendant’s sentence.”).
Given the lack of an extraordinary and compelling reason
that would warrant relief, we need not detail whether the section
3553(a) factors would support a reduced sentence.
See Tinker, 14
F.4th at 1237-38, 1240. Nevertheless, we see no error in the district
court’s determination that the section 3553(a) factors also weighed
against granting Cannon compassionate release.
AFFIRMED.
condition was “mild.” The district court relied properly on the evidence that
was presented to it and could not speculate about Cannon’s present condition
absent additional evidence in the record. As the movant, Cannon bore the
burden of producing evidence sufficient to demonstrate his entitlement to re-
lief under section 3582(c).
See United States v. Hamilton, 715 F.3d 328, 337
(11th Cir. 2013).
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