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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13014
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20155-DMM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GRANDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 5, 2021)
Before LAGOA, BRASHER and MARCUS, Circuit Judges.
PER CURIAM:
Carlos Granda, through counsel, appeals the district court’s denial of his
motion for compassionate release, under 18 U.S.C. § 3582(c)(1)(A), and its denial
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of his motion for reconsideration. On appeal, he argues that: (1) the district court
erred in denying his motion for compassionate release by applying an erroneous
legal framework and by finding he had not shown an extraordinary and compelling
reason for release; and (2) the district court abused its discretion by failing to afford
him the opportunity to reply to new arguments the government raised in its response
to his motion for reconsideration. After careful review, we affirm.
We review motions for compassionate release under § 3582(a)(1)(A), as
amended by the First Step Act, for abuse of discretion. See United States v. Harris,
__ F.3d __, 2021 WL 745262, *2 (11th Cir. Mar. 2, 2021). We also review the
denial of a motion for reconsideration for abuse of discretion. United States v.
Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). 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 erroneous. United States v.
Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). A factual finding is not clearly
erroneous if it represents a choice between two permissible views of the evidence.
United States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir. 2006).
First, we are unpersuaded by Granda’s claim that the district court abused its
discretion by denying his motion for compassionate release. Under 18 U.S.C. §
3582(c), a district “court may not modify a term of imprisonment once it has been
imposed” except under certain circumstances. When Congress enacted the First Step
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Act in 2018, it amended § 3582(c)(1)(A), in part, to increase the use and transparency
of compassionate release of federal prisoners. See First Step Act § 603(b). Section
3582(c)(1)(A)(i) now says:
[T]he court, upon motion of the Director of the Bureau of Prisons, or
upon motion of the defendant after the defendant has fully exhausted
all administrative rights to appeal a failure of the Bureau of Prisons 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 earlier, may reduce the term of imprisonment . . . if it finds
that extraordinary and compelling reasons warrant such a reduction[.]
Before the First Step Act, a district court could grant a sentence reduction under §
3582(c)(1)(A) only upon a motion by the Federal Bureau of Prisons (“BOP”)
Director. See First Step Act § 603(b).
Section 3582(c)(1)(A) still requires any reduction to be consistent with the
sentencing commission’s applicable policy statements. The policy statements
applicable to § 3582(c)(1)(A) are found in U.S.S.G. § 1B1.13, and provide that the
court may reduce a term of imprisonment “if, after considering the factors set forth
in 18 U.S.C. § 3553(a), 1 to the extent that they are applicable,” it finds, in relevant
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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part, that extraordinary and compelling reasons warrant the reduction. The court
must determine that the defendant is not a danger to the safety of any other person
or to the community, as provided in 18 U.S.C. § 3142(g), before it can determine
whether extraordinary and compelling reasons exist. See U.S.S.G. § 1B1.13; id.,
comment. (n.1). In determining whether an individual is a danger to others, the court
can consider: (1) the offenses’ nature and circumstances; (2) the weight of the
evidence against the person; (3) the person’s history and characteristics; (4) the
nature and seriousness of the danger to any person of the community that would be
posed by the person’s release. 18 U.S.C. § 3142(g).
Section 1B1.13’s extraordinary and compelling reasons for compassionate
release include: (A) a medical condition where the prisoner is suffering from (i) a
terminal illness, or (ii) deteriorating health related to aging that substantially
diminishes the ability of the prisoner to provide self-care within the prison; (B) the
serious deterioration in physical or mental health of a prisoner who is at least 65
years old and has served a certain portion of his term of imprisonment; (C) the death
or incapacitation of the caregiver of the prisoner’s minor child; and (D) other reasons
as determined by the Director of the BOP. U.S.S.G. § 1B1.1, comment. (n.1).
We’ve not yet held in a published opinion whether § 1B1.13, which on its face
applies only to motions for compassionate release filed by the BOP and has not been
amended following the First Step Act, constrains district courts in considering
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compassionate release motions filed by prisoners themselves. However, we’ve held
that the district court’s consideration of the policy statements in § 1B1.13 was not
an abuse of discretion. Harris, 2021 WL 745262, *3 & n.2.
Even where consideration of the § 3553(a) factors is mandatory, the district
court need not state on the record that it has explicitly considered each of the §
3553(a) factors or discuss each of them. United States v. Kuhlman, 711 F.3d 1321,
1326 (11th Cir. 2013). Rather, the district court’s acknowledgment that it considered
the § 3553(a) factors and the parties’ arguments is sufficient. United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009). Moreover, the weight given to any of the §
3553(a) factors is committed to the sound discretion of the district court. United
States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Even so, a district court
abuses its discretion when it (1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment in considering the proper factors.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
For starters, the district court did not abuse its discretion by considering, as
recommended under the policy statements in U.S.S.G. § 1B1.13, whether Granda
posed a danger to society. As we’ve recently held, considering the policy statements
in § 1B1.13 is not an abuse of discretion, regardless of whether the consideration of
those issues is required. See Harris, 2021 WL 745262, *3 & n.2.
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Nor did the district court abuse its discretion in denying the motion based on
its finding that Granda posed a danger to society. As the record reflects, Granda was
found to be part of a violent conspiracy to rob drug dealers, involving the use of
firearms to rob the truck drivers carrying the drugs, murdering them if necessary.
See 18 U.S.C. § 3142(g). Moreover, his criminal history demonstrated an escalating
level of crime, including misdemeanor battery, resisting an officer, and numerous
fraud-related convictions.
We also find no merit to Granda’s argument that the district court abused its
discretion by failing to afford him the opportunity to reply to the government’s
arguments. We recognize that when any factor important to the sentencing
determination is reasonably in dispute, the parties shall be given an adequate
opportunity to present information to the court about that factor. U.S.S.G. §
6A1.3(a). And under § 3582(c)(2), due process encompasses the right not to be
sentenced on the basis of invalid premises or inaccurate information and, thus,
parties must be given adequate notice and opportunity to contest new information
relied on by the district court. United States v. Jules, 595 F.3d 1239, 1243, 1245
(11th Cir. 2010).
Nevertheless, the district court did not abuse its discretion in denying
Granda’s motion for reconsideration in this case. Granda has not claimed, nor does
the district court’s order show, that the court actually relied on any alleged new
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arguments raised by the government. See id. at 1245. Instead, the district court
expressly denied the motion for reconsideration based on Granda’s failure to meet
his burden, not on the government’s arguments.
Regardless, the government’s alleged new arguments did not require a
response because the government previously had raised the same general arguments,
or the information was available, since sentencing. See id. at 1243, 1245. As the
record reflects, all of the information concerned the § 3553(a) factors -- including
Granda’s firearm possession, the armed robbery, and his 161-month sentence --
because they all related to the nature of his instant offense, his resulting sentence,
and whether the factors’ purposes were being sufficiently served. Further, the
government had raised these issues earlier, so Granda already had the opportunity to
respond to them. What’s more, it was Granda’s burden to show that his
circumstances warranted a reduction. See 18 U.S.C. § 3582(c)(1)(A)(i).
Accordingly, because the government’s response did not raise new arguments based
on new information that implicated Granda’s due process rights, the district court
did not abuse its discretion in denying his motion for reconsideration. See Jules, 595
F.3d at 1243, 1245.
AFFIRMED.
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United States v. Carlos Granda
Combined Opinion