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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13929
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00458-LMM-AJB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK MORROW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 4, 2021)
Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges.
PER CURIAM:
Mark Morrow appeals the district court’s order denying his motion for
compassionate relief under 18 U.S.C. § 3583(c)(1)(A). Morrow argues that the
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district court abused its discretion in denying his motion, contending that the district
court relied on two clearly erroneous factual findings. First, he argues that the district
court improperly calculated the length of his remaining sentence. Second, he argues
that the district court incorrectly stated that his crime had over 300 victims with
financial losses of approximately $28 million. After careful review, we conclude that
those findings were not clearly erroneous and that the district court did not otherwise
abuse its discretion in denying relief. Accordingly, we affirm.
I.
Mark Morrow and his co-defendant were charged with two counts of
conspiracy to commit mail and wire fraud, fourteen counts pertaining to specific
instances of mail or wire fraud, and one count of conspiracy to commit money
laundering. In all, their fraudulent conspiracy caused the loss of over $30 million
dollars amongst over 300 victims. Morrow ultimately pleaded guilty to one count of
conspiracy to commit wire fraud, which charged him with knowingly and
intentionally devising a scheme to defraud note holders and equity investors in
Detroit Medical Partner, LLC. This count outlined losses of over $28 million.
Although only pleading guilty to that one count, his written plea explicitly stated
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that the court could consider the conduct underlying the dismissed counts at
sentencing.
At sentencing, the district judge adopted the factual findings in the
presentence investigation report (“PSR”). The guidelines range was between 121
and 151 months. The government requested a downward variance to 96 months to
avoid sentencing disparities with his co-defendant. Defense counsel argued for a
variance all the way down to thirty months. The court granted the motion for a
downward variance and sentenced Morrow to 66 months imprisonment, to be
followed by a three-year term of supervised release. In addition, the court required
Morrow to pay $7 million dollars in restitution to 175 victims, jointly and severally
with his co-defendant. His co-defendant, on the other hand, was sentenced to 96
months and directed to pay $24 million in restitution to 336 victims.
In delivering this sentence, the district judge discussed several Section
3553(a) factors. Specifically, the judge rejected the defendant’s 30-month sentence
request due to the substantial monetary loss and number of victims. Additionally,
the judge noted that Morrow did not appreciate the full extent of his guilt and had
ample opportunity to disengage during the scheme but failed to do so. The judge did
however decide to vary downward because Morrow was less culpable than his co-
defendant, he was not primarily motivated by greed, and he had made some attempt
to return losses to the investors. The judge also considered personal characteristics
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of Morrow, including that he had no criminal history, was heavily involved in the
community, and was not likely to be a recidivist. The judge stated that she had
considered all Section 3553(a) factors in determining that a 66-month sentence was
sufficient but not greater than necessary.
After serving 30 months of his sentence, Morrow submitted a pro se motion
for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). This motion was later
supplemented by counsel. In this motion, Morrow asserted that there was an
extraordinary and compelling reason for his early release in light of the COVID-19
pandemic. He argued that he was at increased risk for serious illness from COVID-
19 due to his underlying conditions, including poorly controlled diabetes, Charcot-
Marie Tooth disorder, and a history of MRSA infection. In support, defendant cited
cases from various jurisdictions, as well as a variety of health authorities.
The same district judge who sentenced Morrow denied this motion. The
district court made clear that, even assuming that Morrow’s medical conditions were
extraordinary and compelling, relief was not warranted based on the Section 3553(a)
factors. The district court succinctly explained:
Here, Defendant engaged in a serious fraudulent investment scheme,
which, along with his co-defendant, caused over 300 victims to suffer
losses of approximately $28 million dollars. Further, at this time,
Defendant has served less than half of his 66-months sentence, which
the Court imposed after granting a substantial downward variance at
sentencing. Given these circumstances, the Court finds that reducing
Defendant’s sentence by 36 months “would not be consistent with the
statutory purposes of sentencing under § 3553(a).”
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Morrow timely appealed, arguing that the district court relied on clearly erroneous
factual findings.
II.
This Court reviews for abuse of discretion the denial of an eligible prisoner’s
request for a reduced sentence under Section 3582(c)(1)(A). United States v. Jones,
929 F.3d 1290, 1296 (11th Cir. 2020). When reviewing for abuse of discretion, we
cannot reverse just because we may have arrived at a different conclusion. See Sloss
Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007). “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.”
Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019). “A factual
finding is clearly erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Robinson, 493 F.3d 1322, 1330
(11th Cir. 2007) (internal citation and quotation marks omitted).
III.
Under 18 U.S.C. § 3582, a district court can reduce a prisoner’s sentence for
“extraordinary and compelling reasons” if it finds that such a reduction is warranted
after considering the Section 3553(a) factors. Here, the district court denied
Morrow’s motion based on the Section 3553(a) factors. Under the district court’s
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view, relief was not warranted because of the serious nature and magnitude of
Morrow’s crime, the proportion of the sentence yet to be served, and the substantial
downward variance granted at the original sentencing. Morrow argues that the
factual findings undergirding the first two considerations were clearly erroneous.
We address each in turn.
We turn first to the district court’s consideration of the length of the sentence
yet to be served. The district court stated that Morrow had served less than half of
his sentence. In doing so, the court noted that Morrow had served 30 months of a
66-month sentence. Morrow argues that this was clearly erroneous as he had been
awarded ten months of good-time credit. He contends that he has therefore served
30 months of what will ultimately be 56 months in prison. In turn, the government
argues that the “sentence” is the term of imprisonment imposed at sentencing, and
so the amount of good-time credit is irrelevant to its calculation. It thus concludes
that the district court did not err, clearly or otherwise, in its “calculation or recitation
of the remaining portion of Morrow’s sentence.”
“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.” Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). However, under 18
U.S.C. § 3624, the Bureau of Prisons has discretion to credit an inmate for good
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time, allowing an inmate to be released prior to the end of his sentence. Good-time
credit does not vest until the inmate is released from custody, 18 U.S.C. § 3624(b)(2).
Morrow received a valid sentence of 66-months. Sentence length and time
served are not synonymous. See Barber v. Thomas, 560 U.S. 474, 483–87 (2010).
Good-time credit does not reduce the length of the sentence imposed. Pepper v.
United States, 562 U.S. 476, 501 n.14 (2011) (“An award of good time credit by the
Bureau of Prisons does not affect the length of a court-imposed sentence; rather, it
is an administrative reward to provide an incentive for prisoners to comply with
institutional disciplinary regulations.” (cleaned up)); see also Barber, 560 U.S. at
481–83 (distinguishing between the sentence imposed and the time “actually
served,” which must be the same “with the sole statutory exception for good time
credits” (emphasis omitted)). Further, Morrow’s good-time credit has not yet vested
and “may be revoked at any time before the date of [his] release.” Pepper, 562 U.S.
at 501 n.14; see 18 U.S.C. 3624(b)(2). The district court’s factual finding that
Morrow had only served half of his 66-month sentence was not clearly erroneous.
Next, we consider Morrow’s argument that the district court’s statement that
“Defendant engaged in a serious fraudulent investment scheme, which, along with
his co-defendant, caused over 300 victims to suffer losses of approximately $28
million” was clearly erroneous. Specifically, Morrow asserts that this is clearly
erroneous because he was only responsible for a loss of approximately $7 million
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among 175 victims. Morrow points to the PSR, which specifies that the restitution
owed by Morrow was $7 million dollars among 175 victims. The government argues
that Morrow is relying on an “overly technical” reading of the district court’s use of
the phrase “engaged in.” The government further asserts that the record is clear that
the transgressions of Morrow and his co-defendant were heavily intertwined.
In the district court’s order denying Morrow’s Section 3582(c)(1)(A) motion,
it stressed the seriousness of Morrow and his co-defendant’s fraudulent scheme.
Even though Morrow pleaded guilty to only one count, the plea agreement explicitly
stated that the district court could consider other parts of the conspiracy as relevant
conduct. And in the indictment, the count to which Morrow pleaded guilty outlined
losses of more than $28 million. The district court’s statement that through the
“serious fraudulent investment scheme,” Morrow “along with his co-defendant,
caused over 300 victims to suffer losses of approximately $28 million” was not
clearly erroneous, even though Morrow pleaded guilty to only a portion of that
scheme.
Additionally, the same district judge who denied Morrow’s Section
3582(c)(1)(A) motion originally sentenced Morrow. When analyzing a district
court’s sentence-modification order, we do “not turn a blind eye to what the judge
said at petitioner’s initial sentencing,” especially when the judge deciding the
sentence-modification motion is “the same judge who had sentenced the petitioner
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originally.” Chavez-Meza v. United States, 138 S. Ct. 1959, 1967 (2018). Instead,
we look to “the record as a whole” because the record, and specifically “the record
of the initial sentencing[,] sheds light on” the district court’s sentence-modification
order. Id.
Here, reading the denial order and sentencing hearing transcript together
reveals that the district court understood the scope of Morrow’s involvement and
thoroughly reviewed the relevant Section 3553(a) factors. See United States v.
Garey, 546 F.3d 1359, 1363 (11th Cir. 2008) (“[I]ndications in the record that the
district court considered facts and circumstances falling within § 3553(a)’s factors
will suffice.”)
The district court stated that “this was a very large amount of fraud with a
large amount of losses that went on for a long period of time.” It then noted that
Morrow’s co-defendant “was more culpable” and that Morrow was involved in the
scheme to a lesser extent. The district court’s understanding of Morrow’s degree of
culpability was indeed reflected in its decision to sentence Morrow to just 66 months.
Morrow’s sentence was a significant downward variance from the 121 to 151 month
sentencing guideline range and 30 months less than the sentence his co-defendant
received. Indeed, that “substantial downward variance at sentencing” was one of the
reasons that the district court gave for denying Morrow’s Section 3582(c)(1)(A)
motion. Because the district court did not base its decision on clearly erroneous
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factual findings and gave adequate reasons for denying Morrow’s Section
3582(c)(1)(A) motion, the district court did not abuse its discretion.
IV.
For these reasons, we AFFIRM the district court’s denial of Morrow’s
Section 3582(c)(1)(A) motion.
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