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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13042
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-14069-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED E. DAKING, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 7, 2021)
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
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Alfred Daking, Jr., a 77-year-old federal prisoner, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(1)(A) motion for compassionate release.
Because the district court did not err in denying Daking’s motion, we affirm.
I. Background
Daking is currently serving a 180-month sentence for transporting child
pornography, in violation of 18 U.S.C. § 2252(a)(1) and (b)(1). 1 The district court
sentenced Daking to 180 months’ imprisonment and a lifetime of supervised
release, which was below Daking’s applicable guidelines range of 235 to 240
months’ imprisonment.
After serving a little over half of his sentence, in May 2020, Daking filed a
pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) seeking
compassionate release based on his age, his health issues, and the COVID-19
pandemic. The district court appointed him counsel, and, with the benefit of
counsel, Daking supplemented his § 3582(c)(1)(A) motion.
Daking argued the district court should grant him compassionate release
because he was 77 years old and suffered from multiple health conditions that
made him more susceptible to serious complications or death from COVID-19,
including hyperinflated lungs (which he claimed was associated with chronic
1
Daking’s presentence investigation report (“PSI”) explains that the charge arose out of
the virtual sexual exploitation of his (then) 13-year-old step-nephew. Daking also had two prior
convictions for sexual assault involving sexual contact with minors.
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obstructive pulmonary disease (“COPD”)), hypertension, bilateral leg edema, a
prosthetic eye, and a history of gastrointestinal disorders and skin cancer. He
argued that his vulnerability to COVID-19 was an “extraordinary and compelling
reason” justifying compassionate release. Daking also argued that the 18 U.S.C. §
3553(a) sentencing factors supported his request for compassionate release.
Following the government’s response in opposition, the district court denied
Daking’s motion for three reasons. First, the district court concluded that Daking
was ineligible for a reduction because he failed to show an extraordinary and
compelling reason for release under U.S.S.G. § 1B1.13 as he had not demonstrated
that his ailments were terminal, that he was unable to provide self-care while
incarcerated, or that the BOP medical staff was unable to provide him adequate
healthcare in light of COVID-19. Although the court stated that it was sympathetic
to his health challenges, the court found that the mere existence of COVID-19 was
not enough independently to justify compassionate release. Second, the court
concluded that, regardless of whether his health conditions constituted
extraordinary and compelling reasons for compassionate release, the 18 U.S.C. §
3553(a) factors did not support a reduction in sentence considering the nature and
circumstances of the offense and Daking’s criminal history. Finally, the court
found that granting Daking compassionate release would be inconsistent with the
applicable policy statements because he posed a danger to society—not only to
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minors within his community but to any minor with access to the internet. Daking
now appeals the denial of his motion.
II. Standard of Review
We review de novo a district court’s determination about a defendant’s
eligibility for an 18 U.S.C. § 3582(c) sentence reduction. United States v. Bryant,
996 F.3d 1243, 1251 (11th Cir. 2021). And because § 3582(c)(1)(A) “permissively
states that a district court ‘may’ reduce a sentence after eligibility is established,
we review for abuse of discretion a district court’s grant or denial of an eligible
defendant’s reduction request.” Id.
III. Discussion
Daking argues that we should reverse the district court’s denial of his
§ 3582(c)(1)(A) motion for three reasons: (1) the district court erred in finding that
Daking was ineligible for relief because he failed to demonstrate an extraordinary
and compelling reason for a sentence reduction; (2) the district court abused its
discretion in finding that Daking would be a danger to the community if released;
and (3) the district court abused its discretion by improperly weighing the
§ 3553(a) factors.
Under 18 U.S.C. § 3582(c)(1)(A), a district court may reduce a defendant’s
sentence “after considering the factors set forth in section 3553(a) . . . if it finds
that . . . extraordinary and compelling reasons warrant such a reduction . . . and
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that such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.”2
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G.
§ 1B1.13, and the commentary to § 1B1.13 outlines four circumstances that can
qualify as extraordinary and compelling reasons to justify a reduction under
§ 3582(c)(1)(A). 3 First, a defendant’s medical condition may constitute an
extraordinary and compelling reason where the defendant is “suffering from a
2
In full, § 3582(c)(1)(A) provides:
[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 (and may impose a term of probation or supervised release with or
without conditions that does not exceed the unserved portion of the original term
of imprisonment), after considering the factors set forth in section 3553(a) to the
extent they are applicable, if it finds that—extraordinary and compelling reasons
warrant such a reduction . . . and that such a reduction is consistent with
applicable policy statements issued by the sentencing Commission[.]
With the passage of the First Step Act, Congress expanded the availability of
compassionate release by allowing defendants to file motions directly with a district court
seeking such relief. See First Step Act of 2018, Pub. L. No. 115-391, § 603, 132 Stat. 5194,
5239.
3
Daking argues that the district court erred in relying on the commentary to U.S.S.G.
§ 1B1.13 to determine what constitutes an extraordinary and compelling reason because the
commentary has been superseded by the 2018 First Step Act. Daking’s argument is squarely
foreclosed by our recent decision in Bryant. Bryant clarified that “[t]he statute’s procedural
change” which allows defendants to file § 3582(c)(1)(A) motions “does not affect the statute’s or
1B1.13’s substantive standards, specifically the definition of ‘extraordinary and compelling
reasons,’” and thus “[§] 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A)
motions.” 996 F.3d at 1247–48 (“[T]he structure of the Guidelines, our caselaw’s interpretation
of ‘applicable policy statement,’ and general canons of statutory interpretation all confirm that
1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who
files it.”).
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terminal illness” or the defendant’s ability to provide self-care within the
environment of a correctional facility is substantially diminished due to a serious
physical or medical condition; a serious functional or cognitive impairment; or the
deterioration of physical or mental health because of the aging process, from which
he is not expected to recover. U.S.S.G. § 1B1.13, cmt. n.1(A). Second, the age of
the defendant can qualify as an extraordinary and compelling reason if the
defendant is at least 65 years old, “experiencing a serious deterioration in physical
or mental health because of the aging process,” and “has served at least 10 years or
75 percent” of his term of imprisonment, whichever is less. Id., cmt. n.1(B).
Third, certain family circumstances can constitute an extraordinary and compelling
reason. Id., cmt. n.1(C). Fourth, a “catch-all” provision explains that a qualifying
reason may exist if “the Director of the Bureau of Prisons” determines “there exists
in the defendant’s case an extraordinary and compelling reason other than, or in
combination with, the reasons described in subdivisions (A) through (C).”4 Id.,
cmt. n.1(D).
4
In Bryant, we rejected the defendant’s argument that “because the statute now allows
for defendant-filed motions, we should replace ‘as determined by the BOP’ with ‘as determined
by the court’” in this catch-all provision. 996 F.3d at 1248 (alterations adopted). In other words,
courts do not have “unlimited discretion to grant or deny motions under Application Note 1(D),”
and the catch-all provision is only applicable when the Director of the BOP determines an
additional extraordinary and compelling reason exists. Id.
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Because Daking did not establish an extraordinary and compelling reason
for compassionate release, the district court did not err in denying Daking’s
motion. Daking does not argue that he meets any of the four circumstances
outlined in § 1B1.13, rather, he reiterates his argument that his age, medical
conditions, and the COVID-19 pandemic together constitute an extraordinary and
compelling reason justifying his release. In other words, he asks us to create an
additional “extraordinary and compelling reason” based on his particular
circumstances in combination with the pandemic. This we cannot do. Bryant, 996
F.3d at 1248 (“Application Note 1(D) [to § 1B1.13] does not grant discretion to
courts to develop ‘other reasons’ that might justify a reduction in a defendant’s
sentence.”). Because Daking’s “circumstances do not match any of the four
categories [of extraordinary and compelling reasons]” listed in § 1B1.13, “he is
ineligible for a reduction.” Id. at 1254; 18 U.S.C. § 3582(c)(1)(A) (giving a district
court discretion to grant a reduction only if “such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.”). Thus, the
district court did not err by denying Daking’s motion for a sentence reduction.5
AFFIRMED.
5
Because Daking was ineligible for a sentence reduction, we need not address his other
arguments that the district court abused its discretion in weighing the 18 U.S.C. § 3553(a) factors
or in determining that he would pose a danger to the community if granted early release.
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