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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-14236
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00435-TPB-AAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN L. POWELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(July 19, 2021)
Before MARTIN, BRANCH, and BLACK, Circuit Judges.
PER CURIAM:
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Kevin Powell, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A). Powell argues the district court abused its discretion in denying
his motion because his chronic obstructive pulmonary disease (COPD) and
emphysema constitute extraordinary and compelling reasons warranting
compassionate release and because he has never been a danger to the community.
After review,1 we affirm.
I. DISCUSSION
Powell first argues his COPD and emphysema are extraordinary and
compelling reasons warranting his release because they place him at a high risk of
serious illness or death due to COVID-19. He further contends the risk of
contracting COVID-19 is high at FCI Jessup, where he is incarcerated, because
staff members do not follow proper safety precautions.
District courts lack the inherent authority to modify a term of imprisonment
except to the extent a statute expressly permits. See 18 U.S.C. § 3582(c). One
such exception is for “compassionate release” under 18 U.S.C. § 3582(c)(1)(A).
1
We review the district court’s denial of a motion for compassionate release under 18
U.S.C. § 3582(c)(1)(A) for an abuse of discretion. United States v. Harris, 989 F.3d 908, 911
(11th Cir. 2021). An abuse of discretion occurs when a district court applies an incorrect legal
standard, follows improper procedures in making a determination, makes findings of fact that are
clearly erroneous, or commits a clear error of judgment. Id. at 911-912. When we review for an
abuse of discretion, “it means that the district court had a range of choice and that we cannot
reverse just because we might have come to a different conclusion had it been our call to make.”
Id. at 912 (quotation marks omitted).
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See United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021). The First Step
Act of 2018 amended § 3582(c)(1)(A) to increase the use and transparency of
compassionate release, enabling prisoners, rather than the Bureau of Prisons (BOP)
alone, to file compassionate release motions. See Pub. L. No. 115-391, § 603(b),
132 Stat. 5194, 5239 (2018). As amended by the First Step Act, § 3582(c)(1)(A)
provides that:
[T]he court, upon motion of the Director of the [BOP], or upon motion
of the defendant after the defendant has fully exhausted all
administrative rights to appeal a failure of the [BOP] 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 . . . after considering the
factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are
applicable, if it finds that . . . extraordinary and compelling reasons
warrant such a reduction.
Id. § 3582(c)(1)(A)(i). Section 3582(c)(1)(A) also requires that any reduction be
consistent with applicable policy statements issued by the Sentencing Commission.
Id. § 3582(c)(1)(A).
Section 1B1.13 of the Sentencing Guidelines provides the applicable policy
statement for § 3582(c)(1)(A). See U.S.S.G. § 1B1.13. After briefing on this
appeal concluded, we held in United States v. Bryant that § 1B1.13 “is an
applicable policy statement that governs all motions under Section 3582(c)(1)(A),”
including those filed by prisoners. 996 F.3d 1243, 1262 (11th Cir. 2021). Under
§ 1B1.13, a district court may reduce a term of imprisonment if, after considering
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the § 3553(a) factors, it determines extraordinary and compelling reasons warrant
the reduction and the defendant is not a danger to the safety of the community.
U.S.S.G. § 1B1.13.
Relevant here, the application notes to § 1B1.13 identify four categories of
extraordinary and compelling reasons for compassionate release, including the
defendant’s medical condition, age, and family circumstances, or “other reasons”
determined by the Director of the BOP. Id., comment. (n.1(A)-(D)). With respect
to the defendant’s medical condition, “extraordinary and compelling reasons” exist
if the defendant is suffering from, inter alia, “a serious physical or medical
condition . . . that substantially diminishes the ability of the defendant to provide
self-care within the environment of a correctional facility and from which he or she
is not expected to recover.” Id., comment. (n.1(A)). As to the catch-all provision
for “other reasons” in Application Note 1(D), we held in Bryant that the discretion
to determine whether such other reasons exist rests with the BOP, not the district
courts. Bryant, 996 F.3d at 1248, 1263.
The district court did not abuse its discretion in denying Powell’s motion for
compassionate release. Under § 1B1.13, a serious medical condition may
constitute an extraordinary and compelling reason for release, but only where the
condition “substantially diminishes the ability of the defendant to provide self-care
within the environment of a correctional facility” and is one “from which he or she
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is not expected to recover.” U.S.S.G. §1B1.13, comment. (n.1(A)). The court
acknowledged Powell’s argument that his COPD increased his risk of serious
illness due to COVID-19. But, consistent with the policy statement, it determined
Powell was not entitled to relief based on his COPD because he failed to show how
this condition substantially diminished his ability to provide self-care. The court
noted the medical records attached to Powell’s motion indicated his condition was
being treated and managed by the BOP.
The record supports the district court’s finding. Although the documents
attached to Powell’s motion show he did report having breathing problems in July
and August of 2020 and had a 30-year history of smoking, they also showed he
was receiving treatment for his COPD, including inhalers, and was independent in
his daily activities. And as of August 2020, Powell reported he was not suffering
from exacerbation of his COPD, fever, or chills. It was therefore within the district
court’s discretion to find Powell failed to show his medical condition substantially
diminished his ability to provide self-care and was thus not an extraordinary and
compelling reason for his release. See id.; Bryant, 996 F.3d at 1262.2
2
Contrary to its position in the district court, the government on appeal concedes that in
light of the pandemic, a prisoner with COPD is eligible for compassionate release. Nevertheless,
the government asserts it was within the court’s discretion to determine otherwise. As set forth
above, we agree the court did not abuse its discretion in finding Powell’s COPD was not an
extraordinary and compelling reason under the guidance in U.S.S.G. § 1B1.13, which, under
Bryant, is binding.
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To the extent Powell contends his COPD and emphysema are “other
reasons” for his release under the catch-all provision of Application Note 1(D), his
argument is foreclosed by our decision in Bryant. Under Bryant, “other reasons”
warranting release, which do not fall in the categories listed in Application Notes
1(A)-(C), must be determined by the BOP, not the district courts. Bryant, 996 F.3d
at 1248, 1263.
Even if Powell had demonstrated an extraordinary and compelling reason,
the district court did not abuse its discretion in denying his motion for
compassionate release in light of the § 3553(a) factors. See 18 U.S.C.
§ 3582(c)(1)(A); U.S.S.G. § 1B1.13. After finding Powell failed to demonstrate
extraordinary and compelling reasons for his release, the court further concluded
the § 3553(a) factors weighed strongly against compassionate release, stating
Powell could not show he was not a danger to the community and had a lengthy
criminal history. The court observed Powell had been sentenced as an Armed
Career Criminal and had ten prior convictions for the sale or possession of cocaine.
Although the court discussed § 3553(a) and dangerousness together in the same
paragraph, its focus on Powell’s lengthy criminal history adequately supports its
determination the § 3553(a) factors did not weigh in favor of his release and is
consistent with factors including Powell’s history and characteristics and the need
for his sentence to provide deterrence and protect the public. See 18 U.S.C.
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§ 3553(a)(1), (2)(B)-(C); see also United States v. Cook, 998 F.3d 1180 (11th Cir.
2021) (holding a district court must consider the applicable § 3553(a) factors and
explain its decision in a way that allows for meaningful appellate review).
Powell argues he has never been a danger to the community, explaining his
underlying conviction for being a felon in possession of a firearm involved selling
a firearm to a pawn shop. To the extent he contends the court should have
assigned greater weight to the nature and circumstances of his offense, however, it
was within the court’s discretion to instead place greater emphasis on his criminal
history. See also United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007)
(stating the weight assigned to any given § 3553(a) factor is left to the sound
discretion of the district court). As the district court did not abuse its discretion in
denying Powell’s motion based on his failure to show an extraordinary and
compelling reason or under the § 3553(a) factors, we need not address Powell’s
contention he is not a danger to the community.3
3
We note Powell’s initial brief contains a one-sentence argument asserting he was denied
the opportunity to file a reply in support of his motion. To the extent this is adequate to raise the
issue on appeal, we conclude the district court did not abuse its discretion in ruling on Powell’s
motion without the benefit of a reply. See United States v. McLean, 802 F.3d 1228, 1233 (11th
Cir. 2015) (stating we review a district court’s application of its local rules for an abuse of
discretion). The local rules for the Middle District of Florida provide that no party may file a
reply directed to a response without leave of court, and there is nothing in the record to indicate
Powell ever requested such leave. See M.D. Fla. L. R. 3.01(d); see also Loren v. Sasser, 309
F.3d 1296, 1304 (11th Cir. 2002) (explaining that although pro se filings are liberally construed,
pro se litigants are required to conform to procedural rules).
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II. CONCLUSION
Accordingly, for the reasons above, we affirm the district court’s denial of
Powell’s motion for compassionate release.
AFFIRMED.
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MARTIN, Circuit Judge, concurring in the judgment:
In deciding whether to give compassionate release to a prisoner, District
Court Judges in our Circuit are given broad discretion in weighing the factors set
forth in 18 U.S.C. § 3553(a), as well they should. See United States v. Cook, 998
F.3d 1180, 1184–85 (11th Cir. 2021) (holding that district courts must consider the
§ 3553(a) factors when ruling on motions for compassionate release and noting
that such consideration is “suffused with discretion.”). And while I may have
exercised my discretion differently than the District Judge did as to Kevin Powell’s
request, that is not a basis for reversal. I must therefore concur in the judgment
affirming the denial of Kevin Powell’s motion for compassionate release.
However, separate and apart from the District Court’s consideration of the
§ 3553(a) factors, there is also the underlying question of whether Mr. Powell
demonstrated extraordinary and compelling reasons that warranted his
compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). I believe he has. Mr.
Powell suffers from chronic obstructive pulmonary disease (“COPD”). COPD
causes airflow blockage and makes breathing more difficult. See Chronic
Obstructive Pulmonary Disease (COPD), Ctr. for Disease Control & Prevention,
https://www.cdc.gov/copd/index.html (last visited July 12, 2021). And the Centers
for Disease Control and Prevention (“CDC”) has identified COPD as a medical
condition that can make it more likely to get severely ill from COVID-19. See
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People with Certain Medical Conditions, Ctr. for Disease Control & Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last visited July 12, 2021). Indeed, the government now
concedes on appeal (in contrast to its position before the trial judge who decided
Mr. Powell’s case) that Powell’s COPD makes him eligible for compassionate
release.
I read the majority opinion to hold that the District Court did not err when it
concluded that Mr. Powell was not entitled to relief based on his COPD, since he
failed to show how this condition substantially diminished his ability to provide
self-care. It is true, as the majority notes, that Mr. Powell was receiving treatment
for his COPD and the warden described him as being independent in his daily
activities. But this does not fully engage with the real threat posed by COVID-19.
As a prisoner in the custody of the Bureau of Prisons, Mr. Powell is unable to take
many of the personal precautions that would help protect himself from contracting
COVID-19. For instance, he cannot practice social distancing, which the CDC
says is “especially” important for individuals with “severe health conditions” like
COPD. See People with Certain Medical Conditions, Ctr. for Disease Control &
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last visited July 12, 2021). I
believe this “substantially diminishes the ability of [Mr. Powell] to provide self-
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care within the environment of a correctional facility.” USSG § 1B1.13, comment
n.1(A). I would therefore hold that the District Court abused its discretion when it
found Mr. Powell had not demonstrated extraordinary and compelling reasons
justifying release. See United States v. McLean, 802 F.3d 1228, 1233 (11th Cir.
2015) (“A district court abuses its discretion when it . . . applies the law in an
unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.” (quotation
marks omitted)).
As set out above, the District Court held, alternatively, that even if Mr.
Powell had demonstrated an extraordinary and compelling reason that warranted
his compassionate release, his request failed under the court’s evaluation of the
§ 3553(a) factors. This alternative ruling insulates the District Court’s denial of
Mr. Powell’s request for compassionate release, so I join in the judgment of the
majority opinion.
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