USCA11 Case: 21-11981 Date Filed: 03/24/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11981
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNITA AVERY-KELLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cr-00442-ELR-JSA-1
____________________
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2 Opinion of the Court 21-11981
Before WILSON, JORDAN, and EDMONDSON, Circuit Judges.
PER CURIAM:
Arnita Avery-Kelly, a federal prisoner, appeals the district
court’s denial of her motion for compassionate release under 18
U.S.C. § 3582(c)(1)(A), as amended by Section 603(b) of the First
Step Act. 1 The government has moved for summary affirmance
and for a stay of the briefing schedule. We summarily affirm the
district court’s denial and deny as moot the government’s motion
to stay the briefing schedule.
In 2019, a jury convicted Avery-Kelly of 27 counts of distrib-
uting and dispensing controlled substances outside the scope of her
podiatry practice. The district court imposed a total sentence of
120 months’ imprisonment. We affirmed Avery-Kelly’s convic-
tions and sentence on direct appeal.
In December 2020, Avery-Kelly moved pro se for compas-
sionate release under section 3582(c)(1)(A). Avery-Kelly later filed
an amended motion with the assistance of her court-appointed law-
yer. Avery-Kelly sought relief based on the COVID-19 pandemic.
Avery-Kelly alleged that -- as a 58-year-old obese Black woman suf-
fering from hypertension and pre-diabetes -- she was at increased
risk of serious illness if she were to contract COVID-19. Avery-
Kelly asserted that her underlying medical conditions combined
1 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018).
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21-11981 Opinion of the Court 3
with her inability to take adequate precautions against COVID-19
infection while incarcerated constituted extraordinary and compel-
ling reasons warranting relief.
The district court denied Avery-Kelly’s motion for compas-
sionate release. 2 The district court determined that Avery-Kelly
had not shown that her medical conditions rose to the level of ex-
traordinary and compelling reasons that would warrant relief. Nor
had Avery-Kelly shown that she was receiving inadequate medical
treatment while in prison. Having concluded that Avery-Kelly
failed to show an extraordinary and compelling reason for relief,
the district court said it was unnecessary to consider the 18 U.S.C.
§ 3553(a) factors.
On appeal, Avery-Kelly contends that the district court failed
to make adequate fact-findings about whether her medical condi-
tions constituted extraordinary and compelling reasons justifying
compassionate release. Avery-Kelly also argues that the district
court abused its discretion by declining to address the 18 U.S.C. §
3553(a) factors.
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
2 The district court also determined that Avery-Kelly was ineligible for place-
ment on home confinement under 34 U.S.C. § 60541(g)(1). Avery-Kelly raises
no challenge to this ruling on appeal.
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4 Opinion of the Court 21-11981
as is more frequently the case, the appeal is frivolous.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
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).
A district court has no inherent authority to modify a de-
fendant’s sentence and “may do so only when authorized by a stat-
ute or rule.” United States v. Puentes, 803 F.3d 597, 605-06 (11th
Cir. 2015). As amended by the First Step Act, section 3582(c)(1)(A)
authorizes a district court to modify a term of imprisonment if
these three conditions are met: “(1) extraordinary and compelling
reasons warrant such a reduction, (2) such a reduction is consistent
with applicable policy statements issued by the Sentencing Com-
mission, and (3) § 3553(a) sentencing factors weigh in favor of a
reduction.” United States v. Giron, 15 F.4th 1343, 1346 (11th Cir.
2021) (quotations omitted); 18 U.S.C. § 3582(c)(1)(A). The district
court may consider these conditions in any order, and the absence
of one of the three conditions forecloses a sentence reduction. See
United States v. Tinker, 14 F.4th 1234, 1237-38 (11th Cir. 2021).
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
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21-11981 Opinion of the Court 5
section 1B1.13 identifies four categories -- including a prisoner’s
medical condition -- that might constitute extraordinary and com-
pelling reasons warranting a reduced sentence. U.S.S.G. § 1B1.13
comment. (n.1).
Pertinent to this appeal, a prisoner’s medical condition may
warrant a sentence reduction if the prisoner (1) has a terminal ill-
ness, or (2) has a substantially diminished ability to provide self-care
in prison because of a serious physical or mental condition or be-
cause of age-related deterioration in physical or mental health. Id.
§ 1B1.13 comment. (n.1(A)). 3 If the district court decides that a de-
fendant’s circumstances meet none of the four categories in Appli-
cation Note 1, the defendant is ineligible for relief. Bryant, 996 F.3d
at 1254.
The district court abused no discretion in concluding that
the medical conditions described by Avery-Kelly -- including obe-
sity, hypertension, pre-diabetes, and the potential for an increased
risk of complications due to COVID-19 -- constituted no “extraor-
dinary and compelling reason” within the meaning of section
3 That the circumstances identified in Application Notes 1(B) (addressing de-
fendants 65 and older) and 1(C) (addressing a defendant’s family circum-
stances) are inapplicable in this case is clear. We have also concluded that the
“catchall” provision in Application Note 1(D) applies only in situations where
the Bureau of Prisons has identified other reasons warranting a sentence re-
duction. See Bryant, 996 F.3d at 1248 (explaining that “Application Note 1(D)
does not grant discretion to courts to develop ‘other reasons’ that might justify
a reduction in a defendant’s sentence.”).
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6 Opinion of the Court 21-11981
1B1.13. Avery-Kelly has not shown that she suffers from a terminal
illness or from a serious medical condition that “substantially di-
minishes” her ability to provide self-care in prison. See U.S.S.G. §
1B1.13, comment. (n.1(A)). Nor did Avery-Kelly allege that she
was receiving inadequate treatment for her medical conditions.
See Giron, 15 F.4th at 1346 (concluding no abuse of discretion oc-
curred when the district court found no “extraordinary and com-
pelling reason” for compassionate release because the defendant’s
“high cholesterol, high blood pressure, and coronary artery disease
were manageable in prison, despite the existence of the COVID-19
pandemic.”). That Avery-Kelly’s medical conditions might put her
at some increased risk of serious illness due to COVID-19 does not,
by itself, mandate a finding of an extraordinary and compelling rea-
son under section 1B1.13. See id.
We also reject Avery-Kelly’s argument that the district court
abused its discretion by declining to consider the section 3553(a)
factors. “When denying a request for compassionate release, a dis-
trict court need not analyze the § 3553(a) factors if it finds either
that no extraordinary and compelling reason exists or that the de-
fendant is a danger to the public.” See Giron, 15 F.4th at 1347;
Tinker, 14 F.4th at 1237-38.
No substantial question exists on the outcome of this appeal;
the government’s position is clearly right as a matter of law. The
government’s motion for summary affirmance is GRANTED, and
the government’s motion to stay the briefing schedule is DENIED
as moot.