USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14625
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cr-00008-WKW-CSC-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIEN MICHAEL PIERCE,
a.k.a. Mike,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(July 9, 2021)
Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 2 of 8
Defendant Damien Pierce, proceeding pro se, appeals from the district
court’s order denying his 18 U.S.C. § 3582(c) motion for compassionate release.
Defendant argues on appeal, as he did below, that a defect in his indictment
constituted an “extraordinary and compelling reason” to release him early because
it resulted in an “unjust and excessive” consecutive sentence. The district court
concluded, however, that Defendant’s sole ground for early release did not
constitute an “extraordinary and compelling reason” for early release under
§ 3582(c)(1)(A)(i). Because a defect in an indictment does not qualify as an
“extraordinary and compelling reason” for a sentence reduction under the
Sentencing Commission’s binding definition of that term, the district court
correctly determined that Defendant was ineligible for relief. Accordingly, we
affirm.
BACKGROUND
In 2011, a federal grand jury indicted Defendant for conspiracy to possess
firearms in furtherance of violent felonies (Count 1), carjacking (Count 4), and
brandishing and discharging a firearm during and in relation to a crime of violence
(Count 5). As relevant here, Count 5 charged that Defendant and his codefendants,
“while aiding and abetting each other, did knowingly use and carry one or more
firearms during and in relation to, and did brandish and discharge said firearms
during the course of, a crime of violence,” namely, carjacking, in violation of 18
2
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 3 of 8
U.S.C. §§ 924(c)(1)(A)(ii)–(iii), 924(c)(1)(C)(i), and 2. Defendant went to trial
and was convicted on all three counts. In September 2012, the court sentenced
Defendant to 288 months’ imprisonment, which included concurrent terms of 168
months for Counts 1 and 4, and a 120-month consecutive sentence as to Count 5.
In September 2020, Defendant filed a pro se motion for compassionate
release, under 18 U.S.C. § 3582(c), arguing that his consecutive sentence imposed
for using a firearm during and in relation to a crime of violence was “unjust” due
to a defect in his indictment. Specifically, he argued that Count 5, which alleged a
violation of 18 U.S.C. § 924(c) for using, carrying, brandishing, and discharging
firearms during a carjacking improperly charged multiple offenses in a single
count. According to Defendant, this defect constituted an “extraordinary and
compelling circumstance” warranting a sentence reduction.
The district court denied Defendant’s motion. “Based upon a thorough
review of the record,” the court found that Defendant had not shown grounds for
compassionate release because he had not shown that “extraordinary and
compelling reasons” warranted early release, that he was not a danger to the
community, or that he had medical conditions that prison officials were unable to
address. In addition, the court found that balancing the 18 U.S.C. § 3553(a)
sentencing factors did not favor release. Defendant appealed.
3
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 4 of 8
DISCUSSION
We review de novo whether a defendant is eligible for an 18 U.S.C.
§ 3582(c) sentence reduction. United States v. Bryant, 996 F.3d 1243, 1251 (11th
Cir. 2021). If a defendant is eligible for relief, we review the district court’s
decision to grant or deny relief for an abuse of discretion. Id.
Generally, a court “may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). Section 3582(c)(1)(A), however, provides a
limited exception if certain conditions apply. See id. § 3582(c)(1)(A). A
defendant is eligible for a § 3582(c)(1)(A) sentence reduction only if “such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission” and the court finds that at least one of two conditions apply, either:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years
in prison, pursuant to a sentence imposed under section 3559(c), for the
offense or offenses for which the defendant is currently imprisoned, and
a determination has been made by the Director of the Bureau of Prisons
that the defendant is not a danger to the safety of any other person or
the community, as provided under section 3142(g)[.]
Id. § 3582(c)(1)(A)(i)–(ii). If a defendant is eligible for a sentence reduction, a
court “may reduce the term of imprisonment . . . after considering the factors set
forth in section 3553(a) to the extent that they are applicable.” Id. § 3582(c)(1)(A)
(referencing 18 U.S.C. § 3553(a)’s sentencing factors).
4
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 5 of 8
The Sentencing Commission published its policy statement defining
“extraordinary and compelling reasons” in Application Note 1 to § 1B1.13 of the
Sentencing Guidelines. Bryant, 996 F.3d at 1247, 1262–63. Subsections (A)–(D)
of Application Note 1 provide four circumstances under which “extraordinary and
compelling reasons exist”: (A) the defendant suffers from (i) “a terminal illness,”
or (ii) a permanent health condition “that substantially diminishes the ability of the
defendant to provide self-care” in the prison environment; (B) the defendant is “at
least 65 years old,” “is experiencing a serious [age-related] deterioration in
physical or mental health,” and “has served at least 10 years or 75 percent of his or
her term of imprisonment, whichever is less”; (C) the defendant’s assistance is
needed in caring for the defendant’s child, spouse, or partner due to (i) “[t]he death
or incapacitation of the caregiver of the defendant’s minor child or minor children”
or (ii) “[t]he incapacitation of the defendant’s spouse or registered partner”; and
(D) there are “other” extraordinary and compelling reasons “[a]s determined by the
Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13 cmt. n.1(A)–(D).
We have held that “district courts are bound by the Commission’s definition
of ‘extraordinary and compelling reasons’ found in 1B1.13.” Bryant, 996 F.3d at
1262. We have further held that Application Note 1(D)—which provides that the
Bureau of Prisons may determine “other” extraordinary and compelling reasons for
a sentence reduction not listed in subsections (A) through (C)—“does not grant
5
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 6 of 8
discretion to courts to develop ‘other reasons’ that might justify a reduction in a
defendant’s sentence.” Id. at 1248; U.S.S.G. § 1B1.13 cmt. n.1(D) (providing that
“other” extraordinary and compelling reasons exist for a sentence reduction if,
“[a]s determined by the Director of the Bureau of Prisons, 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)”).
Accordingly, where a defendant’s § 3582(c)(1)(A) motion for a sentence reduction
is based on alleged “extraordinary and compelling reasons,” the defendant is
eligible for a sentence reduction only if (1) his asserted reasons fall within the
reasons identified as “extraordinary and compelling” in subsections (A) through
(C) of Application Note 1, or (2) the Bureau of Prisons has determined that “other”
extraordinary and compelling reasons exist in the defendant’s case, under
subsection (D) of Application Note 1. See Bryant, 996 F.3d at 1264–65.
Here, the district court did not err in concluding that Defendant was
ineligible for a § 3582(c) sentence reduction. Defendant asserted only one ground
for relief, arguing that a defect in his indictment constituted an extraordinary and
compelling reason for a sentence reduction. That reason does not fall within the
Sentencing Commission’s defined categories of “extraordinary and compelling
reasons,” as specified in Application Note 1(A)–(D). See U.S.S.G. § 1B1.13 cmt.
n.1(A)–(D). Even assuming there was a defect in Defendant’s indictment, such a
6
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 7 of 8
defect has no bearing on Defendant’s age or health, under subsections (A) and (B).
See id. § 1B1.13 cmt. n.1(A)–(B). Nor is an indictment defect related to the need
for Defendant to act as a caregiver for a child or spouse, under subsection (C). See
id. § 1B1.13 cmt. n.1(C). Finally, the Bureau of Prisons has not determined that an
indictment defect justifies a sentence reduction in Defendant’s case, under
subsection (D). See id. § 1B1.13 cmt. n.1(D). 1 Because Defendant failed to
identify a cognizable “extraordinary and compelling reason” for compassionate
release, the district court did not err in concluding that Defendant was ineligible for
relief under § 3582(c)(1)(A)(i). See Bryant, 996 F.3d at 1250–51, 1264–65
(holding that the defendant was not eligible for relief because changes in the law
that would no longer subject him to a 25-year statutory minimum, sentencing
disparities with co-conspirators, and a record of rehabilitation in prison “d[id] not
fall within any of the reasons that 1B1.13 identifies as ‘extraordinary and
compelling’”). 2 We therefore affirm the district court’s denial of Defendant’s
motion for a sentence reduction.
1
Relying on out-of-circuit precedent, Defendant argues for a more expansive definition of
“extraordinary and compelling reasons” because the Sentencing Commission did not revise its
definition of that term after the First Step Act amended § 3582(c)(1)(A) to allow defendants to
file motions for compassionate release, in addition to the Bureau of Prisons. In Bryant, however,
we considered and rejected that reasoning, holding that “[t]he statute’s procedural change does
not affect the statute’s or 1B1.13’s substantive standards” as to what constitutes “extraordinary
and compelling reasons.” Bryant, 996 F.3d at 1247, 1259–61. Accordingly, our precedent
forecloses Defendant’s argument.
2
Because the court lacked authority to reduce Defendant’s sentence, we have no occasion to
address whether the court adequately addressed the 18 U.S.C. § 3553(a) factors. See United
7
USCA11 Case: 20-14625 Date Filed: 07/09/2021 Page: 8 of 8
AFFIRMED.
States v. Cook, 998 F.3d 1180 (11th Cir. 2021) (vacating and remanding a district court’s order
denying a sentence reduction where the Government conceded that an extraordinary and
compelling reason for compassionate release existed and the court’s brief order did not indicate
that it had considered the § 3553(a) factors).
8