Case: 20-61235 Document: 00515952764 Page: 1 Date Filed: 07/26/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 26, 2021
No. 20-61235 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Starlet Kizer,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:10-CR-163-3
Before King, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Starlet Kizer, federal prisoner # 14831-042, was convicted by a jury of
one count of aiding and abetting federal armed bank robbery, in violation of
18 U.S.C. § 2 and 18 U.S.C. § 2113(a) and (d), and two counts of aiding and
abetting the brandishing of a firearm during a crime of violence, in violation
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-61235 Document: 00515952764 Page: 2 Date Filed: 07/26/2021
No. 20-61235
of 18 U.S.C. § 2 and 18 U.S.C. § 924(c)(1)(A). Kizer was sentenced to 385
months in prison and five years of supervised release. She appeals the denial
of her motion under 18 U.S.C. § 3582(c)(1)(A).
We review the denial of a motion under § 3582(c)(1)(A) for an abuse
of discretion. United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
A district court disposing of such a motion is bound by § 3582(c)(1)(A)(i), as
well as the 18 U.S.C. § 3553(a) sentencing factors. United States v. Shkambi,
993 F.3d 388, 393 (5th Cir. 2021).
Kizer contests the district court’s decision on multiple grounds. She
maintains that the district court did not properly evaluate whether the health
dangers posed by COVID-19, combined with her medical conditions, merited
a reduction; the district court erroneously assessed whether she was entitled
to relief based on the § 3553(a) factors, her rehabilitation, her low likelihood
of recidivism, her prospective dangerousness, and other circumstances that
suggest that she should be released early; and the district court wrongly found
that she was not entitled to a reduction due to the non-retroactive sentencing
changes for § 924(c) convictions under the First Step Act.
She has failed to establish that the district court’s decision was based
in legal error or clearly erroneous facts. See Chambliss, 948 F.3d at 693. The
district court, while applying U.S.S.G. § 1B1.13, did not indicate that it felt
bound by that policy statement, and, instead, relied on its own judgment to
decide whether a sentence reduction was merited based on extraordinary and
compelling reasons and the § 3553(a) factors. See Shkambi, 993 F.3d at 392.
The district court at least implicitly considered Kizer’s arguments as to the
factors that she thought warranted a reduction and found that those alleged
bases failed to satisfy the exceptional requirement of § 3582(c)(1)(A) and that
specific § 3553(a) factors weighed against granting a reduction. We defer to
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No. 20-61235
the district court’s assessment, and Kizer’s disagreement with the weighing
of the factors does not show error. See Chambliss, 948 F.3d at 694.
Kizer otherwise has failed to establish that the district court abused its
discretion. See id. at 683. She did not show that the pandemic or her medical
issues entitled her to a sentence reduction under the circumstances, see id; see
also United States v. Thompson, 984 F.3d 431, 435 (5th Cir. 2021), cert. denied,
2021 WL 2044647 (U.S. May 24, 2021) (No. 20-7832), or that there was an
abuse of discretion in the district court’s decision that, even if the sentencing
changes for § 924(c) convictions could be an extraordinary and compelling
reason, the § 3553(a) factors militated against a reduction, see Chambliss, 948
F.3d at 693-94; cf. United States v. Cooper, 996 F.3d 283, 285, 288-89 (5th Cir.
2021).
AFFIRMED.
3
United States v. Kizer
Combined Opinion