United States of America v. Delvin Tinker

Atlanta, Georgia - Criminal defense lawyer represented defendant with a possessing a firearm while a convicted felon charge. He now seeks compassionate release because of Covid-19.

We start with Tinker's contention that the district court

erred by assuming the existence of "extraordinary and compelling

reasons” without making explicit findings.

In relevant part, 18 U.S.C. § 3582(c)(1)(A) states as follows:

[T]he court, upon motion of . . . the defendant . . . may reduce the term of imprisonment . . . , after considering the factors set forth in section 3553(a)

to the extent that 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.

The "applicable policy statement[]” to which § 3582(c)(1)(A)

refers states, in turn, that, the court may reduce a term of imprisonment if, as relevant here, it "determines that . . . (2) the defendant is not a danger to the safety of any other person or to the community.” U.S.S.G. § 1B1.13. Section 1B1.13's policy statement is

applicable to all motions under § 3582(c)(1)(A), and, accordingly,

"district courts may not reduce a sentence under Section

3582(c)(1)(A) unless a reduction would be consistent with

discretion. 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 determination, or makes findings of fact

that are clearly erroneous.” Id. (quotation omitted).

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 3 of 14

4 Opinion of the Court 20-14474

[§] 1B1.13.” United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir.

2021).2

Therefore, by dint of § 3582(c)(1)(A)'s plain text, a district

court may reduce a term of imprisonment if (1) the § 3553(a) sentencing factors favor doing so, (2) there are "extraordinary and

compelling reasons” for doing so, and, as relevant here, (3) doing

so wouldn't endanger any person or the community within the

meaning of § 1B1.13's policy statement.

A

As an initial matter, nothing on the face of 18 U.S.C.

§ 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis in any particular order. Nothing, to be more specifically responsive to Tinker's contention, requires a court to find "extraordinary and compelling reasons” for release before considering

the § 3553(a) factors or § 1B1.13's policy statement.

Consider, by way of analogy, the following sentence with

the same syntax as § 3582(c)(1)(A): "Rose can give Joe a cookie,

after Joe walks the dog, if he does the dishes, and takes out the

trash.” It's clear to the average speaker of American English that,

before Rose can give Joe a cookie, Joe must walk the dog, do the

dishes, and take out the trash. But the order in which Joe completes

2 Bryant, which came down after Tinker filed his brief in this case, forecloses

his contention that U.S.S.G. § 1B1.13 is not binding.

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 4 of 14

20-14474 Opinion of the Court 5

those tasks is immaterial. So long as he completes them all, Rose

can give him the cookie.

Just so here. Under § 3582(c)(1)(A), the court must find that

all necessary conditions are satisfied before it grants a reduction.

Because all three conditions—i.e., support in the § 3553(a) factors,

extraordinary and compelling reasons, and adherence to § 1B1.13's

policy statement—are necessary, the absence of even one would

foreclose a sentence reduction. Here, two conditions were unsatisfied. First, the district court found that, in its assessment, the

§ 3553(a) factors did not support a reduction. Second, the court

held that a reduced sentence would be inconsistent with § 1B1.13's

policy statement because Tinker presented a danger to others. Because at least one of the compassionate-release conditions was not

satisfied, it cannot—as either a syntactical or logical matter—have

been error for the district court to skip assessment of another condition.

B

Relevant precedent is to the same effect. We have not previously addressed—at least in a published opinion—whether a district court errs where, as here, it assumes that "extraordinary and

compelling reasons” exist in the 18 U.S.C. § 3582(c)(1)(A) context.3

3 Our unpublished opinions have taken it as a given that a district court does

not and, to the contrary, that the court may assume the existence of "extraordinary and compelling circumstances.” In United States v. Arjona, for instance, we affirmed the denial of a § 3582(c)(1)(A) motion after explicitly assuming that the movant had presented "extraordinary and compelling

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 5 of 14

6 Opinion of the Court 20-14474

But several of our sister circuits have done so, and they have uniformly held that a district court may assume the existence of "extraordinary and compelling reasons” while deciding the compassionate-release motion before it based on the § 3553(a) factors.

The Ninth Circuit's decision in United States v. Keller, 2

F.4th 1278 (9th Cir. 2021), is illustrative. There, as here, a defendant moved for a reduced sentence under § 3582(c)(1)(A), and there,

as here, the district court denied the reduction after assessing the

§ 3553(a) sentencing factors. Id. at 1281. The defendant challenged

the district court's ruling, asserting that the court was required to

make "an explicit 'extraordinary and compelling' finding before

denying the motion on account of the § 3553(a) factors.” Id. at

1284. Affirming the district court, the Ninth Circuit reasoned that,

"although a district court must perform this sequential inquiry before it grants compassionate release”—both statutory factors being

necessary conditions to relief—"a district court that properly denies compassionate release need not evaluate each step.” Id. In the

same way, the Tenth Circuit recently rejected the contention that

a district court is forbidden "to deny relief based on its assessment

of the § 3553(a) factors without first making a determination of the

reasons” for release, holding that relief was still unwarranted in light of the

§ 3553(a) factors. 852 F. App'x 506, 508–09 (11th Cir. 2021) (per curiam); see

also United States v. Young, 844 F. App'x 234, 237–38 (11th Cir. 2021) (per

curiam) (affirming the district court's denial of compassionate release based

on the § 3553(a) factors when it assumed, without deciding, that the movant

had established "extraordinary and compelling reasons”); United States v.

Boykin, 839 F. App'x 432, 434–36 (11th Cir. 2021) (per curiam) (same).

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 6 of 14

20-14474 Opinion of the Court 7

existence of 'extraordinary and compelling reasons'” and held, to

the contrary, that "district courts are free to deny relief on the basis

of any one of § 3582(c)(1)(A)'s requirements without considering

the others.” United States v. Hald, 8 F.4th 932, 942 (10th Cir. 2021).

So too, the Sixth Circuit has held that a district court "permissibly

assumed for the sake of argument that extraordinary and compelling circumstances existed” before assessing the § 3553(a) factors,

see United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020), and

the Eighth Circuit has held that when a district judge has assumed

the existence of "extraordinary and compelling reasons,” the appellate court need only determine whether the judge abused his discretion in analyzing the § 3553(a) factors, seeUnited States v. Rodd,

966 F.3d 740, 747 (8th Cir. 2020); cf. also United States v. Long, 997

F.3d 342, 349–50 (D.C. Cir. 2021) (implicitly accepting that the district court may assume that a defendant's health condition provided an "extraordinary and compelling reason” for a sentence reduction).

For reasons already explained, we agree with our sister circuits' assessments. What's more, the logic of their opinions

squares with our recent decision in United States v. Gonzalez,

which held, in a related First Step Act context, that a district court

does not necessarily err when it assumes that a defendant is eligible

for a sentence reduction but exercises its discretion to deny it. See

No. 19-14381, 9 F.4th 1327, 2021 WL 3671430 (11th Cir. Aug. 19,

2021).

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 7 of 14

8 Opinion of the Court 20-14474

Under the First Step Act, a defendant is eligible for a sentence reduction if she was sentenced for committing a "covered offense” and the guideline range for that offense would be different

under the Fair Sentencing Act, which aimed to reduce sentencing

disparities between crack- and powder-cocaine offenders. Id. at *2.

If the defendant is eligible, the district court then has discretion—

but not the obligation—to impose a new sentence after calculating

the updated sentencing guideline range. Id. at *3. In Gonzalez, the

district court had "stated that [the defendant] was ineligible for a

reduction under the First Step Act, but alternatively assumed his

eligibility and denied a sentence reduction in the exercise of its discretion.” Id. We affirmed the district court's refusal to reduce the

defendant's sentence. Id. at *4. Two aspects of our decision are

relevant here.

First, as a general matter, implicit in our holding is the premise that a district court can assume that a defendant satisfies one

necessary condition to relief—there, eligibility—before denying

the defendant's motion based on the failure of another necessary

condition—there, failing to convince the court to exercise its discretion. As we said, "as long as it is not ambiguous, a district court's

alternative exercise of discretion in denying a First Step Act motion

can suffice for affirmance.” Id. at *3.

Second, and more specifically, the defendant in Gonzalez

urged this Court to "hold that district courts must always calculate

and consider a defendant's new range under the Sentencing Guidelines before exercising their discretion under § 404(b) of the First

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 8 of 14

20-14474 Opinion of the Court 9

Step Act.” Id. We refused to do so. We reasoned that "[a]n automatic reversal rule” for situations in which the district court denies

a motion, skipping over a step that would be necessary only to

grant it, "would be in tension, if not in conflict, with Rule 52(a) [of

the Federal Rules of Criminal Procedure] and our precedent.” Id.

at *4.

By parity of reasoning, skipping over a necessary condition

in the § 3582(c)(1)(A) context isn't per se reversible. Under Rule

52(a), any error "that does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). Even if a district court were to

find that "extraordinary and compelling reasons” justify early release, the result would be the same—denial—where the § 3553(a)

factors militate against a sentence reduction. Accordingly, under

the logic of Gonzalez, requiring the court to make an explicit finding would be in tension with Rule 52(a) here, as well.

C

Tinker relies primarily on three cases to argue that the district court was required to make explicit findings: United States v.

Vautier, 144 F.3d 756 (11th Cir. 1998), United States v. Johnson, 877

F.3d 993 (11th Cir. 2017), and United States v. Jones, 962 F.3d 1290

(11th Cir. 2020). None is on point.

Vautier arose under 18 U.S.C. § 3582(c)(2), which allows a

district court to modify a term of imprisonment if (1) the defendant

was sentenced "based on a sentencing range that has subsequently

been lowered,” (2) the § 3553(a) factors favor a modification, and

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 9 of 14

10 Opinion of the Court 20-14474

(3) a modification would be consistent with U.S.S.G. § 1B1.10. See

144 F.3d at 761. In Vautier, we recognized that when considering

a modification request under § 3582(c)(2), a district court "must

make two distinct determinations.” Id. at 760. First, the court must

substitute the amended guideline range for the original one and determine what sentence it would have imposed, and then, second,

it must consider the § 3553(a) factors and determine whether to reduce a defendant's sentence in light of the conclusion reached in

step one. Id.

In Johnson, we held that requests for early termination of

supervised release pursuant to 18 U.S.C. § 3583(e)(1) were sufficiently analogous to § 3582(c)(2) motions to require district courts

to consider the § 3553(a) sentencing factors. See 877 F.3d at 997–

1000. We remarked that, for a court to grant early termination, it

must make two determinations: first, that the defendant completed

a year of supervised release as required by the statute; and second,

that the § 3553(a) factors counsel in favor of granting relief. Id. at

997–98.

Finally, in Jones, we applied the same two-part analysis as in

Gonzalez to determine whether four defendants were entitled to

relief under Section 404(b) of the First Step Act. First, we determined which of the four defendants were sentenced for a "covered

offense” with a penalty making them eligible for relief. 962 F.3d at

1301–1303. Second, and only after determining that two of the four

defendants were eligible for relief, we assessed whether the district

court abused its discretion when denying them relief. Id. at 1304.

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 10 of 14

20-14474 Opinion of the Court 11

To be sure, the cases that Tinker cites support the contention that to grant statutory relief, all statutory conditions must be

satisfied. But none of them addresses—let alone questions—a district court's ability to assume that a condition is satisfied in the first

place, or otherwise to assess one necessary condition while skipping over another. Our recent and analogous decision in Gonzalez

and the resolution of identical issues by our sister circuits convince

us that the district court may assume the existence of "extraordinary and compelling reasons” in the § 3582(c)(1)(A) context.

* * *

For these reasons, we hold that a district court doesn't procedurally err when it denies a request for compassionate release

based on the § 3553(a) sentencing factors (or § 1B1.13's policy statement) without first explicitly determining whether the defendant

could present "extraordinary and compelling reasons.”

II

Separately, Tinker asserts that the district court erred when

analyzing the § 3553(a) factors. Essentially, he contends that the

court neglected to consider several important factors when making

its determination. These factors include the increased risk Covid19 posed to Tinker given his medical conditions, the types of sentences available, and evidence of Tinker's post-offense rehabilitation.

We recently held, in an appeal where the government

acknowledged that a movant had demonstrated extraordinary and

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 11 of 14

12 Opinion of the Court 20-14474

compelling reasons, that an order granting or denying compassionate release under § 3582(c)(1)(A) must indicate that the district

court has considered "all applicable § 3553(a) factors,” in addition

to the question whether a reduction or release would be consistent

with U.S.S.G. § 1B1.13's policy statement. United States v. Cook,

998 F.3d 1180, 1184-85 (11th Cir. 2021). While a "district court need

not exhaustively analyze” each § 3553(a) factor or articulate its findings in great detail, "it must provide enough analysis that meaningful appellate review of the factors' application can take place.” Id.

at 1184–85 (quotation marks omitted).

"The weight given to any specific § 3553(a) factor is committed to the sound discretion of the district court.” United States v.

Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Even so, "[a] district

court abuses its discretion when it (1) fails to afford consideration

to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a

clear error of judgment in considering the proper factors.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted).

In situations where consideration of the § 3553(a) factors is

mandatory, district courts needn't address "each of the § 3553(a)

factors or all of the mitigating evidence.” United States v. Taylor,

997 F.3d 1348, 1354 (11th Cir. 2021). Instead, an acknowledgement

by the district court that it considered the § 3553(a) factors and the

parties' arguments is sufficient. Id. at 1354–55. A sentence may be

affirmed so long as the record indicates that the district court

USCA11 Case: 20-14474 Date Filed: 09/28/2021 Page: 12 of 14

20-14474 Opinion of the Court 13

considered "a number of” the factors such as the "nature and circumstances of the offense,” the defendant's history of recidivism,

and the types of sentences available. See United States v. Dorman,

488 F.3d 936, 944–45 (11th Cir. 2007) (affirming defendant's sentence because although the district court didn't discuss each of the

sentencing factors, the record showed that it considered several of

them).

Tinker's contention that the district court erred in its assessment of the § 3553(a) factors is meritless, and his reliance on Cook

is misplaced. Contrary to Tinker's assertions, the district court was

not required to expressly discuss all of his mitigating evidence regarding Covid-19 and his medical conditions, or even every

§ 3553(a) sentencing factor. See Taylor, 997 F.3d at 1354. Furthermore, Cook doesn't hold that district courts must address every

§ 3553(a) factor or every argument in mitigation. To the contrary,

Cook itself recognizes that district courts are not required to do so.

See 998 F.3d at 1184. Here, the district court provided a thorough

discussion of several § 3553(a) factors and emphasized Tinker's extensive criminal history and the need to protect the public, which

was within its discretion to do. [Doc. 72] It also acknowledged the

parties' filings [Id.], which discussed at length the factors that

Tinker contends the district court ignored.

For the foregoing reasons, the district court did not abuse its

discretion in weighing the § 3553(a) factors.

The district court did not procedurally err when it assumed,

without explicitly finding, that Tinker could present “extraordinary

and compelling reasons” before denying his motion based on the

§ 3553(a) sentencing factors and § 1B1.13’s policy statement. And

the district court did not abuse its discretion when it weighed the

§ 3553(a) factors. Accordingly, we AFFIRM.