United States v. Darryl Burke

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 1 of 7

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10346

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRYL BURKE,

a.k.a. David Middleton,

a.k.a. James Duncan,

a.k.a. Donald Brown,

a.k.a. Dr. Jeffrey Burke,

Defendant-Appellant.

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 2 of 7

2 Opinion of the Court 21-10346

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:13-cr-20616-JIC-1

____________________

Before JILL PRYOR, BRANCH, and TJOFLAT, Circuit Judges.

PER CURIAM:

Darryl Burke appeals pro se the district court’s denial of his

motion for compassionate release, pursuant to 18 U.S.C.

§ 3582(c)(1)(A), as modified by § 603(b) of the First Step Act of 2018,

Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), and his motion

for reconsideration. He argues that the district court should have

considered his arguments that witnesses lied at his sentencing and

trial and it should have held an evidentiary hearing on this matter.

He also argues that the district court did not correctly weigh the 18

U.S.C. § 3553(a) factors and incorrectly found that he was a danger

to the community. Finally, he argues that it erred by denying his

motion for reconsideration.1

1 Burke also requests that we take judicial notice of a record from the Miami-

Dade County Court and a court case from the District of the District of Co-

lumbia, but we decline to do so because it is not necessary for the resolution

of the case. See Fed. R. Evid. 201(b); Dippin’ Dots, Inc. v. Frosty Bites Distri-

bution, LLC, 369 F.3d 1197, 1204 (11th Cir. 2004).

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 3 of 7

21-10346 Opinion of the Court 3

We review a district court’s denial of a prisoner’s

§ 3582(c)(1)(A) motion for an abuse of discretion. United States v.

Harris, 989 F.3d 908, 911 (11th Cir. 2021). The denial of a motion

for reconsideration is also reviewed for abuse of discretion. United

States v. Llewlyn, 879 F.3d 1291,1294 (11th Cir. 2018). “A district

court abuses its discretion if it applies an incorrect legal standard,

follows improper procedures in making the determination, or

makes findings of facts that are clearly erroneous.” United States

v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011) (quotation

marks and alteration omitted). A pro se pleading is liberally con-

strued. Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008).

“A motion for reconsideration cannot be used to relitigate

old matters, raise argument or present evidence that could have

been raised prior to the entry of judgment.” Wilchombe v. TeeVee

Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quotation marks

omitted).

It is well established that a district court has no inherent au-

thority to modify a defendant’s sentence and may do so “only when

authorized by a statute or rule.” United States v. Puentes, 803 F.3d

597, 605-06 (11th Cir. 2015). Prior to the First Step Act,

§ 3582(c)(1)(A) allowed the district court to reduce a prisoner’s

term of imprisonment upon motion of the Director of the Bureau

of Prisons (“BOP”), after considering the factors set forth in

§ 3553(a), if it found that extraordinary and compelling reasons

warranted such a reduction. 18 U.S.C. § 3582(c)(1)(A) (effective

Nov. 2, 2002, to Dec. 20, 2018). The First Step Act amended

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 4 of 7

4 Opinion of the Court 21-10346

§ 3582(c)(1)(A) to allow the court to reduce a defendant’s term of

imprisonment also upon motion of the defendant, after the defend-

ant 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. See First Step Act § 603;

18 U.S.C. § 3582(c)(1)(A). The court must find that extraordinary

and compelling reasons warrant such a reduction, consider the

§ 3553(a) factors “to the extent that they are applicable,” and find

that a reduction is consistent with applicable policy statements is-

sued by the Sentencing Commission. Id.; United States v. Tinker,

14 F.4th 1234, 1237 (11th Cir. 2021) (explaining that, to grant a re-

duction under § 3582(c)(1)(A), district courts must find that three

necessary conditions are satisfied, which are “support in the

§ 3553(a) factors, extraordinary and compelling reasons, and adher-

ence to § 1B1.13’s policy statement”). District courts do not need

to address these three conditions in any particular sequence.

Tinker, 14 F.4th at 1237-38.

The policy statements applicable to § 3582(c)(1)(A) are

found in § 1B1.13. See U.S.S.G. § 1B1.13. The commentary to

§ 1B1.13 states that extraordinary and compelling reasons exist un-

der any of the circumstances listed, provided that the court deter-

mines that the defendant is not a danger to the safety of any other

person or to the community, as provided in 18 U.S.C. § 3142(g).

See id. § 1B1.13, comment. (n.1). The commentary lists a defend-

ant’s medical condition, age, and family circumstances as possible

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 5 of 7

21-10346 Opinion of the Court 5

“extraordinary and compelling reasons” warranting a sentence re-

duction. Id. Recently, we concluded that the policy statement in

§ 1B1.13 is applicable to all motions filed under § 3582(c)(1)(A), in-

cluding those filed by prisoners, and thus, “district courts may not

reduce a sentence under Section 3582(c)(1)(A) unless a reduction

would be consistent with [§] 1B1.13.” United States v. Bryant, 996

F.3d 1243, 1262 (11th Cir. 2021).

Although a district court is not required to articulate its find-

ings and reasonings in great detail, when considering a

§ 3582(c)(1)(A)(i) motion, we “cannot engage in meaningful appel-

late review and must vacate and remand” if the record does not

reflect that the district court considered the applicable § 3553(a) fac-

tors. United States v. Cook, 998 F.3d 1180, 1185 (11th Cir. 2021)

(quotation marks omitted). However, the district court is not re-

quired to expressly discuss mitigating evidence or every § 3553(a)

factor. Tinker, 14 F.4th at 1241.

Under § 3553(a), a district court’s sentence must be suffi-

cient, but not greater than necessary, to achieve the goals of sen-

tencing, which are: reflecting the seriousness of the offense, pro-

moting respect for the law, providing just punishment, deterring

future criminal conduct, protecting the public, and providing the

defendant with any needed training or treatment. 18 U.S.C.

§ 3553(a). Section 3553(a) also requires district courts to consider

the nature and circumstances of the offense, the defendant’s history

and characteristics, the kinds of sentences available, the Sentencing

Guidelines, any pertinent policy statement, the need to avoid

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 6 of 7

6 Opinion of the Court 21-10346

disparate sentences for defendants with similar records, and the

need to provide restitution to any victims. Id.

Section 3582(c) does not grant the district court jurisdiction

to consider extraneous resentencing issues, which a claimant must

instead present as a collateral attack on his sentence under 28

U.S.C. § 2255. See United States v. Bravo, 203 F.3d 778, 782 (11th

Cir. 2000) (addressing a motion filed under 18 U.S.C. § 3582(c)(2));

Dillon v. United States, 560 U.S. 817, 824-25, 831 (2010) (same). It

also does not entitle the defendant to a hearing before the motion

is ruled on. United States v. Denson, 963 F. 3d 1080, 1086-87 (11th

Cir. 2020).

Because 18 U.S.C. § 3582(c) is not a proper basis for address-

ing collateral attacks on a conviction or sentence, the district court

did not err by declining to address Burke’s arguments that wit-

nesses lied at his trial and sentencing.

The district court found that he had shown extraordinary

and compelling reasons and then properly weighed the 18 U.S.C.

§ 3553(a) factors when denying his motion for compassionate re-

lease. It found that he did not qualify for a sentence reduction due

to his criminal history and the need to promote respect for the law,

provide just punishment, and afford adequate deterrence. Notably,

the court pointed to Burke’s leadership of a large fraud scheme that

defrauded more than 10 people of more than $7 million, his crimi-

nal history, and his failure to be deterred by his previous incarcera-

tion for a similar offense. Although it did not specifically address

his rehabilitation, it was not required to do so.

USCA11 Case: 21-10346 Date Filed: 12/22/2021 Page: 7 of 7

21-10346 Opinion of the Court 7

Because the district court properly considered the 18 U.S.C.

§ 3553(a) factors, the district court did not abuse its discretion in

denying Burke’s motion for compassionate release, and we need

not reach whether the district court erred in concluding that he also

was a danger to the community.

The district court also did not err in denying Burke’s motion

for an evidentiary hearing because it is not required to hold any

hearings prior to ruling on the motion for compassionate release,

and there were no relevant factual issues in dispute. Likewise, the

district court did not abuse its discretion in denying his motion for

reconsideration because, as stated, it was not the appropriate place

to address his arguments attacking his underlying conviction and

sentence, and he otherwise was attempting to relitigate the issues

in the court’s initial order. Accordingly, we affirm.

AFFIRMED.