United States v. Andrew Shettler

USCA11 Case: 21-10484 Date Filed: 03/03/2022 Page: 1 of 12

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10484

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDREW SHETTLER,

a.k.a. Yeti,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:18-cr-00183-RBD-DCI-3

____________________

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2 Opinion of the Court 21-10484

Before LUCK, LAGOA, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Andrew Shettler, a federal prisoner at Estill FCI,

appeals the district court’s denial of his third pro se motion for com-

passionate release under 18 U.S.C. § 3582(c)(1)(A). We discern no

error in the district court’s order denying Defendant’s motion, and

thus affirm.

BACKGROUND

Defendant was indicted in August 2018 on one count of con-

spiracy to possess with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A).

At the same time, Defendant was indicted in a separate case of con-

spiracy to possess 50 grams or more of methamphetamine with dif-

ferent co-conspirators. He pleaded guilty in both cases, and he was

sentenced in May 2019 to the minimum mandatory penalty of 120

months in prison for each charge, to be served concurrently and to

be followed by five years of supervised release.

Based on information provided in his PSR, Defendant com-

mitted the above offenses while he was a member of the Thunder-

guards Motorcycle Club, which is a support club to the outlaw mo-

torcycle gang known as the Pagans Motorcycle Club. The PSR de-

scribes the Pagans as an “extremely territorial” and highly orga-

nized criminal organization that operates in multiple states. Ac-

cording to the PSR, the Pagans use drug trafficking proceeds to

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21-10484 Opinion of the Court 3

finance, facilitate, and maintain their own operations and the oper-

ations of their affiliate groups, including the Thunderguards.

Defendant’s involvement with the Thunderguards was dis-

covered during an FBI and DEA investigation that commenced af-

ter a member of the Pagans stabbed and killed a rival gang member

in 2017. During the investigation, law enforcement officials iden-

tified Defendant as a member of the Thunderguards who was in-

volved in distributing methamphetamine to Pagans members. The

investigation uncovered evidence of Defendant’s specific involve-

ment in transactions between October 2017 and August 2018, dur-

ing which Defendant had possessed and/or distributed at least 115

grams of methamphetamine. Those transactions led to the De-

fendant’s 2018 convictions.

Defendant’s PSR determined that his guidelines range was

70 to 87 months in prison, but that he was subject to a ten-year

mandatory minimum sentence. Consistent with the applicable

mandatory minimum sentence, the PSR recommended that De-

fendant be sentenced to 120 months in prison. The court imposed

the 120-month mandatory minimum sentence recommended in

the PSR and required by the law.

About a year after he was sentenced, Defendant filed his first

pro se motion for compassionate release pursuant to 18 U.S.C.

§ 3582(c)(1)(A), which authorizes a district court to reduce a de-

fendant’s sentence if the reduction is warranted by “extraordinary

and compelling reasons” and if the defendant’s release is consistent

with the sentencing factors set forth in 18 U.S.C. § 3553(a) and the

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4 Opinion of the Court 21-10484

applicable Guidelines policy statements. See 18 U.S.C.

§ 3582(c)(1)(A)(i). 1 In support of his motion, Defendant argued that

his hypertension, obesity, traumatic brain injury, and sleep apnea

warranted release because those conditions posed a serious risk of

illness if he were to contract COVID-19. Defendant set forth in his

motion a plan to complete his sentence at home with his family.

The district court construed Defendant’s first motion as a

request for both compassionate release under § 3582(c) and home

confinement under the CARES Act. As to home confinement, the

court determined that only the Bureau of Prisons (“BOP”) has the

authority to transfer a prisoner to home confinement and accord-

ingly denied Defendant’s request. Regarding compassionate re-

lease, the court found that Defendant failed to present evidence

showing that he had exhausted his administrative remedies. In ad-

dition, the court held that Defendant was not entitled to compas-

sionate release under § 3582(c) because his claimed medical condi-

tions did not satisfy the “extraordinary and compelling” standard.

Specifically, the court concluded that Defendant’s “fear of potential

exposure to COVID-19, even coupled with his medical conditions”

did not constitute “extraordinary and compelling” circumstances

warranting early release. The court noted further that Defendant

had failed to show his medical conditions were not being properly

1 A sentence reduction is also permitted by § 3582(c) under certain circum-

stances if the defendant is 70 years old or older and has served at least 30 years

in prison, but those conditions are not met in this case. See 18 U.S.C.

§ 3582(c)(1)(A)(ii).

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21-10484 Opinion of the Court 5

treated during his incarceration, or that the BOP’s management of

the COVID-19 pandemic—either generally or at Estill FCI—was

inadequate.

As an alternative ground for denying Defendant’s motion

for compassionate release, the district court stated in its order that

the § 3553(a) sentencing factors weighed against Defendant’s early

release because Defendant had only served a “small portion of his

lengthy sentence.” To that end, the court held that Defendant’s

early release was not justified “given the nature and circumstances

of his offense, his history and characteristics, and the need for a sen-

tence that reflects the seriousness of his offense, promotes respect

for the law, provides just punishment, [and] affords adequate de-

terrence.” The court explained further that Defendant’s release

was not warranted because, as a former member of the Thunder-

guards who was incarcerated for his role in a gang-related drug

conspiracy, he posed a danger to the community.

Defendant subsequently filed a second pro se motion for

compassionate release, this time attaching an exhibit to show that

he had exhausted his administrative remedies. In support of his

second motion, Defendant again argued that his medical condi-

tions—hypertension, obesity, traumatic brain injury, and sleep ap-

nea—qualified as extraordinary and compelling reasons for his

early release given the rising number of COVID-19 cases, and he

added that his “light” and “nonviolent” criminal history, and his

continuing nonviolence while incarcerated, also weighed in favor

of release. The district court denied Defendant’s second motion,

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6 Opinion of the Court 21-10484

noting that the additional exhibits and information provided in De-

fendant’s second motion did not “change[] the calculus” as to De-

fendant’s early release. Referring back to its first order, the court

briefly restated in its second order the same rationale for denying

second Defendant’s motion: (1) Defendant failed to show that he

met the requirements for compassionate release, and (2) even if he

had satisfied the extraordinary and compelling standard, the

§ 3553(a) sentencing factors weighed against early release because

Defendant “has only served a small portion of his lengthy sentence

and [he] was a former member of a dangerous motorcycle gang.”

Defendant filed a notice of appeal of the district court’s or-

ders denying his first and second motions for compassionate re-

lease, but he subsequently voluntarily dismissed his appeal. There-

after, Defendant filed his third pro se motion for compassionate re-

lease, the denial of which is the subject of this appeal. In his third

motion, Defendant raised substantially the same arguments he as-

serted in his first and second motions for compassionate release.

The only thing that changed in the time between Defendant’s first

two motions and his third motion is that he received a COVID-19

vaccine. The district court denied Defendant’s third motion, citing

its prior two denials and stating again that Defendant “does not

meet the requirements for compassionate release because he poses

a danger to the community and the sentencing factors weigh heav-

ily against relief.”

Defendant now appeals the district court’s denial of his third

motion for compassionate release. In support of his appeal,

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21-10484 Opinion of the Court 7

Defendant argues that the district court abused its discretion by

denying his motion for compassionate release. As discussed below,

we discern no error in the district court’s order denying Defend-

ant’s third motion for compassionate release, and thus affirm.

DISCUSSION

We review de novo whether a defendant is eligible for a sen-

tence reduction under § 3582(c). United States v. Giron, 15 F.4th

1343, 1345 (11th Cir. 2021). Once eligibility is established, we re-

view the denial of a defendant’s § 3582(c) motion under the abuse

of discretion standard. See id. “A district court abuses its discretion

if it applies an incorrect legal standard, follows improper proce-

dures in making the determination, or makes findings of fact that

are clearly erroneous.” United States v. Harris, 989 F.3d 908, 911

(11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d

1259, 1267 (11th Cir. 2019) (quotation marks omitted)). The abuse

of discretion standard allows the district court a “range of choice”

that we will not reverse “just because we might have come to a

different conclusion had it been our call to make.” See id. at 912

(quotation marks omitted).

As amended by the First Step Act, § 3582(c) authorizes the

district court to reduce a defendant’s sentence if the court finds

that: (1) “extraordinary and compelling reasons warrant such a re-

duction” and (2) the reduction is consistent with the sentencing fac-

tors of § 3553(a) and the “applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The appli-

cable policy statement, found in USSG § 1B1.13, echoes the

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8 Opinion of the Court 21-10484

statutory requirements, stating that a district court may reduce a

defendant’s sentence “if, after considering the factors set forth in . .

. § 3553(a),” the court determines that: (1) “[e]xtraordinary and

compelling reasons warrant the reduction” and (2) “[t]he [d]efend-

ant is not a danger to the safety of any other person or to the com-

munity, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13. See

also United States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021)

(holding that “1B1.13 is an applicable policy statement for all

[§ 3582(c)(1)(A)] motions” and that district courts do not have dis-

cretion “to develop other reasons that might justify a reduction in

a defendant’s sentence” (quotation marks omitted)); United States

v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021) (listing three neces-

sary conditions for a sentence reduction under § 3582(c): support

in the § 35553(a) factors, extraordinary and compelling reasons, and

adherence to U.S.S.G. § 1B1.13’s policy statement).

The district court denied Defendant’s § 3582(c) motion for

two reasons. First, the court found that Defendant had failed to

show extraordinary and compelling reasons for his release. Alter-

natively, the court determined that the § 3553(a) sentencing factors

militated against Defendant’s release and that Defendant would

pose a danger to the community if released. Either ground is ade-

quate to support the district court’s decision to deny Defendant’s

§ 3582(c) motion.

As to the first ground, we agree with the district court that

Defendant did not provide adequate support for the claim that his

medical conditions satisfy the extraordinary and compelling reason

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21-10484 Opinion of the Court 9

standard and thus justify his release from prison. The relevant pol-

icy statement provides that a defendant’s medical condition is an

extraordinary and compelling reason for a sentence reduction if the

defendant: (1) has a terminal illness such as cancer, ALS, or end-

stage organ disease, or (2) suffers from a serious physical or mental

condition that “substantially diminishes” his ability “to provide self-

care” in prison and from which he is not expected to recover.

U.S.S.G. § 1B1.13 cmt. n.1(A). Defendant states that he has hyper-

tension, obesity, sleep apnea, and a traumatic brain injury. But he

makes no attempt to show that any of these conditions are terminal

or that they substantially diminish his ability to provide self-care in

prison. The district court thus correctly determined that Defend-

ant did not meet the standard for early release set out in the appli-

cable policy statement of U.S.S.G. § 1B1.13. See Bryant, 996 F.3d

at 1248. 2

The Government notes in its appellate brief that the Depart-

ment of Justice (“DOJ”) has recently taken the position that, during

the COVID-19 pandemic, a prisoner who has not been offered a

vaccine and who presents confirmed medical records showing that

he has one of the medical risk factors on the CDC’s list of condi-

tions that increase the risk of serious illness from COVID-19

2 Defendant argues on appeal that the district court erred by relying on

U.S.S.G. § 1B1.13’s policy statement in applying the “extraordinary and com-

pelling” reason standard, but that argument is foreclosed by this Court’s bind-

ing precedent in Bryant holding that § 1B1.13 applies to all § 3582(c)(1)(A) mo-

tions. See Bryant, 996 F.3d at 1248.

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10 Opinion of the Court 21-10484

satisfies the extraordinary and compelling reason standard. But

even assuming Defendant’s claimed conditions appear on the

CDC’s list of such conditions, Defendant does not fall within the

DOJ’s recently revised COVID-specific guidance as to establishing

an extraordinary and compelling reason for early release because

he is fully vaccinated against COVID-19. Defendant received his

first dose of the vaccine on January 13, 2021, prior to filing his third

motion for compassionate release, and he received his second dose

and was fully vaccinated shortly thereafter. 3

Defendant’s failure to demonstrate an extraordinary and

compelling reason for his early release is enough, in and of itself, to

foreclose a sentence reduction under § 3582(c). See Giron, 15 F.4th

at 1347 (“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.”). But the district court also held,

in the alternative, that Defendant’s release was not consistent with

the § 3553(a) factors. Specifically, the court noted that Defendant

had served only a small portion of his sentence when he requested

compassionate release, and that he was affiliated with a dangerous

motorcycle gang prior to his conviction. According to the court,

these facts indicated that Defendant would be a danger to the com-

munity if he was released, and that his release was inconsistent

3Defendant filed his third motion on January 26, 2021. He received his second

dose of the COVID-19 vaccine on February 2, 2021.

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21-10484 Opinion of the Court 11

with the § 3553(a) sentencing factors. Defendant argued in his third

motion that he was not a danger to the community because his

criminal record was “not serious” and he had not been involved in

any violent incidents while incarcerated. However, the district

court was within its discretion to reject Defendant’s argument on

this point. See United States v. Riley, 995 F.3d 1272, 1279 (11th Cir.

2021) (noting that “discretion in weighing sentencing factors is par-

ticularly pronounced when it comes to weighing criminal his-

tory”).

Defendant argues on appeal that the district court’s order

denying his third motion failed to adequately explain its ruling. A

district court must provide an adequate explanation for its sentenc-

ing decisions, including decisions on whether to grant relief from a

sentence, so that there can be meaningful appellate review. See

United States v. Cook, 998 F.3d 1180, 1183 (11th Cir. 2021). How-

ever, the court is not required “to articulate its findings and reason-

ing with great detail.” Id. at 1185 (quotation marks and citation

omitted). See also Giron, 15 F.4th at 1350 (noting that the reason-

ing for the district court’s finding of no extraordinary and compel-

ling reason for early release was “apparent in the record”). Here,

the district court adequately explained its decision to deny Defend-

ant’s third motion for compassionate release, both in its order

denying Defendant’s third motion and in its two prior orders.

When considered together, the court’s three orders easily allow for

meaningful review of its rationale for denying Defendant’s third

motion: (1) Defendant’s fear of exposure to COVID-19, even when

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12 Opinion of the Court 21-10484

combined with his medical conditions, was not an extraordinary

and compelling reason for relief, (2) the § 3553(a) factors did not

weigh in favor of Defendant’s release because he had served only a

small portion of his lengthy sentence when he filed his motion, and

(3) Defendant, who had been convicted of a gang-related drug con-

spiracy, would pose a danger to the community if released at this

point in time.

CONCLUSION

As the movant, Defendant had the burden of establishing his

entitlement to early release under § 3582(c). See United States v.

Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). The district court

correctly held that Defendant failed to meet that burden here. Fur-

thermore, the court acted within its discretion in holding, in the

alternative, that the § 3553(a) sentencing factors do not support De-

fendant’s release. For both reasons, the district court’s order deny-

ing Defendant’s § 3582(c) motion is AFFIRMED.