United States v. Pierre J. Cannon

USCA11 Case: 21-13570 Date Filed: 11/01/2022 Page: 1 of 10

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13570

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PIERRE J. CANNON,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 4:95-cr-00030-CDL-MSH-1

____________________

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2 Opinion of the Court 21-13570

Before WILSON, LAGOA, and EDMONDSON, Circuit Judges.

PER CURIAM:

Pierre Cannon, a federal prisoner represented by a lawyer

on appeal, appeals the district court’s denial of his counseled mo-

tion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). No

reversible error has been shown; we affirm.

I.

In 1995, a jury found Cannon guilty of ten offenses: (1) four

counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951

(Counts 1, 3, 5, 9); (2) one count of carjacking, in violation of 18

U.S.C. § 2119 (Count 7); and (3) five counts of using a firearm dur-

ing the commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c) (Counts 2, 4, 6, 8, 10).

Under the Sentencing Guidelines then in effect, Cannon was

subject to mandatory consecutive sentences for his firearm of-

fenses: 5 years on Count 2 and 20 years each on Counts 4, 6, 8, and

10. The sentencing court imposed a total sentence of 1,313

months’ imprisonment: a sentence that included the “stacked”

mandatory consecutive sentences for Cannon’s firearm offenses.

The district court later reduced Cannon’s total sentence to 1,171

months based on an earlier retroactive amendment to the Sentenc-

ing Guidelines.

In July 2020, Cannon moved pro se for compassionate re-

lease under section 3582(c)(1)(A), as amended by the First Step

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21-13570 Opinion of the Court 3

Act. 1 Cannon was later appointed counsel and filed the counseled

compassionate-release motion underlying this appeal. In his mo-

tion, Cannon asserted two grounds for compassionate release.

First, Cannon said he had been diagnosed with pulmonary arterial

hypertension: a condition Cannon said put him at increased risk of

serious illness or death if he were to be reinfected with COVID-

19. 2 Second, Cannon argued that the “disparate” nature of his

stacked sentences on the section 924(c) firearm offenses constituted

an extraordinary and compelling reason warranting a reduced sen-

tence. Cannon also argued that the 18 U.S.C. § 3553(a) sentencing

factors weighed in favor of compassionate release.

A magistrate judge issued a report and recommendation

(“R&R”) recommending that the district court deny Cannon’s mo-

tion. The magistrate judge first determined that Cannon failed to

demonstrate “extraordinary and compelling reasons” warranting

relief within the meaning of U.S.S.G. § 1B1.13. About Cannon’s

medical condition, the magistrate judge said Cannon had not

shown that he suffered from a terminal illness or that his pulmo-

nary arterial hypertension constituted a serious medical condition

that substantially diminished Cannon’s ability to provide self-care

while in prison. Relying on this Court’s decision in United States

1 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).

2 Cannon tested positive for COVID-19 in December 2020. Cannon was

asymptomatic when he tested positive but says he later developed shortness

of breath, chest pain, and fatigue.

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4 Opinion of the Court 21-13570

v. Bryant, 996 F.3d 1243 (11th Cir. 2021), the magistrate judge also

stated that the district court was bound by the policy statement in

U.S.S.G. § 1B1.13 and, thus, lacked authority to consider whether

Cannon’s stacked sentence qualified as an extraordinary and com-

pelling reason.

The magistrate judge next decided that -- even if Cannon

could show an extraordinary and compelling reason -- compassion-

ate release was inappropriate in the light of the 18 U.S.C. § 3553(a)

factors. 3 The magistrate judge noted the violent nature of Can-

non’s offenses, that Cannon committed those offenses while on

probation for his earlier state robbery and aggravated assault con-

victions, and that Cannon had engaged in violent conduct while in

prison. Given those circumstances, the magistrate judge found

that the section 3553(a) factors -- including the factors pertaining to

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

and characteristics, the need to protect the public, and the need for

the sentence imposed to reflect the seriousness of the offense, to

promote respect for the law, and to provide adequate deterrence -

3 Under section 3553(a), a sentence must be sufficient (but not greater than

necessary) to reflect the seriousness of the offense, promote respect for the

law, provide just punishment, deter criminal conduct, and to protect the pub-

lic from future crimes. See 18 U.S.C. § 3553(a)(2). A sentencing court should

also consider the nature and circumstances of the offense, the defendant’s his-

tory and characteristics, the kinds of available sentences, the guidelines range,

the policy statements of the Sentencing Commission, and the need to avoid

unwarranted sentencing disparities. Id. § 3553(a)(1), (3)-(7).

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21-13570 Opinion of the Court 5

- “weigh[ed] heavily” against a sentence reduction. The magistrate

judge also determined that no unwarranted sentencing disparity

existed between Cannon’s sentence and the sentences of other de-

fendants who -- like Cannon -- were convicted of multiple section

924(c) offenses and sentenced before the First Step Act was en-

acted. 4

Cannon filed objections to the R&R. The district court over-

ruled Cannon’s objections, adopted the R&R, and denied Cannon’s

amended motion for compassionate release. This appeal followed.

II.

We review for abuse of discretion the district court’s deci-

sion about whether to grant or to deny a defendant compassionate

release. See 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 deter-

mination, or makes findings of fact that are clearly erroneous.”

United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015).

District courts lack the inherent authority to modify a term

of imprisonment but may do so to the extent permitted under sec-

tion 3582(c). See 18 U.S.C. § 3582(c); United States v. Jones, 962

4 The First Step Act eliminated the mandatory stacking penalties for multiple

violations of section 924(c) charged in the same criminal indictment. See First

Step Act, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22 (2018). That

amendment, however, was not made retroactive to defendants sentenced be-

fore the Act’s enactment. See id. § 403(b).

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6 Opinion of the Court 21-13570

F.3d 1290, 1297 (11th Cir. 2020). As amended by the First Step Act,

section 3582(c)(1)(A) authorizes a district court to modify a term of

imprisonment under these circumstances:

[T]he court . . . may reduce the term of impris-

onment . . . after considering the factors set forth in

section 3553(a) to the extent that they are applicable,

if it finds . . . extraordinary and compelling reasons

warrant such a reduction . . . and that such a reduction

is consistent with applicable policy statements issued

by the Sentencing Commission.

18 U.S.C. § 3582(c)(1)(A)(i).

We have said that a district court may reduce a defendant’s

term of imprisonment under section 3582(c)(1)(A) only if each of

these three conditions is met: “(1) the § 3553(a) sentencing factors

favor doing so, (2) there are ‘extraordinary and compelling reasons’

for doing so, and (3) doing so [would be consistent with] § 1B1.13’s

policy statement.” See United States v. Tinker, 14 F.4th 1234, 1237

(11th Cir. 2021). If the district court determines that a movant fails

to satisfy one of these conditions, the district court may deny com-

passionate release without addressing the remaining conditions.

Id. at 1237-38, 1240.

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

found in U.S.S.G. § 1B1.13. See U.S.S.G. § 1B1.13; United States v.

Bryant, 996 F.3d 1243, 1247 (11th Cir. 2021). The commentary to

section 1B1.13 identifies four categories -- including a prisoner’s

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21-13570 Opinion of the Court 7

medical condition -- that might constitute “extraordinary and com-

pelling reasons” warranting a reduced sentence. See U.S.S.G. §

1B1.13 comment. (n.1).

Pertinent to this case, Application Note 1(A) of section

1B1.13 provides that a prisoner’s medical condition may warrant a

sentence reduction if the prisoner (1) has a terminal illness, or (2)

suffers from “a serious physical or medical condition” or from age-

related deterioration in physical or mental health “that substan-

tially diminishes the ability of the defendant to provide self-care

within” prison. Id. § 1B1.13 comment. (n.1(A)). Application Note

1(D) provides that a prisoner may be eligible for a sentence reduc-

tion if, “[a]s determined by the Director of the Bureau of Prisons,

there exists in the defendant’s case an extraordinary and compel-

ling reason other than, or in combination with, the reasons de-

scribed” in the other categories. See id. § 1B1.13 comment.

(n.1(D)).

A.

We first address Cannon’s arguments that the district court

erred by relying on U.S.S.G. § 1B1.13 in determining that Cannon

had demonstrated no “extraordinary and compelling reasons” war-

ranting relief. Cannon’s argument that the district court was not

bound by the policy statement in section 1B1.13 is foreclosed by

our decision in Bryant. See Bryant, 996 F.3d at 1247 (concluding

that section 1B1.13 remains the applicable policy statement for all

motions filed under section 3582(c)(1)(A), including those filed by

prisoners). We are bound by our decision in Bryant and will not

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8 Opinion of the Court 21-13570

address Cannon’s arguments about the correctness of that decision.

See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(“[A] prior panel’s holding is binding on all subsequent panels un-

less and until it is overruled or undermined to the point of abroga-

tion by the Supreme Court or by this court sitting en banc.”).

Cannon also raises three arguments challenging the validity

of U.S.S.G. § 1B1.13: (1) that 28 U.S.C. § 994(t) 5 constitutes an un-

constitutional delegation of legislative authority to the Sentencing

Commission; (2) that Application Note 1(D) constitutes an uncon-

stitutional sub-delegation of legislative power to the Bureau of Pris-

ons; and (3) that Application Note 1(D) exceeds the limits of defer-

ence to agency interpretations of agency rules. We review these

arguments -- raised for the first time on appeal -- only for plain er-

ror. See United States v. Lange, 862 F.3d 1290, 1293 (11th Cir.

2017).

Cannon has identified no controlling authority establishing

that the policy statement in U.S.S.G. § 1B1.13 is void as an uncon-

stitutional delegation of authority. Cannon thus cannot show that

5 28 U.S.C. § 994(t) contains this language:

The Commission, in promulgating general policy statements

regarding the sentencing modification provision in section

3582(c)(1)(A) of title 18, shall describe what should be consid-

ered extraordinary and compelling reasons for sentence reduc-

tion, including the criteria to be applied and a list of specific

examples. Rehabilitation of the defendant alone shall not be

considered an extraordinary and compelling reason.

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21-13570 Opinion of the Court 9

the district court committed an error that was plain when it relied

on our decision in Bryant and treated as binding the policy state-

ment in section 1B1.13. See id. at 1296 (describing a plain error as

“an error that is ‘obvious’ and is ‘clear under current law’” and ex-

plaining that “there can be no plain error where there is no prece-

dent from the Supreme Court or this Court directly resolving it”).

B.

The district court committed no error in determining that

Cannon failed to demonstrate an extraordinary and compelling

reason within the meaning of section 1B1.13. Never has Cannon

asserted -- and nothing evidences -- that his pulmonary arterial hy-

pertension has diminished substantially his ability to provide self-

care while in prison.

Nor has Cannon satisfied his burden of demonstrating that

his pulmonary arterial hypertension currently constitutes a termi-

nal illness. Cf. 18 U.S.S.G. § 1B1.13 comment. (n.1(A)(i)) (describ-

ing a terminal illness as “a serious and advanced illness with an end

of life trajectory”). Cannon makes general statements about the

average life expectancy for persons with untreated pulmonary ar-

terial hypertension. But Cannon’s medical records indicate only

that Cannon was diagnosed in July 2019 with “early to mild pulmo-

nary artery hypertension.”6 Cannon has offered no evidence

6 We reject Cannon’s arguments (1) that the district court erred in re-

lying on an outdated medical record and (2) that -- absent more recent data --

the district court lacked a sufficient factual basis to conclude that Cannon’s

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10 Opinion of the Court 21-13570

demonstrating a worsening of his condition or demonstrating that

he has been denied adequate medical testing or treatment for his

condition. Based on the record before the district court, we cannot

conclude that the district court erred in determining that Cannon’s

pulmonary arterial hypertension did not qualify as a terminal ill-

ness for purposes of section 1B1.13.

The district court also concluded properly that it lacked au-

thority to consider Cannon’s argument that his stacked sentence

constituted an extraordinary and compelling reason under Applica-

tion Note 1(D). See Bryant, 996 F.3d at 1248 (“Application Note

1(D) does not grant discretion to courts to develop ‘other reasons’

that might justify a reduction in a defendant’s sentence.”).

Given the lack of an extraordinary and compelling reason

that would warrant relief, we need not detail whether the section

3553(a) factors would support a reduced sentence. See Tinker, 14

F.4th at 1237-38, 1240. Nevertheless, we see no error in the district

court’s determination that the section 3553(a) factors also weighed

against granting Cannon compassionate release.

AFFIRMED.

condition was “mild.” The district court relied properly on the evidence that

was presented to it and could not speculate about Cannon’s present condition

absent additional evidence in the record. As the movant, Cannon bore the

burden of producing evidence sufficient to demonstrate his entitlement to re-

lief under section 3582(c). See United States v. Hamilton, 715 F.3d 328, 337

(11th Cir. 2013).