United States v. Jamarr Rashaun Johnson

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12629

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMARR RASHAUN JOHNSON,

a.k.a. Two Head,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:98-cr-00099-KD-S-1,

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2 Opinion of the Court 21-12629

1:98-cr-00158-KD-M-1

____________________

Before WILSON, GRANT, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Jamarr Johnson, a federal prisoner at FCI Pollock,

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

sionate release under 18 U.S.C. § 3582(c)(1)(A). We find no error

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

affirm.

BACKGROUND

In 1998, Defendant was charged with multiple federal of-

fenses related to a series of carjackings in which he participated as

the getaway driver. He was indicted and convicted by a jury of five

counts of conspiracy to commit carjacking in violation of 18 U.S.C.

§ 371, five counts of substantive carjacking in violation of 18 U.S.C.

§ 2119, and five counts of knowingly using a firearm in relation to

a crime of violence (the carjackings), in violation of 18 U.S.C.

§ 924(c). The district court sentenced Defendant in 1999 to serve a

total of 1,208 months in prison. The sentence was comprised of a

60-month term for each conspiracy conviction and a 188-month

term for each substantive carjacking conviction, which terms were

to be served concurrently, followed by a 60-month term for the

first § 924(c) conviction and four 240-month terms as to each of the

remaining § 924(c) convictions, to be served consecutively to each

other and consecutively to all other counts of conviction.

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21-12629 Opinion of the Court 3

Defendant appealed his convictions and sentence, and this

Court affirmed after granting an Anders 1 motion filed by his attor-

ney. Defendant filed several post-conviction motions, all of which

were denied or dismissed by the district court. Then, in December

2019, Defendant filed the present motion for compassionate release

pursuant to 18 U.S.C. § 3582(c). As amended by the First Step Act

of 2018 (the “First Step Act”), § 3582(c) authorizes a district court

to reduce a defendant’s sentence if the reduction is warranted by

“extraordinary and compelling reasons” and consistent with the

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

Guidelines policy statement. See 18 U.S.C. § 3582(c)(1)(A)(i). 2

In support of his motion, Defendant argued that he was en-

titled to relief under § 3582(c) because of the unduly harsh length

of his sentence, which resulted from “stacking” his second, third,

fourth, and fifth § 924(c) convictions so that he received enhanced,

consecutive 240-month sentences for each of those convictions.

The First Step Act amended § 924(c) to eliminate stacking sen-

tences for § 924(c) convictions in that manner, meaning that De-

fendant would receive significantly less than 1,208 months if he

were sentenced for the same offenses today. See First Step Act

§ 403(a). Defendant acknowledged that the First Step Act’s

1 Anders v. California, 386 U.S. 738 (1967).

2 The statute also includes a provision authorizing a sentence reduction under

certain circumstances if “the defendant is at least 70 years of age” but it is un-

disputed that provision does not apply here. See 18 U.S.C. § 3582(c)(1)(A)(ii).

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4 Opinion of the Court 21-12629

amendment to § 924(c) to eliminate stacking was not retroactive

and thus did not directly apply to him. Nevertheless, Defendant

argued that the disparity between the sentence he received in 1999

and the sentence he would receive for the same offenses today

qualified as an “extraordinary and compelling” reason for the court

to reduce his sentence pursuant to § 3582(c). Defendant cited his

age when he committed the underlying offenses, his community

support, and his rehabilitative efforts in prison as additional reasons

for the court to grant relief under § 3582(c).

Defendant subsequently filed a second motion for compas-

sionate release under § 3582(c), as well as several addendums to

both motions, in which he reasserted his initial arguments and sub-

mitted letters of community support and certificates showing his

participation in various prison programs. In addition, Defendant

filed a motion for appointment of counsel and a motion asking the

district court to hold an evidentiary hearing on his § 3582(c) mo-

tion.

The district court denied Defendant’s motions for appoint-

ment of counsel and an evidentiary hearing, and likewise denied

his substantive motion for compassionate release under § 3582(c).

Regarding his motion for appointment of counsel, the court noted

that Defendant did not have a constitutional or statutory right to

counsel and it declined to exercise its discretion to appoint counsel,

concluding that the grounds for Defendant’s motion were “not so

factually and legally complex or exceptional to warrant” such an

appointment. Likewise, the court determined that an evidentiary

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21-12629 Opinion of the Court 5

hearing or oral argument was not necessary to resolve Defendant’s

motion, as there were no issues of fact to determine and Defendant

had ample opportunity to present his arguments and supporting

exhibits in written briefing.

As to the § 3582(c) motion, the court first determined that

Defendant had exhausted his available administrative remedies by

submitting a written request to the warden of his institution seek-

ing compassionate release and filing his motion with the court

more than thirty days after the warden received his request. 3 The

court then denied Defendant’s motion on the merits, citing United

States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), in which this Court

held that the only extraordinary and compelling reasons that au-

thorize a court to grant relief under § 3582(c) are those set out in

the Guidelines policy statement—namely, a qualifying medical

condition, the defendant’s advanced age, and family circumstances

requiring the defendant to be a caregiver to a minor child or

spouse. Because Defendant did not argue that he qualified for relief

on any of those grounds, the court concluded that his § 3582(c) mo-

tion should be denied.

3 The Government argued that Defendant had failed to wait the requisite

thirty days before filing his motion, but the court rejected that argument. The

court assumed the warden received Defendant’s written request for compas-

sionate release on November 8, 2019, the date that appeared on the request,

and it noted that Defendant filed his motion 42 days later, on December 16,

2019. The Government does not challenge on appeal the court’s determina-

tion that Defendant exhausted his administrative remedies.

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6 Opinion of the Court 21-12629

Defendant appeals, arguing that the district court abused its

discretion by denying his motion for compassionate release. De-

fendant does not raise as an issue for appeal the court’s denial of his

motion for appointment of counsel and an evidentiary hearing, and

we do not address those motions. Regarding Defendant’s motion

for compassionate release, we discern no error in the court’s order

and thus affirm its denial of the motion.

DISCUSSION

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

passionate release 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 motion for compassionate release

pursuant to § 3582(c) motion under the abuse of discretion stand-

ard. See id. “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 erro-

neous.” 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 con-

clusion had it been our call to make.” See id. at 912 (quotation

marks omitted).

As amended by the First Step Act, § 3582(c)(1)(A) authorizes

the district court to grant a defendant’s motion for compassionate

release if the court finds that: (1) “extraordinary and compelling

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21-12629 Opinion of the Court 7

reasons warrant” such relief and (2) the defendant’s early release is

consistent with the sentencing factors of § 3553(a) and the “appli-

cable policy statements issued by the Sentencing Commission.” 18

U.S.C. § 3582(c)(1)(A). The relevant policy statement, found in

U.S.S.G. § 1B1.13, echoes the statutory requirements, stating that

a district court may grant a defendant’s motion for compassionate

release “if, after considering the factors set forth in . . . § 3553(a),”

the court determines that: (1) “[e]xtraordinary and compelling rea-

sons warrant” the defendant’s release and (2) “[t]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).” U.S.S.G. § 1B1.13. See also

Bryant, 996 F.3d at 1248 (holding that “1B1.13 is an applicable pol-

icy statement for all [§ 3582(c)] motions” and that district courts do

not have discretion “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 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 applicable Guidelines policy statement, cited above,

identifies three extraordinary and compelling reasons that can au-

thorize a court to grant a motion for compassionate release under

§ 3582(c). See U.S.S.G. § 1B1.13 cmt. n.1(A)-(C). First, a defend-

ant’s medical condition can give rise to an extraordinary and com-

pelling reason for release if the defendant can show that he is suf-

fering either from a “terminal illness” or a “serious physical or

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8 Opinion of the Court 21-12629

medical 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). Second, release is per-

mitted under certain circumstances if the defendant is at least 65

years old. See U.S.S.G. § 1B1.13 cmt. n.1(B). And finally, a defend-

ant’s family circumstances can create an extraordinary and compel-

ling reason for release based on the “death or incapacitation of the

caregiver of the defendant’s minor child” or the “incapacitation of

the defendant’s spouse or registered partner when the defendant

would be the only available caregiver for the spouse or registered

partner.” U.S.S.G. § 1B1.13 cmt. n.1(C). The policy statement also

contains a catch-all provision that allows the Bureau of Prisons

(“BOP”) to determine that there are other extraordinary and com-

pelling reasons for a particular defendant’s release, but this Court

has held that only the BOP—as opposed to the court—has the au-

thority to determine that release is warranted under that provision.

See Bryant, 996 F.3d at 1263 (“We cannot replace the phrase ‘[a]s

determined by the Director of the [BOP]’ with ‘as determined by a

district court.’”).

The district court correctly determined that Defendant does

not meet the standard for compassionate release set out in any of

the above provisions. Defendant makes no showing—indeed, he

does not even argue—that he has a “terminal illness” or other “se-

rious . . . condition” that “substantially” interferes with his ability

to provide self-care in prison. See U.S.S.G. § 1B1.13 cmt. n.1(A).

Nor does he allege qualifying family circumstances under the

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policy statement. See U.S.S.G. § 1B1.13 cmt. n.1(C). And, it is un-

disputed that Defendant is not 65 years old, meaning that the ad-

vanced age provision of the policy statement is likewise inapplica-

ble. See U.S.S.G. § 1B1.13 cmt. n.1(B).

Contrary to Defendant’s argument, the First Step Act’s

amendment to the sentencing provisions of § 924(c) does not au-

thorize the court to grant his motion for compassionate release un-

der § 3582(c). To give some context to Defendant’s argument,

§ 924(c) states that, “any person who, during and in relation to any

crime of violence . . . uses or carries a firearm, or who, in further-

ance of any such crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence” be sentenced to

an additional, consecutive term of imprisonment. 18 U.S.C.

§ 924(c)(1)(A), (D)(ii). Section 924(c) provides for an enhanced

mandatory minimum sentence for a second or subsequent convic-

tion for using or carrying a firearm during a crime of violence, and

it specifically requires that a term of imprisonment imposed under

its provisions must run consecutively to “any other term of impris-

onment imposed on the person, including any term of imprison-

ment imposed for the crime of violence . . . during which the fire-

arm was used, carried, or possessed.” 18 U.S.C. §§ 924(c)(1)(C),

(D)(ii).

Again, Defendant was convicted of five counts of using a

firearm in relation to a crime of violence—that is, the five carjack-

ings he was convicted of committing in 1998—in violation of 18

U.S.C. § 924(c). The version of § 924(c) that applied to Defendant

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provided for a 60-month consecutive sentence for a defendant’s

first § 924(c) conviction and a 240-month consecutive sentence “[i]n

the case of [the defendant’s] second or subsequent” conviction un-

der the statute. 18 U.S.C. § 924(c)(1) (effective October 1996 to No-

vember 1998). 4 Pursuant to that version of § 924(c), a defendant

could be sentenced to multiple, consecutive 240-month sentences

if more than one firearms offense was charged in the same indict-

ment. See United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019).

And that is, in fact, what happened to Defendant: he was convicted

in one trial of five violations of § 924(c) for using or possessing a

firearm in furtherance of a string of five carjackings he committed,

and he was sentenced to a 60-month term for the first § 924(c) con-

viction and to four 240-month terms for the remaining § 924(c) con-

victions, all of which terms were to be served consecutively to each

other and consecutively to Defendant’s sentences for the substan-

tive offenses. “Stacking” Defendant’s § 924(c) convictions in this

manner resulted in a total sentence of 1,208 months (188/60

months for his five conspiracy and carjacking counts, plus 60

months for his first firearms conviction under § 924(c) and 240

months each for his four subsequent § 924(c) convictions).

As mentioned above, the First Step Act eliminated the prac-

tice of stacking enhanced mandatory consecutive terms for certain

4 Section 924(c) was amended in November 1998 to provide for a 25-year

mandatory enhanced sentence for a “second or subsequent” conviction. 18

U.S.C. § 924(c)(1) (1998).

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§ 924(c) convictions. See First Step Act § 403(a). Specifically, § 403

of the First Step Act amended § 924(c) so that the mandatory min-

imum consecutive sentence applies only to a § 924(c) offense “that

occurs after a prior conviction under [§ 924(c)] has become final.”

See 18 U.S.C. § 924(c)(1)(C) (2018). Per the amendment, a person

like Defendant—that is, a person who is convicted of multiple

§ 924(c) offenses for the first time in a single prosecution—is not

subject to an enhanced mandatory consecutive sentence for the

second, and each successive, § 924(c) conviction after the first one.

See id. Instead, a defendant is not subject to an enhanced sentence

for a § 924(c) conviction unless he has a “prior conviction” under

the statute that has already “become final” as of the date of his sen-

tencing. See id. If Defendant were sentenced today, his sentence

under the amended version of § 924(c) would include a 188/60-

month concurrent term for the conspiracy and substantive carjack-

ing counts, to be followed by five consecutive 60-month terms for

each of the § 924(c) counts, for a total of 488 months instead of

1,208 months.

Nevertheless, the disparity between what Defendant’s sen-

tence was in 1999 and what it would be today does not authorize

the court to grant his motion for compassionate release. First, and

as Defendant concedes, the First Step Act expressly states that its

amendment to the sentencing provisions of § 924(c) is not retroac-

tive. See First Step Act § 403(a). Specifically, § 403 states, “This

section, and the amendments made by this section, shall apply to

any offense that was committed before the date of enactment of

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12 Opinion of the Court 21-12629

this Act, if a sentence for the offense has not been imposed as of

such date of enactment.” Id. § 403(b) (emphasis added). In other

words, the amended version of § 924(c) does not apply retroac-

tively to defendants who already have been sentenced as of the date

the amendment was enacted. See United States v. Smith, 967 F.3d

1196, 1212 (11th Cir. 2020) (“There is no ambiguity in § 403(b). It

plainly draws a line based on the Act’s enactment date and provides

that whether the amendments in § 403(a) apply to a case depends

on which side of that line the imposition of the sentence falls.”),

cert. denied, 141 S. Ct. 2538 (2021). Thus, Defendant’s compassion-

ate release is not directly authorized by the First Step Act’s amend-

ment to § 924(c).

Neither does the amendment to § 924(c) indirectly authorize

a sentence reduction in Defendant’s case pursuant to the compas-

sionate release provisions of § 3582(c). As discussed, this Court

held in Bryant that a court may only reduce a defendant’s sentence

under § 3582(c) based on one of the “extraordinary and compel-

ling” reasons set out in the applicable Guidelines policy state-

ment—that is, a qualifying medical condition, advanced age, or

family circumstances requiring the defendant to act as a caretaker

to a minor child, spouse, or registered partner. See Bryant, 996 F.3d

at 1265 (“Because [the defendant’s] motion does not fall within any

of the reasons that 1B1.13 identifies as extraordinary and compel-

ling, the district court correctly denied his motion for a reduction

of his sentence.” (quotation marks omitted)). Defendant did not

claim—nor provide any support for a claim—that he should be

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21-12629 Opinion of the Court 13

released on any of these qualifying grounds. Furthermore, Defend-

ant’s argument that the district court nevertheless should have

granted his § 3582(c) motion based on the First Step Act’s expressly

non-retroactive amendment to § 924(c) is foreclosed by this Court’s

binding precedent in Bryant. See id.

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. The

court’s order denying Defendant’s § 3582(c) motion is thus

AFFIRMED.