Petition for Writ of Certiorari — Auburn Calloway, Petitioner v. United States

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FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Feb 10, 2025

KELLY L. STEPHENS, Ck

____

No. 24-5474

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AUBURN CALLOWAY,

Defendant-Appellant.

Before: KETHLEDGE, BUSH, and LARSEN, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

THIS CAUSE was heard on the record from the district court and was submitted on the

briefs without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court

is AFFIRMED.

ENTERED BY ORDER OF THE COURT

&

NOT RECOMMENDED FOR PUBLICATION

(---------------------------------------

FILED

No. 24-5474

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

)

Plaintiff-Appellee,

)

Feb 10, 2025

KELLY L. STEPHENS, C

)

)

v.

AUBURN CALLOWAY,

ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR

) THE WESTERN DISTRICT OF

) TENNESSEE

)

Defendant-Appellant.

)

ORDER

Before:/ KETHLEDGE BUSH>and LARSEN, Circuit Judges.

Auburn Calloway, a pro se federal prisoner, appeals the district court’s order denying his

I

2^ motion for compassionate release. He also moves for the appointment of counsel, recusal of the

district court judge, recusal of Judge Gibbons, disqualification of the United States Attorney’s

3

office, and expedition of the ruling on his appointment-of-counsel motions. This case has been

referred to a panel of the court that, upon examination, unanimously agrees that oral argument is

not needed. See Fed. R. App^P_34(a)^FoiJhe following reasons, we affirm.

7

<^In 1994, Calloway was a flight engineaMorFedExP During a flight, he~attacked members

of a FedEx crewjmd^auempted to hijack the airplane. United States v. Calloway, 116F.3d 1129,

1131-32 (6th Cir. 1997). A federal jury found Calloway guilty of attempted aircraft piracy and.

/0 interference with flight crew members. Id. at 1332. The district court sentenced Calloway to an

above-guidelines term of life imprisonment. Id. On appeal, we vacated Calloway’s conviction of

I interference with flight crew members based on the government’s concession that it was a lesser-

No. 24-5474

-2included offense of attempted aircraft piracy. Id. at 1331. But we affirmed Calloway’s conviction

I

7-. of attempted aircraft piracy and his life sentence. Id.

3

In 2023, Calloway moved for a sentence reduction and compassionate release under 18

U.S.C. § 3582(c)(1)(A).

_5

We review the denial of a motion for compassionate release under § 3582(c)(1)(A) for an

abuse of discretion. United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020). An abuse of

/ discretion occurs when the district court “rehes on clearly erroneous findings of fact, applies the

a

xf

iv'C 11

3 law improperly, or uses an erroneous legal standard.” United States v. Jones, 980 F.3d 1098,1112

(6th Cir. 2020) (quoting United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010)).

/0

The compassionate-release statute allows the district court to reduce a defendant’s sentence

U if it finds that (1) “extraordinary and compelling reasons warrant such a reduction,” (2) the

/7^‘reduction is consistent with applicable policy statements issued by the Sentencing Commission,”

(3 and (3) the § 3553(a) factors, to the extent that they apply, support the reduction. 18 U.S.C.

ly- § 3582(c)(1)(A). The district court may deny the motion if any of these “prerequisites ... is

15 lacking.” United States v. Elias,(9$AF.3d 516, 519 (6th Cir. 2021 ).j

I0

^Calloway identifii^three factors that he considered^extraordinary and compelling reasons^

17 for granting compassionate release: (fj^his age—71 years old—places him at an increased risk of

I■ $ severe illness or death from COVID-19, (5) he has 15 “chronic comorbid medical infirmities,” and

although he received the COVID-19 vaccination, he is not immune from the virus .^Calloway \

also(argued)that the^S U.S<T~§~3553(a) factors)weighed in favor of reducing his life sentence

5 ^because]^ his offense was the result of a(gleeping disorder and not an (act of terrorism^(2) there

^^~is no need for deterrence or protection of the public because he is a “law abiding honorably

discharged decorated veteran,” @ no other person convicted of aircraft piracy received a life

sentence, and (£) he has no prior criminal history.

The district court denied Calloway’s § 3582(c)(1)(A) motions because the § 3553(a)

2.^ factors continued to support a life sentence. The court explained that Calloway posed “a grave

2? threat to the public,” given the violent nature of the offense an^the intended harm The court

A

No. 24-5474

-3concluded that a life sentence properly reflected the seriousness of the crime, promoted respect for

the law, provided deterrence, and protected the public.

&-

3

We need not consider whether Calloway presented an extraordinary and compelling reason

for compassionatejxlgase becauge^he district court’s § 3553(a) analysis is sufficient to supportlts'

denial of Calloway’s motion.^See^lias, 9S4 F.3d at 519^) The district court described the facts as^

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“disturbing” and explained that Calloway used a spear gun and claw hammers to strike the victims

in the head before engaging in hand-to-hand combat,

he district court^ recognized “the heroic

acts of the pilots

” in safely landing the plane

______

explained the lifelong physical and mental injuries

Calloway inflicted on the victims. (^Based'on these considerations, the district court reasonably

----- --------------- *

I’d ^JCQn£luded~"that the, § 3553(a) factors weighed against compassionate release

alloway^?

h( disagreement with how the district court balanced the § 3553(a) factors is “simply beyond the

Li, Id. scope of our appellate review” and is insufficient to warrant reversal. United States v. Ely, 46

l4t

F.3d 399, 404 (6th Cir. 2006) .^The district court, therefore,(drd not abuse its discretionin denying^/

Calloway’s motions for compassionate release.

!5

Calloway made several additional motions, all of which the district court denied. He first

IS moved for the recusal of the government prosecutor, who was—by the time of his motion—a

11 judge. He does not appear to appeal the denial of this motion, but he does move for the

19 disqualification of Judge Thomas Parker, who denied his motion. Calloway has not, however, /

raised any arguments about Judge Parker that would lead “a reasonable; objective person, knowing I

all of the circumstances, [to] have questioned the judge’s impartiality.” United States v, Hartsei/

-34 199 F.3d 812, 820 (6th Cir. 1999) (citation omittedjJ^Calloway also seeks the disqualification of

the entire Memphis U.S. Attorney’s office because the U.S. Attorney (at the time he filed this

'A3 appeal) clerked for his sentencing judg^/^ut Calloway did not raise this argument before the

3? district court, so it is not properly before us for review. See McFarland v. Henderson. 307 F.3d

402, 407 (6th Cir. 2002). JCalloway also moves for the recusal of Judge Gibbons, his sentencing

judge in this case. We deny that motion as moot because Judge Gibbons was not assigned to this

No. 24-5474

-4-

(

case and is not a member of the en banc court. Calloway also moves for the appointment of a

master under Fed. R. App. P. 48. We decline to exercise our discretion to appoint a master here.

3^—'^^'Finaiiy, Calloway moves for appointment of counsel. But “there is no constitutional (or

‘f

statutory) right to appointed counsel in § 3582(c) proceedings,” United States v. Manso-Zamora,

S

991 F.3d 694, 696 (6th Cir. 2021) (per curiam), and he cites no exceptional circumstances that

would warrant appointment here, see, e.&, Bryant v. McDonough, 72 F.4th 149, 152 (6th Cir.

7 2023)_^//'''----'—S''

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Thus, we AFFIRM the district court’s judgment. We DENY the motions to disqualify the

United States Attorney’s office, recuse the district court judge, recuse Judge Gibbons, appoint

lb

counsel, and appoint a special master. And we DENY as moot the motions to expedite ruling on

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the appointment-of-counsel motions.

ENTERED BY ORDER OF THE COURT

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No. 24-5474

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

)

Plaintiff-Appellee,

)

Apr 9, 2025

KELLY L. STEPHENS,

)

)

V-

ORDER

AUBURN CALLOWAY,

Defendant-Appellant.

)

)

)

)

)

BEFORE: KETHLEDGE, BUSH, and LARSEN, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court.* No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Additional material

from this filing is

available in the

Clerk's Office.