United States v. Demetrius Flenory ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0089n.06
Case No. 20-1767
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Feb 11, 2021
UNITED STATES of AMERICA, DEBORAH S. HUNT, Clerk
)
)
Plaintiff-Appellee,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
DEMETRIUS FLENORY,
)
)
Defendant-Appellant.
)
Before: BATCHELDER, GRIFFIN, and BUSH, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Demetrius Flenory, a convicted felon
serving a 30-year sentence in federal prison, moved for compassionate release via 18 U.S.C.
§ 3582(c)(1)(A)(i), claiming that his medical conditions put him at increased risk from Covid-19.
The district court considered Flenory’s claims, determined that he had not shown “extraordinary
and compelling reasons” to justify his release, and denied the motion. We AFFIRM.
Back in 2007, Flenory entered guilty pleas to charges of continuing criminal enterprise,
21 U.S.C. § 848, and conspiracy to launder monetary instruments, 18 U.S.C. § 1956(h). At his
sentencing, the court described him as a leader of a vast, multi-state drug-trafficking operation
with an extensive criminal history, including prior convictions for drug, weapons, and assault
offenses. The court sentenced him to 360 months in prison, which was the bottom of the
Guidelines range. He is confined at FCI Sheridan where he has committed several infractions,
warranting discipline, over the course of his incarceration, and has slightly under 11 years
remaining on his original sentence. He is 52 years old and, according to his medical records,
suffers from high blood pressure, high cholesterol, esophageal reflux, lower back pain, and obesity.
Case No. 20-1767, United States v. Flenory
He claimed that these medical conditions made him especially susceptible to a severe case of
Covid-19.
The district court acknowledged the “extraordinary and compelling” situation presented by
the Covid-19 pandemic and “that certain traits among the population predispose certain individuals
to complications from the virus, should they become infected.” United States v. Flenory, No. 05-
80955, 2020 WL 4345073, at *3 (E.D. Mich. July 29, 2020). Despite finding that “Flenory
possesses very few of those traits” and that “his high blood pressure and high cholesterol . . . are
treated with medication and have not resulted in any serious or severe complications,” the court
assumed “that Flenory’s medical conditions put him at some elevated level of risk.” Id.Even accepting that medical risk, however, the court nonetheless found that Flenory “still
has not demonstrated that he is entitled to the extraordinary remedy of compassionate release.” Id.Specifically, in considering the § 3553(a) factors, the court pointed to Flenory’s serious crimes
(“Flenory led one of the largest drug trafficking organizations in the history of this district”) and
criminal history (“Flenory has an extensive criminal history, with previous convictions on various
drug, weapons, and assaultive offenses”), that 136 months remained on his original 30-year
sentence, and that, while incarcerated, he had “lost a combined 135 days of Good Conduct Credit
for various serious disciplinary violations, some of which resulted in placement in solitary
confinement,” due to infractions such as his “possessing a small piece of a razor blade.” Id. The
court concluded that these risk factors “weigh heavily against a sentence reduction.” Id. at *4.
We review for an abuse of discretion the district court’s denial of compassionate release.
United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020). An abuse of discretion occurs when
the district court “relies on clearly erroneous findings of fact, uses an erroneous legal standard, or
improperly applies the law.” United States v. Flowers, 963 F.3d 492, 497 (6th Cir. 2020).
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The compassionate release statute allows the district court to reduce a defendant’s sentence
if it finds that “extraordinary and compelling reasons” warrant a reduction, that a reduction is
consistent with “applicable policy statements issued by the Sentencing Commission,” and that the
§ 3553(a) factors, to the extent they apply, support a reduction. 18 U.S.C. § 3582(c)(1)(A); see
Ruffin, 978 F.3d at 1004. The statute does not define extraordinary and compelling reasons, but
instead delegates that task to the Sentencing Commission. 28 U.S.C. § 994(t); Ruffin, 978 F.3d at
1004. The Sentencing Commission put that definition in the commentary to USSG § 1B1.13, at
cmt. n.1. But we have held that § 1B1.13 “is not an ‘applicable’ policy statement” when the
defendant moves for compassionate release on his own behalf, and therefore, in such cases, district
courts have “full discretion” to determine whether extraordinary and compelling reasons exist,
without reference to § 1B1.13. United States v. Jones, 980 F.3d 1098, 1108-09 (6th Cir. 2020).
As noted above, the district court found that Flenory failed to show extraordinary and
compelling reasons for compassionate release. In reaching that conclusion, the district court did
not rely on § 1B1.13. In fact, the court expressly rejected the government’s invocation of § 1B1.13,
finding it inapplicable under the circumstances before it. Flenory, 2020 WL 4345073, at *2. We
reject Flenory’s supplemental argument for remand based on the subsequent Jones opinion.
Flenory raises two arguments in his brief. First, he complains that the district court ignored
the “overwhelming” medical evidence that he provided to demonstrate his medical risk. But the
court accepted Flenory’s claimed medical risk. The court denied Flenory compassionate release
based on its assessment of Flenory in light of “the need to protect the public from [his committing]
further crimes[,] . . . the seriousness of [his original] offense, [and] the need to promote respect for
the law[] and afford adequate deterrence to criminal conduct.” Id. (editorial and quotation marks
omitted). None of Flenory’s medical evidence addresses (and certainly would not change) any of
those factors, nor does Flenory argue as much. This medical-evidence argument leads nowhere.
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Flenory’s other complaint is that the court ignored his sentencing-disparity argument,
which was based on his brother’s receiving compassionate release despite having committed the
same crimes with the same culpability, entering the same guilty plea, and receiving the same 30-
year sentence. But the sentencing-disparity factor that Flenory refers to in his argument, namely
§ 3553(a)(6), “concerns national disparities within a class of similar defendants, not disparities
between one defendant and another.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018).
Flenory has not argued any national disparity. Moreover, Flenory’s brother did not receive
compassionate release; the Bureau of Prisons transferred him to home confinement, which is
fundamentally different. Compassionate release is a sentence reduction. 18 U.S.C.
§ 3582(c)(1)(A). Home confinement is a change in the location of incarceration, § 3624(g)(2)(A),
subject to revocation and return to prison, § 3624(g)(5). See United States v. Alam, 960 F.3d 831,
836 (6th Cir. 2020) (“The CARES Act expands the power of the Bureau of Prisons to ‘place a
prisoner in home confinement’ as an alternative to compassionate release.”).
Even if that were not the case, in denying Flenory’s prior motion, the court had
distinguished his brother’s circumstances, finding that his brother had different physical conditions
(including blindness from a detached retina, daily medication, and prescription compression
stockings), a shorter remaining sentence (by 68 months), and “a clean prison record.” United
States v. Flenory, 458 F. Supp. 3d 602, 605 (E.D. Mich. 2020). Flenory argues that, according to
his medical experts, the physical conditions are indistinguishable (particularly now that Flenory is
also obese), and that his brother did not have a “clean” prison record, but had two infractions, one
for fighting and refusing to obey an order and another for possessing an unspecified unauthorized
item. We do not find these new facts so compelling as to convince us that the district court
necessarily abused its discretion by distinguishing Flenory from his brother, but even if the two
were indistinguishable, a sentencing disparity is just one of the factors the court considers. As
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with the medical evidence, none of the facts about Flenory’s brother (or his similarity to Flenory)
changes any of the § 3553(a) factors the court relied on: namely, protecting the public from further
crimes, upholding the seriousness of the offense, promoting respect for the law, and deterring
criminal conduct. A court does not abuse its discretion by refusing to place sentencing disparity
alone above the other factors.
The district court did not misapply the law or rely on clearly erroneous facts in finding that
Flenory did not show extraordinary or compelling circumstances. Thus, it did not abuse its broad
discretion in denying relief. See Ruffin, 978 F.3d at 1005; Flowers, 963 F.3d at 500.
We AFFIRM the judgment of the district court.
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