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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11903
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE MICHAEL JULIAN,
a.k.a. Kid,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:07-cr-00009-JDW-TGW-1
____________________
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2 Opinion of the Court 21-11903
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Jermaine Michael Julian, a federal prisoner proceeding pro
se, appeals the district court’s denial of his motion for compassion-
ate release, after finding that he had failed to show either that he
had exhausted his administrative remedies or that extraordinary
and compelling circumstances or the
18 U.S.C. § 3553(a) sentencing
factors supported his compassionate release. He argues that the
district court abused its discretion in denying compassionate re-
lease without acknowledging that it could find that “other reasons”
established extraordinary and compelling circumstances, and that
it failed to consider two sworn declarations, including his own and
that of Dr. Marc Stern, as evidence of his medical conditions and
exhaustion of administrative remedies. He also contends that the
court did not consider certain § 3553(a) factors, and its order deny-
ing compassionate release was insufficient to enable meaningful
appellate review. Last, he argues that the court erred in declining
to appoint counsel for him and, for the first time on appeal, that it
should have considered his post-sentencing rehabilitation or pro-
vided funding for an expert witness.
The government responds by moving for summary affir-
mance of the district court’s order and for a stay of the briefing
schedule. It argues that Julian has forfeited any argument that the
§ 3553(a) factors, and specifically his post-sentencing rehabilitation,
supported compassionate release. Further, it asserts that our
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21-11903 Opinion of the Court 3
precedent limited the district court’s consideration to the extraor-
dinary and compelling circumstances in U.S.S.G. § 1B1.13, the
court adequately explained the grounds for its decisions, and Jul-
ian’s remaining challenges lack merit, due to which the appoint-
ment of counsel was not warranted.
Summary disposition is appropriate where, among other
things, “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158,
1162 (5th Cir. 1969).
When appropriate, we will review a district court’s denial of
a prisoner’s motion for modification of sentence under
18 U.S.C.
§ 3582(c)(1)(A) for an abuse of discretion. United States v. Harris,
989 F.3d 908, 911 (11th Cir. 2021). A district court’s denial of mo-
tions for an expert witness and appointment of counsel are, when
adequately preserved, also reviewed for an abuse of discretion.
Bass v. Perrin,
170 F.3d 1312, 1319 (11th Cir. 1999). An abuse of
discretion occurs when a district court applies an incorrect legal
standard, applies the law in an incorrect or unreasonable fashion,
fails to follow proper procedures in making a determination, or
makes clearly erroneous factual findings. United States v. McLean,
802 F.3d 1228, 1233 (11th Cir. 2015). We may affirm on any ground
supported by the record, United States v. Gibbs,
917 F.3d 1289,
1293 n.1 (11th Cir. 2019), and will not reverse on the basis of harm-
less error. See United States v. Barton,
909 F.3d 1323, 1337 (11th
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4 Opinion of the Court 21-11903
Cir. 2018). Moreover, although pro se filings are construed liber-
ally, all litigants must comply with the applicable procedural rules.
See United States v. Padgett,
917 F.3d 1312, 1316 n.3, 1317 (11th
Cir. 2019).
Nevertheless, in a criminal case, we will still review argu-
ments brought for the first time on appeal for plain error. See
United States v. Anderson,
1 F.4th 1244, 1268 (11th Cir. 2021).
“Plain error occurs when (1) there was an error, (2) the error was
plain or obvious, (3) the error affected the defendant’s substantial
rights, and (4) the error seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.”
Id. at 1268–69. To
satisfy the plain error rule, an asserted error must be clear from the
plain meaning of a statute or constitutional provision, or from a
holding of the Supreme Court or this Court. United States v. Mo-
rales,
987 F.3d 966, 976 (11th Cir. 2021), cert. denied, No. 21-5815
(U.S. Nov. 15, 2021).
District courts lack the inherent authority to modify a term
of imprisonment but may do so to the extent that a statute ex-
pressly permits.
18 U.S.C. § 3582(c)(1)(B). In 2018, Congress en-
acted the First Step Act, which, in part, amended
18 U.S.C.
§ 3582(c)(1)(A) to increase the use and transparency of compassion-
ate release of federal prisoners. See Pub. L. No. 115-391,
132 Stat.
5194, 5239 (Dec. 21, 2018) (“First Step Act”). The statute provides
that a “court may not modify a term of imprisonment once it has
been imposed” except under certain circumstances.
18 U.S.C.
§ 3582(c).
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21-11903 Opinion of the Court 5
In the context of compassionate release, the statute requires
exhaustion of remedies and otherwise provides that:
[T]he court, upon motion of the Director of the
[BOP], or upon motion of the defendant after the de-
fendant has fully exhausted all administrative rights
to appeal a failure of the [BOP] to bring a motion on
the defendant’s behalf or the lapse of 30 days from the
receipt of such a request by the warden of the defend-
ant’s facility, whichever is earlier, may reduce the
term of imprisonment . . . after considering the fac-
tors set forth in [18 U.S.C.] section 3553(a) to the ex-
tent that they are applicable, if it finds that—extraor-
dinary and compelling reasons warrant such a reduc-
tion.
Id. § 3582(c)(1)(A)(i) (emphasis added). Thus, we have held that a
district court may reduce a term of imprisonment, under
§ 3582(c)(1)(A), “if (1) the § 3553(a) sentencing factors favor doing
so, (2) there are extraordinary and compelling reasons for doing so,
and . . . (3) doing so wouldn’t endanger any person or the commu-
nity within the meaning of § 1B1.13’s policy statement.” United
States v. Tinker,
14 F.4th 1234, 1237 (11th Cir. 2021) (quotation
marks omitted) (citing
18 U.S.C. § 3582(c)(1)(A) and U.S.S.G.
§ 1B1.13). The district court may consider these factors in any or-
der, and the absence of any of the three forecloses a sentence re-
duction. See id. at 1237–38. Further, we have held that the exhaus-
tion requirement of § 3582(c)(1)(A) is not jurisdictional, but is
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6 Opinion of the Court 21-11903
instead a claims-processing rule the government may forfeit by fail-
ing to raise it. Harris, 989 F.3d at 911; see also United States v.
Campbell, No. 16-10128, manuscript op. at 19 (11th Cir. Feb. 16,
2022) (en banc) (Noting that “forfeiture is the failure to make the
timely assertion of a right”).
Importantly, it is the defendant’s burden to show that his
circumstances warranted a reduction.
18 U.S.C. § 3582(c)(1)(A)(i).
We have not yet decided whether a movant’s sworn declaration is
evidence sufficient to meet his burden of showing extraordinary
and compelling circumstances, particularly with regard to his med-
ical conditions. But see Fed. R. Evid. 701 (providing that lay opin-
ion testimony must be, among other things, “not based on scien-
tific, technical, or other specialized knowledge” (emphasis added)).
The policy statements applicable to § 3582(c)(1)(A) are
found in § 1B1.13. U.S.S.G. § 1B1.13. The commentary to § 1B1.13
states that extraordinary and compelling reasons exist under any of
the circumstances listed, provided that the court determines that
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), and that the
reduction is consistent with the policy statement. See
id. § 1B1.13
& cmt. n.1. For example, commentary to § 1B1.13 lists a defend-
ant’s medical condition—to the extent it reflects a terminal illness
or a serious condition substantially diminishing his ability to pro-
vide self-care within the environment of a correctional facility and
from which he is not expected to recover—age, and family circum-
stances as possible “extraordinary and compelling reasons”
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21-11903 Opinion of the Court 7
warranting a sentence reduction. Id. § 1B1.13 cmt. n.1(A)–(C).
The commentary also contains a catch-all provision for “other rea-
sons,” which provides that a prisoner may be eligible for a sentence
reduction if “[a]s determined by the Director of the [BOP], there
exists in the defendant’s case an extraordinary and compelling rea-
son other than, or in combination with,” the other specific exam-
ples listed. Id. § 1B1.13 cmt. n.1(D). We have held that, following
the enactment of the First Step Act, § 1B1.13 continued to constrain
a district court’s ability to evaluate whether extraordinary and
compelling reasons were present, and that “Application Note 1(D)
[did] not grant discretion to courts to develop ‘other reasons’ that
might justify a reduction in a defendant’s sentence.” United States
v. Bryant,
996 F.3d 1243, 1248 (11th Cir.), cert. denied,
142 S. Ct.
583 (2021).
We have also held that a district court does not abuse its dis-
cretion by denying compassionate release to an inmate with medi-
cal conditions that may increase the risk of death or severe medical
complications from COVID-19 where the inmate’s conditions do
not fall within the policy statement’s stated medical conditions.
See United States v. Giron,
15 F.4th 1343, 1346 (11th Cir. 2021)
(holding there was no abuse of discretion where the district court,
after adopting the government’s response in full, found no extraor-
dinary and compelling reasons because the inmate’s “high choles-
terol, high blood pressure, and coronary artery disease were man-
ageable in prison, despite the existence of the COVID-19 pan-
demic”).
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8 Opinion of the Court 21-11903
The § 3553(a) factors include, among other things, the na-
ture and circumstances of the defendant’s offense, his history and
characteristics, the need to protect the public from further crimes
of the defendant, and the need to reflect the seriousness of the of-
fense, promote respect for the law, and afford adequate deterrence
to criminal conduct.
18 U.S.C. § 3553(a). While a district court
need not “exhaustively analyze” each § 3553(a) factor or articulate
its findings in great detail, it must provide sufficient analysis of all
applicable § 3553(a) factors for meaningful appellate review.
Tinker, 14 F.4th at 1240–41. The court need not address each fac-
tor or all of the mitigating evidence, and we may affirm a sentence
if the district court considered “a number of” the factors, such as
the nature and circumstances of the offense and the defendant’s
history of recidivism. Id. at 1241 (quotation marks omitted).
Section 3582(c)(1)(A) also requires that any reduction be
consistent with applicable policy statements issued by the Sentenc-
ing Commission.
18 U.S.C. § 3582(c)(1)(A). Section 1B1.13 of the
Sentencing Guidelines provides the applicable policy statement for
§ 3582(c)(1)(A). U.S.S.G. § 1B1.13. Section 1B1.13 states that the
district court, in addition to determining that extraordinary and
compelling circumstances support compassionate release, must
also determine that the defendant is not a danger to the safety of
others or to the community, as provided in
18 U.S.C. § 3142(g), and
that the reduction is consistent with the policy statement.
Id.
We have held that there is no constitutional or statutory
right to counsel in postconviction proceedings. See United States
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21-11903 Opinion of the Court 9
v. Webb,
565 F.3d 789, 794–95 (11th Cir. 2009) (concluding that
there is no constitutional or statutory right to counsel in an
18
U.S.C. § 3582(c)(2) proceeding). In the context of a civil case, ap-
pointment of counsel is “a privilege justified only by exceptional
circumstances, such as the presence of facts and legal issues which
are so novel or complex as to require the assistance of a trained
practitioner.” Kilgo v. Ricks,
983 F.2d 189, 193 (11th Cir. 1993)
(quotations and alteration omitted). “The key is whether the pro
se litigant needs help in presenting the essential merits of his or her
position to the court.”
Id. We have indicated that the following
factors should be considered when determining whether “excep-
tional circumstances” exist: (1) the type and complexity of the case;
(2) whether the indigent is capable of adequately presenting his
case; (3) whether the indigent is in a position to adequately investi-
gate the case; and (4) whether the evidence will consist in large part
of conflicting testimony so as to require skill in the presentation of
evidence and in cross examination. Fowler v. Jones,
899 F.2d 1088,
1096 (11th Cir. 1990) (adopting Ulmer v. Chancellor,
691 F.2d 209,
213 (5th Cir. 1982)).
In certain contexts, due process may also require appoint-
ment of expert services. See Moore v. Kemp,
809 F.2d 702, 711–12
(11th Cir. 1987) (en banc) (declining to decide whether due process
mandates the appointment of non-psychiatric experts under Ake v.
Oklahoma,
470 U.S. 68, 83 (1985)). In Moore, we stated that due
process requires appointment of an expert when there is “a reason-
able probability both than an expert would be of assistance to the
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10 Opinion of the Court 21-11903
defense and that denial of expert assistance would result in a fun-
damentally unfair trial.” Moore,
809 F.2d at 712 (emphasis added
and footnote omitted).
As initial procedural matters, we will assume, arguendo,
that Julian has properly preserved an argument concerning the dis-
trict court’s analysis of the § 3553(a) factors. With argument and
citations to authority in support, he identifies his history and char-
acteristics, and the need to provide adequate medical care and cor-
rectional treatment, as two § 3553(a) factors the court allegedly
failed to consider, and he has thus preserved that challenge. Fur-
ther, while he did not raise his arguments concerning post-sentenc-
ing rehabilitation or the funding of an expert witness (as opposed
to the appointment of counsel for the purpose of hiring an expert)
below, they are still reviewable for plain error. See Anderson, 1
F.4th at 1268. 1
Nevertheless, we conclude that summary affirmance is ap-
propriate on the substantive grounds identified by the district
court. We need not resolve whether Julian’s sworn declaration,
without more, was sufficient to meet his burden of showing
1 The government appears to have forfeited the issue of exhaustion by failing
to raise it below. See Harris, 989 F.3d at 911. Nevertheless, despite Julian’s
arguments that the district court erred in finding that he had not exhausted his
administrative remedies, any error the district court, arguendo, may have
committed in this respect was harmless because it properly found, in the alter-
native, that compassionate release was substantively inappropriate. See
Gibbs, 917 F.3d at 1293 n.1; Barton, 909 F.3d at 1337.
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21-11903 Opinion of the Court 11
extraordinary and compelling circumstances, because it only iden-
tified the medical condition of heart disease, which he did not state
he was unable to manage while incarcerated. 2 Instead, he stated
that he was awaiting consultation with a cardiologist but was una-
ble to protect himself from the spread of COVID-19, which is in-
sufficient to show extraordinary and compelling circumstances.
See Giron, 15 F.4th at 1346. Further, his argument that the district
court should have considered the “anti-stacking” provision or any
“other reasons” outside of § 1B1.13 is foreclosed by our precedent.
See Bryant, 996 F.3d at 1248. Thus, the district court did not abuse
its discretion in finding that he failed to demonstrate extraordinary
and compelling circumstances, and summary affirmance—as to the
substantive showing required for compassionate release—is proper
on that basis alone. 3 See Tinker, 14 F.4th at 1237–38.
Moreover, Julian’s argument that the district court should
have appointed counsel lacks merit because there was no right to
counsel in the instant § 3582 proceeding, see Webb,
565 F.3d at
794–95, and his compassionate release motion did not involve com-
plex legal or factual issues, see Kilgo,
983 F.2d at 193. Finally,
2 Additionally, Dr. Stern’s declaration did not address Julian’s health condi-
tions, and appears to have been prepared in an entirely different case, making
it irrelevant to whether Julian could show extraordinary and compelling cir-
cumstances.
3 Because the district court properly found that Julian failed to demonstrate
extraordinary and compelling circumstances, we need not address his argu-
ments concerning the § 3553(a) factors. See Tinker, 14 F.4th at 1237–38.
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12 Opinion of the Court 21-11903
Julian’s argument that the court should have provided funds for
him to retain an expert fails on plain error review because of the
lack of precedent holding that a defendant is entitled to expert tes-
timony in the context of compassionate release. See Morales, 987
F.3d at 976.
Thus, the government’s position is clearly correct as a mat-
ter of law, no substantial question remains as to the outcome of the
case, and summary affirmance is appropriate. See Groendyke
Transp., Inc.,
406 F.2d at 1162. Therefore, we GRANT the govern-
ment’s motion for summary affirmance and DENY as moot its mo-
tion to stay the briefing schedule.
