United States v. Hardy ( 2022 )

Case: 20-60859 Document: 00516196201 Page: 1 Date Filed: 02/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 9, 2022
No. 20-60859 Lyle W. Cayce
consolidated with Clerk
No. 21-60280
United States of America,
Plaintiff—Appellee,
versus
Curtis J. Hardy,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CR-68-1
Before Owen, Chief Judge, and Clement and Engelhardt, Circuit
Judges.
Per Curiam:*
Hardy appeals the district court’s denials of his 18 U.S.C.
§ 3582(c)(1)(A) compassionate release motion as well as his motion to
reconsider. He requests a sentence reduction due to his greater risk of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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complications from the ongoing COVID-19 pandemic. Because the district
court ruled on Hardy’s motions before our decision in United States v.
Shkambi, 1 we vacate the district court’s orders and remand for
reconsideration in light of that decision.
I
Following a jury trial in 2003, Curtis Jerome Hardy was convicted of
bank robbery pursuant to 18 U.S.C. § 2113 as well as brandishing a firearm
during a crime of violence pursuant to 18 U.S.C. § 924(c). He was sentenced
to 384 months of imprisonment. We affirmed his conviction and sentence on
direct appeal. 2 He is serving his federal sentence at the Allenwood Federal
Correctional Institution and scheduled to be released in March 2032. Hardy
is now fifty-seven years old and has several health conditions, including high
cholesterol, high blood pressure, and diabetes.
Hardy filed a pro se motion for compassionate release under
§ 3582(c)(1)(A) in January 2020. He was appointed counsel by the Office of
the Federal Defender. Hardy argued that he is at greater risk of
complications from the COVID-19 pandemic because his health conditions
make him more vulnerable than other inmates. He claimed that his
heightened risk, coupled with his good behavior while incarcerated, are
“extraordinary and compelling reasons” warranting a sentence reduction.
The district court denied Hardy’s § 3582(c)(1)(A) motion. First, the
court determined that Hardy “utterly fail[ed]” to establish how his
conditions qualify as “extraordinary and compelling reasons” for relief. The
court applied the Sentencing Commission’s guidance at U.S.S.G. § 1B1.13
1
993 F.3d 388 (5th Cir. 2021).
2
United States v. Hardy, 101 F. App’x 959 (5th Cir. 2004) (per curiam)
(unpublished).
2
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on what is “extraordinary and compelling.” Because Hardy did not have a
terminal illness and his condition did not substantially diminish his ability to
care for himself while incarcerated, the court concluded that his conditions
did not warrant a sentence reduction. Second, the court recognized that
Hardy earned an “Act of Heroism” award while incarcerated, but the court
determined that his good behavior is also not sufficient for relief. Lastly, the
court reasoned that even if there were “extraordinary and compelling
reasons” for a reduction, Hardy did not satisfy the other requirements of
§ 1B1.13. The court relied on the Commission’s guidance at § 1B1.13(2) that
sentences must not be reduced if the prisoner is a “danger to the safety of
any other person or to the community.” The court surveyed Hardy’s lengthy
prior criminal history, including his multiple violent offenses. It observed
that “custody appears to be the only place that prevents Hardy from
committing serious and violent crimes,” and it concluded that Hardy would
“unmistakably present[] a danger to the community if th[e] court were to
champion his release.”
Hardy appealed the district court’s denial of his § 3582(c)(1)(A)
motion. He also moved for reconsideration, which the district court
separately denied. Hardy also appealed that denial. We consolidated the
appeals.
II
Hardy raises two arguments. First, he contends that the district court
erred in denying his § 3582(c)(1)(A) motion for compassionate release.
Second, he argues that his continued incarceration runs afoul of the Eighth
Amendment’s ban on cruel and unusual punishment. We address each
argument in turn.
3
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A
We review a district court’s denial of a § 3582 (c)(1)(A) motion for a
sentence reduction for abuse of discretion. 3 A district court abuses its
discretion when it “bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” 4
Section 3582(c)(1)(A) permits prisoners to seek a reduction in their
term of imprisonment. As recently amended by the First Step Act, the
provision states in relevant part:
[T]he court, upon motion of the Director of the Bureau of
Prisons, or upon motion of the defendant after the defendant
has fully exhausted all administrative rights to appeal a failure
of the Bureau of Prisons 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 defendant's facility, whichever is earlier,
may reduce the term of imprisonment (and may impose a term
of probation or supervised release with or without conditions
that does not exceed the unserved portion of the original term
of imprisonment), after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if it finds
that . . . extraordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission. 5
3
United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
4
Id. (citation omitted).
5
18 U.S.C. § 3582(c)(1)(A).
4
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Before the First Step Act, a district court could grant relief under
§ 3582(c)(1)(A) only on a motion by the BOP. 6 “[N]ow, a defendant can file
such motions directly in [the] district court.” 7 For the prisoner’s motion to
succeed, the three requirements of § 3582(c)(1)(A) must be met: (1) there
must be “extraordinary and compelling reasons” warranting a sentence
reduction; (2) relief must be consistent with the Commission’s applicable
policy statements; and (3) prisoners must persuade the district court to grant
relief after considering the 18 U.S.C. § 3553(a) factors. 8
Congress has never defined “extraordinary and compelling reasons,”
instead delegating that authority to the Commission. 9 The Commission’s
existing policy statement at § 1B1.13 “articulate[s] four categories of
‘extraordinary and compelling reasons’ that could warrant a sentence
reduction: (A) medical conditions of the defendant; (B) age of the defendant;
(C) family circumstances; and (D) other reasons.” 10 Relief under § 1B1.13
also requires that the prisoner not be “a danger to the safety of any other
person or to the community, as provided in 18 U.S.C. § 3142(g).” 11 In United
6
United States v. Cooper, 996 F.3d 283, 287 (5th Cir. 2021).
7
Id.8
Id. (citing United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021)). The
§ 3553(a) factors include: “the nature and circumstances of the offense and the history and
characteristics of the defendant,” “the need for the sentence imposed,” “the kinds of
sentences available,” “the kinds of sentence and the sentencing range established for” the
offense, “any pertinent policy statement” issued by the Commission, “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct,” and “the need to provide restitution to any victims of the
offense.” 18 U.S.C. § 3553(a).
9
Shkambi, 993 F.3d at 391.
10
Id. (citing U.S. Sent’g Guidelines Manual § 1B1.13 cmt. n.1(A)-(D)
(U.S. Sent’g Comm’n 2018)).
11
§ 1B1.13(2).
5
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States v. Shkambi, we held that § 1B1.13 only applies to compassionate release
motions brought by the BOP, not prisoners. 12 The Commission has not yet
adopted a new statement in response to the First Step Act. 13 Thus, a prisoner
who files a § 3582(c)(1)(A) motion only needs to show an “extraordinary and
compelling” reason for relief and that a sentence reduction would be
consistent with the § 3553(a) factors. 14 Put another way, he or she does not
need to satisfy § 1B1.13, including its requirement that the prisoner not pose
a danger to the community under § 3142(g). 15
Having moved for compassionate release himself, Hardy argues that
the district court erred by confining its analysis to § 1B1.13, citing Shkambi.
The Government concedes that § 1B1.13 is no longer binding, but it
maintains that the district court separately denied Hardy relief under
§ 3553(a) and that we may affirm on that basis.
“We may affirm the district court’s judgment on any basis supported
by the record.” 16 Even though the Commission’s guidance at § 1B1.13 is no
longer binding on compassionate release motions filed by prisoners, relief
must still be consistent with the § 3553(a) factors. 17 Thus, if a prisoner files
a compassionate release motion and a district court denies it based on
§ 1B1.13 as well as § 3553(a), we may affirm the independent § 3553(a)
12
Shkambi, 993 F.3d at 392.
13
Id.
14
Id.
15
See id.
16
United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014) (citation omitted).
17
Shkambi, 993 F.3d at 392.
6
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rationale despite a § 1B1.13 error. 18 The issue in this case, therefore, is
whether the lower court independently denied Hardy relief under § 3553(a).
We conclude that the district court did not rely on § 3553(a) when it
denied Hardy’s compassionate release motion. The court reasoned that even
if “extraordinary and compelling reasons” warrant a sentence reduction,
Hardy still posed a danger to the community such that his motion must be
denied. That was a § 3142(g) inquiry that treated the policy statement as
binding. 19 We recognize that when the district court analyzed Hardy’s
potential danger to the community, it effectively considered several § 3553(a)
factors due to the inquiries’ overlap. 20 But the district court never expressly
relied on § 3553(a), unlike in our recent decisions affirming district courts’
denials of compassionate release motions in which the courts clearly stated
§ 3553(a) was an independent basis for denial. 21 Here, because the district
18
See, e.g., United States v. Tobar, No. 21-50148, 2021 WL 5768090, at *1 (5th Cir.
Dec. 3, 2021) (per curiam) (unpublished) (“Because we affirm on the basis of the district
court’s § 3553(a) analysis, we need not address Tobar’s challenge to the district court’s
determination that compassionate release was also not warranted under the § 1B1.13(2)
policy statement.”); United States v. Simon, No. 21-30057, 2021 WL 4782790, at *1 (5th
Cir. Oct. 13, 2021) (per curiam) (same); United States v. Shorter, 850 F. App’x 327, 328 (5th
Cir. 2021) (per curiam) (same); United States v. Keys, 846 F. App’x 275, 276 (5th Cir. 2021)
(per curiam) (same).
19
See § 1B1.13(2) (requiring 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)”).
20
Compare § 1B1.13(2) (requiring an inquiry into whether the defendant is “a
danger to the safety of any other person or to the community”), with § 3553(a) (listing “the
nature and circumstances of the offense and the history and characteristics of the
defendant” and “the need for the sentence imposed . . . to protect the public from further
crimes of the defendant” as factors to consider).
21
See, e.g., Tobar, 2021 WL 5768090, at *1; Simon, 2021 WL 4782790, at *1;
Shorter, 850 F. App’x at 328; Keys, 846 F. App’x at 276; see also United States v. Cooper, 996
F.3d 283, 288 & n.5 (5th Cir. 2021) (declining to construe the lower court’s reliance on
Cooper’s remaining sentence in its denial of a compassionate release motion as an
independent holding under § 3553(a)).
7
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court was clear that it anchored its denial of Hardy’s motion under § 3142(g),
not § 3553(a), we vacate the district court’s order and remand for
reconsideration in light of Shkambi.
B
Hardy also challenges his confinement under the Eighth Amendment.
He asserts that his continued imprisonment in unsafe conditions amounts to
cruel and unusual punishment. We do not consider arguments raised for the
first time on appeal. 22 Hardy did not raise his Eighth Amendment argument
in the district court, forfeiting this claim.
* * *
The district court’s orders are VACATED, and the case is
REMANDED for further proceedings consistent with this opinion.
22
Martinez v. Pompeo, 977 F.3d 457, 460 (5th Cir. 2020) (per curiam).
8