UNITED STATES v. AUSTIN (2020)

ORDER

Roger Max Austin, a federal prisoner proceeding pro se, appeals the denial of his motion for compassionate release. 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).

In 2017, a jury found Austin guilty of conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Before trial, the government offered Austin a plea agreement in which he would plead guilty to the § 922(g) charge in exchange for the dismissal of the other two charges, thus capping his sentence at the statutory maximum of ten years of imprisonment, even though his guidelines range would be much higher. Austin, however, declined to accept the plea agreement and elected to proceed to trial and represent himself.

At sentencing, the district court calculated Austin's guidelines range of imprisonment for the conspiracy and felon-in-possession counts as 168 to 210 months and imposed concurrent terms of 120 and 195 months on those counts and a consecutive term of 60 months for the § 924(c) conviction, for a total of 255 months of imprisonment. The district court explained that this sentence was necessary to satisfy the 18 U.S.C. § 3553(a) factors, citing Austin's criminal history, his offense conduct, and evidence introduced by the government at sentencing that he had, via his wife, disclosed the identity of a cooperating motorcycle gang member to other gang members after obtaining it from sealed discovery materials. This court affirmed. United States v. Austin, 797 F. App'x 233 (6th Cir. 2019).

In April 2020, Austin moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on his medical conditions and the Covid-19 pandemic, asserting that he has Crohn's disease and heart disease and that he had suffered a massive heart attack in November 2018, putting him at high risk of death or serious complications should he contract Covid-19. He also stated that he had been “a model inmate” and had a release plan that would keep him in a safe environment, as demonstrated by attached letters from his sister and other family members. According to Austin, he filed a request for compassionate release with his facility's warden, which was denied.

The government responded in opposition, arguing that Austin had not satisfied § 3582(c)(1)(A)’s exhaustion requirement by administratively appealing the warden's denial of his compassionate release request and, alternatively, that Austin had not demonstrated “extraordinary and compelling reasons” under § 3582(c)(1)(A) and USSG § 1B1.13, that he was still a danger to the community, and that the § 3553(a) factors weighed against his release.

The district court denied Austin's motion, concluding first that he had failed to comply with § 3582(c)(1)(A)’s exhaustion requirement because he had neither pursued an administrative appeal nor waited to file his motion until thirty days had passed from the warden's receipt of his request. The district court further concluded that, even if the exhaustion requirement could be waived, it would deny Austin's motion because the § 3553(a) factors did not support a reduced sentence.

On appeal, Austin argues that he satisfied the exhaustion requirement and that the district court erred in its assessment of the § 3553(a) factors. Because the exhaustion issue is not determinative, we proceed to the merits.

We review the denial of compassionate release for an abuse of discretion. United States v. Kincaid, 802 F. App'x 187, 188 (6th Cir. 2020) (citing United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020)). The compassionate release provision allows the district court to reduce a defendant's sentence if it finds that “extraordinary and compelling reasons” warrant a reduction; that the reduction is consistent with the applicable policy statements issued by the Sentencing Commission; and that the § 3553(a) factors, to the extent they apply, support the reduction. 18 U.S.C. § 3582(c)(1)(A).

The district court determined that, even if Austin had exhausted his administrative remedies and was eligible for compassionate release, the § 3553(a) factors weighed against a reduced sentence. In light of the district court's “broad discretion to determine what sentence will serve § 3553(a)’s statutory objectives,” this was not an abuse of discretion. United States v. Kincaid, 805 F. App'x 394, 395 (6th Cir. 2020) (alteration omitted) (quoting United States v. Kontrol, 554 F.3d 1089, 1093 (6th Cir. 2009)). The district court explained that it had sentenced Austin to 255 months of imprisonment just two years earlier and that, except for his health conditions, the “factual predicates” for his sentence had not changed since then. The district court pointed to Austin's criminal record; his membership in an “outlaw motorcycle gang” that manufactured and distributed methamphetamine and engaged in other criminal activity; his involvement in methamphetamine distribution and his carrying of a loaded firearm; his disclosure of the identity of a cooperating gang member; and the fact that he had served only two years of his twenty-one-year sentence. The district court also noted that Austin's sentence was within the guidelines range and had been affirmed by this court, and it concluded that a shorter sentence would not serve the § 3553(a) factors. In so holding, the district court recognized that Austin had health conditions that placed him at risk for complications from Covid-19, but it noted that there were at that time no confirmed cases at his facility, FCI Allenwood, and that he was receiving monitoring and medical care in prison.

Austin's primary challenge to the district court's assessment of the § 3553(a) factors is one he did not raise in his compassionate release motion: that the district court erred by failing to consider that he was offered a plea agreement with a maximum sentence of ten years, which, he argues, proves that a shorter sentence is sufficient to satisfy the § 3553(a) factors. As noted by the government, this argument is subject to plain-error review because Austin did not raise it to the district court until his reply brief, which was not filed until the district court had already ruled on his motion. See United States v. Barber, 966 F.3d 435, 437 (6th Cir. 2020). And Austin points to no “binding case law” that would require a district court to consider the terms of a rejected plea agreement when weighing the § 3553(a) factors. Id. at 438 (quoting United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015)). Accordingly, Austin has failed to demonstrate that the district court plainly erred by failing to consider the sentence he would have received had he pleaded guilty.

Austin's remaining challenges are unavailing. He correctly notes that he has served five years of his sentence, not two, but that does not undermine the district court's broader point that Austin had served only a fraction of his sentence and that less than two years had passed since it last weighed the § 3553(a) factors. Austin also argues that he was not informed of his responsibility not to disclose information from discovery materials, that his offense conduct and prior convictions were not violent, that his affiliation with the motorcycle gang should not be used to hold him responsible for the criminal conduct of others, and that the district court failed to adequately consider his medical conditions, his clean disciplinary record in prison, and his rehabilitative efforts. But in a compassionate-release proceeding, as at sentencing, the district court “is best situated to balance the § 3553(a) factors.” Kincaid, 802 F. App'x at 189 (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Our review is deferential, and the fact that we “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.Ct. 586; see Chambliss, 948 F.3d at 694 (holding that a defendant's disagreement “with how the district court balanced the § 3553(a) factors” in denying compassionate release “is not a sufficient ground for reversal”).

For these reasons, we AFFIRM the district court's order denying Austin's motion for compassionate release.