USA v. Zane Balsam

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11153
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZANE BALSAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:99-cr-08125-DMM-16
____________________
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2 Opinion of the Court 21-11153
____________________
No. 21-13622
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZANE BALSAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:99-cr-08125-DMM-16
____________________
Before J ORDAN, J ILL PRYOR , and NEWSOM , Circuit Judges.
PER CURIAM:
Zane Balsam, a federal prisoner proceeding
pro se, appeals
the district court’s orders denying his motions seeking
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21-11153 Opinion of the Court 3
compassionate release. The government has moved for summary
affirmance and to stay the briefing schedule. We grant the govern-
ment’s motion for summary affirmance.
I.
Balsam co-founded a company that he claimed was a viatical
investment company, meaning it would buy life insurance policies
at a discounted rate from terminally ill policy holders. In reality,
“the company was simply a vehicle to steal its investors’ money.”
United States v. Balsam, 315 F. App’x 114, 117 (11th Cir. 2008) (un-
published).
Balsam and others were charged with federal crimes arising
from the scheme. Balsam was charged with money laundering
with the intent to conceal the nature, source, or ownership of the
proceeds in violation of 18 U.S.C. § 1956(a)(1)(B); conspiring to
commit money laundering in violation of 18 U.S.C. § 1956(h); and
engaging in a financial transaction with criminally derived pro-
ceeds in violation of 18 U.S.C. § 1957. After a jury found Balsam
guilty of all the offenses, the district court imposed a total sentence
of 360 months’ imprisonment and ordered him to pay $50 million
in restitution. After Balsam appealed, we vacated his sentences and
remanded for a resentencing.
See United States v. Arroya, 213 F.
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4 Opinion of the Court 21-11153
App’x 815, 817 (11th Cir. 2007) (unpublished). On remand, the dis-
trict court imposed the same sentence.1
Beginning in 2020, Balsam filed motions in the district court
seeking reductions to his sentence.2 He claimed that extraordinary
and compelling reasons justified a sentence reduction because his
health conditions—which include high blood pressure, chronic kid-
ney disease, and a problem with his prostate—put him at increased
risk of contracting COVID-19 while in prison. He also argued that
extraordinary and compelling circumstances were present because
he needed to care for his elderly mother whose health was declin-
ing, his sentence was disproportionately long, and he had been re-
habilitated while in prison. The district court denied the motions,
concluding that Balsam failed to establish extraordinary and com-
pelling reasons for a sentence reduction.
After the district court entered several orders denying Bal-
sam’s motions, he developed a serious infection and was hospital-
ized for approximately eight days. He renewed his request for com-
passionate release, arguing that the hospitalization showed that ex-
ceptional circumstances warranted a sentence reduction. The gov-
ernment responded that Balsam still had not demonstrated excep-
tional circumstances because his recent health problems appeared
1 Balsam appealed a second time, and we affirmed his sentence.
See Balsam,
315 F. App’x at 123.
2 At times in the district court, Balsam was represented by counsel, but he is
proceeding
pro se on appeal.
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21-11153 Opinion of the Court 5
to have been addressed and did not indicate a terminal illness. The
district court again denied Balsam’s request for compassionate re-
lease.
Balsam brought two appeals from the district court’s orders,
which we have consolidated. After Balsam filed his appellant’s
brief, the government filed a motion for summary affirmance.
II.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter 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).3
We review
de novo whether a defendant is eligible for a sen-
tence reduction under 18 U.S.C. § 3582(c)(1)(A).
United States v.
Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021). After eligibility is es-
tablished, we review for abuse of discretion a district court’s denial
of a defendant’s request for a sentence reduction.
Id. We liberally
3 In
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
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6 Opinion of the Court 21-11153
construe
pro se filings.
Jones v. Fla. Parole Comm’n, 787 F.3d 1105,
1107 (11th Cir. 2015).
III.
A district court may grant a motion for a sentence reduction,
if, after considering the § 3553(a) factors, it finds that “extraordinary
and compelling reasons warrant such a reduction” and that “a re-
duction is consistent with applicable policy statements” in the Sen-
tencing Guidelines. 18 U.S.C. § 3582(c)(1)(A). The applicable policy
statement is found at U.S.S.G. § 1B1.13. Under our binding prece-
dent, a district court cannot reduce a sentence under
§ 3582(c)(1)(A) unless the reduction would be consistent with
§ 1B1.13.
Bryant, 996 F.3d at 1262.
The commentary to § 1B1.13 lists certain medical, age, and
family reasons as circumstances that qualify as sufficiently “extraor-
dinary and compelling.” U.S.S.G. § 1B1.13, cmt. n.1(A)–(C). The
commentary provides that in certain circumstances a defendant’s
medical condition may be grounds for a sentence reduction.
Id.,
cmt. n.1(A). A defendant who suffers from a “terminal illness,”
meaning “a serious and advanced illness with an end of life trajec-
tory,” is eligible for a sentence reduction.
Id., cmt. n.1(A)(i). The
commentary lists “metastatic solid-tumor cancer, amyotrophic lat-
eral sclerosis (ALS), end-stage organ disease, and advanced demen-
tia” as examples of terminal illnesses.
Id. A defendant who suffers
from a non-terminal medical condition is eligible for a sentence re-
duction only if his medical condition “substantially diminishes” his
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21-11153 Opinion of the Court 7
ability “to provide self-care” and he is not expected to recover from
the condition.
Id., cmt. n.1(A)(ii).
The commentary further states that a defendant may be eli-
gible for a sentence reduction based on family circumstances if he
is required to care for certain family members.
Id. cmt. n1.(C). A
defendant is eligible only when the caretaker of the defendant’s mi-
nor child or children has become incapacitated or died, or the de-
fendant’s spouse or partner has become incapacitated and the de-
fendant is the only available caregiver for the spouse or partner.
Id.
The commentary also authorizes relief for “other reasons.”
Id., cmt. n.1(D). But we have held that these other reasons must be
determined by the Bureau of Prisons, not the courts.
See Bryant,
996 F.3d at 1262–65. We recognized in
Bryant that a district court
lacks discretion to develop other reasons outside those listed in
§ 1B1.13.
Id.
Here, the district court did not err in denying Balsam’s mo-
tions. None of his arguments for relief falls within any of the rea-
sons that § 1B1.13 identifies as extraordinary and compelling. He
argues that his medical condition and COVID-19 created an ex-
traordinary and compelling reason for a sentence reduction. But on
the record before us, we cannot say that Balsam had either (1) a
terminal illness or (2) a non-terminal condition from which he was
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8 Opinion of the Court 21-11153
not expected to recover that substantially diminished his ability to
care for himself.
See U.S.S.G. § 1B1.13, cmt. n.1(A).4
Balsam also argues that he demonstrated an extraordinary
and compelling reason because he needs to care for his elderly
mother who is ill. But a defendant’s caretaker status qualifies as an
extraordinary and compelling reason only when the defendant
would be a caretaker for a minor child, a spouse, or a partner. The
commentary does not cover the situation before us in which Bal-
sam seeks to care for a parent.
See id. § 1B1.13, cmt. n.1(C).
Balsam also asserts that extraordinary and compelling cir-
cumstances are present because he was rehabilitated in prison and
his sentence was disproportionately long. In raising these argu-
ments, he says that the district court was not limited by § 1B1.13
because this policy statement is not applicable when a defendant
4 Balsam urges us to consider that he was diagnosed with colon cancer while
this appeal was pending. But, in deciding this appeal, we are limited to the
record from the district court, meaning we cannot consider this subsequent
development.
See Stephens v. Tolbert, 471 F.3d 1173, 1177 (11th Cir. 2006)
(explaining that “an appellate court may consider only evidence that was part
of the record before the district court” (internal quotation marks omitted));
S
& Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1299 n.5 (11th Cir.
2000) (refusing to consider new evidence that “was not part of the district
court’s record”).
Our decision does not bar Balsam from seeking compassionate release in the
district court or before the Bureau of Prisons based on his cancer diagnosis.
We express no opinion about whether this diagnosis means that he is suffering
from a terminal illness or a non-terminal illness that renders him unable to
care for himself in prison.
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21-11153 Opinion of the Court 9
files a compassionate release motion. But we previously rejected
this argument in
Bryant, holding that a district court may reduce a
sentence under § 3582(c)(1)(A) only when a reduction would be
consistent with § 1B1.13.
See 996 F.3d at 1262. Under our prior
panel rule, we remain bound by
Bryant.
See United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
Court or by this court sitting en banc.”).
Because there is no substantial question as to the outcome
of this appeal, we conclude that summary affirmance is appropri-
ate.
See Groendyke Transp., 406 F.2d at 1162. Accordingly, the
government’s motion for summary affirmance is GRANTED and
its motion to stay the briefing schedule is DENIED as moot.
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