USA v. Daniel Wert

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11965
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL WERT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:97-cr-00001-CEM-DCI-13
____________________
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2 Opinion of the Court 22-11965
Before J ORDAN, ROSENBAUM , and J ILL PRYOR , Circuit Judges.
PER CURIAM:
Daniel Wert, a pro se federal prisoner serving a life sentence,
appeals the denial of his motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A)(i). After review of the parties’ briefs and
the record, we conclude that the district court abused its discretion
in denying Mr. Wert’s motion. The district court denied the mo-
tion primarily based on the 18 U.S.C. § 3553(a) factors “considered”
by the sentencing judge without any further explanation. But we
cannot engage in meaningful appellate review of the district court’s
decision because the original sentencing hearing is not available,
and the record does not demonstrate what § 3553(a) factors the
sentencing judge considered or what findings she made. We there-
fore vacate and remand for further proceedings.1
I
Mr. Wert was part of an extensive drug-trafficking organiza-
tion that operated for nearly five years in multiple places, including
Florida, Texas, Puerto Rico, and Mexico During the conspiracy,
Mr. Wert and another individual were paid $10,000 to murder a
member of the conspiracy. Mr. Wert eventually shot and killed
that person.
1 Because we write for the parties, and assume their familiarity with the record,
we set out only what is necessary to explain our decision.
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22-11965 Opinion of the Court 3
In 1997, a jury found Mr. Wert guilty of one count of con-
spiracy to possess with intent to distribute marijuana and cocaine,
in violation of 21 U.S.C. § 846. He was held accountable for a total
of 30,859 pounds of marijuana and 91.5 kilograms of cocaine.
According to the presentence investigation report, Mr. Wert
had a criminal history category of IV due to his extensive criminal
past, which included drug and weapon offenses, and because he
committed the narcotics offense while on probation for another of-
fense and less than two years after having been released from
prison. Mr. Wert had a total offense level of 43 under U.S.S.G.
§2A1.1(a) because he killed a person under circumstances that
would constitute murder under 18 U.S.C. § 1111. His criminal his-
tory category of IV and his total offense level of 43 yielded a guide-
line range of life imprisonment, which was the sentence the district
judge imposed.
In 2021, Mr. Wert filed a motion for compassionate release.
He accepted responsibility for his criminal conduct but argued that
his life sentence was longer than necessary to achieve the goals of
sentencing; he had rehabilitated himself, and was no longer a dan-
ger to the public. He also relied on COVID-19 to support his mo-
tion given that the pandemic put him in danger and resulted in lim-
ited recreation time and programming, unhealthy meals, restricted
visitation, and restricted contact with his family.
Mr. Wert subsequently supplemented his original motion.
Relevant to this appeal, in the supplemental motion filed on De-
cember 31, 2021, Mr. Wert argued that consideration of the §
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4 Opinion of the Court 22-11965
3553(a) factors weighed in his favor. Although he acknowledged
that the murder he committed was the most serious of all offenses,
he said that he regretted his actions and had atoned for them. Mr.
Wert also argued that the large disparity between his sentence and
the sentence that someone who committed the same offense
would face today called into question the justice of his sentence.
The government responded to Mr. Wert’s motion. It ar-
gued that the Bureau of Prisons had a COVID-19 protocol to keep
inmates safe, and that the mere existence of COVID-19 was not an
extraordinary and compelling reason for compassionate release.
The government also argued that Mr. Wert should not be released
because the § 3553(a) factors did not support his release and he was
still a danger to the community. According to the government,
Mr. Wert had not only accumulated multiple prison infractions,
but he was also a premediated murderer. The government there-
fore argued that granting his release would demean the seriousness
of the offense, would not promote respect for the law, would not
protect the public from future crime, and would not adequately
punish him.
The district court (not the original sentencing judge) then
entered an order denying the motion. The district court did not
determine whether Mr. Wert had established an extraordinary and
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22-11965 Opinion of the Court 5
compelling reason for his release, and instead focused its analysis
on the “[s]ection 3553 [f]actors and [d]anger to the [c]ommunity.”2
The district court found Mr. Wert’s argument for a sentence
reduction “unavailing.” It explained that “[t]he sealed Presentence
Report filed on August 6, 1997, clearly indicates why the sentencing
judge was so clear and unequivocal in stating that the Defendant
shall remain in prison the rest of his life.” It further concluded that
Mr. Wert’s “request falls well short of meeting any of the neces-
sary criteria in the applicable § 3553(a) factors.” According to the
district court, Mr. Wert’s “misconduct and the relevant factors con-
sidered by the sentencing judge represent a serious offense—such
that the Court cannot, in good faith, grant Defendant’s request pur-
suant to § 3553.”
This appeal followed.
II
We liberally construe pro se filings. See Jones v. Fla. Parole
Comm’n, 787 F.3d 1105, 1107 (11th Cir. 2015). But we review an
order granting or denying a motion for compassionate release un-
der § 3582(c)(1)(A)(i) for abuse of discretion. See United States v.
Cook, 998 F.3d 1180, 1183 (11th Cir. 2021).
A district court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures in making the
2 Although the heading in the district court’s order states, “Section 3553 Fac-
tors and Danger to the Community,” the district court’s order did not discuss
danger to the community. See D.E. 597 at 6–7.
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6 Opinion of the Court 22-11965
determination, or makes findings of fact that are clearly erroneous.
See United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). A dis-
trict court also abuses its discretion when it fails to consider the §
3553(a) sentencing factors when deciding a motion under §
3582(c)(1)(A)(i). See Cook, 998 F.3d at 1183. “Review under an
abuse of discretion standard, however, is not simply a rubber
stamp.” Id. (internal quotation marks omitted) (quoting United
States v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017)). As we have
stated, [a] district court . . . must explain its sentencing decisions
adequately enough to allow for meaningful appellate review.” Id.
(internal quotation marks omitted) (quoting Johnson, 877 F.3d at
997).
III
Mr. Wert argues that the district court erred in denying his
motion for compassionate release. See Appellant’s Br. at 20–26. On
this record, we agree.
A
District courts lack the inherent authority to modify a term
of imprisonment, but may do so under 18 U.S.C. § 3582(c). A dis-
trict 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 would not endanger any person or the community
within the meaning of U.S.S.G. § 1B1.13’s policy statement. See
United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). District
courts are not required to address these three conditions in a
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22-11965 Opinion of the Court 7
specific sequence, as the absence of even one forecloses a sentence
reduction. See id. at 1237–38.
The district court here did not address whether there were
extraordinary and compelling reasons that might merit compas-
sionate release. See D.E. 597 at 6. Instead, the district court based
its denial of the motion solely on the § 3553(a) factors. According
to the district court, “[Mr. Wert’s] request falls well short of meet-
ing any of the necessary criteria in the applicable § 3553(a) factors.”
Id. The district court explained that it denied Mr. Wert’s request
because of his “misconduct and the relevant factors considered by
the sentencing judge represent a serious offense[.]” Id. That was
the entirety of the explanation provided by the district court.
We conclude that the district court abused its discretion in
denying Mr. Wert’s motion because its explanation and analysis are
insufficient for meaningful appellate review. We have explained
that “[w]e do not expect a district court to articulate its findings and
reasoning with great detail.” Cook, 998 F.3d at 1185 (internal quo-
tation marks omitted) (quoting Irey, 612 F.3d at 1195). Neverthe-
less, when a district court is considering a motion under §
3582(c)(1)(A)(i), “it must ensure that the record reflects that it con-
sidered the [applicable] § 3553(a) factors.” Id. (internal quotation
marks omitted) (quoting United States v. Douglas, 576 F.3d 1216,
1220 (11th Cir. 2009)). “Without such information, we cannot en-
gage in meaningful appellate review and must vacate and remand.”
Id. (internal quotation marks omitted).
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8 Opinion of the Court 22-11965
Here, the record does not demonstrate that the district court
adequately considered the applicable § 3553(a) factors. Mr. Wert
argued that the § 3553(a) factors supported granting his motion.
See D.E. 587 at 43–71. The district court’s order, however, does not
include anything to suggest that it considered, balanced, or
weighed any of the § 3553(a) factors. Instead, the district court re-
lied on the “relevant factors considered by the sentencing judge” as
the primary basis for denying Mr. Wert’s motion. D.E. 597 at 7.
But that explanation is problematic for multiple reasons.
First, the parties agree that the transcript of Mr. Wert’s sen-
tencing in 1997 is unavailable. Compare Appellant’s Br. at 11, with
Appellee’s Br. at 24. The district court was under the impression
that the sentencing transcript was available, but it was incorrect.
See D.E. 609 at 1 (incorrectly noting that the sentencing transcript,
D.E. 377, was already part of the record). Apparently, the sentenc-
ing transcript was never transcribed and “the court reporter’s notes
of the proceeding are no longer available,” so the sentencing tran-
script “cannot be produced.” D.E. 610 at 1.
Second, none of the sentencing materials—the PSR, the sen-
tencing minutes, the statement of reasons, and the judgment—
demonstrate which § 3553(a) factors that were considered signifi-
cant by the original sentencing judge or the findings made with re-
spect to the § 3553(a) factors. For example, the “Statement of Rea-
sons” does not contain any discussion regarding the § 3553(a) fac-
tors. Likewise, the judgement in the case states that Mr. Wert
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22-11965 Opinion of the Court 9
“shall remain in prison for the rest of his life,” but again, it does not
include any discussion of the § 3553(a) factors. See D.E. 382 at 2.
In sum, the district court abused its discretion. By relying
on statements by the sentencing judge that are not a part of the
record, it adequately failed to consider the applicable statutory fac-
tors. See Cook, 998 F.3d at 1184 (“[A] district court abuses its discre-
tion when it decides a motion under § 3582(c)(1)(A)(i) without con-
sidering the applicable statutory factors.”).
B
The government argues that the district court did not err in
denying Mr. Wert’s motion for compassionate release. See Appel-
lee’s Br. at 9. According to the government, the district court did
not err because it relied on Mr. Wert’s 1997 PSR, which “detailed
the facts of the case, including that Mr. Wert had murdered another
associate of the drug-trafficking organization in exchange for
$10,000.” See id. at 12. The government therefore asks us to affirm
the district court’s denial of Mr. Wert’s motion based on “the dis-
trict court’s finding of [Mr.] Wert’s dangerousness and its finding
that section 3553(a) factors did not warrant early release.” Id. at
12–13. The government’s argument is unavailing.
Contrary to the government’s suggestion, the district court
did not make any finding about Mr. Wert’s “dangerousness.” To
be clear, we are not saying that the district court could not have
found that Mr. Wert’s admitted offense conduct, as reflected in the
PSR, weighed against granting Mr. Wert’s requested relief. See
Tinker, 14 F.4th at 1241 (“The weight given to any specific § 3553(a)
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10 Opinion of the Court 22-11965
factor is committed to the sound discretion of the district court.”)
(internal quotation marks omitted). We also are not saying that an
explicit finding that Mr. Wert’s release would endanger the com-
munity would not suffice for denial. See id. at 1237.
As we have previously acknowledged, “[o]ur task is to deter-
mine whether the record shows that the district court considered
the applicable § 3553(a) factors.” Cook, 998 F.3d at 1184. The rec-
ord in this case shows that did not occur, and “we cannot simply
assume the district court considered all that it must.” Id. at 1186.
Nor can we affirm, as the government suggests, on the basis that
the record reflects that the § 3553(a) factors weigh against release,
as we will not consider these factors in “the first instance.” Id. at
1184.3
IV
As we have explained, the present record does not allow for
meaningful appellate review of the district court’s reason for deny-
ing Mr. Wert’s motion. We therefore vacate the district court’s
order and remand for further proceedings consistent with this opin-
ion.
VACATED AND REMANDED.
3
Because we conclude the present record is insufficient to allow meaningful
appellate review of the sole ground relied upon by the district court, we do
not reach the government’s argument that Mr. Wert “did not establish an ex-
traordinary and compelling reason for release under the policy statement of §
1B1.13.” See Appellee’s Br. at 13.
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