USA v. Nesbit Andrew Willhite

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10441
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NESBIT ANDREW WILLHITE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:17-cr-00520-SDM-CPT-1
____________________
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2 Opinion of the Court 21-10441
Before JILL PRYOR, BRANCH, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Nesbit Willhite, a federal prisoner proceeding
pro se,1 ap-
peals the district court’s denial of his motion for compassionate re-
lease under 18 U.S.C. § 3582(c)(1)(A). No reversible error has been
shown; we affirm.2
In 2017, Willhite pleaded guilty to possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C). Willhite is serving a sentence of 168 months’ impris-
onment.
In 2020, Willhite moved
pro se for compassionate release
under section 3582(c)(1)(A), as amended by the First Step Act.3
Willhite sought relief based on the COVID-19 pandemic. Willhite
said his medical conditions (including hypertension,
1 We read liberally briefs filed by
pro se litigants.
See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
2 After the close of briefing in this appeal, Willhite moved
pro se to supplement
his appeal with “new circumstances” he says arose while this appeal was pend-
ing. Willhite’s “Motion to Supplement” is DENIED.
3 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).
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21-10441 Opinion of the Court 3
hyperlipidemia, obesity, and diabetes with neuropathy in his legs)
put him at increased risk of serious illness if he were to contract
COVID-19. Willhite also alleged that the conditions in his prison
facility prevented him from taking effective precautions against in-
fection.
The district court denied Willhite’s motion for compassion-
ate release.4 In particular, the district court determined that
Willhite failed to show that he would present no danger to the
community. The district court found that Willhite’s “previous fel-
ony drug history, his violating the conditions of his bond while
awaiting sentencing in this action, and his possession and use of
weapons during his drug offenses provide clear and convincing ev-
idence that he is a danger.” The district court later denied
Willhite’s motion for reconsideration.
We review for abuse of discretion the district court’s deci-
sion about whether to grant or to deny a defendant compassionate
release.
See United States v. Harris, 989 F.3d 908, 911 (11th Cir.
2021). “A district court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures in making the deter-
mination, or makes findings of fact that are clearly erroneous.”
United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015).
4 The district court also construed Willhite’s motion as seeking home confine-
ment under the Coronavirus Aid, Relief, and Economic Security Act (“CARES
Act”), Pub. L. No. 116-136, § 12003(b)(2) (2020). On appeal, Willhite raises no
challenge to the district court’s denial of relief under the CARES Act.
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4 Opinion of the Court 21-10441
As amended by the First Step Act, section 3582(c)(1)(A) au-
thorizes a district court to modify a term of imprisonment under
these circumstances:
[T]he court . . . may reduce the term of impris-
onment . . . after considering the factors set forth in
section 3553(a) to the extent that they are applicable,
if it finds . . . extraordinary and compelling reasons
warrant such a reduction . . . and that such a reduction
is consistent with applicable policy statements issued
by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A)(i).
The policy statements applicable to section 3582(c)(1)(A) are
found in U.S.S.G. § 1B1.13.
See U.S.S.G. § 1B1.13;
United States v.
Bryant, 996 F.3d 1243, 1247 (11th Cir. 2021). Pertinent to this ap-
peal, section 1B1.13 provides that the district court may reduce a
term of imprisonment if the court determines that “the defendant
is not a danger to the safety of any other person or to the commu-
nity.”
See U.S.S.G. § 1B1.13(2);
id. comment. (n.1).
We have said that a district court may reduce a defendant’s
term of imprisonment under section 3582(c)(1)(A) only if each of
these three conditions is met: “(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 community within the meaning of § 1B1.13’s policy state-
ment.”
See United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir.
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21-10441 Opinion of the Court 5
2021). If the district court determines that a movant fails to satisfy
one of these conditions, the district court may deny compassionate
release without addressing the remaining conditions.
Id. at 1237-
38, 1240.
On appeal, Willhite argues that the district court relied im-
permissibly on U.S.S.G. § 1B1.13 in denying his motion for com-
passionate release. Relying on caselaw from the Sixth Circuit,
Willhite asserts that the policy statement in section 1B1.13 is inap-
plicable to prisoner-filed compassionate-release motions. Willhite
also contends that the district court failed to consider adequately
his good conduct while in prison, his assignment to minimum se-
curity housing, and his classification as having a minimal risk of re-
cidivism.
Willhite’s argument that the district court erred in applying
the policy statement in U.S.S.G. § 1B1.13 to a prisoner-filed motion
is foreclosed by our decision in
Bryant.
See Bryant, 996 F.3d at 1247
(concluding that section 1B1.13 remains the applicable policy state-
ment for all motions filed under section 3582(c)(1)(A), including
those filed by prisoners).
The district court abused no discretion in denying compas-
sionate release based on a finding that Willhite would pose a dan-
ger to the community if released. In determining the potential dan-
ger posed by a defendant, the court considers these kinds of factors:
(1) the nature and circumstances of the offense, including whether
the offense involved a controlled substance or a firearm; (2) the
weight of the evidence against the defendant; (3) the defendant’s
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6 Opinion of the Court 21-10441
history and characteristics, including his past conduct and criminal
history; and (4) the nature and seriousness of the danger that would
be posed by the defendant’s release.
See 18 U.S.C. § 3142(g).
Willhite is currently serving a sentence for a drug-trafficking
offense. According to the undisputed facts in the Presentence In-
vestigation Report, Willhite’s offense involved over 1.5 kilograms
of methamphetamine and distribution-level quantities of other
controlled substances. Willhite also possessed unlawfully three
guns and ammunition in furtherance of his drug-trafficking activi-
ties. That Willhite has a prior drug-trafficking conviction -- and
that Willhite violated the conditions of his bond prior to sentencing
in this case by storing narcotics at his residence -- also support a
finding of dangerousness. Given the serious nature of Willhite’s
offense and Willhite’s criminal history, we cannot say that the dis-
trict court clearly erred in finding that Willhite posed a danger.
That the district court afforded more weight to Willhite’s history
and characteristics than the court did to mitigating factors is no
abuse of discretion.
Cf. United States v. Amedeo, 487 F.3d 823, 832
(11th Cir. 2007) (stating that the weight given to a particular sen-
tencing factor “is a matter committed to the sound discretion of the
district court, and we will not substitute our judgment in weighing
the relevant factors.” (quotations and alteration omitted)).
We affirm the denial of Willhite’s motion for compassionate
release.
AFFIRMED.
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