USA v. James V. Monaco

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 20-10052
Non-Argument Calendar
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D.C. Docket No. 0:89-cr-06049-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES V. MONACO,

Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 22, 2020)
Before BRANCH, LUCK, and FAY, Circuit Judges.

PER CURIAM:
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James Monaco appeals the district court’s denial of his motion for
compassionate release under the First Step Act. See 18 U.S.C. § 3582(c)(1)(A)(i) .
Monaco raises three issues on appeal: whether the district court erred in concluding
that he had not alleged extraordinary and compelling reasons making him eligible
for compassionate release; whether the district court abused its discretion in
concluding that, even if Monaco was eligible, compassionate release was not
appropriate after considering the relevant factors; and whether the district court
abused its discretion in denying Monaco’s motion before he filed his reply to the
government’s written response. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
After a trial involving multiple co-defendants, Monaco was found guilty of
ten counts, a combination of firearms and drug trafficking charges. According to
the presentence investigation report, Monaco directed a “heroin and cocaine
distribution ring,” and his sins were many: Monaco supplied a kilogram of heroin
to an undercover agent; attempted to steal 480 kilograms of cocaine from his rivals;
“conspired to import 1500 pounds of cocaine and to steal 500 kilograms of it”
1
; was
“responsible for 1154.3 grams of heroin”; “conspired to carry firearms and silencers
during the theft of the cocaine”; and “discussed the going rate of ‘murder contracts’
with a coconspirator.”

1
1500 pounds converts to approximately 680 kilograms.
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Before the sentence hearing, the government filed a memorandum telling the
district court that it had learned from “several confidential sources” and inmate
Michael Guibilo that, after the trial, Monaco had solicited Guibilo to murder the
prosecutor and a witness and to rob “a ‘stash house’ where several million dollars of
drug proceeds [were] located.” During a recorded conversation between Monaco
and Guibilo, Monaco suggested that Guibilo should murder Monaco’s prosecutor
“as soon as possible” because, “[w]ithout her, we wouldn’t be here.” The two
discussed how Guibilo would kill the prosecutor; Monaco told Guibilo her name;
and—after Guibilo was released from custody—Guibilo sent Monaco a picture of
the prosecutor, which Monaco confirmed in a coded message was a picture of his
“old girlfriend.” Concerning the planned stash house robbery, Monaco assured
Guibilo that he could rely on another accomplice not to “go to the authorities”
because Monaco had “whacked around twenty-five people with this guy.” Guibilo
and the accomplice would use Monaco’s extensive weapons cache to “whack” the
cartel members at the stash house. Based on this evidence, the district court assessed
a two-point enhancement for obstruction of justice, resulting in a guideline range of
360 months to life in prison. After an appeal and remand, the district court ultimately
sentenced Monaco to 660 months.
In September 2019, Monaco filed a motion for compassionate release,
asserting as extraordinary and compelling reasons for a sentence reduction that he
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was seventy years old and had a clean disciplinary record after serving thirty years
of his sentence. The district court denied the motion, and Monaco now appeals.
STANDARD OF REVIEW
“We review de novo . . . whether a district court had the authority to modify
a term of imprisonment.” United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.
2020). “We review for abuse of discretion the denial of an eligible movant’s request
for a reduced sentence under the First Step Act.” Id. And “[w]e review a district
court’s application of its local rules for an abuse of discretion.” United States v.
McLean, 802 F.3d 1228, 1233 (11th Cir. 2015).
DISCUSSION
A district court may modify a sentence only if the modification is authorized
by a statute or a rule. United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir.
2015). Section 3582(c)(1)(A)(i), as amended by the First Step Act, allows a court
to modify a prisoner’s sentence “in any case” if:
(A) the court . . . 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 [18 U.S.C.] section 3553(a) to the extent that they
are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction . . . .
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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) .
2

The “applicable policy statements issued by the Sentencing Commission” that
the court must consider are in section 1B1.13 of the sentencing guidelines.
Guideline section 1B1.13 says that “extraordinary and compelling reasons exist
under” the following circumstances:
(A) Medical Condition of the Defendant.—

(i) The defendant is suffering from a terminal illness (i.e., a serious and
advanced illness with an end of life trajectory). A specific prognosis of
life expectancy (i.e., a probability of death within a specific time
period) is not required. Examples include metastatic solid-tumor
cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease,
and advanced dementia.

(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the
aging process,

2
Monaco sought compassionate release based on subsections (i) and (ii) of 18 U.S.C.
section 3582(c)(1)(A). But Monaco has not appealed the part of the district court’s order denying
his motion based on subsection (ii). See United States v. Rosales-Bruno, 789 F.3d 1249, 1253 n.1
(11th Cir. 2015) (“Whatever his procedural objections were, Rosales-Bruno has abandoned them
by not raising them on appeal.”). Monaco has probably abandoned his subsection (ii) appeal
because that subsection allows for compassionate release only where the defendant is at least
seventy years old, has served at least thirty years in prison “pursuant to a sentence imposed under
section 3559(c),” and the Bureau of Prisons has determined that he is not a danger to the safety of
any other person or the community. See 18 U.S.C. § 3582(c)(1)(A)(ii). Because Monaco was not
sentenced under the three-strikes provision in section 3559(c), he was not eligible for
compassionate release under subsection (ii).
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that substantially diminishes the ability of the defendant to provide self-
care within the environment of a correctional facility and from which
he or she is not expected to recover.

(B) Age of the Defendant.—The defendant (i) is at least 65 years old;
(ii) is experiencing a serious deterioration in physical or mental health
because of the aging process; and (iii) has served at least 10 years or 75
percent of his or her term of imprisonment, whichever is less.

(C) Family Circumstances.—
(i) The death or incapacitation of the caregiver of the defendant’s minor
child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner
when the defendant would be the only available caregiver for the spouse
or registered partner.

(D) Other Reasons.—As determined by the Director of the Bureau of
Prisons, there exists in the defendant’s case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).

U.S.S.G. § 1B1.13 cmt. n.1.
Thus, a defendant is eligible for compassionate release if the district court
finds “extraordinary and compelling reasons” that are “consistent with the . . . policy
statements” in guideline section 1B1.13. If there are “extraordinary and compelling
reasons” for compassionate release, the district court has the discretion to reduce the
defendant’s term of imprisonment after considering the applicable section 3553(a)
factors.
Here, the district court concluded that Monaco wasn’t eligible for
compassionate release because his motion did not allege an extraordinary and
compelling reason. And, having considered the relevant factors, the district court
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alternatively concluded that even if Monaco was eligible for compassionate release,
it would not be “appropriate” in his case because he was “a danger to any person or
to the community,” in his forties Monaco “solicited murders and obstructed justice,”
and there was a substantial risk he would engage in criminal conduct if he was
released. Monaco attacks both conclusions on appeal.
Extraordinary and Compelling Reason
Monaco first argues that the district court erred in concluding that Monaco
was not eligible for compassionate release because he “failed to assert an
extraordinary [and] compelling reason justifying compassionate relief within the
meaning of U.S.S.G. [section] 1B1.13.” Monaco contends that age alone is an
extraordinary and compelling reason because the body and mind deteriorate over
time.
The policy statements in guideline section 1B1.13 list “Age of the Defendant”
as an extraordinary and compelling reason for compassionate release. But age,
without more, is not enough. The policy statements say that the “Age of the
Defendant” is an extraordinary and compelling reason only where the defendant is
at least sixty-five years old, is “experiencing a serious deterioration in physical or
mental health because of the aging process,” and has “served at least [ten] years or
[seventy-five] percent of his or her term of imprisonment, whichever is less.”
U.S.S.G. § 1B1.13 cmt. n.1. In his compassionate release motion, Monaco requested
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a reduced sentence because of his age, the amount of time he had already served in
prison, and his good behavior in prison. But, as the district court explained, Monaco
did not allege that he experienced a serious deterioration in physical or mental health
because of the aging process. Monaco argues that the body and mind deteriorate
over time—and indeed they do—but until he has actually experienced a “serious
deterioration” because of the aging process, the policy statements do not support age
alone as an extraordinary and compelling reason for compassionate release.
Section 3553(a) Factors
Monaco also argues that the district court abused its discretion in alternatively
concluding, as part of its consideration of the section 3553(a) factors, that he posed
a danger to any person or to the community.
3
He contends that because some of the
people involved in his trial have died, his attempts to solicit the murder of the
prosecutor and a witness do not support the district court’s finding that he’s still a
danger.
Section 3553(a) requires the district court to consider (among other factors)
“the nature and circumstances of the offense and the history and characteristics of
the defendant” and “the need for the sentence imposed . . . to reflect the seriousness

3
The district court does not have to mention section 3553(a) to consider the relevant
factors. See United States v. Cabezas-Montano, 949 F.3d 567, 609 (11th Cir. 2020) (“When the
district court fails to mention the [section] 3553(a) factors, we look to the record to see if the
district court did, in fact, consider the relevant factors.”). Here, the record is clear that the court
did consider the relevant factors in determining that compassionate release was not appropriate.
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of the offense, to promote respect for the law, . . . to provide just punishment for the
offense,” “to afford adequate deterrence to criminal conduct,” and “to protect the
public from further crimes of the defendant.” See 18 U.S.C. § 3553(a)(1)–(2). Here,
the district court “considered the substantial record” and the “recent findings” by the
Bureau of Prisons in concluding compassionate release was not appropriate because
Monaco solicited murders and obstructed justice while in his forties, he still posed a
risk of danger to the community, and there was a substantial risk that he would
engage in criminal conduct if released.
The record supports the district court’s conclusions. Monaco directed a heroin
and cocaine distribution ring in which he was “responsible for 1154.3 grams of
heroin” and “conspired to import 1500 pounds of cocaine and to steal 500 kilograms
of it.” He bragged on tape that he committed numerous murders. While in custody,
as he is now, Monaco tried to orchestrate the robbery of a rival cartel’s stash house
and the murder of those inside. And he solicited the murder of the prosecutor and a
witness because he thought his charges would go away. The warden of Monaco’s
prison, who has known him best since he was sentenced to prison, found that
releasing Monaco would “generate a substantial risk of [his] engaging in criminal
conduct or . . . endangering any person or public.” Based on this record, the district
court did not abuse its discretion in concluding that reducing Monaco’s sentence,
even if he was eligible for compassionate release, was not appropriate.
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Untimeliness of Reply
Monaco finally argues that the district court abused its discretion when it
entered its order denying his motion for compassionate release before he filed his
reply to the government’s memorandum opposing his motion. Monaco concedes
that he missed the deadline for filing a reply but contends that he did not receive the
government’s memorandum until after the deadline had passed.
The local rules for the Southern District of Florida give a movant seven days
“after filing and service of an opposing memorandum of law” to “file and serve a
reply memorandum in support of the motion.” S.D. Fla. L. R. 7.1(c)(1). Here,
thirteen days had passed with no reply before the district court entered its order. The
district court had no way of knowing that Monaco had not received the government’s
response. Monaco did not, as he could have, move the district court for
reconsideration of its order or move for leave to file an untimely reply.
As we’ve explained, we “will not typically second-guess the district court’s
interpretation of its own Rule regarding timeliness in an effort to avoid undermining
the goal of those standards that local rules seek to establish.” McLean, 802 F.3d at
1247 (quotation marks omitted and alterations adopted). We too will give wide
discretion to the district court’s reading and application of its local rule, and we will
not hold that the district court abused its discretion in failing to wait for a reply it
couldn’t and didn’t know was coming.
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AFFIRMED.
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