USA v. Stanley G. Rothenberg

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13418
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY G. ROTHENBERG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:08-cr-14028-DLG-1
____________________
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2 Opinion of the Court 21-13418
Before J ILL PRYOR , BRANCH, and BRASHER , Circuit Judges.
PER CURIAM:
Stanley Rothenberg, proceeding
pro se, appeals the district
court’s denial of his second motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A). He argues that the district court
misconstrued his motion for a sentence reduction as a motion for
reconsideration and thus applied the wrong legal standard, that he
“categorically demonstrated” extraordinary and compelling
circumstances for his release, and that the 18 U.S.C. § 3553(a)
sentencing factors support his request. Finding no error, we affirm.
I. Background
In 2008, Rothenberg pleaded guilty to possession of child
pornography and using a computer to persuade, induce, entice and
coerce a person under 18 years of age to engage in sexual activity.
He was sentenced to a total of 300 months’ imprisonment,
followed by a supervised release term of life.
In June 2020, Rothenberg, filed a counseled motion for
compassionate release. He argued that extraordinary and
compelling reasons existed because of the COVID-19 pandemic
and because he suffered from several medical conditions from
which he was not expected to recover that substantially diminished
his ability to provide self-care in prison, and because of his
advanced age. He argued that the 18 U.S.C. § 3553(a) factors
weighed in his favor because his history and characteristics had
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21-13418 Opinion of the Court 3
changed, he needed independent treatment for his mental illness
and medical conditions, he was not a threat to the public given his
age and status as a model inmate, he had been sufficiently deterred,
and his sentence was significantly greater than others who were
similarly charged. The government opposed the motion.
The district court denied Rothenberg’s counseled motion
for compassionate release. The district court first concluded that
granting Rothenberg a sentence reduction would be inappropriate
in light of the § 3553(a) factors. Specifically, the court reasoned that
the “nature and circumstances” of his offenses supported denying
the motion because Rothenberg, while acting in a “very cunning
and calculated manner, sought to engage in sexual acts with a
mentally challenged minor under the age of twelve,”1 took
affirmative actions to carry out that act by booking a motel room,
admitted that he communicated online with family members of
other young children to encourage them to engage in sexual
activity with those children, possessed “pornographic images
featuring prepubescent children engaged in sadistic and
masochistic acts,” attempted to destroy evidence, and had fantasies
involving the rape of children. The court further reasoned that
denying Rothenberg’s motion was necessary to reflect the
seriousness of the offense, promote respect for the law, provide just
punishment for the offense, afford adequate deterrence, and
1 As it turned out, Rothenberg was engaged in conversations with an
undercover officer, and the child did not exist.
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4 Opinion of the Court 21-13418
protect the public from Rothenberg, who had failed to
acknowledge the severity of his crimes and showed a lack of reform
based on his self-authored book while in prison and his written
letters to the court which continued to justify his conduct.2
Additionally, the district court found that Rothenberg had failed to
show extraordinary and compelling circumstances. Rothenberg
did not appeal.
In August 2021, Rothenberg filed a
pro se pleading titled
“motion for modification of sentence.” He acknowledged his prior
counseled motion for compassionate relief that was denied, and he
argued that he was “rais[ing] an independent set of grounds for
relief,” namely, (1) his worsening health in the year since his
counseled motion was denied and (2) a sentence disparity claim.
He maintained that the § 3553(a) factors supported his release
because he had “completely repented from his former ways,” due
to his advanced age he was empirically at a “‘minimum’” risk of
recidivism, he posed no risk of danger to the public, similarly
situated defendants had received lesser sentences, and he was in
urgent need of medical care and psychological treatment.
The district court denied Rothenberg’s
pro se motion. The
district court explained that Rothenberg sought relief “based on the
alleged extraordinary and compelling reasons raised in his previous
2 The district court also noted that it granted a downward variance at
sentencing and sentenced Rothenberg below the guidelines range to account
for his medical history.
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21-13418 Opinion of the Court 5
[counseled] Motion, which was denied,” and on “new purported
grounds for relief.” Therefore, the district court treated
Rothenberg’s motion “as a motion for reconsideration, and [as] an
18 U.S.C. § 3582(c)(1)(A) motion for compassionate release.” The
district court then concluded that Rothenberg failed to satisfy the
motion for reconsideration standard. Turning to his new motion
for compassionate release, the district court found that he failed to
demonstrate extraordinary and compelling circumstances existed,
but even if such circumstances existed, as “delineated, in
painstaking detail[]” in its prior order, “the Defendant [was] not
entitled to relief based on the . . . § 3553(a) factors and the potential
danger of his early release to the community.”3 The court then
reiterated some of the reasons why the § 3553(a) factors did not
support Rothenberg’s request. Rothenberg appeals the district
court’s order.
II. Discussion
Rothenberg argues that he established the existence of
extraordinary and compelling circumstances, and if the district
court had conducted a proper analysis of the § 3553(a) factors, it
would have discovered that those factors support a sentence
reduction.
3 Thus, the record confirms that the district court applied the appropriate
standard for a compassionate release motion under 18 U.S.C. § 3582(c)(1)(A),
and Rothenberg’s argument that the district court misconstrued his motion
and applied the wrong standard is meritless.
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6 Opinion of the Court 21-13418
Generally, a court “may not modify a term of imprisonment
once it has been imposed.” 18 U.S.C. § 3582(c). Section
3582(c)(1)(A), however, provides the following limited exception:
the court, upon motion of the Director of the Bureau
of Prisons, or upon motion of the defendant after the
defendant has fully exhausted all administrative rights
. . . may reduce the term of imprisonment . . ., after
considering the factors set forth in section 3553(a) to
the extent that they are applicable, if it finds that . . .
extraordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent
with applicable policy statements issued by the
Sentencing Commission.
Id. § 3582(c)(1)(A).4 Thus, under § 3582(c)(1)(A), the district court
may reduce a movant’s imprisonment term if: (1) there are
“extraordinary and compelling reasons” for doing so,5
4 We review
de novo whether a defendant is eligible for an 18 U.S.C. § 3582(c)
sentence reduction.
United States v. Bryant, 996 F.3d 1243, 1251 (11th Cir.),
cert. denied, 142 S. Ct. 583 (2021). We review the district court’s denial of a
compassionate release motion for abuse of discretion.
United States v. Harris,
989 F.3d 908, 911 (11th Cir. 2021).
5 The Sentencing Commission defines “extraordinary and compelling reasons”
for purposes of § 3582(c)(1)(A) in Application Note 1 to U.S.S.G. § 1B1.13.
Pursuant to this definition, there are four circumstances under which
“extraordinary and compelling reasons exist,” but Rothenberg only argued
that he qualified under two: (A) the defendant suffers from . . . a permanent
health condition “that substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional facility and from
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21-13418 Opinion of the Court 7
(2) the factors listed in § 3553(a) favor doing so, and (3) doing so is
consistent with the policy statements in U.S.S.G. § 1B1.13.
United
States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). If the district
court finds against the movant on any one of these requirements,
it cannot grant relief, and need not analyze the other requirements.
United States v. Giron, 15 F.4th 1343, 1347–48 (11th Cir. 2021);
Tinker, 14 F.4th at 1237–38 (explaining that “nothing on the face of
18 U.S.C. § 3582(c)(1)(A) requires a court to conduct the
compassionate-release analysis in any particular order”).
The relevant sentencing factors in § 3553(a) include the
nature and circumstances of the offense, the history and
characteristics of the defendant, the need for a sentence to reflect
the seriousness of the offense, promote respect for the law, provide
just punishment, deter criminal conduct, and protect the public
from future criminal conduct by the defendant.
See 18
U.S.C. § 3553(a).
Here, the district court did not abuse its discretion in
denying Rothenberg’s motion. The district court explained at
length that a sentence reduction would be inappropriate in light of
the § 3553(a) factors, emphasizing the nature and circumstances of
the offense, Rothenberg’s history and characteristics, and the need
which he or she is not expected to recover”; or (B) the defendant is “at least 65
years old,” “is experiencing a serious [age-related] deterioration in physical or
mental health,” and “has served at least 10 years or 75 percent of his or her
term of imprisonment, whichever is less.” U.S.S.G. § 1B1.13 cmt. n.1 (A)–(D).
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8 Opinion of the Court 21-13418
for the sentence to reflect the seriousness of the offense, provide
just punishment, and protect the public. Although Rothenberg
quarrels with how the district court weighed the relevant factors,
the weight to be accorded any given § 3553(a) factor is a matter
“committed to the sound discretion of the district court.”
See
Tinker, 14 F.4th at 1241 (quotation omitted). Accordingly, because
the § 3553(a) factors did not support Rothenberg’s request for
compassionate release, the district court did not abuse its discretion
in denying Rothenberg’s motion.6
AFFIRMED.
6 Rothenberg’s motion to file a reply brief out of time is GRANTED. We
considered the reply brief in resolving this appeal.
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