United States v. Daniel White

USCA11 Case: 21-11145 Date Filed: 08/26/2022 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11145 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANIEL WHITE,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:12-cr-00173-SDM-AAS-1 ____________________ USCA11 Case: 21-11145 Date Filed: 08/26/2022 Page: 2 of 6

Before JORDAN, NEWSOM, and LUCK, Circuit Judges.

PER CURIAM: Daniel White appeals the district court’s orders denying his motion for compassionate release and reconsideration. We affirm.

Since 2016, White has been serving an eighty-four month prison sentence for making false claims to the Internal Revenue Service and aggravated identity theft. Last year, under 18 U.S.C. section 3582(c)(1)(A), he moved for compassionate release because he was “in great risk of contracting Covid-19” and he suffered from “a varicose vein in [his] lower right leg.”

The government opposed the motion because: (1) White already had contracted Covid-19 and he “received appropriate medical care”; (2) during White’s bout with Covid-19, his “body temperature and oxygen levels were completely normal”; (3) “[t]he mere existence of the Covid-19 pandemic—which pose[d] a general threat to every non-immune person in the country”—was not an extraordinary and compelling reason under guideline section USCA11 Case: 21-11145 Date Filed: 08/26/2022 Page: 3 of 6

21-11145 Opinion of the Court 3 “affect blood that flows to [the] heart and can cause blood clots, which can become deadly.” The district court denied White’s re- consideration motion because “his varicose veins and his fear of again contracting Covid-19 [did] not present an ‘extraordinary and compelling’ reason justifying his release.”

We review the district court’s orders denying compassion- ate release for an abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). “[D]istrict court[s] ha[ve] no inher- ent authority to modify a sentence; [they] may do so only when authorized by a statute or rule.” United States v. Puentes, 803 F.3d 597, 606 (11th Cir. 2015). White moved for compassionate release under section 3582(c)(1)(A), which provides that: [T]he court, upon motion of . . . the defendant . . . may reduce the term of imprisonment . . . , after con- sidering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that . . . ex- traordinary and compelling reasons warrant such a reduction . . . and that such a reduction is consistent with applicable policy statements issued by the Sen- tencing Commission. 18 U.S.C. § 3582(c)(1)(A).

Under section 3582(c)(1)(A), “a district court may reduce a term of imprisonment if (1) the [section] 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 USCA11 Case: 21-11145 Date Filed: 08/26/2022 Page: 4 of 6

White argues that the district court abused its discretion in denying his compassionate release motion because the threat of Covid-19, mixed with his varicose veins and prison conditions, were extraordinary and compelling reasons justifying his release.

The district court, White contends, should have relied on the Cen- ters for Disease Control and Prevention’s guidelines and the De- partment of Justice’s internal guidance rather than on guideline sec- tion 1B1.13.

But the district court had to rely on guideline section 1B1.13 because we’ve said so. “Section 1B1.13’s policy statement is appli- cable to all motions under [section] 3582(c)(1)(A), and, accordingly, district courts may not reduce a sentence under Section 3582(c)(1)(A) unless a reduction would be consistent with [guide- line section] 1B1.13.” Id. at 1237 (quotation omitted). Here, com- passionate release would not be consistent with guideline section USCA11 Case: 21-11145 Date Filed: 08/26/2022 Page: 5 of 6

21-11145 Opinion of the Court 5 to show either that he is: (1) “suffering from a terminal illness”; or (2) “suffering from a serious physical or medical condition,” “a se- rious functional or cognitive impairment,” or he’s “experiencing deteriorating physical or mental health because of the aging pro- cess,” and the condition, impairment, or deterioration “substan- tially diminishes” his “ability” to “provide self-care” in prison and he “is not expected to recover.” U.S.S.G. § 1B1.13 cmt. n.1(A).

White failed to show that Covid-19 and his varicose veins substantially diminished his ability to provide self-care in prison.

He admitted that he did not “require assistance with self-care[,] such as bathing, walking, [and] toileting,” and that his medical con- dition required only that he take acetaminophen and omeprazole and wear an anti-embolism stocking. And the warden confirmed that White was being treated in prison and that his medical pro- vider “diagnosed [him] with varicose veins,” “prescribed [him] ac- etaminophen for pain relief,” and did not recommend surgery.

Even if we relied on the CDC guidelines, as White argues we should, the CDC does not list varicose veins as one of the med- ical conditions that is more likely to cause a person to get very sick with Covid-19. 1 Cf. Harris, 989 F.3d at 912 (no abuse of discretion in denying compassionate release where defendant’s hypertension USCA11 Case: 21-11145 Date Filed: 08/26/2022 Page: 6 of 6

Because White did not show that his medical condition was an extraordinary and compelling reason for compassionate release under guideline section 1B1.13, the district court did not abuse its discretion in denying White’s motions.

AFFIRMED.