United States v. Devin Ahesia-Jay Pemberton

U
        USCA11 Case: 20-12597    Date Filed: 05/14/2021   Page: 1 of 8



                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 20-12597
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:16-cr-00275-VMC-JSS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DEVIN AHESIA-JAY PEMBERTON,
a.k.a. Marco,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 14, 2021)

Before MARTIN, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:
          USCA11 Case: 20-12597       Date Filed: 05/14/2021    Page: 2 of 8



      Devin Pemberton, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A), as amended by § 603(b) of the First Step Act of 2018, Pub. L.

115-391, 132 Stat. 5194. We find no reversible error and therefore affirm.

                                          I.

      In 2016, a federal grand jury charged Pemberton with two counts of sex

trafficking of a minor. Pursuant to a written agreement, Pemberton pleaded guilty

to the first count, and the second count was dismissed.

      According to the stipulated statement of facts attached to his plea agreement,

Pemberton, posing as “Marco,” used the internet to recruit two 17-year-old girls to

engage in prostitution. Pemberton took photos of the girls and posted them in

online advertisements and arranged for the girls to engage in sex acts with men

who responded to the advertisements, either in a hotel room that Pemberton rented

or at Pemberton’s mother’s house. Pemberton gave the girls condoms and told

them what to charge for the sex acts, and they gave him the money that the “johns”

paid them. A law enforcement investigation into an advertisement featuring one of

the girls revealed that Pemberton owned two e-mail addresses that were routinely

used to recruit females to work as prostitutes and advertise their services.

       In addition, a third victim told law enforcement officers that she had worked

for Pemberton as a prostitute off and on since she was 15 or 16 years old, and that


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Pemberton knew her real age. Initially, Pemberton gave her food, shelter,

marijuana, and alcohol in return for the money she received from prostitution;

later, he agreed to give her a portion of the proceeds.

      Based on his criminal history and the fact that Pemberton committed the

present offense while serving probation on his prostitution-related state

convictions, Pemberton’s Sentencing Guidelines sentencing range was 262 to 327

months. His statutory sentencing range was ten years to life in prison. The district

court imposed a sentence of 262 months’ imprisonment, followed by a life term of

supervised release.

      In June 2020, Pemberton filed a pro se motion for compassionate release

under 18 U.S.C. § 3582(c)(1)(A)(i), as modified by § 603 of the First Step Act. He

argued that extraordinary and compelling circumstances existed warranting his

early release, given the COVID-19 pandemic and the overcrowding, unsanitary

conditions, and substandard medical care in prison. He asserted that he had several

long-term, preexisting conditions that made him vulnerable to COVID-19,

including hypertension, obesity, pre-diabetic gastrointestinal problems, exposure to

the germ causing tuberculosis, sciatica, childhood pneumonia, childhood asthma,

severe obstructive sleep apnea, and unspecified “respiratory problems.”

      The district court denied Pemberton’s § 3582(c)(1)(A) motion, finding that

an extraordinary and compelling reason warranting compassionate release did not


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exist and, even if there were such a reason, it would not grant the motion because

the nature and circumstances of Pemberton’s crime indicated that he would still

pose a danger to the public if released. The district court also found that releasing

Pemberton only 3 years into his 21-year sentence would not serve the purposes of

the 18 U.S.C. § 3553(a) sentencing factors, given the seriousness of his offense,

the need for rehabilitation, and the need to deter future misconduct. Pemberton

now appeals.

                                          II.

      We review the district court’s denial of a prisoner’s 18 U.S.C.

§ 3582(c)(1)(A) motion for compassionate release for abuse of discretion. 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 determination, or makes findings of fact that are clearly erroneous.”

United States v. Khan, 

794 F.3d 1288

, 1293 (11th Cir. 2015).

      It is well established that a district court has no inherent authority to modify

a defendant’s sentence and may do so “only when authorized by a statute or rule.”

United States v. Puentes, 

803 F.3d 597

, 605–06 (11th Cir. 2015). As amended by

the First Step Act, § 3582(c)(1)(A)(i) provides that a court may entertain a motion

for a sentence reduction filed by a prisoner who has satisfied certain procedural

requirements, and “may reduce the term of imprisonment” if, after considering the


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applicable § 3553(a) sentencing factors, it finds that a reduction is warranted by

“extraordinary and compelling reasons” and “is consistent with applicable policy

statements issued by the Sentencing Commission.”

      The relevant Sentencing Guidelines policy statement provides that a district

court may reduce a previously imposed term of imprisonment if, after considering

the § 3553(a) factors, the court determines that “extraordinary and compelling

reasons” warrant the reduction and the prisoner “is not a danger to any other

person or to the community, as provided in 18 U.S.C. § 3142(g). U.S.S.G.

§ 1B1.13. The commentary to § 1B1.13 states that a prisoner’s medical condition

may constitute an extraordinary and compelling reason warranting early release if

he has a terminal disease or is suffering from a physical or mental condition that

diminishes his ability to provide self-care in prison and from which he is not

expected to recover. U.S.S.G. § 1B1.13, comment. (n.1(A)). The policy statement

commentary also contains a catch-all provision, which provides that a prisoner

may be eligible for a sentence reduction if, 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 other specific examples

listed.

Id., comment. (n.1(D)).

We

have not yet decided in a published opinion whether the risk associated

with COVID-19 can constitute an extraordinary and compelling reason for


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compassionate release, alone or in combination with a prisoner’s preexisting

medical conditions. We need not decide those questions today, however, because

we conclude that even if Pemberton met those criteria for relief, the district court

did not abuse its discretion in finding that (1) he would pose a danger to the

community if released, and (2) the § 3553(a) sentencing factors weighed against

his immediate release.

      Section 3142(g) lists several factors to consider in determining whether a

defendant is a danger to any other person and the community, including: (1) the

nature and circumstances of the offense charged, including whether the offense

involved a minor victim; (2) the weight of the evidence against the defendant;

(3) the defendant’s history and characteristics, including his criminal history and

whether, at the time of the current offense or arrest, the defendant was on

probation, parole, or other release pending trial, sentencing, appeal, or completion

of sentence for an offense; and (4) the nature and seriousness of the danger to any

person or the community that would be posed by the defendant’s release. 18

U.S.C. § 3142(g)(1)–(4). Several of these factors support the district court’s

finding that Pemberton would pose a danger to the community, including the

nature and circumstances of Pemberton’s offense, which involved a minor victim;

the weight of the evidence against him, which included his admission to the

charged conduct and similar relevant conduct; and Pemberton’s history of state


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           USCA11 Case: 20-12597      Date Filed: 05/14/2021    Page: 7 of 8



convictions for various drug crimes, deriving support from the proceeds of

prostitution, and transporting for prostitution, among others, and the fact that he

was on probation for the prostitution-related crimes when he committed the instant

offense.

      In addition, many of the same considerations support the district court’s

determination that the sentencing factors in 18 U.S.C. § 3553(a) weighed against

Pemberton’s immediate release. Under § 3553(a), a district court’s sentence must

be sufficient, but not greater than necessary, to achieve the goals of sentencing,

which are: reflecting the seriousness of the offense, promoting respect for the law,

providing just punishment, deterring future criminal conduct, protecting the public,

and providing the defendant with any needed training or treatment. 18 U.S.C.

§ 3553(a). Section 3553(a) also requires district courts to consider the nature and

circumstances of the offense, the defendant’s history and characteristics, the kinds

of sentences available, the Sentencing Guidelines, any pertinent policy statement,

the need to avoid disparate sentences for defendants with similar records, and the

need to provide restitution to any victims.

Id.

As we have

already mentioned, Pemberton’s offense was a serious one

involving sex trafficking of a minor, and Pemberton admitted to being a repeat

offender. The district court’s original sentence was at the bottom end of

Pemberton’s Guidelines range, and releasing Pemberton after he served just a few


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years of a sentence of more than 21 years would not serve the statutory sentencing

goals of promoting respect for the law, providing just punishment, deterring future

criminal conduct, or protecting the public.

      The record supports the district court’s finding that Pemberton would pose a

danger to the community if he were released now, as well as its determination that

the § 3553(a) factors weigh against Pemberton’s release after serving only a small

fraction of his 262-month sentence. Accordingly, the district court did not abuse

its discretion in denying Pemberton’s motion for immediate release pursuant to

§ 3582(c)(1)(A), and we affirm.

      AFFIRMED.




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