United States v. Daniel Wert

USCA11 Case: 24-10127 Document: 41-1 Date Filed: 03/23/2026 Page: 1 of 13

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10127

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL WERT,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:97-cr-00001-CEM-DCI-13

____________________

Before JORDAN, ABUDU, and ANDERSON, Circuit Judges.

PER CURIAM:

Daniel Wert, who is proceeding pro se, is a federal prisoner

serving a life sentence for conspiracy to possess with intent to dis-

tribute marijuana and cocaine. He appeals the district court’s denial

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2 Opinion of the Court 24-10127

of his motion for compassionate release and requests a new sen-

tencing hearing. Following review of the record and the parties’

briefs, we affirm.

I

In the early 1990s, Mr. Wert became a part of a large inter-

state cocaine and marijuana trafficking organization. The leader of

the organization paid Mr. Wert and two co-conspirators $10,000

each to kill Eloy Benevides over a disputed marijuana transaction.

In October of 1993, Mr. Wert shot and killed Mr. Benevides; he and

the two co-conspirators then buried Mr. Benevides’ body in Volu-

sia County, Florida. After the murder, Mr. Wert stopped delivering

drugs for the organization. On October 13, 1993, authorities ar-

rested Mr. Wert for possession of ten pounds of marijuana and pos-

session of a firearm.

In April of 1997, Mr. Wert proceeded to a 14-day jury trial.

The jury convicted Mr. Wert of a single count of conspiracy to pos-

sess with intent to distribute marijuana and cocaine in violation of

21 U.S.C. § 846. Mr. Wert had a criminal history category of IV and

a total offense level of 43, resulting in a then-mandatory guideline

sentence of life imprisonment. In July of 1997, the district court im-

posed a sentence of life imprisonment.

In September of 2021, Mr. Wert, proceeding pro se, moved

for compassionate release pursuant to 18 U.S.C. § 3582. He later

supplemented his motion asking, in the alternative, for a sentence

reduction. The district court denied his motion. Mr. Wert ap-

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24-10127 Opinion of the Court 3

pealed, and we remanded because the court’s explanation was “in-

sufficient for meaningful appellate review.” United States v. Wert,

No. 22-11965, 2023 WL 5745487, at *3 (11th Cir. Sept. 6, 2023). Mr.

Wert filed two motions for “spoliation” while he awaited the dis-

trict court’s compassionate release decision on remand. See D.E.

615; D.E. 620. Simply put, he asked the court to presume that his

original sentencing transcript—which is now unavailable—re-

vealed favorable mitigating evidence to support his claims for com-

passionate release or a sentence reduction.

The district court denied Mr. Wert’s motion for compas-

sionate release. Mr. Wert again appealed. The court denied his first

motion for spoliation before Mr. Wert filed his notice of appeal and

denied the second motion for spoliation after he filed his notice of

appeal.

II

Mr. Wert contends the district court erred in denying his

motion for compassionate release. First, he argues that the court

abused its discretion by failing to adequately consider the 18 U.S.C.

§ 3553(a) factors. Second, he contends that the district court’s de-

nial of compassionate release violates the Ex Post Facto Clause and

the Sixth Amendment to the United States Constitution. Third, he

asserts that the court should have conducted a new sentencing

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4 Opinion of the Court 24-10127

hearing and could not have properly weighed the § 3553(a) factors

because his original 1997 sentencing transcript is unavailable.1

A

“We review de novo whether a defendant is eligible for a sen-

tence reduction under 18 U.S.C. § 3582(c)(1)(A).” United States v.

Giron, 15 F.4th 1343, 1345 (11th Cir. 2021) (citing United States v.

Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021)). “After eligibility is es-

tablished, we review a district court’s denial of a prisoner’s

§ 3582(c)(1)(A) motion for abuse of discretion.” Id. (citing 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 find-

ings of fact that are clearly erroneous.” Harris, 989 F.3d at 911 (in-

ternal quotation marks and citation omitted).

1 Mr. Wert also avers that his original appellate counsel’s failure to request the

sentencing transcripts constituted ineffective assistance of counsel, but he did

not raise this issue below. We generally do not consider ineffective assistance

claims without an evidentiary record below, and 18 U.S.C. § 3582 is not the

proper means to raise such a claim. See United States v. Abreu, 840 F. App’x 457,

462 (11th Cir. 2020). Accord United States v. Escajeda, 58 F.4th 184, 188 (5th Cir.

2023) (“Because [the ineffective assistance] claims would have been cognizable

under [28 U.S.C.] § 2255, they are not cognizable under § 3582(c).”); United

States v. Bass, No. 21-1703, 2022 WL 16752876, at *1 (6th Cir. June 3, 2022)

(stating that “a compassionate-release motion is not the proper vehicle for rais-

ing claims regarding ineffective assistance of counsel”).

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B

A district court may grant compassionate release if (1) an ex-

traordinary and compelling reason exists; (2) a sentencing reduc-

tion would be consistent with U.S.S.G. § 1B1.13; and (3) the

§ 3553(a) factors weigh in favor of compassionate release. See 18

U.S.C. § 3582(c)(1)(A)(i); United States v. Tinker, 14 F.4th 1234,

1237–38 (11th Cir. 2021). The court may conduct the compassion-

ate release analysis in any order. See Tinker, 14 F.4th at 1237. When

it determines that one of these three requirements is not met, the

court need not examine the others. See id. at 1238. Here, the court

focused its analysis on the § 3553(a) factors. For the reasons we ex-

plain below, we discern no abuse of discretion and affirm.2

1

First, the district court did not abuse its discretion in balanc-

ing the § 3553(a) factors to determine that neither compassionate

release nor a sentence reduction was warranted. The court ana-

lyzed the nature and circumstances of the offense, explaining that

Mr. Wert belonged to a prolific drug distribution organization and

killed someone while affiliated with that enterprise. The court also

considered Mr. Wert’s history and characteristics, doubting that

2 To the extent that Mr. Wert has attempted to develop the record before this

Court by providing an updated health history and rehabilitation record in his

briefing, much of that information is not part of the actual record on appeal

because it was not presented to the district court before it denied his motion.

Therefore, we do not consider it for the first time on appeal. See United States

v. Trader, 981 F.3d 961, 969 (11th Cir. 2020); Fed. R. App. P. 10(a).

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6 Opinion of the Court 24-10127

Mr. Wert was remorseful. Nor did the court believe that Mr. Wert

has been rehabilitated. Instead, the court explained that it could not

disregard decades of denial of responsibility and disciplinary prob-

lems in favor of focusing on the last two years when Mr. Wert has

avoided trouble. 3

The district court then assessed the need for the sentence to

reflect the seriousness of the offense, explaining that it is hard to

imagine someone more dangerous than a person who killed a

stranger for money. The court also factored in the need to protect

the public, explaining that if Mr. Wert already took a life in ex-

change for money, he may be inclined to do so the next time he

needs funds. After weighing the § 3553(a) factors, the court deter-

mined that Mr. Wert’s life sentence was justified and that release

was not appropriate.

On appeal, Mr. Wert maintains that the district court failed

to consider his rehabilitation, his lack of danger to the community,

and the disproportionate nature of his sentence under the current

law. But courts do not need to specifically address each of the

§ 3553(a) factors or every piece of mitigating evidence. See United

States v. Taylor, 997 F.3d 1348, 1354 (11th Cir. 2021) (citation omit-

ted). Rather, the court must acknowledge that it considered the

§ 3553(a) factors and the parties’ arguments. See id. at 1354–55.

Here, the district court did exactly that. See D.E. 617 at 12 (“Having

fully considered all the circumstances in light of the § 3553 factors,

3 Mr. Wert now asserts that he “has consistently maintained his innocence re-

garding the murder allegation.” Reply Br. for Appellant at 7.

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24-10127 Opinion of the Court 7

the Court must conclude that Defendant has not satisfied his bur-

den.”).

Although Mr. Wert quarrels with how the district court

weighed the § 3553(a) factors, the weight to be accorded to those

factors is left to the sound discretion of the court, not to Mr. Wert.

See Tinker, 14 F.4th at 1237. And when the court finds that one of

the compassionate release requirements is not met, it need not ex-

amine the others, as the absence of one condition forecloses relief.

See id. at 1238; 18 U.S.C. § 3582(c)(1)(A).

2

Mr. Wert also argues that the denial of his compassionate

release violated the Ex Post Facto Clause and the Sixth Amend-

ment because the district court should have considered changes in

the law since his 1997 sentencing. Below, he asserted that if the

2021 sentencing laws were applied, his guidelines would be any-

where between 262 months and 405 months. On appeal, Mr. Wert

argues that, under today’s sentencing framework, he would not re-

ceive a life sentence because the court, not the jury, engaged in fact-

finding to factor the murder into his sentence. And, he argues, he

would no longer qualify for a mandatory minimum sentence.

A district court may consider non-retroactive changes to the

law when deciding a motion for compassionate release. See

U.S.S.G. § 1B1.13(c). Specifically, the Sentencing Commission pro-

vided in the 2023 amendment to its Policy Statement, as follows:

“[I]f a defendant otherwise establishes that extraordinary and com-

pelling reasons warrant a sentence reduction under this policy

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8 Opinion of the Court 24-10127

statement, a change in the law (including an amendment to the

Guidelines Manual that has not been made retroactive) may be

considered for purposes of determining the extent of any such re-

duction.” Id.

The permissive language in this policy statement demon-

strates that the district court was permitted—but not required—to

address the disparity between the 1997 mandatory guideline sen-

tence and Mr. Wert’s calculation of the 2021 advisory guideline

range. See id. We have said many times that a district court “need

not articulate the applicability of each [§ 3553(a)] factor, but the rec-

ord must show that the pertinent factors were taken into account.”

United States v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017) (internal

quotation marks and citation omitted). Therefore, a court does not

abuse its discretion when other factors outweigh the change in law.

Additionally, the court did not engage in “judicial factfinding,” as

Mr. Wert calls it, by fully considering the record evidence of his

offense in its § 3553(a) analysis. The court did not err by failing to

explicitly address the changes in the law.

3

Mr. Wert argues that the district court could not properly

consider the § 3553(a) factors because his original sentencing tran-

script is unavailable. He contends that the failure to consider the

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original sentencing transcript constitutes a due process violation

and warrants a new sentencing hearing.4

Although a district court may consider its balancing of the

§ 3553(a) factors at the original sentencing, we have never held that

it must rely on the original sentencing court’s statements in deter-

mining whether a sentence reduction is appropriate. See generally

Chavez-Meza v. United States, 585 U.S. 109, 118–20 (2018). And a

court does not abuse its discretion in denying compassionate re-

lease so long as “the record as a whole satisfies us that the judge

considered the parties’ arguments and had a reasoned basis for ex-

ercising his own legal decisionmaking authority.” Id. at 119 (altera-

tions adopted, internal quotation marks omitted, and citation omit-

ted).

Mr. Wert cites Griffin v. Illinois, 351 U.S. 12 (1956), to support

his contention that meaningful review requires an absolutely com-

plete record. But he is incorrect that he is entitled to reversal. A

criminal defendant must be afforded a “record of sufficient com-

pleteness” to permit proper consideration of his claims. See Draper

v. Washington, 372 U.S. 487, 499 (1963) (citations omitted). Yet Mr.

Wert is not entitled to a hearing on a motion for compassionate

release, and this rule does not change because his original sentenc-

ing transcript is unavailable. See United States v. Caraballo-Martinez,

4 We address this issue only insofar as the district court addressed it in the

order denying compassionate release. As we will explain, Mr. Wert did not

challenge the court’s ruling on “spoliation” related to the sentencing tran-

scripts.

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866 F.3d 1233, 1249 (11th Cir. 2017) (citing United States v. Phillips,

597 F.3d 1190, 1198 n.18 (11th Cir. 2010)).

In Mr. Wert’s case, the district court reviewed his lengthy

presentence investigation report. We are satisfied that the district

court thoroughly considered his arguments and determined that

compassionate release was unwarranted. Accordingly, we affirm

the district court’s denial of compassionate release.

III

Finally, the government contends that we lack jurisdiction

to consider Mr. Wert’s challenges to the district court’s denial of

his motions for spoliation. While spoliation is not a concept of

criminal law, we use Mr. Wert’s label as a shorthand for his mo-

tions asking the district court to presume that his original 1997 sen-

tencing transcripts revealed favorable information. See United States

v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (stating that “we

have not recognized the spoliation doctrine in the criminal con-

text”). But, based on our review, Mr. Wert has not attempted to

appeal the denial of his spoliation motions.

Some context on the timing of the filings is helpful to under-

stand why the government raises this point. After Mr. Wert filed

his motion for compassionate release, he filed two motions for spo-

liation and miscellaneous relief. Mr. Wert signed the first motion

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for spoliation on November 10, 2023, and the second motion on

December 16, 2023. 5

On December 20, 2023, the district court denied Mr. Wert’s

motion for compassionate release. The court did not address Mr.

Wert’s spoliation arguments in this order and noted that it did not

need to rely on the missing sentencing transcripts. On December

29, 2023, three days after receiving Mr. Wert’s second motion for

spoliation, the court denied his initial one.

On January 4, 2024, Mr. Wert filed his notice of appeal, ex-

plaining that on January 3, 2024, he received the December 20,

2023, order denying his motion for compassionate release, which

he wished to appeal. On July 25, 2024, the court denied Mr. Wert’s

second motion for spoliation. The issue is, therefore, whether the

January 4, 2024, notice of appeal encompasses the December 29,

2023, order denying Mr. Wert’s first motion for spoliation. We

think it does not.

“[A]n appellate court has jurisdiction to review only those

judgments, orders or portions thereof which are specified in an ap-

pellant’s notice of appeal.” Weatherly v. Ala. State Univ., 728 F.3d

1263, 1271 (11th Cir. 2013) (quoting Osterneck v. E.T. Barwick Indus.,

Inc., 825 F.2d 1521, 1528 (11th Cir.1987)). See also Fed. R. App. P.

3(c)(1)(B). And though “we generally construe a notice of appeal

5 The docket reflects the motions as filed on November 15, 2023, and Decem-

ber 26, 2023. But “a pro se prisoner’s court filing is deemed filed on the date it

is delivered to prison authorities for mailing.” Jeffries v. United States, 748 F.3d

1310, 1314 (11th Cir. 2014) (internal quotation marks and citation omitted).

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12 Opinion of the Court 24-10127

liberally, we will not expand it to include judgments and orders not

specified unless the overriding intent to appeal these orders is read-

ily apparent on the face of the notice.” Weatherly, 728 F.3d at 1271

(quoting Osterneck, 825 F.2d at 1528). The notice of appeal is clear

that Mr. Wert seeks to appeal the denial of his motion for compas-

sionate release. Because Mr. Wert’s notice of appeal does not

demonstrate or suggest any intent to appeal the orders denying the

spoliation motions, we do not review those orders.

Indeed, Mr. Wert does not mention the spoliation issue in

his opening brief. Nor does Mr. Wert ever identify the orders deny-

ing his motions for spoliation as the ones being appealed. Only after

the government raised the spoliation issue did Mr. Wert address

the matter in his reply brief in a perfunctory manner without any

controlling authority or case law. And we generally do not consider

arguments advanced for the first time in an appellant’s reply brief.

See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682–83 (11th

Cir. 2014) (citations omitted). We decline to do so now.

In sum, Mr. Wert did not identify the spoliation orders as

the orders he sought to appeal. Mr. Wert timely and properly iden-

tified the court’s order denying his motion for compassionate re-

lease in his notice of appeal. Thus, our review ends where our ju-

risdiction does—with the order that was properly identified and ap-

pealed.

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IV

We affirm the district court’s denial of Mr. Wert’s compas-

sionate release motion.

AFFIRMED.