United States v. Brandon Erwin

USCA11 Case: 21-11216 Date Filed: 09/28/2022 Page: 1 of 7

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11216

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRANDON ERWIN,

a.k.a. Brandon Irwin,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:06-cr-00039-JSM-SPF-1

____________________

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2 Opinion of the Court 21-11216

Before NEWSOM, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Brandon Erwin, a federal prisoner proceeding with counsel,

appeals the district court’s denials of his motion for compassionate

release pursuant to 18 U.S.C. § 3582(c)(1)(A) and subsequent mo-

tion for reconsideration. On appeal, he argues first that compas-

sionate release was warranted because he has health conditions—

Tourette syndrome and high cholesterol—that diminish his ability

to care for himself in home confinement. Second, he contends that

the district court should have considered not only his actual place

of confinement, but any place of confinement to which the Federal

Bureau of Prisons could transfer him. Third, he asserts that United

States Sentencing Guidelines § 1B1.13 applied to his defendant-ini-

tiated compassionate-release motion and that this Court should

overturn our precedent to align with our sister circuits. Finally, he

argues that § 3582(c)(1)(A) and § 1B1.13 of the Guidelines provide

a specific sequence of inquiries that the district court failed to fol-

low in adjudicating his compassionate-release motion. 1

While we review de novo a defendant’s eligibility for a sen-

tence reduction pursuant to § 3582(c)(1)(A), we review the denial

of a motion for compassionate release or for reconsideration for an

1We note that Erwin moves to submit an untimely reply brief. We grant the

motion, without further discussion, to the extent that we have considered the

reply brief that he attached to his motion.

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21-11216 Opinion of the Court 3

abuse of discretion. United States v. Harris, 989 F.3d 908, 911–12

(11th Cir. 2021) (motion for compassionate release); United States

v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004) (motion to recon-

sider). A court abuses its discretion by applying the wrong legal

standard, following incorrect procedures, making clearly errone-

ous factual findings, or clearly erring in its judgment. Harris, 989

F.3d at 911–12. A defendant cannot use a motion for reconsidera-

tion to present arguments or evidence that he could have previ-

ously submitted. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,

957 (11th Cir. 2009).

After considering each of Erwin’s arguments, we affirm.

I

First, Erwin argues that compassionate release was war-

ranted because his health conditions diminish his ability to care for

himself in home confinement and that the district court should

have held an evidentiary hearing before ruling otherwise.

A district court can modify a term of imprisonment if ex-

traordinary reasons warrant the reduction and doing so comports

with Sentencing Commission policy statements.

18 U.S.C. § 3582(c)(1)(A)(i). The applicable policy statement here

provides that, if the defendant is not dangerous, extraordinary rea-

sons exist when he is suffering from (1) a serious physical or medi-

cal condition, (2) a serious functional or cognitive impairment, or

(3) deteriorating physical or mental health because of the aging pro-

cess; he is not expected to recover from the ailment; and the

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4 Opinion of the Court 21-11216

ailment significantly diminishes his capacity to care for himself

within the environment of a correctional facility. U.S.S.G.

§ 1B1.13, cmt. n.1(A). We held in United States v. Bryant that

§ 1B1.13 is binding on courts even when the defendant files the

compassionate-release motion. 996 F.3d 1243, 1262 (11th Cir.

2021), cert. denied, 142 S. Ct. 583. Extraordinary reasons are lim-

ited to those listed in § 1B1.13. Id.

Here, the district court did not abuse its discretion by deny-

ing Erwin’s compassionate-release motion or his motion for recon-

sideration. The court’s opinion denying his motion for compas-

sionate release was sufficiently detailed for our review. See United

States v. Giron, 15 F.4th 1343, 1346 (11th Cir. 2021) (affirming

where court adopted government’s response). Erwin did not assert

that he was suffering from a serious condition or impairment that

hindered his ability to care for himself until his motion for recon-

sideration, but he could not use that motion to raise arguments

previously available to him. See Wilchombe, 555 F.3d at 957.

The district court was not required to grant Erwin an evi-

dentiary hearing—which he did not request until his motion for

reconsideration—and he has abandoned any argument concerning

a hearing by failing to provide supporting arguments on appeal.

See United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020),

cert. denied, 141 S. Ct. 2538 (2021).

II

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21-11216 Opinion of the Court 5

Second, Erwin contends—for the first time on appeal—that

the district court should have considered any place of confinement

to which the Federal Bureau of Prisons could transfer him when

assessing whether his medical condition significantly diminishes his

capacity to care for himself. U.S.S.G. § 1B1.13 cmt. n.1(A).

We generally review errors that were not raised in the dis-

trict court for plain error, and the appellant must establish that

there was a (1) plain (2) error (3) affecting his substantial rights.

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018). If

he establishes each of those conditions, we have discretion to ad-

dress an error not raised below if it substantially undermines judi-

cial proceedings’ fairness, integrity, or reputation. Id. at 1905.

Here, the district court did not err by failing to interpret

§ 1B1.13 in the way that Erwin proposed because the court did not

indicate that it based its decision on his home confinement. In-

stead, it relied on the government’s argument that Erwin didn’t

sufficiently allege a qualifying medical condition. Erwin has not

shown or argued plain error. See Rosales-Mireles, 138 S. Ct. at

1904–05.

III

Third, Erwin asserts that U.S.S.G. § 1B1.13 doesn’t apply to

a defendant-initiated compassionate-release motion and that this

Court should overturn our precedent to align with our sister cir-

cuits.

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6 Opinion of the Court 21-11216

Erwin’s argument is barred by Bryant. See Bryant, 996 F.3d

at 1262 (holding that § 1B1.13 is binding on courts even when the

defendant files the compassionate-release motion). The district

court was not required to consider extraordinary circumstances be-

yond those defined in § 1B1.13. See id.

This Court can revisit previous rulings, such as Bryant, only

through a rehearing en banc. A petition for rehearing en banc must

be clearly labelled as such. 11th Cir. R. 35-5. Erwin has not filed a

petition for an en banc rehearing. Therefore, this Court continues

to apply Bryant to this case.

IV

Finally, Erwin argues that § 3582(c)(1)(A) and § 1B1.13 of the

Guidelines provide a specific sequence of inquiries that the district

court failed to follow in adjudicating his compassionate-release mo-

tion.

District courts need not analyze compassionate-release cases

in a specific order. United States v. Tinker, 14 F.4th 1234, 1237–39

(11th Cir. 2021). If any necessary condition for compassionate re-

lease is not satisfied, a court does not commit reversible error by

skipping consideration of a different requirement. Id. In Giron, we

held that a court did not abuse its discretion by addressing only

whether an extraordinary and compelling reason existed without

addressing the defendant’s dangerousness or the § 3553(a) sentenc-

ing factors. 15 F.4th at 1347–50.

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21-11216 Opinion of the Court 7

The district court was not required to evaluate the require-

ments applicable to Erwin’s motion for compassionate release in a

specific order. See Tinker, 14 F.4th at 1237–38. Once it decided

that he failed to show extraordinary circumstances, the district

court was not required to consider the other compassionate-release

requirements. Giron, 15 F.4th at 1347–50.

***

For the foregoing reasons, we hold (1) that the district court

did not abuse its discretion by denying Erwin’s compassionate-re-

lease motion or his motion for reconsideration; (2) that the district

court did not err by failing to interpret § 1B1.13 in the way that

Erwin proposed; (3) that the district court was not required to con-

sider extraordinary circumstances beyond those defined in

§ 1B1.13; and (4) that the district court was not required to evaluate

the requirements applicable to Erwin’s motion for compassionate

release in a specific order. Accordingly, the district court’s judg-

ment is affirmed.

AFFIRMED.