holding that decisions of the former Fifth Circuit issued prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit
How later courts described this case
- holding that decisions of the former Fifth Circuit issued prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit
- noting the “long standing rule that issues and contentions not raised in the initial brief are deemed abandoned”
Written by the judges who cited it.
The opinion
USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13204
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA BLAKE WISE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:15-cr-00300-WS-N-1
____________________
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2 Opinion of the Court 22-13204
Before WILSON, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Joshua Wise, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion for reconsideration of its denial
of Wise’s motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i), as amended by § 603(b) of the First Step Act. 1
The government, in turn, moves to dismiss the appeal as untimely
or, alternatively, for summary affirmance and to stay the briefing.
After careful review, we deny the government’s motion to dismiss
as untimely, grant its motion for summary affirmance, and deny as
moot its motion to stay the briefing schedule.
I. Background
In 2015, a federal grand jury indicted Wise on three counts
of drug-related offenses. In 2018, he was sentenced to 84 months’
imprisonment to be followed by five years of supervised release.
In 2022, Wise filed a pro se motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A). Citing decisions from other
circuits, he argued that the district court could consider “other
factors” as extraordinary and compelling reasons for
compassionate release under U.S.S.G. § 1B1.13. He asserted that
his mental health issues, including ADHD, bipolar disorder, and
severe anxiety, put him at greater risk of neurological and mental
complications associated with a COVID-19 infection, which is
1 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”).
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22-13204 Opinion of the Court 3
more likely to occur in a prison environment. He also stated that
he had been denied a particular drug treatment, which was
recommended at sentencing, because of an error in his presentence
investigation report (“PSI”) stating that he was “sober from meth
since 2009.” Wise listed six non-medical issues that he felt were
extraordinary and compelling reasons for compassionate release:
(1) his indictment was duplicitous because the three counts charged
the same crime three times; (2) his federal sentence ran consecutive
to his “discharged state sentence” because the district court “never
expressly ordered it not to run concurrent” and his counsel did not
raise the issue; (3) the district court applied the wrong base offense
level in determining his sentence; (4) he substantially cooperated
with the government; (5) his father was assaulted and battered by
marshals during Wise’s period of undercover work for the
government; and (6) the Bureau of Prisons (“BOP”) had refused to
credit him with time served despite the sentencing judge’s
statement that he would be entitled to it. Finally, he argued that
the sentencing factors in 18 U.S.C. § 3553(a) favored his release.
On June 29, 2022, the district court denied the motion
without ordering the government to respond. It found that Wise
failed to establish extraordinary and compelling circumstances
because he did not assert that he had a terminal illness or that his
medical conditions interfered with his ability to provide self-care in
prison. The district court then found that his six non-medical
reasons did not fall within the Sentencing Guidelines’ policy
statement, see U.S.S.G. § 1B1.13, so they could not support a finding
of extraordinary and compelling reasons for compassionate release.
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4 Opinion of the Court 22-13204
The court finally noted that, because Wise failed to establish that
extraordinary and compelling reasons existed, it did not need to
address either the § 3553(a) factors or relevant policy statements.
Wise moved for reconsideration of the order, which he
asserted was placed in the mail on July 22, 2022. He argued that
the district court failed to analyze the 18 U.S.C. § 3553(a) factors
and improperly applied or ignored the rules governing
compassionate release. He reasserted his contention that district
courts have discretion to define “other reasons” under U.S.S.G. §
1B1.13. He alleged that the court applied its personal opinion
rather than the relevant facts and law. He also alleged that the
district court had never approved a motion for compassionate
release and asked that, if it had, the court provide him “the details
of each recipient.” Finally, he repeated his arguments that his
mental illness, his lack of drug abuse or mental health treatment in
prison, and his other six non-medical issues constituted
extraordinary and compelling circumstances.
On August 9, 2022, the district court denied the motion,
finding that Wise “relie[d] on vituperation and his personal
rejection of the governing legal principles, [and] identifie[d] no
arguable error in the [c]ourt’s analysis.”
Wise filed a pro se notice of appeal, which he placed in the
mail on September 16, 2022. Wise designated for appeal the district
court’s August 9 denial of reconsideration. On appeal, Wise argues
that the district court abused its discretion by ruling on his motion
for compassionate release without the government’s opposition
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22-13204 Opinion of the Court 5
and ignoring his six extraordinary and compelling reasons, which
he repeats here. As to the August 9 order, Wise argues that the
district court’s order did not provide sufficient explanation to
determine whether its ruling was based on the same grounds cited
in its June order, and thus, to allow for meaningful appellate
review. The remainder of his arguments focus on the merits of his
motion for compassionate release and the district court’s denial of
that motion.
The government moved to dismiss the appeal as untimely
and for lack of jurisdiction and moved for summary affirmance of
the district court’s denial of Wise’s motions for compassionate
release and reconsideration. It argues that the appeal is untimely
as to both the district court’s order denying compassionate release
and its order denying reconsideration, or alternatively, that
summary affirmance is appropriate as a matter of law because the
district court properly denied the motions. As to summary
affirmance, the government first argues that the district court was
not required to explain its decision adequately enough to allow for
meaningful appellate review because that particular order was not
a sentencing decision. It further argues that, regardless, the court
did sufficiently explain its rational because it stated that Wise failed
to identify any arguable error in the court’s analysis. The
government also moves to stay the briefing schedule pending the
resolution of its motion and requests that, should we deny its
motion, its motion be used as its responsive brief.
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6 Opinion of the Court 22-13204
We granted the government’s motion to dismiss with
respect to the district court’s June 29 order denying compassionate
release. As to the district court’s August 9 order denying
reconsideration, we remanded the case to the district court for the
limited purpose of determining whether Wise had shown
excusable neglect or good cause warranting an extension of the
appeal period. We deferred ruling on the government’s motion to
dismiss the appeal as to the August 9 order and its alternative
motion for summary affirmance pending the limited remand.
Subsequently, the district court issued an order finding good cause
for the late filing, extending the time for filing a notice of appeal,
and deeming timely the appeal as to the denial of reconsideration.
II. Discussion
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case . . . .”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 2
We review the denial of a motion for reconsideration for
abuse of discretion. United States v. Simms, 385 F.3d 1347, 1356
(11th Cir. 2004). A district court abuses its discretion when it
applies an incorrect legal standard or makes a clear error of
2 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that
decisions of the former Fifth Circuit issued prior to the close of business on
September 30, 1981, are binding in the Eleventh Circuit).
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22-13204 Opinion of the Court 7
judgment. Diveroli v. United States, 803 F.3d 1258, 1262 (11th Cir.
2015).
Although motions for reconsideration of a district court
order in a criminal action are not expressly authorized by the
Federal Rules of Criminal Procedure, both “the Supreme Court
and this Court have permitted motions for reconsideration in
criminal cases . . . .” United States v. Phillips, 597 F.3d 1190, 1199
(11th Cir. 2010).
“[T]here must be enough, in the record or the court’s order,
to allow for meaningful appellate review” of a district court’s
sentencing decision. United States v. Johnson, 877 F.3d 993, 997 (11th
Cir. 2017). When a court fails to explain its sentencing decision
adequately enough to allow for meaningful appellate review, it
abuses its discretion. Id. “This principle applies not only when a
court imposes a sentence, but also when it determines whether or
not to reduce a defendant’s sentence.” Id.
District courts lack the inherent authority to modify a term
of imprisonment but may do so within § 3582(c)’s provisions.
18 U.S.C. § 3582(c); United States v. Bryant, 996 F.3d 1243, 1251 (11th
Cir. 2021), cert. denied, 142 S. Ct. 583 (2021). Section 3582(c)
provides that:
[t]he court . . . upon motion of the defendant after the
defendant . . . 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
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8 Opinion of the Court 22-13204
(i) extraordinary and compelling reasons
warrant such a reduction . . .
and that such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission . . . .
18 U.S.C. § 3582(c)(1)(A)(i).
Section 1B1.13 of the Sentencing Guidelines provides the
applicable policy statement for § 3582(c)(1)(A). The application
notes to § 1B1.13 list four categories of extraordinary and
compelling reasons: (A) the defendant’s medical condition, (B) his
age, (C) his family circumstances, and (D) other reasons. Id.,
comment. n.1(A)–(D). The defendant’s medical condition qualifies
as an extraordinary and compelling reason for compassionate
release if he is “suffering from a serious physical or medical
condition” that “substantially diminishes the ability of the
defendant to provide self-care within the environment of a
correctional facility and from which he or she is not expected to
recover.” Id., comment. n.1(A). In addition to determining that
extraordinary and compelling reasons warrant a reduction, §
1B1.13 states that the district court must also determine that the
defendant is not a danger to the safety of others or the community,
as provided in 18 U.S.C. § 3142(g). Id. § 1B1.13(2).
Notably, in Bryant, we held that, following the enactment of
the First Step Act, § 1B1.13 continued to constrain a district court’s
ability to evaluate whether extraordinary and compelling reasons
were present and that “Application Note 1(D) does not grant
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22-13204 Opinion of the Court 9
discretion to courts to develop ‘other reasons’ that might justify a
reduction in a defendant’s sentence.” 996 F.3d at 1248.
“Under § 3582(c)(1)(A), the court must find that all necessary
conditions are satisfied before it grants a reduction.” United States
v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). Accordingly, the
absence of any one of the necessary conditions—support in the 18
U.S.C. § 3553(a) factors, extraordinary and compelling reasons, and
adherence to U.S.S.G. § 1B1.13’s policy statement—forecloses a
sentence reduction. Id. at 1237–38. Additionally, “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.” Id. at 1237.
Under the Federal Rules of Appellate Procedure, a criminal
defendant must file a notice of appeal in the district court within 14
days after the entry of the order being appealed, but the district
court may grant an extension of time to file a notice of appeal not
to exceed 30 days upon a finding of excusable neglect or good
cause. Fed. R. App. P. 4(b)(1)(A), 4(b)(4). Here, as an initial matter,
the district court extended the time for filing a notice of appeal.
Accordingly, Wise’s notice of appeal is timely as to the order
denying his motion for reconsideration.
As to summary affirmance, the government’s position is
clearly right as a matter of law. First, the district court sufficiently
explained its decision to deny the motion to reconsider. The court
correctly stated that Wise had not identified any arguable error in
the court’s prior analysis. Second, it was not permitted to consider
“other reasons” and was not required to analyze the § 3553(a)
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10 Opinion of the Court 22-13204
factors once it determined that Wise had not presented
extraordinary and compelling circumstances. See Bryant, 996 F. 3d
at 1248; Tinker, 14 F.4th at 1237–38, 1240. Moreover, contrary to
Wise’s assertions, there is nothing to indicate that the district court
abused its discretion by applying an incorrect legal standard in
denying his motion for compassionate release, and the record is
sufficient for meaningful appellate review. Johnson, 877 F.3d at 997.
Wise raises no other discernable arguments challenging the
district court’s denial of reconsideration, so he has abandoned all
other arguments. See United States v. Wright, 607 F.3d 708, 713 (11th
Cir. 2010) (noting the “long standing rule that issues and
contentions not raised in the initial brief are deemed abandoned”).
Thus, the government is clearly right as a matter of law. Groendyke,
406 F.2d at 1161–62.
III. Conclusion
Accordingly, we DENY the government’s motion to dismiss
as untimely, GRANT its motion for summary affirmance, and
DENY as moot its motion to stay the briefing schedule and request
to construe its motion as its brief.