USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-11660 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO EMILIO ORTIZ-CERVANTES,
Defendant-Appellant. USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 2 of 9
2 Opinion of the Court 21-11660
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:14-cr-00394-SCB-AEP-7 ____________________
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM: Eduardo Ortiz-Cervantes (“Ortiz”), a federal prisoner pro- ceeding pro se, appeals the district court’s denial of his motion asking it to reconsider its order denying his motion for compas- sionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). 1 In his ini- tial brief, Ortiz identifies one issue on appeal—whether the dis- trict court abused its discretion in denying his compassionate re- lease motion—but he advances several arguments to that effect. First, he argues that the district court erred by relying on U.S.S.G. § 1B1.13 to decide whether he had shown extraordinary and
1 Ortiz’s notice of appeal specifies that he is appealing the district court’s de- nial of his motion for reconsideration of its earlier denial of his motion for compassionate release. The Government concedes, though, that we have jurisdiction to review the district court’s denial of Ortiz’s underlying motion for compassionate release. Accordingly, we will proceed as though Ortiz directly appealed the district court’s denial of his motion for compassionate release. USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 3 of 9
21-11660 Opinion of the Court 3
compelling reasons warranting compassionate release because that policy statement is outdated and non-binding. Second, he contends that the court abused its discretion by denying his com- passionate release motion before the Government could respond. Third, he asserts that it abused its discretion by failing to properly consider the 18 U.S.C. § 3553(a) factors and finding that they weighed against compassionate release. Finally, he argues that the district court erred by considering the fact that he is a non- citizen subject to an immigration detainer. I. Before turning to Ortiz’s several arguments on appeal, we will first outline our standard of review in compassionate release appeals. We review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). This standard of review “is not simply a rubber stamp.” United States v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017) (quoting United States v. Docampo, 573 F.3d 1091, 1104 (11th Cir. 2009) (Barkett, J., concurring in part and dissenting in part)). “A court must explain its sentencing de- cisions adequately enough to allow for meaningful appellate re- view.” Id. This standard of review, though, does afford district courts a “range of choice,” and we “cannot reverse just because we might have come to a different conclusion.” Harris, 989 F.3d at 912 (quoting Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007)). A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in mak- USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 4 of 9
4 Opinion of the Court 21-11660
ing its determination, or makes clearly erroneous factual findings. Id. at 911. A district court may not grant compassionate release unless it makes three findings: (1) “that an extraordinary and compelling reason exists,” (2) “that a sentencing reduction would be con- sistent with U.S.S.G. § 1B1.13,” and (3) that the “§ 3553(a) factors weigh in favor of compassionate release.” United States v. Giron, 15 F.4th 1343, 1347 (11th Cir. 2021). “The plain language of the statute means that compassionate release is permissible only if all three findings are made . . . . If any one of the necessary findings cannot be made, then compassionate release is not permissible.” Id. at 1348 (citation omitted). II. A. Section 1B1.13 Ortiz first argues that the district court erred by relying on Section 1B1.13 to determine whether he was eligible for compas- sionate release because that policy statement is outdated and non- binding. But this argument is foreclosed by our recent precedent. United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), cert. de- nied, 142 S. Ct. 583 (2021). In Bryant, we “held that Section 1B1.13 constrains district courts’ authority to identify when ex- traordinary and compelling reasons exist.” Giron, 15 F.4th at 1346 (citing Bryant, 996 F.3d at 1262). Accordingly, the district court did not err by considering Section 1B1.13 when it decided that “none of [Ortiz’s] medical circumstances or the conditions USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 5 of 9
21-11660 Opinion of the Court 5
within his facility demonstrates an extraordinary and compelling reason warranting his early release from prison.” 2 We also cannot conclude that the district court’s determi- nation that Ortiz’s medical conditions were not an extraordinary and compelling reason was an abuse of discretion. See id. (hold- ing that it was not an abuse of discretion for the district court to conclude that the appellant’s medical conditions “were managea- ble in prison, despite the existence of the COVID-19 pandemic”); Harris, 989 F.3d at 912 (holding that the district court did not abuse its discretion by denying compassionate release to an in- mate with hypertension despite the heightened risk presented by COVID-19). 3
2 Ortiz requests that we hold his appeal in “abeyance” until the Supreme Court reviews whether this Court’s decision in Bryant was rightly decided. However, the Supreme Court has recently denied certiorari in Bryant, so we will not hold Ortiz’s appeal in abeyance. Bryant v. United States, 142 S. Ct. 583 (2021). 3 Ortiz also asserts, in passing, that his “present confinement is contrary to the Eight[h] Amendment” because “prison officials are unable to protect [him] adequately from contracting COVID-19.” Because he has devoted on- ly a single sentence to this argument, we deem it inadequately argued and therefore abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue on appeal must plainly and prominently so indicate . . . . At the very least, he must devote a discrete, substantial portion of his argumentation to that issue. Otherwise, the issue . . . will be considered abandoned.”). USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 6 of 9
6 Opinion of the Court 21-11660
B. Sua Sponte Ruling Ortiz next argues that the district court erred by denying his motion for compassionate release without allowing the Gov- ernment to respond to his motion. For support, he cites Day v. McDonough,
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USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-11660 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO EMILIO ORTIZ-CERVANTES,
Defendant-Appellant. USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 2 of 9
2 Opinion of the Court 21-11660
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:14-cr-00394-SCB-AEP-7 ____________________
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM: Eduardo Ortiz-Cervantes (“Ortiz”), a federal prisoner pro- ceeding pro se, appeals the district court’s denial of his motion asking it to reconsider its order denying his motion for compas- sionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). 1 In his ini- tial brief, Ortiz identifies one issue on appeal—whether the dis- trict court abused its discretion in denying his compassionate re- lease motion—but he advances several arguments to that effect. First, he argues that the district court erred by relying on U.S.S.G. § 1B1.13 to decide whether he had shown extraordinary and
1 Ortiz’s notice of appeal specifies that he is appealing the district court’s de- nial of his motion for reconsideration of its earlier denial of his motion for compassionate release. The Government concedes, though, that we have jurisdiction to review the district court’s denial of Ortiz’s underlying motion for compassionate release. Accordingly, we will proceed as though Ortiz directly appealed the district court’s denial of his motion for compassionate release. USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 3 of 9
21-11660 Opinion of the Court 3
compelling reasons warranting compassionate release because that policy statement is outdated and non-binding. Second, he contends that the court abused its discretion by denying his com- passionate release motion before the Government could respond. Third, he asserts that it abused its discretion by failing to properly consider the 18 U.S.C. § 3553(a) factors and finding that they weighed against compassionate release. Finally, he argues that the district court erred by considering the fact that he is a non- citizen subject to an immigration detainer. I. Before turning to Ortiz’s several arguments on appeal, we will first outline our standard of review in compassionate release appeals. We review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). This standard of review “is not simply a rubber stamp.” United States v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017) (quoting United States v. Docampo, 573 F.3d 1091, 1104 (11th Cir. 2009) (Barkett, J., concurring in part and dissenting in part)). “A court must explain its sentencing de- cisions adequately enough to allow for meaningful appellate re- view.” Id. This standard of review, though, does afford district courts a “range of choice,” and we “cannot reverse just because we might have come to a different conclusion.” Harris, 989 F.3d at 912 (quoting Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007)). A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in mak- USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 4 of 9
4 Opinion of the Court 21-11660
ing its determination, or makes clearly erroneous factual findings. Id. at 911. A district court may not grant compassionate release unless it makes three findings: (1) “that an extraordinary and compelling reason exists,” (2) “that a sentencing reduction would be con- sistent with U.S.S.G. § 1B1.13,” and (3) that the “§ 3553(a) factors weigh in favor of compassionate release.” United States v. Giron, 15 F.4th 1343, 1347 (11th Cir. 2021). “The plain language of the statute means that compassionate release is permissible only if all three findings are made . . . . If any one of the necessary findings cannot be made, then compassionate release is not permissible.” Id. at 1348 (citation omitted). II. A. Section 1B1.13 Ortiz first argues that the district court erred by relying on Section 1B1.13 to determine whether he was eligible for compas- sionate release because that policy statement is outdated and non- binding. But this argument is foreclosed by our recent precedent. United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), cert. de- nied, 142 S. Ct. 583 (2021). In Bryant, we “held that Section 1B1.13 constrains district courts’ authority to identify when ex- traordinary and compelling reasons exist.” Giron, 15 F.4th at 1346 (citing Bryant, 996 F.3d at 1262). Accordingly, the district court did not err by considering Section 1B1.13 when it decided that “none of [Ortiz’s] medical circumstances or the conditions USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 5 of 9
21-11660 Opinion of the Court 5
within his facility demonstrates an extraordinary and compelling reason warranting his early release from prison.” 2 We also cannot conclude that the district court’s determi- nation that Ortiz’s medical conditions were not an extraordinary and compelling reason was an abuse of discretion. See id. (hold- ing that it was not an abuse of discretion for the district court to conclude that the appellant’s medical conditions “were managea- ble in prison, despite the existence of the COVID-19 pandemic”); Harris, 989 F.3d at 912 (holding that the district court did not abuse its discretion by denying compassionate release to an in- mate with hypertension despite the heightened risk presented by COVID-19). 3
2 Ortiz requests that we hold his appeal in “abeyance” until the Supreme Court reviews whether this Court’s decision in Bryant was rightly decided. However, the Supreme Court has recently denied certiorari in Bryant, so we will not hold Ortiz’s appeal in abeyance. Bryant v. United States, 142 S. Ct. 583 (2021). 3 Ortiz also asserts, in passing, that his “present confinement is contrary to the Eight[h] Amendment” because “prison officials are unable to protect [him] adequately from contracting COVID-19.” Because he has devoted on- ly a single sentence to this argument, we deem it inadequately argued and therefore abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue on appeal must plainly and prominently so indicate . . . . At the very least, he must devote a discrete, substantial portion of his argumentation to that issue. Otherwise, the issue . . . will be considered abandoned.”). USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 6 of 9
6 Opinion of the Court 21-11660
B. Sua Sponte Ruling Ortiz next argues that the district court erred by denying his motion for compassionate release without allowing the Gov- ernment to respond to his motion. For support, he cites Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675 (2006). There, the Su- preme Court held that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prison- er’s habeas petition,” but it also noted that the district court, be- fore doing so, “must accord the parties fair notice and an oppor- tunity to present their positions.” Id. at 209–10, 126 S. Ct. at 1684. The Court’s concern, though, was prejudice to the habeas peti- tioner: “the court must assure itself that the petitioner is not sig- nificantly prejudiced by the delayed focus on the limitation is- sue . . . .” Id. at 210, 126 S. Ct. at 1684. Here, there is no allega- tion, or evidence, of prejudice to the Government by the district court’s sua sponte denial of Ortiz’s compassionate release motion. Moreover, Ortiz has not cited, nor can we find, caselaw suggest- ing that district courts must wait for the Government’s response to a motion for compassionate release before denying that mo- tion. See Ward v. United States, 11 F.4th 354, 361 (5th Cir. 2021) (stating that the district court may consider the § 3553(a) factors when adjudicating a compassionate release motion even if the Government did not discuss the § 3553(a) factors in its motion opposing compassionate release). USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 7 of 9
21-11660 Opinion of the Court 7
C. Section 3553(a) Factors Ortiz’s next argument on appeal is that the district court erred by (a) not adequately weighing the § 3553(a) factors and (b) concluding that those factors weighed in favor of denying compassionate release. 4 We have held that a district court must explain its decision sufficiently to allow for meaningful appellate review—i.e., to allow the court of appeals to determine whether the district court considered the applicable factors. United States v. Cook, 998 F.3d 1180, 1184–85 (11th Cir. 2021). A failure to ad- equately explain its decision is an abuse of discretion. Johnson, 877 F.3d at 997. That said, the district court need not state on the record that it has considered each of the § 3553(a) factors nor must it dis- cuss each of them. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). A sentence may be affirmed if the record indicates that the court considered a number of the factors. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (con- cluding that, while the district court did not specifically state that it had considered the factors, it necessarily considered several of
4 Even if we concluded that the § 3553(a) factors weighed in favor of com- passionate release, we could affirm the district court’s denial of compassion- ate release based solely on our conclusion that the district court did not err by finding that no extraordinary or compelling reasons justified compassion- ate release. See Giron, 15 F.4th at 1348 (“[I]f the district court finds that no extraordinary and compelling reason exists, then it cannot reduce the in- mate’s sentence—even if the § 3553(a) factors favor doing so.”). USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 8 of 9
8 Opinion of the Court 21-11660
them by entertaining the defendant’s objections and motion for a downward departure). Here, the district court adequately considered the § 3553(a) factors. The court said that it “considered” the factors and deter- mined that they “weigh[ed] against granting the motion” for compassionate release. Specifically, it noted that Ortiz had been “convicted of serious drug offenses” and that he had “an unre- solved INS detainer with the Bureau of Immigration and Customs Enforcement because he is a Colombian citizen who will be de- ported after serving his sentence.” These specific considerations reflect a number of the § 3553(a) factors, namely “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence imposed . . . to re- flect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(1)–(2). Accordingly, the district court adequately con- sidered the § 3553(a) factors such that we can exercise meaningful appellate review. Moreover, we cannot conclude that the district court im- properly weighed the § 3553(a) factors such that it abused its dis- cretion. Ortiz argues that the factors—in particular, his age, non- violent history, and medical conditions—weigh in favor of com- passionate release. But “[t]he weight given to any specific § 3553(a) factor is committed to the sound discretion of the dis- trict court.” United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Even if we would have weighed the § 3553(a) factors USCA11 Case: 21-11660 Date Filed: 07/21/2022 Page: 9 of 9
21-11660 Opinion of the Court 9
differently in this case, that alone does not show an abuse of dis- cretion. D. Reference to Ortiz’s Citizenship Ortiz’s final argument on appeal is that the district court committed a “manifest error of law” because it “observ[ed]” that Ortiz has “an Immigration Detainer.” Ortiz notes that the com- passionate release statute does not say that non-citizen status or the existence of an immigration detainer “is a disqualifying fac- tor.” This argument is unpersuasive because the district court did not say that Ortiz’s immigration status was a disqualifying factor. Instead, it noted that Ortiz “has an unresolved INS detainer” and “will be deported after serving his sentence” when weighing the § 3553(a) factors. While the district court did not explain which § 3553(a) factors Ortiz’s immigration detainer related to, it clearly did not treat this fact as disqualifying. Accordingly, we cannot conclude that the district court abused its discretion by referenc- ing Ortiz’s immigration detainer. III. In summary, Ortiz has not shown that the district court abused its discretion when denying his motion for compassionate release. Accordingly, the district court’s denial of Ortiz’s motion for compassionate release is AFFIRMED.