USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-13567 Non-Argument Calendar ________________________
D.C. Docket No. 8:99-cr-00447-SCB-AAS-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS FERNANDEZ MORALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 11, 2021)
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM: USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 2 of 8
Luis Fernandez Morales, proceeding pro se, appeals the district court’s denial
of his motion for compassionate release and reduction in sentence, 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 (“First Step Act”). He argues that he has an extraordinary and
compelling reason for release because, if he had been sentenced under the First Step
Act, he would not have received a mandatory life sentence.
We review the district court’s denial of a prisoner’s 18 U.S.C. § 3582(c)(1)(A)
motion 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). Abuse of discretion is a deferential standard of review, under which we will
affirm even in situations where we would have made a different decision had we
been in the district court’s position. United States v. Frazier, 387 F.3d. 1244, 1259
(11th Cir. 2004) (en banc).
To reverse a district court order that is based on multiple, independent
grounds, a party must convince us “that every stated ground for the judgment against
him is incorrect.” United States v. Maher, 955 F.3d 880, 885 (11th Cir. 2020)
(quotation marks omitted). “When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment, he is deemed to
2 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 3 of 8
have abandoned any challenge of that ground, and it follows that the judgment is due
to be affirmed.” United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014)
(quotation marks and alteration omitted). A party can fail to properly challenge an
issue when references to that issue are mere “background” to an appellant’s main
arguments or buried within those arguments. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 682 (11th Cir. 2014). While briefs by pro se litigants are read
liberally, issues a pro se litigant does not brief are deemed abandoned. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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). Prior to the First
Step Act, 18 U.S.C. § 3582(c)(1)(A) allowed the district court to reduce a prisoner’s
term of imprisonment upon motion of the Director of the Bureau of Prisons (“BOP”),
after considering the factors set forth in § 3553(a), if it found that extraordinary and
compelling reasons warranted such a reduction. 18 U.S.C. § 3582(c)(1)(A)
(effective Nov. 2, 2002, to Dec. 20, 2018). The First Step Act amended 18 U.S.C. §
3582(c)(1)(A) to allow the court to reduce a defendant’s term of imprisonment also
upon motion of the defendant, after the defendant has fully exhausted all
administrative rights to appeal a failure of the BOP to bring a motion on the
defendant’s behalf or the lapse of 30 days from the receipt of such a request by the
3 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 4 of 8
warden of the defendant’s facility, whichever is earlier. See First Step Act § 603; 18
U.S.C. § 3582(c)(1)(A). The court must find that extraordinary and compelling
reasons warrant such a reduction, consider the § 3553(a) factors “to the extent that
they are applicable,” and find that a reduction is consistent with applicable policy
statements issued by the Sentencing Commission. Id.
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G.
§ 1B1.13, which, notably, has not been amended since the First Step Act was passed
and refers only to a sentence reduction upon a motion from the BOP Director. See
U.S.S.G. § 1B1.13. The commentary to § 1B1.13 states that extraordinary and
compelling reasons exist under any of the circumstances listed, provided that the
court determines that the defendant is not a danger to the safety of any other person
or to the community, as provided in 18 U.S.C. § 3142(g). See id. § 1B1.13 &
comment. (n.1). In relevant part, the commentary lists a defendant’s medical
condition and age as possible “extraordinary and compelling reasons” warranting a
sentence reduction. Id. § 1B1.13, comment. (n.1). A defendant’s medical condition
may warrant a sentence reduction if he (1) has a terminal disease or (2) 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. Id., comment. (n.1(A)).
Deteriorating mental or physical health resulting from the aging process also may
constitute an extraordinary or compelling reason for granting a sentence reduction.
4 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 5 of 8
Id. A prisoner’s age may be an extraordinary or compelling reason if the prisoner
(1) is at least 65 years old, (2) is experiencing a serious deterioration in physical or
mental health because of the aging process, and (3) has served at least 10 years or
75 percent of his term, whichever is less. Id., comment. (n.1(B)). A prisoner’s
rehabilitation is not, by itself, an extraordinary and compelling reason warranting a
sentence reduction. Id., comment. (n.3). The commentary also contains a catch-all
provision for “other reasons,” which provides that a prisoner may be eligible for a
sentence reduction if “[a]s determined by the Director of the Bureau of Prisons, there
exists in the defendant’s case an extraordinary and compelling reason other than, or
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USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-13567 Non-Argument Calendar ________________________
D.C. Docket No. 8:99-cr-00447-SCB-AAS-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS FERNANDEZ MORALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 11, 2021)
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM: USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 2 of 8
Luis Fernandez Morales, proceeding pro se, appeals the district court’s denial
of his motion for compassionate release and reduction in sentence, 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 (“First Step Act”). He argues that he has an extraordinary and
compelling reason for release because, if he had been sentenced under the First Step
Act, he would not have received a mandatory life sentence.
We review the district court’s denial of a prisoner’s 18 U.S.C. § 3582(c)(1)(A)
motion 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). Abuse of discretion is a deferential standard of review, under which we will
affirm even in situations where we would have made a different decision had we
been in the district court’s position. United States v. Frazier, 387 F.3d. 1244, 1259
(11th Cir. 2004) (en banc).
To reverse a district court order that is based on multiple, independent
grounds, a party must convince us “that every stated ground for the judgment against
him is incorrect.” United States v. Maher, 955 F.3d 880, 885 (11th Cir. 2020)
(quotation marks omitted). “When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment, he is deemed to
2 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 3 of 8
have abandoned any challenge of that ground, and it follows that the judgment is due
to be affirmed.” United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014)
(quotation marks and alteration omitted). A party can fail to properly challenge an
issue when references to that issue are mere “background” to an appellant’s main
arguments or buried within those arguments. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 682 (11th Cir. 2014). While briefs by pro se litigants are read
liberally, issues a pro se litigant does not brief are deemed abandoned. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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). Prior to the First
Step Act, 18 U.S.C. § 3582(c)(1)(A) allowed the district court to reduce a prisoner’s
term of imprisonment upon motion of the Director of the Bureau of Prisons (“BOP”),
after considering the factors set forth in § 3553(a), if it found that extraordinary and
compelling reasons warranted such a reduction. 18 U.S.C. § 3582(c)(1)(A)
(effective Nov. 2, 2002, to Dec. 20, 2018). The First Step Act amended 18 U.S.C. §
3582(c)(1)(A) to allow the court to reduce a defendant’s term of imprisonment also
upon motion of the defendant, after the defendant has fully exhausted all
administrative rights to appeal a failure of the BOP to bring a motion on the
defendant’s behalf or the lapse of 30 days from the receipt of such a request by the
3 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 4 of 8
warden of the defendant’s facility, whichever is earlier. See First Step Act § 603; 18
U.S.C. § 3582(c)(1)(A). The court must find that extraordinary and compelling
reasons warrant such a reduction, consider the § 3553(a) factors “to the extent that
they are applicable,” and find that a reduction is consistent with applicable policy
statements issued by the Sentencing Commission. Id.
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G.
§ 1B1.13, which, notably, has not been amended since the First Step Act was passed
and refers only to a sentence reduction upon a motion from the BOP Director. See
U.S.S.G. § 1B1.13. The commentary to § 1B1.13 states that extraordinary and
compelling reasons exist under any of the circumstances listed, provided that the
court determines that the defendant is not a danger to the safety of any other person
or to the community, as provided in 18 U.S.C. § 3142(g). See id. § 1B1.13 &
comment. (n.1). In relevant part, the commentary lists a defendant’s medical
condition and age as possible “extraordinary and compelling reasons” warranting a
sentence reduction. Id. § 1B1.13, comment. (n.1). A defendant’s medical condition
may warrant a sentence reduction if he (1) has a terminal disease or (2) 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. Id., comment. (n.1(A)).
Deteriorating mental or physical health resulting from the aging process also may
constitute an extraordinary or compelling reason for granting a sentence reduction.
4 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 5 of 8
Id. A prisoner’s age may be an extraordinary or compelling reason if the prisoner
(1) is at least 65 years old, (2) is experiencing a serious deterioration in physical or
mental health because of the aging process, and (3) has served at least 10 years or
75 percent of his term, whichever is less. Id., comment. (n.1(B)). A prisoner’s
rehabilitation is not, by itself, an extraordinary and compelling reason warranting a
sentence reduction. Id., comment. (n.3). The commentary also contains a catch-all
provision for “other reasons,” which provides that a prisoner may be eligible for a
sentence reduction if “[a]s 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 held in United States v. Bryant that U.S.S.G. § 1B1.13 “is an applicable
policy statement that governs all motions under Section 3582(c)(1)(A)” and,
accordingly, “district courts may not reduce a sentence under Section 3582(c)(1)(A)
unless a reduction would be consistent with 1B1.13.” No. 19-14267, manuscript op.
at 38 (11th Cir. May 7, 2021). We further held in Bryant that § 1B1.13 governs a
motion for compassionate release, whether it is filed by the Bureau of Prisons or by
a prisoner, and that a district court cannot “develop ‘other reasons’ that might justify
a reduction in a defendant’s sentence.” Id. at 4.
The sentencing factors listed in 18 U.S.C. § 3553(a) that a district court must
consider when imposing a sentence include the need to reflect the seriousness of the
5 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 6 of 8
offense, promote respect for the law, provide just punishment, afford adequate
deterrence, protect the public from the defendant’s further crimes, and provide the
defendant with appropriate medical care or other correctional treatment. 18 U.S.C.
§ 3553(a)(2). They also include the “nature and circumstances” of the offense, the
“history and characteristics” of the defendant, the types of sentences available, the
types of sentences established by the applicable guideline range, any pertinent policy
statement issued by the Sentencing Commission, the need to avoid unwarranted
sentencing disparities between similarly situated defendants, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7). We have determined, in cases where
consideration of the § 3553(a) factors is mandatory, that the weight that each
§ 3553(a) factor receives is a matter within the sound discretion of the district court.
United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (addressing a
defendant’s challenge to his sentence on direct appeal). In such cases, the district
court is not required to explicitly recite the language of § 3553(a) or address each
factor individually so long as the record reflects that the district court considered the
factors. United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010).
We have not issued an opinion addressing whether a district court is required
to consider the §§ 3142(g) or 3553(a) factors when ruling on a compassionate release
motion, and if so, to what extent it must consider those factors. We did hold, without
deciding whether medical conditions can rise to being extraordinary and compelling
6 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 7 of 8
reasons and assuming that they could, that a district court did not abuse its discretion
by denying a motion for compassionate release for failure to show extraordinary and
compelling reasons when only one of the defendant’s medical conditions—in that
case, hypertension—appeared on the CDC’s list of conditions and only as a
condition that “might” increase risk for COVID-19. Harris, 989 F.3d at 912. We
noted that the district court’s consideration the § 3553(a) factors contributed to our
holding that it did not abuse its discretion. Id. at 912.
Here, Morales does not challenge the district court’s conclusion that his
COVID-19 argument was not exhausted, so that argument is abandoned. Morales
also has not directly challenged the district court’s determination that the 28 U.S.C.
§ 3553(a) factors weighed against granting him release, and as such he has
abandoned that issue. Because he did not challenge one of the independent grounds
for the district court’s decision, we affirm.
Even if we were to liberally construe his brief as raising a challenged to the
district court’s application of the § 3553(a) factors, the district court did not abuse
its discretion because it weighed the factors and explained its reasoning, specifically
pointing to his career offender status and that he had reentered the United States after
previously being deported. Although the district court did not mention disparity in
sentencing, which Morales mentioned as § 3553(a) factor that weighed in his favor,
it was not required to explicitly address each factor, and he has not shown that the
7 USCA11 Case: 20-13567 Date Filed: 06/11/2021 Page: 8 of 8
district court abused its discretion by finding that the factors ultimately weighed
against him. As a result, we need not reach his argument that he has demonstrated
extraordinary and compelling reasons for sentence reduction. Accordingly, we
affirm.
AFFIRMED.