United States v. Tinsley ( 2022 )

Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 25, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 21-2057 & 21-2075
(D.C. No. 1:18-CR-02634-WJ-1)
JOSHUA J. TINSLEY, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, BRISCOE, and ROSSMAN, Circuit Judges.
_________________________________
This appeal grew out of Mr. Joshua Tinsley’s motion for
compassionate release. The district court denied the motion and a later
motion for reconsideration. Mr. Tinsley appeals the denial of his motion
for reconsideration, and we affirm.
*
Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 2
1. We have jurisdiction and exercise it.
The threshold issue involves our jurisdiction. This issue arises
because Mr. Tinsley missed the 14-day deadline to file a notice of appeal.
Fed. R. App. P. 4(b)(1)(A). The district court denied an extension of time,
prompting
 the government to move for dismissal and
 Mr. Tinsley to appeal the denial of an extension of time.
But the government has withdrawn its motion to dismiss the appeal, and
the failure to timely appeal does not create a jurisdictional defect. United
States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).
Though jurisdiction exists, we can dismiss the appeal when the
government presses the delay. Id. But we generally do not dismiss the
appeal in the absence of a motion to dismiss. See id. (stating that dismissal
of a criminal appeal as untimely generally requires the government to
assert the delay as a ground for dismissal). Because the government has
withdrawn its motion to dismiss, we exercise our jurisdiction.
Given this exercise of jurisdiction, the district court’s denial of an
extension makes no difference, rendering the denial prudentially moot. So
we dismiss Mr. Tinsley’s appeal from the denial of an extension of time
(Case No. 21-2075).
2
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 3
2. The district court declines to reconsider its denial of
compassionate release.
Mr. Tinsley was convicted of possessing more than 500 grams of
methamphetamine with intent to distribute. The conviction carried a
mandatory minimum of 120 months, and the guideline range was 324 to
405 months’ imprisonment. Despite the stiff guideline range, the court
sentenced Mr. Tinsley to only 120 months—a downward variance of 204
months.
Months after sentencing, a global outbreak of COVID-19 emerged.
The emergence of COVID-19 led Mr. Tinsley to move for compassionate
release on two grounds:
1. He had sleep apnea, which made him susceptible to serious
physical harm from COVID-19.
2. His girlfriend’s son had a degenerative bone condition, and the
girlfriend had trouble caring for the boy and paying for a
required operation.
The district court denied the motion for compassionate release,
reasoning that
 Mr. Tinsley’s reasons were not extraordinary and compelling,
 he continued to pose a danger to the public, and
 the statutory sentencing factors weighed against early release.
Mr. Tinsley sought reconsideration and presented extensive evidence of
sleep apnea. The court denied the motion for reconsideration.
3
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 4
3. The denial of reconsideration fell within the district court’s
discretion.
In considering the denial of reconsideration, we apply the abuse-of-
discretion standard. United States v. Warren, 22 F.4th 917, 927 (10th Cir.
2022). The district court could grant reconsideration if
 the controlling law had changed,
 Mr. Tinsley had discovered new evidence, or
 the court had needed to correct a clear error or prevent manifest
injustice.
Id.We consider the availability of reconsideration against the backdrop
of the standard for compassionate release. See 18 U.S.C. § 3582(c)(1)(A).
Under this standard, compassionate release is available only upon the
satisfaction of three requirements:
1. The defendant has presented an extraordinary and compelling
reason for early release.
2. Early release would be consistent with the Sentencing
Commission’s policy statements.
3. Early release would be warranted under the statutory
sentencing factors.
United States v. McGee, 992 F.3d 1035, 1042 (10th Cir. 2021). The failure
to satisfy any of these requirements would prevent early release. United
States v. Hald, 8 F.4th 932, 941–47 (10th Cir. 2021).
4
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 5
Consideration of these requirements is discretionary in two respects.
First, we apply the abuse–of–discretion standard to rulings on
compassionate release. United States v. Hemmelgarn, 15 F.4th 1027, 1031
(10th Cir. 2021). Second, irrespective of the standard in ruling on
compassionate release, we review rulings on reconsideration only for an
abuse of discretion. United States v. Randall, 666 F.3d 1238, 1241 (10th
Cir. 2011). For these reasons, we apply the abuse–of–discretion standard to
the district court’s refusal to reconsider the denial of early release. United
States v. Warren, 22 F.4th 917, 927 (10th Cir. 2022).
In denying reconsideration, the district court concluded that Mr.
Tinsley had failed to satisfy any of the three requirements. We agree as to
the first and third requirements: (1) the failure to show extraordinary,
compelling reasons for early release and (2) the failure to justify early
release based on the statutory sentencing factors. 1 In our view, the district
court did not abuse its discretion in declining to reconsider the conclusions
as to these two requirements.
When ruling on the motion for early release, the district court
concluded that Mr. Tinsley’s reasons for early release were not
extraordinary and compelling. Mr. Tinsley had argued that (1) he was
suffering from sleep apnea, rendering him vulnerable to complications if
1
We need not address the second requirement.
5
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 6
he were to catch COVID-19, and (2) early release was necessary for him to
help his girlfriend care for her son, who had a degenerative bone condition.
The district court concluded that these reasons were not extraordinary and
compelling for two reasons:
1. Sleep apnea: Mr. Tinsley had relied on a possible impediment
to his ability to care for himself—not a current, substantial
diminution in his ability to provide self–care. In addition, Mr.
Tinsley had not provided documentary evidence of his
diagnosis with sleep apnea.
2. The bone condition of the girlfriend’s son: The girlfriend was
not a spouse or registered partner, Mr. Tinsley had not shown
an inability of the girlfriend to care for her son, and Mr.
Tinsley had committed many offenses—risking separation from
the boy—knowing of the boy’s bone condition.
When moving for reconsideration, Mr. Tinsley provided extensive
documentation of his diagnosis with sleep apnea, argued that the district
court had understated the extent of COVID-19 infections at his prison, and
denied the existence of a requirement that he be married to the boy’s
primary caregiver. The district court rejected these arguments, concluding
that
 it had not underestimated the extent of COVID-19 infections at
Mr. Tinsley’s prison,
 little information existed on the impact of sleep apnea on Mr.
Tinsley’s ability to provide self-care, and
 he had failed to show that he was the boy’s primary caregiver.
These conclusions fell within the district court’s discretion.
6
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 7
Mr. Tinsley’s new evidence did not suggest a failure to recognize the
extent of COVID-19 infections. The court pointed out that
 all of the COVID-19 cases at the prison had affected staff
members and
 no inmate had been infected by COVID-19.
Nor did the new evidence affect the district court’s consideration of
sleep apnea. Mr. Tinsley presented extensive evidence of sleep apnea, but
he did not show how it had affected his ability to provide self-care.
Finally, Mr. Tinsley did not justify reconsideration of the analysis
involving the boy’s bone condition. The court had not questioned Mr.
Tinsley’s concern for the boy. But the court had explained that
 the girlfriend appeared able to care for the boy and
 Mr. Tinsley committed many crimes, risking separation from
the boy, with knowledge of the boy’s bone condition.
Mr. Tinsley presents no reason to question the district court’s explanation.
Though Mr. Tinsley does not address the district court’s explanation,
he argues on appeal that he was obese, increasing the risk of complications
from COVID-19. But he did not raise obesity when moving for
compassionate release or when seeking reconsideration. By omitting
reliance on obesity in those motions, he forfeited reliance on his obesity.
See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). 2
2
We typically consider forfeited arguments under the plain-error
standard. Leffler, 942 F.3d at 1196. But Mr. Tinsley has not argued for
7
Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 8
Even if Mr. Tinsley had undermined the finding of no extraordinary
or compelling reasons for early release, the court independently relied on
the statutory sentencing factors. Mr. Tinsley had downplayed the
seriousness of prior marijuana convictions, argued that he had self-
medicated with marijuana, and alleged racial targeting. In rejecting these
arguments, the court reasoned that Mr. Tinsley had “a clear history of
unlawfulness” and had already reduced his sentence exposure to the
methamphetamine charge through his plea agreement. R. at 134. Mr.
Tinsley does not address the district court’s reasoning, and that reasoning
fell within the court’s discretion.
4. Conclusion
The district court acted within its discretion when denying Mr.
Tinsley’s motion for reconsideration. So we affirm the denial of
reconsideration. We also grant Mr. Tinsley’s motion to proceed in forma
pauperis and deny as moot his motion for an emergency ruling.
Entered for the Court
Robert E. Bacharach
Circuit Judge
plain error. So we do not consider the possibility of plain error. Id. at
1196, 1199–1200.
8