USCA11 Case: 21-12416 Date Filed: 03/07/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12416
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES CLARK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:91-cr-00655-WPD-1
____________________
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2 Opinion of the Court 21-12416
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Charles Clark, a federal prisoner proceeding pro se, appeals
the district court’s order denying his most recent motion for com-
passionate release under
18 U.S.C. § 3582(c)(1)(A), as amended by
§ 603(b) of the First Step Act, Pub. L. No. 115 391,
132 Stat. 5192
(Dec. 21, 2018). In response, the government moves for summary
affirmance of the district court’s order or alternatively to stay the
briefing schedule.
I
In 1992, a jury convicted Mr. Clark of two drug charges in-
volving the trafficking of 4,550 kilograms of cocaine from 1984 to
1990. The district court sentenced him to life imprisonment.
After the final judgment, subsequent appeal, and other post-
conviction motions for relief, Mr. Clark filed a motion for compas-
sionate release in September of 2020. In that motion, he argued
that his health conditions—in addition to the COVID-19 pandemic-
-created extraordinary and compelling reasons warranting release.
The district court denied that motion in November of 2020 based
on the
18 U.S.C. § 3553(a) sentencing factors and found that
COVID-19 conditions in prisons did not warrant relief. Mr. Clark
appealed that order after filing an unsuccessful motion for recon-
sideration. We affirmed that decision in September of 2021 in Ap-
peal No. 20-14432.
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21-12416 Opinion of the Court 3
While that appeal was pending before us, Mr. Clark filed a
self-styed “emergency” motion with the district court seeking com-
passionate release or a sentence reduction on non-medical
grounds, as well as appointment of counsel. He asserted that the
First Step Act allowed him to request compassionate release or re-
lief for non-medical reasons and asked that his sentence be modi-
fied to match current sentencing law. The district court denied his
motion, finding that there were no extraordinary and compelling
reasons warranting release, and again emphasizing the seriousness
of his offense and that COVID-19 conditions in the prison did not
warrant relief. The district court entered an order to that effect in
June of 2021. Mr. Clark filed a notice of appeal designating only
the latter order for review.
In this appeal, Mr. Clark contends that we have jurisdiction
to again review the district court’s November 2020 order and the
denial of his subsequent motion for reconsideration. In that re-
spect, he argues that the district court erred in denying his motion
for compassionate release based on his heath, age, and the COVID-
19 crisis, and maintains that the length of his sentence and his reha-
bilitation efforts weigh in favor of his release. Significantly, Mr.
Clark does not expressly challenge the district court’s June 2021 rul-
ing denying his most recent motion for compassionate release.
In its motion for summary affirmance, the government ar-
gues that Clark has abandoned any challenge to the district court’s
June 2021 order denying his most recent motion for compassionate
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4 Opinion of the Court 21-12416
release based on non-medical reasons. Alternatively, it asserts that
he presented no extraordinary and compelling reasons for release.
II
Summary disposition is appropriate where, among other
things, “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 out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158,
1162 (5th Cir. 1969). In this case, we agree with the government
that summary disposition is warranted.
We liberally construe pro se pleadings. SeeTannenbaum v.
United States,
148 F.3d 1262, 1263 (11th Cir. 1998). But when ap-
pellant fails to challenge properly on appeal one of the grounds on
which the district court based its judgment, he is deemed to have
abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed. See Sapuppo v. Allstate Floridian
Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014).
Generally, we review a district court’s denial of a prisoner’s
§ 3582(c)(1)(A) motion for abuse of discretion. See United States v.
Harris,
989 F.3d 908, 911 (11th Cir. 2021). Abuse of discretion re-
view “means that the district court had a range of choice” and we
will not “reverse just because [it] might have come to a different
conclusion.”
Id. at 912 (quotation marks omitted). We have no
occasion to apply that standard here, however, because Mr. Clark
does not challenge the district court’s denial of his most recent
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21-12416 Opinion of the Court 5
motion for compassionate release. By not contesting that denial,
he has abandoned any claim that the denial was erroneous, and
summary affirmance is in order.
To the extent that Mr. Clark is challenging the denial of the
November 2020 order, we already affirmed that order in Septem-
ber of 2021. Mr. Clark is not entitled to a second appeal from the
same order. See United States v. Arit,
567 F.2d 1295, 1297 (5th Cir.
1978). Moreover, our prior decision binds us under the law of the
case doctrine because Mr. Clark has not presented new and sub-
stantially different evidence, identified a change in the controlling
authority, or shown that the previous decision was clearly errone-
ous. See This That & The Other Gift & Tobacco, Inc. v. Cobb Cty.,
Ga.,
439 F.3d 1275, 1283 (11th Cir. 2006).
III
Accordingly, because the government’s position is “clearly
right as a matter of law” we GRANT its motion for summary affir-
mance and DENY as moot its motion to stay the briefing schedule.
See Groendyke Transp., Inc.,
406 F.2d at 1162.
