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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11528
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOVANNY HERNANDEZ SEVERINO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00465-SCB-AEP-3
____________________
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2 Opinion of the Court 21-11528
Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.
PER CURIAM:
Yovanny Hernandez Severino, a federal prisoner proceeding
pro se, appeals the denial of his motion for compassionate release
and subsequent post-judgment motion for reconsideration. The
government, in turn, moves for summary affirmance and to stay
the briefing schedule.
I.
In 2018, a Coast Guard cutter detected a “go-fast vessel” ap-
proximately 200 nautical miles south of the Dominican Republic
and interdicted the vessel. After a boarding team approached the
vessel, the operator refused to step away from the helm and tried
to escape. During the attempted escape, the crew jettisoned bales
of contraband and barrels of fuel. The Coast Guard cutter disabled
the vessel, and the boarding team captured Severino and two other
crewmembers. The Coast Guard recovered approximately 570 kil-
ograms of cocaine from approximately 19 jettisoned bales.
A grand jury charged Severino with one count of conspiracy
to distribute and possess with the intent to distribute five kilograms
or more of cocaine while on a vessel subject to the jurisdiction of
the United States,
21 U.S.C. § 960(b)(1)(B)(ii),
46 U.S.C. §§ 70503(a),
70506(a)–(b), and one count of possession with intent to distribute
five or more kilograms of cocaine while on a vessel subject to the
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21-11528 Opinion of the Court 3
jurisdiction of the United States,
18 U.S.C. § 2,
21 U.S.C.
§ 960(b)(1)(B)(ii),
46 U.S.C. §§ 70503(a), 70506(a).
Severino later agreed to plead guilty to both counts without
the benefit of a written plea agreement. A magistrate judge held a
change of plea hearing and issued a report recommending the dis-
trict court accept the plea. The district court adopted the report,
accepted his plea, and ultimately sentenced Severino to 210
months’ imprisonment based on a total offense level of 35 and a
criminal history category of III. Severino did not appeal.
In February 2021, Severino, proceeding pro se, filed the pre-
sent motion for compassionate release. Procedurally, he argued he
had exhausted his administrative remedies and that, even if he had
not, the district court could still consider his motion as it was not a
jurisdictional requirement. For his extraordinary and compelling
reasons, he asserted that he suffered from health conditions that
increased his risk of serious infection or death if he contracted
COVID-19, the spread of which was particularly severe in a prison
environment. He also contended that the
18 U.S.C. § 3553(a) fac-
tors weighed in favor of releasing him because he was a nonviolent
offender, he was not a danger to the community, and other inmates
with similar health conditions had been released due to the risk of
a serious infection.
The district court denied Severino’s motion before the gov-
ernment could respond, finding that he had not waived his exhaus-
tion requirement and that, even though the requirement was not
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4 Opinion of the Court 21-11528
jurisdictional, it still represented a mandatory claims processing
rule that should not be waived.
Next, the district court found that, even if Severino had ex-
hausted his remedies or that requirement was waived, he had failed
to identify an extraordinary and compelling reason that would war-
rant his release, finding that his medical circumstances, as well as
the possibly of COVID-19 exposure, did not rise to the level of an
extraordinary or compelling reason. As to the § 3553(a) factors, the
district court weighed the factors and found that they weighed
against granting Severino relief based on his offense conduct and
the length of time he had served of his sentence.
Rather than immediately appealing, Severino moved for re-
consideration, arguing he had not received notice about briefing or
opposition to his motion. The district court denied the motion as
the government had not responded and Severino did not have a
right of reply.
On appeal, Severino argues that the district court erred by
considering the exhaustion requirement to be mandatory when it
is a non-jurisdictional claims processing rule that could have been
waived. Substantively, Severino argues that his medical conditions
combined with the COVID-19 pandemic constituted an extraordi-
nary and compelling reason meriting relief and that the district
court was no longer bound by the U.S.S.G. § 1B1.13 policy state-
ment. He does not argue against the district court’s finding that
the § 3553(a) factors did not weigh in favor of release.
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21-11528 Opinion of the Court 5
The government, in response, moved for summary affir-
mance and to stay the briefing schedule, arguing that Severino
failed to establish he had exhausted his administrative remedies.
Substantively, the government argues that Severino failed to estab-
lish that he suffered from a qualifying medical extraordinary and
compelling reason and the district court could not consider other
reasons outside the policy statement. The government also con-
tends that Severino failed to argue against the district court’s find-
ing that the § 3553(a) factors weighed in favor of release. Finally,
the government argues that the district court correctly denied Sev-
erino’s motion for reconsideration, as he did not raise a cognizable
argument in that respect.
II.
Summary disposition is appropriate, in part, where “the po-
sition 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). A motion for summary affirmance or summary reversal
shall postpone the due date for the filing of any remaining brief un-
til we rule on such motion. 11th Cir. R. 31-1(c).
We review de novo whether a district court had the author-
ity to modify a term of imprisonment. United States v. Phillips,
597 F.3d 1190, 1194 & n.9 (11th Cir. 2020). When appropriate, we
review a district court’s denial of a prisoner’s § 3582(c)(1)(A) mo-
tion 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
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6 Opinion of the Court 21-11528
an incorrect legal standard, follows improper procedures in making
the determination, or makes findings that are clearly erroneous.
United States v. Barrington,
648 F.3d 1178, 1194 (11th Cir. 2011).
We “may affirm ‘for any reason supported by the record, even if
not relied upon by the district court.’” United States v. Al-Arian,
514 F.3d 1184, 1189 (11th Cir. 2008) (quoting Williams v. Bd. of
Regents of Univ. Sys. of Ga.,
477 F.3d 1282, 1284 (11th Cir. 2007)).
Pro se pleadings are liberally construed. Tannenbaum v.
United States,
148 F.3d 1262, 1263 (11th Cir. 1998). "When an ap-
pellant fails to challenge properly on appeal one of the grounds on
which the district court based its judgment,” however, “he is
deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed. Sapuppo v. All-
state Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014). A party
also abandons a claim when he fails to raise it plainly and promi-
nently in his brief.
Id. at 681.
Under our prior panel precedent rule, a prior panel’s holding
is binding unless it has been overruled or abrogated by the Su-
preme Court or by us sitting en banc. See United States v. Steele,
147 F.3d 1316, 1317–18 (11th Cir. 1998).
III.
A district court has no inherent authority to modify a de-
fendant’s sentence and may do so “only when authorized by a stat-
ute or rule.” United States v. Puentes,
803 F.3d 597, 605–06 (11th
Cir. 2015). The First Step Act,
Pub. L. No. 115-391, 132 Stat. 5194
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21-11528 Opinion of the Court 7
(Dec. 21, 2018), expressly permits district courts to reduce a previ-
ously imposed term of imprisonment. United States v. Stevens,
997 F.3d 1307, 1314 (11th Cir. 2021).
The First Step Act, in part, provides that a “court may not
modify a term of imprisonment once it has been imposed” except
under certain circumstances.
18 U.S.C. § 3582(c). In the context of
compassionate release, the statute provides that:
[T]he court, upon . . . motion of the defendant after
the defendant has fully exhausted all administrative
rights to appeal a failure of the Bureau of Prisons to
bring a motion on the defendant’s behalf or the lapse
of 30 days from the receipt of such a request by the
warden of the defendant’s facility, whichever is ear-
lier, may reduce the term of imprisonment . . . after
considering the factors set forth in [18 U.S.C.] section
3553(a) to the extent that they are applicable, if it finds
that—extraordinary and compelling reasons warrant
such a reduction.
Id. § 3582(c)(1)(A)(i).
The exhaustion requirement is not jurisdictional, but it is a
claim-processing rule. Harris, 989 F.3d at 910–11. The exhaustion
requirement is mandatory in the sense that a court must enforce
the rule if a party properly raises it. Id. at 911. If a party does not
raise an objection based on a mandatory claims processing rule,
that claim may be forfeited. See id.
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8 Opinion of the Court 21-11528
Section 3582(c)(1)(A) also requires that any reduction be
consistent with applicable policy statements issued by the Sentenc-
ing Commission. Section 1B1.13 of the Sentencing Guidelines pro-
vides the applicable policy statement for § 3582(c)(1)(A). U.S.S.G.
§ 1B1.13. 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, including the
death of a caregiver of a minor child, and (D) “other reasons.” Id.
cmt. n.1. Subsection D serves as a catch-all provision, providing
that a prisoner may be eligible for relief if, “[a]s determined by the
Director of the [BOP], there exists in the defendant’s case an ex-
traordinary and compelling reason other than, or in combination
with, the reasons described in subdivisions (A) through (C).” Id.
cmt. n.1(D). Section 1B1.13 also states that extraordinary and com-
pelling reasons exist if the defendant is suffering from, among other
things, a terminal illness or a serious physical or medical condition
that substantially diminishes his ability to provide self-care within
the environment of a correctional facility and from which he is not
expected to recover. Id. cmt. (n.1(A)(i)).
We have noted that the fact that a prisoner has a common
ailment that could “possibly” make his risk of a serious illness
“more likely” if he contracts COVID-19 is not the kind of debilitat-
ing condition that meets the policy-statement definition of an “ex-
traordinary and compelling reason” for early release from prison.
See Harris, 989 F.3d at 912. Moreover, a district court does not err
in finding a defendant ineligible for compassionate release where
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21-11528 Opinion of the Court 9
certain health conditions are manageable in prison. United States
v. Giron,
15 F.4th 1343, 1346 (11th Cir. 2021).
In United States v. Bryant,
996 F.3d 1243 (11th Cir. 2021), we
concluded that § 1B1.13 was applicable to all motions filed under
that statute, including those filed by prisoners, and, thus, a district
court may not reduce a sentence unless a reduction would be con-
sistent with § 1B1.13’s definition of extraordinary and compelling
reasons. Id. at 1252–62. Next, we concluded that the catch-all pro-
vision in the commentary to § 1B1.13 did not grant to district courts
the discretion to develop other reasons outside those listed in
§ 1B1.13 that might justify a reduction in a defendant’s sentence.
Id. at 1248, 1263–65.
The § 3553(a) factors include, among other things, the na-
ture and circumstances of the defendant’s offense, his history and
characteristics, and the need to protect the public from further
crimes of the defendant. It is the defendant’s burden to show that
his circumstances warrant a reduction. § 3582(c)(1)(A)(i). The
weight given to any specific § 3553(a) factor is committed to the
sound discretion of the district court. United States v. Croteau,
819
F.3d 1293, 1309 (11th Cir. 2016). Generally, when a district court
considers the § 3553(a) factors, it need not state on the record that
it has explicitly considered each of them or discuss each of them.
See United States v. Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013).
The district court need not conduct the compassionate re-
lease analysis in any particular order. United States v. Tinker,
14 F.4th 1234, 1237 (11th Cir. 2021). A district court may reduce a
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10 Opinion of the Court 21-11528
term of imprisonment if the § 3553(a) factors favor doing so, there
are extraordinary and compelling reasons for doing so, and the re-
duction would not endanger any person or the community. Id. All
of these necessary conditions must be satisfied before the court can
grant a reduction. Id. Therefore, the absence of even one condi-
tion will foreclose a sentence reduction. Id. at 1238.
“[A] motion for reconsideration of a district court order in a
criminal action is not expressly authorized by the Federal Rules of
Criminal Procedure.” United States v. Vicaria,
963 F.2d 1412, 1413
(11th Cir. 1992). In civil cases, a party cannot use a motion for re-
consideration “to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judg-
ment.” Michael Linet, Inc. v. Village of Wellington,
408 F.3d 757,
763 (11th Cir. 2005).
IV.
Turning to the issues raised on appeal, even if we assume
arguendo that Severino had exhausted his administrative remedies,
or such exhaustion was not required, we conclude that the district
court properly denied his motion on the merits, and we can affirm
on those grounds alone.
First, Severino did not identify an extraordinary and compel-
ling reason for releasing him. For his medical conditions, he did
not show how he is unable to provide self-care while in the prison
environment. U.S.S.G. § 1B1.13 cmt. n.1(A). Common ailments
that may make side effects from COVID-19 worse do not rise to
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21-11528 Opinion of the Court 11
the level of an extraordinary and compelling circumstance contem-
plated by the policy statement. See Harris, 989 F.3d at 912. Fur-
ther, we are bound by Bryant to apply the policy note to claims
filed by defendants and to consider that district courts lacked dis-
cretion to go beyond the definitions provided using the catch-all
provision as Bryant has not been overruled or abrogated by the Su-
preme Court or by us sitting en banc. Bryant, 996 F.3d at 1248,
1252–63, 1265; Steele,
147 F.3d at 1317–18. As this is one of the
necessary grounds for granting compassionate release, we can af-
firm on this ground alone. Tinker, 14 F.4th at 1237–38.
Second, we conclude that because Severino failed to ex-
pressly challenge on appeal the district court’s finding that the
§ 3553(a) factors weighed against release, that argument is aban-
doned. Sapuppo, 739 F.3d at 681. As the district court relied on
this ground, in part, for its judgment, the decision of the district
court is due to be affirmed. Id. at 680. Even if implicitly preserved,
any such challenge fails because the district court considered Sev-
erino’s offense conduct and criminal history and had the discretion
to put weight on those factors. Croteau, 819 F.3d at 1309. Sev-
erino also had the burden to show that the factors weighed in his
favor, and he did not do so.
18 U.S.C. § 3582(c)(1)(A)(i). As this is
one of the necessary conditions for compassionate release, we can
also affirm on this ground. Tinker, 14 F.4th at 1237–38.
Accordingly, because the government’s position is clearly
correct as a matter of law, we GRANT the government’s motion
for summary affirmance and DENY its motion to stay the briefing
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12 Opinion of the Court 21-11528
schedule as moot. Groendyke Transp., Inc.,
406 F.2d at 1162; see
also 11th Cir. R. 31-1(c).
