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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12208
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20008-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL ABREU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 30, 2020)
Before NEWSOM, GRANT and MARCUS, Circuit Judges.
PER CURIAM:
Victor Manuel Abreu, a federal prisoner proceeding pro se, appeals following
the district court’s denial of his motions for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A), as amended by Section 603(b) of the First Step Act of 2018, Pub.
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L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018), and reconsideration of that
denial. On appeal, Abreu: (1) argues that his indictment was unjust and deficient;
and (2) argues, for the first time, that his counsel was ineffective and failed to
adequately represent him. In response, the government argues that Abreu abandoned
any challenge to the district court’s denial of his motions for compassionate release
and reconsideration by not addressing it in his appellate brief and, even if he
preserved those challenges, he failed to exhaust his administrative remedies or show
“extraordinary and compelling” reasons to grant him compassionate release. After
thorough review, we affirm.
Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed. Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998). Nevertheless, pro se pleadings still must
suggest some factual basis for a claim. Jones v. Fla. Parole Comm’n,
787 F.3d 1105,
1107 (11th Cir. 2015). Further, the leniency afforded pro se litigants with liberal
construction does not give the courts license to serve as de facto counsel or permit
them to rewrite an otherwise deficient pleading in order to sustain an action.
Campbell v. Air Jamaica Ltd.,
760 F.3d 1165, 1168-69 (11th Cir. 2014).
Issues not briefed on appeal by a pro se litigant are deemed abandoned.
Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). A party seeking to raise a
claim or issue on appeal must raise it “plainly and prominently” or otherwise the
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issue is deemed abandoned. United States v. Jernigan,
341 F.3d 1273, 1284 n.8
(11th Cir. 2003) (holding issue abandoned in counseled case where, although the
defendant made passing references to issues in brief, he did not devote a discrete
section of his brief to the argument and the references were undertaken as
background to claims that he had expressly advanced); see also Sapuppo v. Allstate
Floridian Ins. Co.,
739 F.3d 678, 680-82 (11th Cir. 2014) (holding issue abandoned
where references to it are no more than conclusory assertions or are “mere
‘background’ to the appellant’s main arguments or when [it is] ‘buried’ within those
arguments”). Further, issues not raised in a pro se party’s initial brief are deemed
waived.
Timson, 518 F.3d at 874.
Generally, we review a district court’s denial of a sentence reduction under §
3582 for abuse of discretion. United States v. Webb,
565 F.3d 789, 792 (11th Cir.
2009). 1 We review de novo whether an indictment sufficiently alleges a statutorily
proscribed offense. United States v. Steele,
178 F.3d 1230, 1233 (11th Cir. 1999).
We also review de novo whether a criminal defendant’s counsel was ineffective,
1
We have not issued a published opinion addressing several key issues about the First Step Act’s
recent amendments to § 3582(c)(1)(A) -- like, for example, the standard of review, any
procedural and jurisdictional requirements, or the definition of “extraordinary and compelling
circumstances” -- although several cases have been classified for oral argument to resolve these
questions. See, e.g., United States v. McKreith, appeal no. 20-10450; United States v. Bryant,
appeal no. 19-14267; United States v. Friedlander, appeal no. 19-13347. We need not do so
here, however, because, as we’ll discuss, Abreu has abandoned on appeal any issues concerning
the district court’s denial of his motions for compassionate release and reconsideration.
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which is a mixed question of law and fact. United States v. Bender,
290 F.3d 1279,
1284 (11th Cir. 2002).
First, Abreu has abandoned any challenge to the district court’s denial of his
§ 3582(c)(1)(A)(i) motion and his subsequent motion for reconsideration. Section
3582(c)(1)(A)(i) currently provides:
[T]he court, upon motion of the Director of the Bureau of Prisons, or
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 earlier, may reduce the term of imprisonment . . . if it finds
that extraordinary and compelling reasons warrant such a reduction[.]
18 U.S.C. § 3582(c)(1)(A)(i). The court must also find that a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.
Id. §
3582(c)(1)(A).2 Prior to the enactment of the First Step Act, the district court could
grant this remedy only by motion of the Director of the Bureau of Prisons. See First
Step Act § 603(b).
2
The relevant policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G. § 1B1.13
and its commentary, and list a defendant’s medical condition and age as possible “extraordinary
and compelling reasons” warranting a sentence reduction. U.S.S.G. § 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)). 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)).
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Here, Abreu has abandoned any issue relating to the district court’s denial of
his motions for compassionate release under § 3582(c)(1)(A)(i) and for
reconsideration. He does not even challenge or reference the court’s denial of those
motions or the statutes relevant to those motions. Nor does he use the term
“compassionate release” or allude to any claims that he is susceptible to the COVID-
19 virus. Rather, he focuses exclusively on his conviction for Count 7, his
acceptance of the plea agreement, and his counsel’s alleged ineffectiveness. Thus,
Abreu has failed to plainly and prominently raise any appeals of his motions for
compassionate release and for consideration in his initial brief, and we decline to
review them.3
Next, we reject Abreu’s post-conviction challenges to the indictment. Where
a defendant raises the sufficiency of the indictment for the first time on appeal, we
will conclude that the indictment was sufficient “unless it is so defective that it does
not, by any reasonable construction, charge an offense for which the defendant is
convicted.” United States v. Lang,
732 F.3d 1246, 1247 (11th Cir. 2013) (quotations
omitted). “Generally, [however,] a voluntary, unconditional guilty plea waives all
3
For completeness’s sake, however, we note that Abreu is not over 65 years old and did not
claim that he was experiencing a serious deterioration in physical or mental health due to the
aging process. U.S.S.G. § 1B1.13, comment. (n.1(B)). Likewise, Abreu did not claim that he
was suffering from a terminal illness or any other condition that was substantially deteriorating
his ability to administer self-care in a correctional environment.
Id., comment. (n.1(A)).
Although he claimed to suffer respiratory congestive problems, he provided no medical records
in support, and the district court determined that the prison facility had adopted sufficient
safeguards to protect its inmate population from COVID-19.
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nonjurisdictional defects in the proceedings.” United States v. Patti,
337 F.3d 1317,
1320 (11th Cir. 2003). A defendant can preserve appellate review of a non-
jurisdictional defect while at the same time pleading guilty by entering a “conditional
plea” pursuant to Fed. R. Crim. P. 11(a)(2), “reserving in writing the right to have
an appellate court review an adverse determination of a specified pretrial motion.”
Fed. R. Crim. P. 11(a)(2). In addition, § 3582(c) does not grant the district court
jurisdiction to consider extraneous resentencing issues, which a claimant must
instead present as a collateral attack on his sentence under 28 U.S.C. § 2255. See
United States v. Bravo,
203 F.3d 778, 782 (11th Cir. 2000); see also Dillon v. United
States,
560 U.S. 817, 824-25, 831 (2010).
A notice of appeal “must: (A) specify the party or parties taking the appeal . .
. ; (B) designate the judgment, order, or part thereof being appealed; and (C) name
the court to which the appeal is taken.” Fed. R. App. P. 3(c)(1). “Ordinarily, failure
to abide by this requirement will preclude the appellate court from reviewing any
judgment or order not so specified.” McDougald v. Jenson,
786 F.2d 1465, 1474
(11th Cir. 1986). An express designation of the order appealed from implies the lack
of intent to appeal unmentioned orders. White v. State Farm Fire & Cas. Co.,
664
F.3d 860, 863-64 (11th Cir. 2011); Osterneck v. E.T. Barwick Indus., Inc.,
825 F.2d
1521, 1528 (11th Cir. 1987) (“The general rule in this circuit is that an appellate
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court has jurisdiction to review only those judgments, orders or portions thereof
which are specified in an appellant’s notice of appeal.”).
Nevertheless, an appeal is not lost if a mistake is made in designating the
judgment appealed from where it is clear that the overriding intent was effectively
to appeal.
McDougald, 786 F.2d at 1474. This has resulted in the liberal allowance
of appeals from orders not expressly designated in the notice of appeal “when (1)
unnoticed claims or issues are inextricably intertwined with noticed ones and (2) the
adverse party is not prejudiced.” Hill v. BellSouth Telecomm., Inc.,
364 F.3d 1308,
1313 (11th Cir. 2004) (citation omitted); see also United States v. Grant,
256 F.3d
1146, 1151 (11th Cir. 2001) (holding that a notice of appeal indicated an intent to
appeal an order in an unmentioned case because the notice designated the date and
case number of the order).
An indictment is sufficient “if it: (1) presents the essential elements of the
charged offense; (2) notifies the accused of the charges to be defended against; and
(3) enables the accused to rely upon a judgment under the indictment as a bar against
double jeopardy for any subsequent prosecution for the same offense.” United States
v. Steele,
178 F.3d 1230, 1233-34 (11th Cir. 1999) (quotations omitted). The
indictment need not track the statutory language. United States v. Fern,
155 F.3d
1318, 1325 (11th Cir. 1998). So long as an indictment charges a defendant with
violating a valid federal statute, the omission of an essential element of the offense,
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while rendering the indictment insufficient, does not implicate the district court’s
jurisdiction. United States v. Brown,
752 F.3d 1344, 1354 (11th Cir. 2014).
Here, we lack appellate jurisdiction to consider Abreu’s direct challenges to
his indictment because he did not designate his original criminal judgment from
2018 in his notice of appeal. See
McDougald, 786 F.2d at 1474. Instead, he
expressly designated that he was appealing the court’s denial of his motion for
reconsideration. See
White, 664 F.3d at 863-64. It is also clear that he did not
mistakenly fail to appeal on that ground because his notice of appeal specifically
referenced and included the district court’s order denying his motion for
reconsideration. See
McDougald, 786 F.2d at 1474.
However, as for the argument that Abreu made in the motion for
reconsideration -- the motion listed in his notice of appeal -- that Count 7 of his
indictment was “incoherent and incomprehensible,” we have jurisdiction to consider
that particular challenge to the indictment. See
Hill, 364 F.3d at 1313. Regardless,
Abreu waived any non-jurisdictional defects in his indictment by voluntarily and
knowingly pleading guilty, and there is no written evidence that he entered into a
conditional plea. See
Patti, 373 F.3d at 1320; Fed. R. Crim. P. 11(a)(2). Moreover,
and in any event, Abreu’s challenges to the indictment fail on the merits because
Count 7 charged him and his codefendant with violating 8 U.S.C. §
1324(a)(1)(A)(v)(I), provided specific facts to support the elements of that charge,
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and sufficiently notified him to defend against that charge. See
Steele, 178 F.3d at
1233-34. But even if the indictment was not sufficient, neither § 3582(c)(1)(A) nor
the First Step Act authorized the district court to hear his challenge to his indictment.
See
Dillon, 560 U.S. at 824-25, 831;
Bravo, 203 F.3d at 782.
Finally, we decline to consider Abreu’s ineffective assistance of counsel
claim. Normally, a district court will be guided by Strickland v. Washington,
466
U.S. 668 (1984), which requires an assessment of whether (1) counsel’s performance
was deficient, and (2) the deficient performance prejudiced a defendant’s defense.
Id. at 687. Counsel’s performance is deficient only if it falls below the wide range
of competence demanded of attorneys in criminal cases.
Id. at 687. Prejudice is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Id. at 694. However, as the standard of
review set forth above suggests, these determinations are dependent, in part, on
factual components, and we are not authorized to make findings of fact in the first
instance. See United States v. Padgett,
917 F.3d 1312, 1316-17 (11th Cir. 2019).
As a result, we generally will not consider claims of ineffective assistance of
counsel raised on direct appeal, particularly “where the district court did not
entertain the claim nor develop a factual record.”
Bender, 290 F.3d at 1284. “The
preferred means for deciding a claim of ineffective assistance of counsel is through
a 28 U.S.C. § 2255 motion even if the record contains some indication of deficiencies
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in counsel’s performance.” United States v. Patterson,
595 F.3d 1324, 1328 (11th
Cir. 2010) (quotations omitted); see Massaro v. United States,
538 U.S. 500, 504
(2003) (holding that failure to raise an ineffective assistance of counsel claim on
direct appeal does not bar a defendant from bringing the claim in a later, appropriate
collateral proceeding). An exception to this exists only where “the record is
sufficiently developed.”
Bender, 290 F.3d at 1284.
Here, it is inappropriate for us to consider Abreu’s ineffective assistance of
counsel claim, which he raises for the first time on appeal, because the record was
not sufficiently developed below concerning this. Indeed, the district court never
held an evidentiary hearing at which testimony relevant to Abreu’s present
ineffective assistance was provided. Further, Abreu never raised the ineffectiveness
claims in the district court. Therefore, this claim would be best raised in a 28 U.S.C.
§ 2255 motion, where Abreu would have the opportunity for an evidentiary hearing.
Accordingly, we affirm.
AFFIRMED.
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