United States v. Zimmerman ( 2022 )

Case: 20-11051 Document: 00516185606 Page: 1 Date Filed: 01/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 31, 2022
No. 20-11051
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jack Zimmerman,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-27-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Jack Zimmerman, federal prisoner # 39657-177, appeals the district
court’s denial of his motion for a sentence reduction and home confinement
pursuant to 18 U.S.C. § 3582(c)(1)(A). Zimmerman has filed a motion for
the appointment of counsel, and the Government has filed a motion for
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-11051 Document: 00516185606 Page: 2 Date Filed: 01/31/2022
No. 20-11051
summary affirmance or, in the alternative, for an extension of time to file a
merits brief, asserting that the district court properly denied Zimmerman’s
request for compassionate release because he conceded that he failed to
exhaust his administrative remedies. Because Zimmerman does not
challenge the denial of his request for home confinement, he has abandoned
review of that claim. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
A defendant may file a motion for compassionate release only “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.” 18 U.S.C. § 3582(c)(1)(A).
Because Zimmerman acknowledges that he did not request that the warden
file a motion for compassionate release on his behalf until after the district
court denied his request, his challenge to the district court’s determination
that he failed to exhaust his administrative remedies is foreclosed. See United
States v. Franco, 973 F.3d 465, 467 (5th Cir.), cert. denied, 141 S. Ct. 920(2020). Because current precedent provides a clear result, we forego further
briefing. See United States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019).
Zimmerman, however, does not concede that the issue is foreclosed, and thus
we deny the motion for summary affirmance. See United States v. Lopez, 461
F. App’x 372, 374 n.4 (5th Cir. 2012); 1 see also United States v. Houston, 625
F.3d 871, 873 n.2 (5th Cir. 2010) (denying summary affirmance despite
parties’ agreement issue was foreclosed because the case the parties relied on
did not foreclose the issue).
1
Unpublished opinions issued after 1995 are not precedential, but they may be
persuasive. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
2
Case: 20-11051 Document: 00516185606 Page: 3 Date Filed: 01/31/2022
No. 20-11051
Accordingly, the Government’s motion for summary affirmance or,
alternatively, for an extension of time to file a merits brief is DENIED, the
judgment of the district court is AFFIRMED, and the motion for the
appointment of counsel is DENIED.
3