United States v. Wiebe-Neudorf ( 2022 )

Case: 22-50072 Document: 00516534603 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50072
Summary Calendar FILED
November 4, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Heinrich Wiebe-Neudorf,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-77-1
Before Davis, Smith, and Dennis, Circuit Judges.
Per Curiam:*
Heinrich Wiebe-Neudorf, federal prisoner # 26999-480, appeals the
denial of his third motion for compassionate release, filed pursuant to 18
U.S.C. § 3582(c)(1)(A)(i). We review a district court’s decision to deny a
*
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opinion should not be published and is not precedent except under the limited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: 22-50072 Document: 00516534603 Page: 2 Date Filed: 11/04/2022
No. 22-50072
§ 3582(c)(1)(A)(i) motion for abuse of discretion. United States v. Chambliss,
948 F.3d 691, 693 (5th Cir. 2020).
Wiebe-Neudorf argues that the district court violated his First
Amendment right to be heard when it did not allow the Government to
respond to his current § 3582(c)(1)(A)(i) motion, which would have given
him the opportunity to reply; that extraordinary and compelling reasons for
relief existed; and that the district court’s decision improperly denied relief
based on the U.S.S.G. § 1B1.13 policy statement, 18 U.S.C. § 3142(g), and 18
U.S.C. § 3553(a), which he contends are inapplicable to his motion under
United States v. Shkambi, 993 F.3d 388, 392-93 (5th Cir. 2021).
Wiebe-Neudorf has not provided any authority indicating that he
would be entitled to relief on his First Amendment claim in the context of a
§ 3582(c)(1)(A)(i) motion. To the extent he argues that the district court
abused its discretion in denying his motion without a response from the
Government, his argument is unavailing in light of the plain language of the
statute, which makes no reference to a Government response. See
§ 3582(c)(1)(A); Ward v. United States, 11 F.4th 354, 361 (5th Cir. 2021).
Although Wiebe-Neudorf also challenges the district court’s reliance on the
§ 3553(a) factors, consideration of those factors is required under the statute.
See § 3582(c)(1)(A); Shkambi, 993 F.3d at 393. Additionally, although
Wiebe-Neudorf challenges the district court’s reliance on § 1B1.13 and
§ 3142(g), the record indicates that the district court’s decision was
independently supported by its weighing of the § 3553(a) factors. See United
States v. Jackson, 27 F.4th 1088, 1093 n. 8 (5th Cir. 2022); United States v.
Thompson, 984 F.3d 431, 433 (5th Cir.), cert. denied, 141 S. Ct. 2688 (2021).
Accordingly, we need not consider Wiebe-Neudorf’s contention that
extraordinary and compelling reasons justified relief. See Ward, 11 F.4th at
360-62.
2
Case: 22-50072 Document: 00516534603 Page: 3 Date Filed: 11/04/2022
No. 22-50072
To the extent that Wiebe-Neudorf challenges the sufficiency of the
district court’s reasons, the argument was raised for the first time in his reply
brief, and we generally do not consider issues raised for the first time in a
reply brief. See United States v. Rodriguez, 602 F.3d 346, 360-61 (5th Cir.
2010). However, even if we were to consider this argument, it lacks merit
because the reasons for the district court’s denial may be reasonably inferred
from the district court’s order and the record. See Chavez-Meza v. United
States, 138 S. Ct. 1959, 1966 (2018).
In light of the foregoing, the district court’s denial of Wiebe-
Neudorf’s § 3582(c)(1)(A)(i) motion did not constitute an abuse of
discretion. See Chambliss, 948 F.3d at 693-94.
AFFIRMED.
3