United States v. Kim A. Earlycutt

USCA11 Case: 21-10973 Document: 19-1 Date Filed: 01/04/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10973
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIM A. EARLYCUTT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cr-00084-LMM-JKL-1
____________________
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2 Opinion of the Court 21-10973
Before WILSON, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Kim Earlycutt appeals the district court’s denial of her mo-
tion for compassionate release under the First Step Act and her mo-
tion for reconsideration. The government moves to dismiss in part
because Earlycutt untimely appealed the denial of her compassion-
ate release motion.1 After careful review, we grant the govern-
ment’s motion to dismiss Earlycutt’s untimely appeal of the denial
of her compassionate release motion, and we affirm the district
court’s denial of her motion for reconsideration.
On January 6, 2021, the district court denied Earlycutt’s
compassionate release motion on two grounds. First, the district
court concluded that Earlycutt had not shown that her circum-
stances—medical conditions that Earlycutt said made her more
susceptible to COVID-19—were either “extraordinary” or “com-
pelling” as required by 18 U.S.C. section 3582(c)(1)(A)(i). Second,
even if Earlycutt’s medical conditions were extraordinary and com-
pelling, the district court determined that the 18 U.S.C. sec-
tion 3553(a) factors weighed against a sentence reduction.
Earlycutt moved for reconsideration, adding that she had
since contracted COVID-19. The district court denied her motion
1
The government also moves to summarily affirm the remainder of Ear-
lycutt’s appeal and stay the briefing schedule.
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21-10973 Opinion of the Court 3
on February 18, 2021. The district court found that Earlycutt had
“not submitted documentation of her COVID-19 diagnosis,” that
“even assuming she ha[d] the disease, infection with COVID-19
d[id] not itself justify compassionate release,” and that the district
court had already rejected her remaining arguments in denying her
compassionate release motion.
Earlycutt appealed both orders, and her notice of appeal was
postmarked on March 12, 2021. Because a prisoner’s pro se notice
of appeal is deemed filed on the date that it was delivered to the
institution’s mailing system, Williams v. McNeil, 557 F.3d 1287,
1290 n.2 (11th Cir. 2009) (citing Fed. R. App. P. 4(c)), we deem Ear-
lycutt’s notice of appeal as filed on March 12, 2021, sixty-five days
after the district court denied her compassionate release motion.
Earlycutt’s notice of appeal was filed too late to challenge
the January 6, 2021 denial of her compassionate release. See
Fed. R. App. P. 4(b)(1)(A), 4(b)(4), 26(b)(1). Rule 4 requires a crim-
inal defendant to file a notice of appeal within fourteen days after a
district court’s order. Fed. R. App. P. 4(b)(1)(A). Rule 4 also allows
a district court to “extend the time to file a notice of appeal for a
period not to exceed [thirty] days from the expiration of the time
otherwise prescribed” by the rule “[u]pon a finding of excusable
neglect or good cause.” Fed. R. App. P. 4(b)(4) (emphasis added).
But a district court cannot extend the time to file a notice of appeal
“except as authorized in [r]ule 4.” Fed. R. App. P. 26(b)(1). Ear-
lycutt’s notice of appeal was filed sixty-five days after the district
court denied her compassionate release motion—long after the
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4 Opinion of the Court 21-10973
expiration of both the initial fourteen-day period and the potential
thirty-day extension.
Although the untimely filing of a notice of appeal by a crim-
inal defendant “is not jurisdictional,” we are required to “apply the
time limits” when the government objects to the lateness. United
States v. Lopez, 562 F.3d 1309, 1313–14 (11th Cir. 2009); see Hamer
v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17–18 (2017)
(“If properly invoked, mandatory claim-processing rules must be
enforced . . . [to] ensure relief to [the] party properly raising
them[.]” (alteration adopted and internal citation omitted)). Be-
cause Earlycutt’s notice of appeal was untimely and the govern-
ment objects to the lateness, we must dismiss her appeal in part as
to the denial of her compassionate release motion.
Next, we review the district court’s February 18, 2021 denial
of reconsideration “for abuse of discretion.” Corwin v. Walt Dis-
ney Co., 475 F.3d 1239, 1254 (11th Cir. 2007). “A district court
abuses its discretion if it applies an incorrect legal standard, follows
improper procedures in making the determination, or makes find-
ings of fact that are clearly erroneous.” United States v. Harris, 989
F.3d 908, 911 (11th Cir. 2021) (citation omitted). “When review is
only for abuse of discretion, it means the district court had a ‘range
of choice’ and that we cannot reverse just because we might have
come to a different conclusion.” Id. at 912 (cleaned up).
“While we read briefs filed by pro se litigants liberally, issues
not briefed on appeal by a pro se litigant are deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (citations
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21-10973 Opinion of the Court 5
and italics omitted). And when a party abandons one of the
grounds on which the district court based its judgment, “the judg-
ment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014).
Earlycutt does not challenge any of the district court’s
grounds for denying her motion for reconsideration. No portion
of her initial brief (or other appellate filings) addresses the district
court’s conclusions that Earlycutt had “not submitted documenta-
tion of her COVID-19 diagnosis,” that “even assuming she ha[d]
the disease, infection with COVID-19 d[id] not itself justify com-
passionate release,” and that the district court had already rejected
her remaining arguments in denying her compassionate release
motion. Thus, Earlycutt has abandoned these arguments and the
district court’s denial of her motion for reconsideration “is due to
be affirmed.” See United States v. Maher, 955 F.3d 880, 885 (11th
Cir. 2020) (quoting Sapuppo, 739 F.3d at 683).
In any event, the district court did not abuse its discretion.
“A motion for reconsideration cannot be used to ‘relitigate old mat-
ters, [or] raise argument or present evidence that could have been
raised prior to the entry of judgment.” Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (citation omitted).
The district court denied Earlycutt’s motion for reconsideration be-
cause she had “not submitted new evidence” and because she re-
ferred to the “identical . . . medical conditions she raised as extraor-
dinary and compelling reasons in her [m]otion for [c]ompassionate
[r]elease.” “Thus, the [district] [c]ourt’s conclusion remain[ed] that
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6 Opinion of the Court 21-10973
[Earlycutt]’s stated health issues d[id] not justify compassionate re-
lease.” The district court’s refusal to give Earlycutt another bite at
the apple was not an abuse of discretion, and we therefore affirm.2
DISMISSED IN PART; AFFIRMED IN PART.
2
We deny the government’s pending motion to summarily affirm the district
court’s denial of Earlycutt’s motion for reconsideration and stay the briefing
schedule as moot.