United States v. Basil Moore

USCA11 Case: 21-13745 Date Filed: 11/04/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13745
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BASIL MOORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:11-cr-00048-HL-CHW-1
____________________
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2 Opinion of the Court 21-13745
Before LUCK, LAGOA, and MARCUS, Circuit Judges.
PER CURIAM:
Basil Moore, a federal prisoner proceeding pro se, appeals
from the district court’s denial of his motion for compassionate re-
lease under 18 U.S.C. § 3582(c)(1)(A), pursuant to the First Step
Act, 1 following his 2012 federal conviction and sentence. In re-
sponse to Moore’s initial brief on appeal, the government: (1)
moved to partially dismiss as untimely Moore’s appeal of the
March 24, 2021 district court order denying him compassionate re-
lease; and (2) moved for summary affirmance of the October 5,
2021 order denying Moore’s motion for reconsideration of the
March 24, 2021 order. After careful review, we GRANT the gov-
ernment’s motion to partially dismiss the appeal as untimely, as to
Moore’s appeal of the district court’s March 24, 2021 order denying
his motion for compassionate release, and we GRANT the govern-
ment’s motion to summarily affirm the October 5, 2021 order.
I.
We typically review the denial of a motion for compassion-
ate release for abuse of discretion. United States v. Harris, 989 F.3d
908, 911 (11th Cir. 2021). But we review de novo jurisdictional is-
sues and the interpretation of federal rules of procedure. United
States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). We review
1 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”).
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21-13745 Opinion of the Court 3
for abuse of discretion the denial of a motion for reconsideration.
United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018).
When an issue is not plainly and prominently raised in a
party’s initial brief, that issue is abandoned. United States v. Jerni-
gan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also United States
v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (holding
that issues not raised in an initial brief are deemed forfeited and will
not be addressed absent extraordinary circumstances); Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (explaining that “issues
not briefed on appeal by a pro se litigant are deemed abandoned”).
II.
For starters, Moore’s appeal of the district court’s March 24,
2021 order denying his compassionate release motion is untimely
and must be dismissed. As we’ve said many times, proceedings un-
der § 3582(c) are criminal in nature and covered by the rules appli-
cable to criminal cases. See, e.g., United States v. Fair, 326 F.3d
1317, 1318 (11th Cir. 2003) (providing that § 3582 is criminal in na-
ture and a motion under § 3582(c)(2) is “not a civil post-conviction
action, but rather a continuation of a criminal case”). In a criminal
case, a defendant’s notice of appeal must be filed in the district
court within 14 days after entry of the judgment or order being ap-
pealed. Fed. R. App. P. 4(b)(1)(A)(i). A pro se prisoner’s notice of
appeal is deemed filed on the date that he delivers it to prison au-
thorities for mailing. Fed. R. App. P. 4(c)(1)(A)(ii); see Jeffries v.
United States, 748 F.3d 1310, 1314 (11th Cir. 2014). Absent contrary
evidence, we assume that a prisoner’s filing was delivered to prison
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4 Opinion of the Court 21-13745
authorities on the day that he signed it. Daniels v. United States,
809 F.3d 588, 589 (11th Cir. 2015).
Although a motion for reconsideration in a criminal action
is not expressly authorized by the Federal Rules of Criminal Proce-
dure, the filing of this kind of motion tolls the time for filing a no-
tice of appeal and the time begins to run anew following disposi-
tion of the motion. United States v. Dieter, 429 U.S. 6, 8–9 (1976);
United States v. Vicaria, 963 F.2d 1412, 1413–14 (11th Cir. 1992). A
motion for reconsideration in a criminal case must be filed within
the time allowed for filing a notice of appeal in order to extend the
time for filing the notice of appeal. Vicaria, 963 F.2d at 1414. Thus,
a criminal defendant must file a motion for reconsideration within
14 days from the original judgment to extend the time for filing the
notice of appeal. See Fed. R. App. P. 4(b); Vicaria, 963 F.2d at 1414.
The deadline in Rule 4(b) for a defendant to file a notice of
appeal in a criminal case is not jurisdictional. Lopez, 562 F.3d at
1313. Instead, the filing deadline is considered a claims-processing
rule, and the government can waive an objection to an untimely
notice of appeal in a criminal case. Id. at 1312–13. Nevertheless, if
the government raises the issue of timeliness, then we “must apply
the time limits of Rule 4(b).” Id. at 1313–14.
Additionally, Rule 4(b)(4) authorizes the district court to
grant a 30-day extension of the 14-day deadline in a criminal case
based on a finding of good cause or excusable neglect. Fed. R. App.
P. 4(b)(4). In criminal cases, we’ve customarily treated a late notice
of appeal, filed within the 30 days during which an extension is
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21-13745 Opinion of the Court 5
permissible, as a motion for extension of time and remanded to the
district court for a finding of excusable neglect. See, e.g., United
States v. Ward, 696 F.2d 1315, 1317–18 (11th Cir. 1983); United
States v. Rothseiden, 680 F.2d 96, 98 (11th Cir. 1982). However, if
a criminal defendant’s notice of appeal is filed more than 30 days
after the expiration of the initial 14-day appeal period, then the de-
fendant is not eligible for relief under Rule 4(b)(4). See Lopez, 562
F.3d at 1314 (noting that Rule 4(b)(4) allowed the district court to
extend the time for filing a notice of appeal by no more than 30
days after the initial deadline).
As the record reflects, the district court denied Moore’s mo-
tion for compassionate release on March 24, 2021. Moore filed a
motion for reconsideration of that order on April 27, 2021. And on
October 5, 2021, the district court denied Moore’s motion for re-
consideration. Moore appealed to this Court on October 17, 2021.
On this record, the time for Moore to appeal from the March
24 order expired 14 days after the issuance of that order -- on
Wednesday, April 7, 2021. See Fed. R. App. P. 4(b)(1); Fair, 326
F.3d at 1318; see also Vicaria, 963 F.2d at 1413–14. Because Moore’s
notice of appeal was not deemed filed until October 17, 2021, his
April 27, 2001 motion for reconsideration did not serve as a tolling
motion because it was not filed within 14 days of the March 24 or-
der. See Daniels, 809 F.3d at 589; Vicaria, 963 F.2d at 1414. There-
fore, Moore’s appeal of the March 24, 2021 order was not timely.
See Fed. R. App. P. 4(b)(1)(A)(i). And the government has raised
timeliness in this case, so we must enforce the time limit under
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6 Opinion of the Court 21-13745
Rule 4(b) as to the March 24, 2021 order and grant the govern-
ment’s motion to dismiss in that respect. See Fed. R. App. P.
4(b)(1)(A)(i); Lopez, 562 F.3d at 1313–14; Fair, 326 F.3d at 1318.
Nevertheless, Moore’s October 17, 2021 notice of appeal
was timely to appeal from the October 5, 2021 order denying his
motion for reconsideration. See Fed. R. App. P. 4(b)(1)(A)(i); Dan-
iels, 809 F.3d at 589. Moore needed to appeal the October 5, 2021
order within 14 days of its entry -- by Friday, October 19, 2021. See
Fed. R. App. P. 4(c)(1)(A)(ii); Jeffries, 748 F.3d at 1314; Fair, 326 F.3d
at 1318. Because he did just that, we will consider the merits of his
appeal stemming from that order. See Daniels, 809 F.3d at 589.
III.
Finally, we agree with the government that summary affir-
mance of the October 5, 2021 order is warranted in this appeal.
Summary disposition is appropriate where, among other things,
“the position 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, or where, as is more frequently the case, the appeal is friv-
olous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969). 2
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),
we adopted as binding precedent all Fifth Circuit decisions issued before Oc-
tober 1, 1981.
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21-13745 Opinion of the Court 7
Here, summary affirmance as to the district court’s October
5, 2021 order denying Moore’s reconsideration motion is appropri-
ate because his appeal is frivolous. Id. In his brief on appeal, Moore
fails to challenge the district court’s October 5, 2021 order, and he
therefore has abandoned any challenge to it. Jernigan, 341 F.3d at1283 n.8; Campbell, 26 F.4th at 873; Sampson, 518 F.3d at 874. As
a result, there are no issues to resolve on appeal, and Moore’s ap-
peal is frivolous. Groendyke Transp., Inc., 406 F.2d at 1162.
Accordingly, we GRANT the government’s motion to par-
tially dismiss the appeal as untimely as to Moore’s appeal of the
March 24, 2021 order denying his compassionate release motion.
Likewise, we GRANT the government’s motion for summary af-
firmance as to the October 5, 2021 order on reconsideration.