United States v. Frank James Abston

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11031
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK JAMES ABSTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:11-cr-00238-CG-M-1
____________________
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2 Opinion of the Court 21-11031
Before WILSON, LUCK, and MARCUS, Circuit Judges.
PER CURIAM:
Frank Abston, a federal prisoner proceeding pro se, appeals
the district court’s order denying his motions for a sentence reduc-
tion under § 401 of the First Step Act, 1 and compassionate release
under 18 U.S.C § 3582(c)(1)(A), as amended by Section 603(b) of
the First Step Act. He also moves to hold these proceedings in
abeyance until the Supreme Court has ruled on a certiorari petition
in United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), cert. de-
nied, 142 S. Ct. 583 (2021), and United States v. Winner, 835 F.
App’x 1002 (11th Cir. 2020) (unpublished). The government, in
turn, moves for summary affirmance or to stay the briefing sched-
ule. After careful review, we grant the government’s motion for
summary affirmance and deny as moot the motions to stay briefing
and to hold the proceedings in abeyance.
The relevant background is this. In 2011, Abston pled guilty
to one count of conspiracy to possess with intent to distribute co-
caine. The government moved to enhance his sentence under 21
U.S.C. § 851, since he had previously been found guilty of at least
two prior felony drug offenses. The district court sentenced
1 First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018) (“First Step
Act”).
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21-11031 Opinion of the Court 3
Abston to life imprisonment, which we affirmed. See United States
v. Abston, 536 F. App’x 905 (11th Cir. 2013) (unpublished).
Abston later filed two pro se motions in the district court
that are relevant to this appeal. In the first, titled “Motion 3582,”
he argued that the First Step Act allowed courts to review sen-
tences and modify them to be in line with modern sentencing law
and that his two prior predicate offenses did not warrant the § 851
enhancement. In the second, Abston sought a compassionate re-
lease from his current place of incarceration, FCI-Jesup, arguing
that his age and high blood pressure, the COVID-19 pandemic, the
need to care for his mother after his father passed away, the gov-
ernment’s § 851 enhancement of his sentence, and his accomplish-
ments in prison collectively justified that. He also asserted that
§ 401 of the First Step Act in addition to the other compassionate
release factors constituted extraordinary and compelling reasons
warranting release.
The district court denied both motions, finding that
§ 401 provided no relief because it had sentenced him prior to the
passage of the First Step Act and that it had to follow the applicable
policy statements for compassionate release. This appeal follows.
When appropriate, we review de novo whether a district
court had the authority to modify a term of imprisonment. United
States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). We review a
district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for
abuse of discretion. United States v. Harris, 989 F.3d 908, 911 (11th
Cir. 2021). Abuse of discretion review “means that the district
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4 Opinion of the Court 21-11031
court had a range of choice” and we will not “reverse just because
we might have come to a different conclusion.” Id. at 912 (quota-
tion marks omitted).
When an appellant fails to challenge properly on appeal one
of the grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed. Sapuppo v. All-
state Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). Addi-
tionally, arguments not raised in an appellant’s initial brief are
abandoned. Id. at 680, 683. Finally, however, pro se pleadings will
be liberally construed. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
First, we find no merit in Abston’s argument that we should
hold his appeal in abeyance until Bryant and Winner are resolved.
After Abston filed his brief in this case, the Supreme Court declined
to grant certiorari in Bryant in December 2021. See Bryant v.
United States, 242 S. Ct. 583 (2021). Likewise, we decided Winner
in 2020, we issued a mandate in the case in January 2021, and Win-
ner never filed a petition for a writ of certiorari with the Supreme
Court. As a result, there are no pending issues before us or the
Supreme Court to decide, so we deny Abston’s motion to hold the
appeal in abeyance as moot.
As for the merits of Abston’s challenges to the district court’s
denial of his motions for a sentence reduction and for compassion-
ate release, we agree with the government that summary disposi-
tion is warranted. Summary disposition is appropriate either
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21-11031 Opinion of the Court 5
where time is of the essence, such as “situations where important
public policy issues are involved or those where rights delayed are
rights denied,” or where “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 frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). 2
A district court has no inherent authority to modify a de-
fendant’s sentence and may do so “only when authorized by a stat-
ute or rule.” United States v. Puentes, 803 F.3d 597, 605–06 (11th
Cir. 2015). The First Step Act expressly permits district courts to
reduce a previously imposed term of imprisonment. Jones, 962
F.3d at 1297.
Section 841(b)(1)(A)(iii) required a mandatory sentence of
life imprisonment for offenses involving 280 grams or more of a
mixture or substance of cocaine base if the defendant had two or
more prior convictions for a felony drug offense. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (2012). The First Step Act amended
§ 841(b)(1)(A) by changing the mandatory penalties it imposed for
repeat offenders, as well as altering the type of offenses that trigger
those penalties. First Step Act § 401. Specifically, while §
841(b)(1)(A) previously stated that a prior conviction for a “felony
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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6 Opinion of the Court 21-11031
drug offense” would trigger mandatory penalties, § 401(a) of the
First Step Act changed the prior conviction requirement to a “seri-
ous drug felony or serious violent felony.” Id. § 401(a). Section
401(a) of the First Step Act also changed the mandatory minimum
sentence for defendants who have had 2 or more such prior con-
victions, from life imprisonment to 25 years. Id. It states that the
provisions of § 401 shall apply to any offense that was committed
before the date of enactment of this act if a sentence for the offense
has not been imposed as of such date of enactment. Id. § 401(c).
The First Step Act, in part, also amended 18 U.S.C.
§ 3582(c)(1)(A) to increase the use and transparency of compassion-
ate release of federal prisoners. See First Step Act § 603. In the
context of compassionate release, the statute now provides that:
[T]he court, upon . . . motion of the defendant after
the defendant has fully exhausted all administrative
rights to appeal a failure of the Bureau of Prisons
[(“BOP”)] to bring a motion on the defendant’s behalf
or the lapse of 30 days from the receipt of such a re-
quest by the [W]arden of the defendant’s facility,
whichever is earlier, may reduce the term of impris-
onment . . . after considering the factors set forth in
[18 U.S.C.] section 3553(a) to the extent that they are
applicable, if it finds that—extraordinary and compel-
ling reasons warrant such a reduction.
18 U.S.C. § 3582(c)(1)(A)(i).
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21-11031 Opinion of the Court 7
The § 3553(a) factors include, among other things, the na-
ture and circumstances of the defendant’s offense, his history and
characteristics, and the need to protect the public from further
crimes of the defendant. Id. § 3553(a). It is the defendant’s burden
to show that his circumstances warrant a reduction. United States
v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). The weight given
to any specific § 3553(a) factor is committed to the sound distrac-
tion of the district court. United States v. Croteau, 819 F.3d 1293,
1309 (11th Cir. 2016). Generally, when a district court considers
the § 3553(a) factors, it should set forth enough information to sat-
isfy the reviewing court of the fact that it has considered the parties'
arguments and has a reasoned basis for making its decision, but it
need not state on the record that it has explicitly considered each
of them or discuss each of them. See United States v. Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013).
Section 3582(c)(1)(A) also requires that any reduction be
consistent with applicable policy statements issued by the Sentenc-
ing Commission. 18 U.S.C. § 3582(c)(1)(A). Section 1B1.13 of the
Sentencing Guidelines provides the applicable policy statement for
§ 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application notes to
§ 1B1.13 list four categories of extraordinary and compelling rea-
sons: (A) the defendant’s medical condition, (B) his age, (C) his fam-
ily circumstances, including the death of a caregiver of a minor
child, and (D) “other reasons.” Id., cmt. (n.1(A)–(D)). While sub-
section D serves as a catch-all provision, it provides that a prisoner
may be eligible for relief if, “[a]s determined by the Director of the
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8 Opinion of the Court 21-11031
[BOP], there exists in the defendant’s case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).” Id., cmt. (n.1(D)) (em-
phasis added). If the district court determines that there are ex-
traordinary and compelling reasons for compassionate release, it
has the discretion to reduce the defendant’s term of imprisonment
after considering the applicable § 3553(a) factors. Id. § 1B1.13(1)(A).
Commentary to § 1B1.13 states that extraordinary and compelling
reasons exist under any of the circumstances listed, provided that
the court determines that the defendant is not a danger to the safety
of any other person or to the community, as provided in 18 U.S.C.
§ 3142(g). See U.S.S.G. § 1B1.13; id., cmt. (n.1).
In Bryant, we held that § 1B1.13 was applicable to all mo-
tions filed under that statute, including those filed by prisoners,
and, thus, a district court may not reduce a sentence unless a re-
duction would be consistent with § 1B1.13’s definition of extraor-
dinary and compelling reasons. 996 F.3d at 1252–62. We also con-
cluded that the catch-all provision in the commentary to § 1B1.13
did not grant to district courts the discretion to develop other rea-
sons outside those listed in § 1B1.13 that might justify a reduction
in a defendant’s sentence. Id. at 1248, 1263, 1265.
We’ve noted that the fact that a prisoner has a common ail-
ment that could possibly make his risk of a serious illness more
likely if he contracts COVID-19 is not the kind of debilitating con-
dition that meets the policy-statement definition of an extraordi-
nary and compelling reason for early release from prison. See
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21-11031 Opinion of the Court 9
Harris, 989 F.3d at 912. Moreover, a district court does not err in
finding a defendant ineligible for compassionate release where cer-
tain health conditions are manageable in prison. United States v.
Giron, 15 F.4th 1343, 1346 (11th Cir. 2021) (high cholesterol, hyper-
tension, and coronary artery disease).
In United States v. Cook, 998 F.3d 1180 (11th Cir. 2021), we
held that a district court, in addition to determining whether a mo-
vant had offered extraordinary and compelling reasons and
whether a reduction or release would be consistent with the policy
statement found in § 1B1.13, must also consider “all applicable”
§ 3553(a) factors. Cook, 998 F.3d at 1184. Importantly, in Cook,
the government conceded that the defendant had shown an ex-
traordinary and compelling reason, and it argued only that the
§ 3553(a) factors weighed against release. Id. at 1185–86. How-
ever, in Giron, we clarified that, if a district court properly finds
either that (i) no extraordinary and compelling circumstances exist,
or (ii) the defendant is a danger to the public, analysis of the §
3553(a) factors is unnecessary. Giron, 15 F.4th at 1347. There, after
the district court found that no extraordinary and compelling cir-
cumstances existed, we affirmed, holding that the court’s finding
was not error, and thus distinguished Cook on the basis that the
government had conceded that Cook had established an extraordi-
nary and compelling reason for a sentence reduction. See id. at
1346, 1350.
The district court need not conduct the compassionate re-
lease analysis in any particular order. United States v. Tinker,
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10 Opinion of the Court 21-11031
14 F.4th 1234, 1237 (11th Cir. 2021). A district court may reduce a
term of imprisonment if the § 3553(a) factors favored doing so,
there are extraordinary and compelling reasons for doing so, and
the reduction would not endanger any person or the community.
Id. All of these necessary conditions must be satisfied before it can
grant a reduction. Id. Thus, the absence of even one condition
would foreclose a sentence reduction. Id. at 1238.
Here, Abston argues that the district court misunderstood §
401 of the First Step Act when it declined to apply the provision to
his sentence -- which had been enhanced under 21 U.S.C. § 851,
based on his two prior felony drug offenses. However, this argu-
ment fails because Congress did not make the First Step Act retro-
active. See First Step Act § 401(c) (providing that a defendant who
committed “any offense . . . before the date of enactment of this
Act” could benefit from its amendments only “if a sentence for the
offense has not been imposed as of such a date of enactment”). Ab-
ston was sentenced in 2012, well before the act was passed and
went into effect in 2018. See id. Accordingly, the changes to sen-
tencing found in § 401(c) do not apply to him.
As for his arguments about why he should have been
granted compassionate release under § 603(b), they fare no better.
For starters, Abston does not expressly refer, on appeal, to his med-
ical condition or his mother’s caregiver needs as a basis for granting
compassionate release. He therefore has abandoned those argu-
ments in this Court. See Sapuppo, 739 F.3d at 680.
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21-11031 Opinion of the Court 11
Instead, Abston argues that he is entitled to release under §
603(b) based on “cumulative issues” involved in the case, including
Congress’s intent in reducing the harsh penalties of § 851 and his
resulting sentencing disparity. However, the district court did not
abuse its discretion in denying the motion because it cannot use the
catch-all provision to expand the definition of extraordinary and
compelling reasons warranting release. Bryant, 996 F.3d at 1248,
1263, 1265. Further, the sentencing disparity between people with
enhanced sentences before and after the passage of the First Step
Act and the cumulative issues do not fit within the policy statement
and, as a result, they cannot be considered to be extraordinary and
compelling reasons. See id.; U.S.S.G. § 1B1.13 cmt. (n.1 (A)–(D)).
Finally, we are unpersuaded by Abston’s claim that the dis-
trict court erred in denying his motion when it failed to review the
18 U.S.C. § 3553(a) factors. Because the district court properly
found that Abston had not presented extraordinary and compelling
reasons warranting release, it was not required to consider the §
3553(a) sentencing factors before denying his motion. Tinker, 14
F.4th 1237–38; Giron, 15 F.4th at 1347.
Accordingly, because the government’s position is “clearly
right as a matter of law” we GRANT its motion for summary affir-
mance and DENY as moot Abston’s motion to hold this appeal in
abeyance and the government’s motion to stay the briefing sched-
ule. See Groendyke Transp., Inc., 406 F.2d at 1162.