United States v. Rodolfo Ortiz

USCA11 Case: 22-10293 Document: 37-1 Date Filed: 06/27/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10293
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ORTIZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:09-cr-20710-JAL-1
____________________
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2 Opinion of the Court 22-10293
Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
PER CURIAM:
Rodolfo Ortiz, proceeding pro se, appeals the district court’s
denial of his motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A), as modified by § 603(b) of the First Step Act, 1 and
the denial of his motion for reconsideration. After review, 2 we af-
firm.
Section 3582(c) empowers a district court to modify a term
of imprisonment under certain circumstances. 18 U.S.C. § 3582(c).
As amended by § 603(b) of the First Step Act, § 3582(c) now pro-
vides, in relevant part, that:
the court, upon motion of the Director of the Bureau
of Prisons [(BOP)], or upon motion of the defendant
after the defendant has fully exhausted all administra-
tive rights to appeal a failure of the [BOP] 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, may
reduce the term of imprisonment . . . , after consider-
ing the factors set forth in section 3553(a) to the
1
Pub. L. No. 115-391, 132 Stat. 5194 (2018).
2 We review for abuse of discretion a district court’s denial of a prisoner’s
18 U.S.C. § 3582(c)(1)(A) motion and the denial of a motion for reconsidera-
tion of that order. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021);
United States v. Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018).
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22-10293 Opinion of the Court 3
extent that they are applicable, if it finds that . . . ex-
traordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent
with applicable policy statements issued by the Sen-
tencing Commission . . . .
18 U.S.C. § 3582(c)(1)(A).
The policy statement applicable to § 3582(c)(1)(A), U.S.S.G.
§ 1B1.13, states that extraordinary and compelling reasons exist un-
der any of the circumstances listed, provided the court determines
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). U.S.S.G.
§ 1B1.13, comment. (n.1). Under § 1B1.13, a defendant must show
(1) extraordinary and compelling reasons for his release; (2) that his
release would satisfy the § 3553(a) factors;3 and (3) that he does not
pose a danger to the community. See United States v. Tinker,
14 F.4th 1234, 1237-38 (11th Cir. 2021) (explaining to grant a reduc-
tion under § 3582(c)(1)(A), a district court must find that all three
3 Under § 3553(a), a district court’s sentence must be sufficient, but not greater
than necessary, to achieve the goals of sentencing, which are as follows: re-
flecting the seriousness of the offense, promoting respect for the law, provid-
ing just punishment, deterring future criminal conduct, protecting the public,
and providing the defendant with any needed training or treatment. 18 U.S.C.
§ 3553(a)(2)(A)-(C). Section 3553(a) also requires district courts to consider the
nature and circumstances of the offense, the defendant’s history and charac-
teristics, the kinds of sentences available, the Sentencing Guidelines, any per-
tinent policy statement, the need to avoid disparate sentences, and the need
to provide restitution to any victims. Id. § 3553(a)(1), (a)(3)-(7).
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4 Opinion of the Court 22-10293
necessary conditions are satisfied, and district courts need not ad-
dress these three conditions in a specific sequence, as the absence
of one forecloses a sentence reduction).
The district court did not abuse its discretion in finding
Ortiz’s criminal history outweighed his post-incarceration rehabil-
itation efforts for purposes of his dangerousness to the community
and the § 3553(a) factors. 4 Although Ortiz argues the offenses he
committed between the ages of 22 and 26 should not heavily weigh
against him, he largely cites documents supporting lower sentences
for minors, not young adults. Ortiz committed a wide array of of-
fenses over the course of several years and showed a trend of esca-
lation, beginning with carrying a concealed firearm and escalating
to kidnapping and third-degree murder. During several offenses,
Ortiz made threatening statements to or about various individuals.
Although Ortiz notes the instant offense was a sting operation
without real drugs, he believed that real drugs were involved, rep-
resented himself as a professional; confirmed he would be armed
during the robbery; and was in a vehicle with black ski masks, black
shirts, black gloves, black hats, makeshift handcuffs, loaded pistols,
and police badges. Additionally, Ortiz had several infractions in
prison, including ones involving a weapon and methamphetamine.
4 Because the district court assumed Ortiz presented extraordinary and com-
pelling reasons for his release, and denied him relief based on the § 3553(a)
factors and the danger he posed to the community, we do not address Ortiz’s
arguments regarding extraordinary and compelling circumstances. See
Tinker, 14 F.4th at 1237-38.
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22-10293 Opinion of the Court 5
The district court was entitled to weigh those factors more heavily
than his rehabilitative efforts. See United States v. Cook, 998 F.3d
1180, 1184 (11th Cir. 2021) (stating the district court’s “[e]xamining
and weighing these considerations—which may point in different
directions—is suffused with discretion”).
The district court also did not abuse its discretion in denying
Ortiz’s motion for reconsideration. Ortiz raised only one poten-
tially new issue—an issue he could not have raised in his initial mo-
tion—the prospect of Legionnaire’s disease at his facility. See Wil-
chombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009)
(“A motion for reconsideration cannot be used to relitigate old
matters, raise argument or present evidence that could have been
raised prior to the entry of judgment,” including “new arguments
that were previously available, but not pressed.” (quotation marks
omitted)). However, that new issue only went to extraordinary
and compelling reasons for relief, which the district court assumed
Ortiz had presented. The issue did not relate to the § 3553(a) fac-
tors or the danger the district court found Ortiz posed to the com-
munity.
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6 Opinion of the Court 22-10293
The district court did not abuse its discretion in denying
Ortiz’s motion for compassionate release or his motion for recon-
sideration. 5 Accordingly, we affirm the district court.
AFFIRMED.
5 We do not address the issues that Ortiz raises for the first time in his reply
brief or his arguments that are not bases for relief under § 3582(c), such as the
procedural and constitutional appropriateness of his convictions, sentences,
and PSI calculations.