[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11780

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

TRACY LEONARD WHITFIELD, 

a.k.a. Bootney,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:91-cr-14025-DLG-3

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2 Opinion of the Court 23-11780

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Before WILSON, JORDAN, and LAGOA, Circuit Judges.

PER CURIAM:

Tracy Whitfield, proceeding pro se, appeals the district 

court’s order denying his motion for compassionate release under 

18 U.S.C. § 3582(c)(1)(A), arguing that the court erred in finding 

that he failed to exhaust administrative remedies and present extraordinary and compelling reasons. In his motion in the district 

court, he argued that his underlying medical conditions and 

COVID-19 qualified as extraordinary and compelling reasons for 

relief. On appeal, he concedes that the court did not err in denying 

relief based on those reasons. However, he argues that the recent 

statutory changes to sentence stacking for 18 U.S.C. § 924(c) convictions qualified as extraordinary and compelling reasons, which 

he alleged solely in reply below. The government moved for summary affirmance, arguing that the court properly denied the motion because Whitfield failed to exhaust his administrative remedies and did not allege extraordinary and compelling reasons. It 

also moved to stay the briefing schedule. 

Summary disposition is appropriate, in part, where “the position of one of the parties is clearly right as a matter of law so that 

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there can be no substantial question as to the outcome of the case.” 

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).1 

Where a defendant does not offer any argument regarding 

an issue on appeal, he is deemed to have forfeited that issue. United 

States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc). 

Courts do not address arguments raised for the first time in reply. 

See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

We review for plain error issues not timely raised in the district court. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 

2005). Plain error occurs where “(1) there is an error; (2) that is 

plain or obvious; (3) affecting the defendant’s substantial rights in 

that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity or public reputation of the judicial proceedings.” United States v. Hall, 314 F.3d 565, 565 (11th Cir. 2002). 

Without explicit, on-point language in the relevant statute, “there 

can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving” the issue. United 

States v. Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (quotation 

marks omitted). 

District courts lack the inherent authority to modify a term 

of imprisonment but may do so within § 3582(c)’s provisions. 18

U.S.C. § 3582(c); United States v. Bryant, 996 F. 3d 1243, 1251 (11th

1 We are bound by decisions of the United States Court of Appeals for the Fifth 

Circuit issued before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206 

(11th Cir. 1981) (en banc).

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Cir. 2021). The First Step Act2 amended 18 U.S.C. § 3582(c)(1)(A) 

to allow the court to reduce a defendant’s term of imprisonment 

also 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 request by the warden of the defendant’s facility, whichever is earlier. We have held 

that the exhaustion requirement is not jurisdictional and is instead 

a claim-processing rule. United States v. Harris, 989 F.3d 908, 911 

(11th Cir. 2021).

A district court may grant compassionate release if: (1) an 

extraordinary and compelling reason exists; (2) a sentencing reduction would be consistent with U.S.S.G. § 1B1.13; and (3) the 

§ 3553(a) factors weigh in favor of compassionate release. United 

States v. Tinker, 14 F.4th 1234, 1237–38 (11th Cir. 2021) (per curiam). 

When the district court ruled on Whitfield’s motion—May 

8, 2023—the commentary to U.S.S.G. § 1B1.13 outlined as extraordinary and compelling reasons a defendant’s medical, age, and family circumstances. See U.S.S.G. § 1B1.13, comment. (n.1(A)-(C))

(U.S. Sent’g Comm’n 2021). The commentary also authorized relief for “other reasons,” which we held, in Bryant, must be determined by BOP. 996 F.3d at 1262–65; see also U.S.S.G. § 1B1.13, 

comment. n.1(D) (U.S. Sent’g Comm’n 2021). However, on November 1, 2023, the Sentencing Commission amended § 1B1.13 to 

2 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018).

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add, among other things, a new extraordinary and compelling reason for “unusually long sentence[s],” which includes instances 

where “a change in the law . . . would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.” U.S.S.G. § 1B1.13(b)(6) (U.S. 

Sent’g Comm’n 2023).3 

We conclude that summary affirmance is warranted here 

because the government’s position is clearly correct as a matter of 

law. Groendyke Transp., Inc., 406 F.2d at 1162. In the district court, 

Whitfield’s motion was premised on his underlying medical conditions and COVID-19. However, on appeal, Whitfield has abandoned any challenge to that, and, in any event, the court correctly 

found that he failed to exhaust his administrative remedies as to 

that claim. Campbell, 26 F.4th at 873; 18 U.S.C. § 3582(c)(1)(A). As 

to the argument raised in his brief on appeal, while exhausted, he 

did not properly present that to the district court as it was presented 

solely in his reply in support of his motion and not addressed by 

the district court below. See Timson, 518 F.3d at 874. Therefore, 

we address his arguments as to the stacking provisions only for 

plain error. Rodriguez, 398 F.3d at 1298. In that regard, the government’s position is correct as a matter of law because any error was 

not plain. Groendyke Transp., Inc., 406 F.2d at 1162. Specifically, no 

binding decisions have held that the provision applies retroactively, 

3 U.S. Sentencing Commission, Adopted Amendments (Effective November 

1, 2023), https://www.ussc.gov/guidelines/amendments/adopted-amendments-effective-november-1-2023.

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and based on the version of the Guidelines in effect at the time of 

the motion and district court order, Bryant precluded relief. Kushmaul, 984 F.3d at 1363; Bryant, 996 F.3d at 1262–65.

Accordingly, because the government’s position is clearly 

correct as a matter of law, we GRANT the government’s motion 

for summary affirmance. 

AFFIRMED. 

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