[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22

- 13204

Non

- Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus
JOSHUA BLAKE WISE,

Defendant

- Appellant.

____________________ Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:15

- cr

- 00300

- WS

- N

- 1

____________________ USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 1 of 102 Opinion of the Court 22

- 13204

Before W ILSON , B RANCH , and L UCK , Circuit Judges.

PER CURIAM:
Joshua W ise, a federal prisoner proceeding pro se , appeals the
district court’s denial of his motion for reconsideration of its denial
of Wise’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), as amended by § 603(b) of the First Step Act. 1 The government, in turn, moves to dismiss the appeal as untimely or, alternatively, for summary affirmance and to stay the briefing. After careful review, we deny the government’s motion to dismiss as untimely, grant its motion for summary affirmance, and deny as moot its motion to stay the briefing schedule.

I. Background In 2015, a federal grand jury indicted Wise on three counts of drug

- related offenses. In 2018, he was sentenced to 84 months’ imprisonment to be followed by five years of supervised release

. In 2022, Wise filed a pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Citing decisions from other circuits, he argued that the district court could consider “other factors” as extraordinary and compel ling reasons for compassionate release under U.S.S.G. § 1B1.13. He asserted that his mental health issues, including ADHD, bipolar disorder, and severe anxiety, put him at greater risk of neurological and mental complications associated with a COVID

- 19 in fection, which is

1 Pub. L. No. 115

- 391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”). USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 2 of 1022

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more likely to occur in a prison environment. He also stated that
he had been denied a particular drug treatment, which was recommended at sentencing, because of an error in his presentence investigation report (“PSI”) stating that he wa s “sober from meth
since 2009.” Wise listed six non

- medical issues that he felt were extraordinary and compelling reasons for compassionate release: (1) his indictment was duplicitous because the three counts charged the same crime three times; (2) his federal sentence r a n consecutive to his “discharged state sentence” because the district court “never expressly ordered it not to run concurrent” and his counsel did not raise the issue; (3) the district court applied the wrong base offense
level in determ ining his sentence; (4) he substantially cooperated with the government; (5) his father was assaulted and battered by marshals during Wise’s period of undercover work for the government; and (6) the B ureau of Prisons (“BOP”) had refused to
credit him with time served despite the sentencing judge’s
statement that he would be entitled to it. Finally, he argued that the sentencing factors in 18 U.S.C. § 3553(a) favored his release.
On June 29, 2022, the district court denied the motion without ordering the government to respond. It found that Wise failed to establish extraordinary and compelling circumstances
because he did not assert that he had a terminal illness or that his medical conditions interfered with his ability to provide self

- care in prison. T he district court then found that his six non

- medical
reasons did not fall within the Sentencing Guidelines’ policy

statement, see U.S.S.G. § 1B1.13, so they could not support a finding of extraordinary and compelling reasons for compassionate release. USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 3 of 104 Opinion of the Court 22

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Th e court finally noted that, because Wise failed to establish that extraordinary and compelling reasons existed, it did not need to address either the § 3553(a) factors or relevant policy statements.
Wise moved for reconsideration of the order, which he

a sserted was placed in the mail on July 22, 2022. He argued that the district court failed to analyze the 18 U.S.C. § 3553(a) factors and improperly applied or ignored the rules governing compassionate release. He reasserted his contention that district

c ourts have discretion to define “other reasons” under U.S.S.G. §

1B1.13. He alleged that the court applied its personal opinion
rather than the relevant facts and law. He also alleged that the district court had never approved a motion for compassionate release and asked that, if it had, the court provide him “the details of each recipient.” Finally, he repeated his arguments that his mental illness, his lack of drug abuse or mental health treatment in prison, and his other six non

- medical issues constit uted extraordinary and compelling circumstances.
On August 9, 2022, the district court denied the motion, finding that Wise “relie[d] on vituperation and his personal rejection of the governing legal principles, [ and ] identifie[d] no arguable error in th e [c]ourt’s analysis.”

Wise filed a pro se notice of appeal, which he placed in the mail on September 16, 2022. Wise designated for appeal the district court’s August 9 denial of reconsideration. On appeal, Wise argues
that the district court abused its discretion by ruling on his motion for compassionate release without the government’s opposition USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 4 of 1022

- 13204 Opinion of the Court 5

and ignoring his six extraordinary and compelling reasons, which he repeats here. As to the August 9 order, Wise argues that the
district court’s order did no t provide sufficient explanation to determine whether its ruling was based on the same grounds cited in its June order, and thus, to allow for meaningful appellate

review. The remainder of his arguments focus on the merits of his motion for compassionate release and the district court’s denial of
that motion. The government moved to dismiss the appeal as untimely
and for lack of jurisdiction and moved for summary affirmance of the district court’s denial of Wise’s motions for compassionate
release and reconsideration

. It argue s that the appeal is untimely as to both the district court’s order denying compassionate release and its order denying reconsideration, or alternativ ely, that summary affirmance is appropriate as a matter of law because the district court properly denied the motions. As to summary affirmance, the government first argues that the district court was not required to explain its decision adequately enough to allow for meaningful appellate review because that particular order was not a sentencing decision

. It further argues that, regardless, the court did sufficiently explain its rational because it stated that Wise failed to identify any arguable error in the court’s analysis. The government also moves to stay the briefing schedule pending the resolution of its motion and requests that, should we deny its motion, its motion be used as its responsive brief. USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 5 of 106 Opinion of the Court 22

- 13204

We granted the government’s motion to dismiss wit h respect to the district court’s June 29 order denying compassionate
release. As to the district court’s August 9 order denying reconsideration, we remanded the case to the district court for the limited purpose of determining whether Wise ha d shown

excu sable neglect or good cause warranting an extension of the appeal period. We deferred ruling on the government’s motion to dismiss the appeal as to the August 9 order and its alternative motion for summary affirmance pending the limited remand. Subsequen tly, the district court issued an order finding good cause for the late filing, extending the time for filing a notice of appeal, and deeming timely the appeal as to the denial of reconsideration.

II. Discussion Summary disposition is appropriate where “the po sition 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 . . . .” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). 2

We review the denial of a motion for reconsideration for
abuse of discretion. United States v. Simms , 385 F.3d 1347, 1356 (11th Cir. 2004). A district court abuses its discretion when it applies an incorrect legal standard or makes a clear error of

2 See Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that decisions of the former Fifth Circuit issued prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit). USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 6 of 1022

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judgm ent. Diveroli v. United States , 803 F.3d 1258, 1262 (11th Cir. 2015). Although motions for reconsideration of a district court order in a criminal action are not expressly authorized by the Federal Rules of Criminal Procedure, both “the Supreme Court
and this Court have permitted motions for reconsideration in
criminal cases

. . . . ” United States v. Phillips , 597 F.3d 1190, 1199 (11th Cir. 2010). “[T]here must be enough, in the record or the court’s order, to allow for meaningful appellate review” of a d istrict court’s sentencing decision. United States v. Johnson , 877 F.3d 993, 997 (11th Cir. 2017). When a court fails to explain its sentencing decision adequately enough to allow for meaningful appellate review, it
abuses its discretion. Id . “This pri nciple applies not only when a court imposes a sentence, but also when it determines whether or
not to reduce a defendant’s sentence.” Id. 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 Cir. 2021), cert. denied , 142 S. Ct. 583 (2021). Section 3582 (c) provides that:
[t]he court

. . . upon motion of the defendant after the
defendant

. . . may reduce the term of imprisonment

. . . after considering the factors set
forth in section 3553(a) to the extent that they are applicable

, if it finds that USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 7 of 108 Opinion of the Court 22

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(i) e xtraordinary and compelling reasons
warrant such a reduction

. . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission

. . . .
18 U.S.C. § 3582(c)(1)(A)(i).

Section 1B1.13 of the Sentencing Guide lines provides the applicable policy statement for § 3582(c)(1)(A). The application notes to § 1B1.13 list four categories of extraordinary and compelling reasons: (A) the defendant’s medical condition, (B) his age, (C) his family circumstances, and (D) o ther reasons. Id.

, comment. n.1(A)

– (D). The defendant’s medical condition qualifies as an extraordinary and compelling reason for compassionate release if he is “suffering from a serious physical or medical condition” that “substantially diminishes the a bility of the defendant to provide self

- care within the environment of a correctional facility and from which he or she is not expected to
recover.” Id. , comment. n.1(A). In addition to determining that extraordinary and compelling reasons warrant a redu ction, §
1B1.13 states that the district court must also determine that the defendant is not a danger to the safety of others or the community, as provided in 18 U.S.C. § 3142(g). Id. § 1B1.13(2). Notably, in Bryant , we held that, following the enactment of the First Step Act, § 1B1.13 continued to constrain a district court’s ability to evaluate whether extraordinary and compelling reasons were present and that “ Application Note 1(D) d oes not grant USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 8 of 1022

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discretion to cou rts to develop ‘other reasons’ that might justify a
reduction in a defendant’s sentence.” 996 F.3d at 1248.

“Under § 3582(c)(1)(A), the court must find that all necessary conditions are satisfied before it grants a reduction.” United States
v. Tinker , 14 F.4th 1234, 1237 (11th Cir. 2021). Accordingly, the absence of any one of the necessary conditions

— support in the 18 U.S.C. § 3553(a) factors, extraordinary and compelling reasons, and adherence to U.S.S.G. § 1B1.13’s policy statement

— forecloses a

senten ce reduction. Id. at 1237

– 38. Additionally, “ nothing on the
face of 18 U.S.C. § 3582(c)(1)(A) requires a court to conduct the compassionate

- release analysis in any particular order. ” Id. at 1237. Under the Federal Rules of Appellate Procedure, a crimina l defendant must file a notice of appeal in the district court within 14 days after the entry of the order being appealed , but the district court may grant an extension of time to file a notice of appeal not to exceed 30 days upon a finding of excusable ne glect or good

cause

. Fed. R. App. P. 4(b)(1)(A)

, 4(b)(4)

. Here, as an initial matter, the district court extended the time for filing a notice of appeal. Accordingly, Wise’s notice of appeal is timely as to the order denying his motion for reconsiderati on. As to summary affirmance, the government’s position is clearly right as a matter of law. First, the district court sufficiently explained its decision to deny the motion to reconsider. The court correctly stated that Wise had not identified any argua ble error in the court’s prior analysis. Second, it was not permitted to consider “other reasons” and was not required to analyze the § 3553(a) USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 9 of 1010 Opinion of the Court 22

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factors once it determined that Wise had not presented extraordinary and compelling circumstances. See Bryant

, 996 F. 3d
at 1248; Tinker , 14 F.4th at 1237

– 38, 1240. Moreover , contrary to Wise’s assertions, there is nothing to indicate that the district court abused its discretion by applying an incorrect legal standard in denying his motion for compassionate release, and the record is sufficient for meaningful appellate review. Johnson , 877 F.3d at 997

. Wise raises no other discernable arguments challenging the district court’s denial of reconsideration, so he has abandoned all
other arguments

. See United States v. Wright , 607 F.3d 708, 713 (11th Cir. 2010) (noting the “long standing rule that issues and contentions not raised in the initial brief are deemed abandoned”)

. Thus, the government is clearly right as a matter of law. Groendyke

, 406 F.2d at 1161

– 62.

III. Conclusion Accordingly, we DENY the government’s motion to dismiss as untimely , GRANT its motion for summary affirmance, and DENY as moot its motion to stay the briefing schedule and request
to construe its motion as its brief. USCA11 Case: 22-13204 Document: 17-1 Date Filed: 07/11/2023 Page: 10 of 10