[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-12971

Non-Argument Calendar

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D.C. Docket No. 1:84-cr-00499-JIC-3

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

ROBERTO LUIS RENE MARTINEZ, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 9, 2021)

Before MARTIN, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Roberto Martinez, 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 amended 

by § 603(b) of the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First 

Step Act”), and his subsequent motion for reconsideration. He argues that the 

district court erred in denying his motion for compassionate release because it was 

not bound by the policy statement from U.S.S.G. § 1B1.13, his medical history 

made him more vulnerable to COVID-19, and it placed improper weight on his 

36-year-old attempted murder conviction. He also argues that the district court 

erred in denying reconsideration because he was not told when his reply to the 

government’s response was due and the district court could not have fully 

considered his reply and its exhibits when it denied his motion for reconsideration 

the day after the motion was filed. Finally, he argues that the district court violated 

the prison mailbox rule because the docket shows the dates for when his filings 

were entered and not when they were mailed.1

We review for abuse of discretion the district court’s denial of a prisoner’s 

18 U.S.C. § 3582(c)(1)(A) motion, United States v. Harris, 989 F.3d 908, 911 

(11th Cir. 2021), and the denial of a motion for reconsideration, United States v. 

1 Martinez has moved for the appointment of counsel. Because he lacks a statutory or 

constitutional right to counsel in this proceeding, United States v. Webb, 565 F.3d 789, 794-95 

(11th Cir. 2009), and as this appeal is relatively straightforward, the interests of justice do not 

require that he be appointed counsel, id. at 795 n.4; 18 U.S.C. § 3006A(a)(2). Therefore, his 

motion is DENIED.

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Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). A district court abuses its 

discretion if it applies an incorrect legal standard, follows improper procedures in 

making the determination, or makes findings of fact that are clearly erroneous. 

United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). Abuse of discretion 

is a deferential standard of review, under which we will affirm even in situations 

where we would have made a different decision had we been in the district court’s 

position. United States v. Frazier, 387 F.3d. 1244, 1259 (11th Cir. 2004) (en 

banc). We will liberally construe pro se filings. United States v. Webb, 565 F.3d 

789, 792 (11th Cir. 2009).

“[A] motion for reconsideration of a district court order in a criminal action 

is not expressly authorized by the Federal Rules of Criminal Procedure.” United 

States v. Vicaria, 963 F.2d 1412, 1413 (11th Cir. 1992); see also United States v. 

Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (explaining that, in a proceeding to 

challenge a sentence under 18 U.S.C. § 3582(c)(2), a defendant could not file a 

motion for reconsideration based on Fed. R. Civ. P. 60(b)(4)). In civil cases, a 

party cannot use a motion for reconsideration “to relitigate old matters, raise 

argument or present evidence that could have been raised prior to the entry of 

judgment.” Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 

2005).

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It is well established that a district court has no inherent authority to modify 

a defendant’s sentence and may do so “only when authorized by a statute or rule.” 

United States v. Puentes, 803 F.3d 597, 605-06 (11th Cir. 2015). Prior to the First 

Step Act, 18 U.S.C. § 3582(c)(1)(A) allowed the district court to reduce a 

prisoner’s term of imprisonment upon motion of the Director of the Bureau of 

Prisons (“BOP”), after considering the factors set forth in 18 U.S.C. § 3553(a), if it 

found that extraordinary and compelling reasons warranted such a reduction. 18 

U.S.C. § 3582(c)(1)(A) (effective Nov. 2, 2002, to Dec. 20, 2018). The First Step 

Act 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 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. See First 

Step Act § 603; 18 U.S.C. § 3582(c)(1)(A). We have clarified that exhaustion is a 

non-jurisdictional claims-processing rule. Harris, 989 F.3d at 911. The district 

court must find that extraordinary and compelling reasons warrant such a 

reduction, consider the § 3553(a) factors “to the extent that they are applicable,” 

and find that a reduction is consistent with applicable policy statements issued by 

the Sentencing Commission. First Step Act § 603; 18 U.S.C. § 3582(c)(1)(A).

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The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G. 

§ 1B1.13, which, notably, has not been amended since the First Step Act was 

passed and refers only to a sentence reduction upon a motion from the BOP 

Director. See U.S.S.G. § 1B1.13. The 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 

id. § 1B1.13 & comment. (n.1). The policy statements list four circumstances 

which may constitute extraordinary and compelling reasons: (1) a prisoner’s 

medical condition, if he has a terminal disease or is suffering from a physical or 

mental condition that diminishes his ability to provide self-care in prison; (2) a 

prisoner’s age, if he is at least 65 years old, is experiencing a significant decline in 

health because of his age, and has served at least 10 years or 75 percent of his 

term; (3) if a prisoner becomes the only potential caregiver for a minor child or 

spouse; and (4) if, “[a]s determined by the Director of the BOP, there exists in the 

defendant’s case an extraordinary and compelling reason other than, or in 

combination with,” the other three reasons. See id.

We recently determined that § 1B1.13 is still an applicable policy statement 

that must be considered when a defendant moves for compassionate release. 

United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. May 7, 2021). Thus, 

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“district courts may not reduce a sentence under Section 3582(c)(1)(A) unless a 

reduction would be consistent with [§] 1B1.13.” Id. As for § 1B1.13’s catch-all 

provision, we determined that we “cannot replace the phrase ‘[a]s determined by 

the Director of the [BOP]’ with ‘as determined by a district court,’” and 

accordingly, courts may not “develop ‘other reasons’ that might justify a reduction 

in a defendant’s sentence.” Id. at 1263.

In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), a 

defendant “must be given notice of and an opportunity to contest new information 

relied on by the district court.” United States v. Jules, 595 F.3d 1239, 1245 (11th 

Cir. 2010). “Under the prison mailbox rule, a pro se prisoner’s court filing is 

deemed filed on the date it is delivered to prison authorities for mailing.” United 

States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (quotation marks omitted), 

abrogated on other grounds by Amendment 780. Some district court errors may 

be harmless. Fed. R. Crim. P. 52(a).

The district court did not abuse its discretion when it denied Martinez’s 

motion for compassionate release because it lacked authority to grant the motion. 

As we determined in Bryant, the district court was bound by the policy statement 

from § 1B1.13. Martinez did not establish that he was eligible under § 1B1.13’s 

first three circumstances, because there was no evidence that he suffered from a 

terminal disease, lacked the ability to self-care, had a significant decline in health 

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because of his age, or was the only caregiver for a minor child or spouse. The 

district court was without authority to apply the catchall provision by itself. Thus, 

the district court did not misapply the law or otherwise abuse its discretion. 

Because the district court acted properly under § 1B1.13, we need not address its 

alternative reasons for denying the motion.2

As to the remaining issues, Martinez incorrectly argues that the district court 

erred by not telling him when his reply was due and by not giving his reply enough 

weight. Martinez was only entitled to contest new information that the district 

court relied on, but the government did not provide any new information in its 

response, and the information that the district court did rely on when denying the 

motion was from Martinez’s motion or the previously-existing presentence 

investigation report. Therefore, the district court did not misapply any legal 

standards by denying his motion without originally considering his reply.

Further, the district court stated that it had reviewed Martinez’s reply, found 

that it did not justify reconsideration, and treated it as if it had been timely filed, 

rendering any potential error harmless. Contrary to Martinez’s argument, there is 

no requirement that the district court must wait a certain period of time before 

2 We do not consider the medical records that Martinez submitted with his reply brief 

because they are not in the appellate record. See United States v. Trader, 981 F.3d 961, 969 

(11th Cir. 2020) (noting that we generally will not consider evidence that is not part of the 

record).

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ruling on a motion, so the fact that the district court denied his motion to 

reconsider the day after receiving it is immaterial, especially when it is clear that 

the district court did consider his arguments and exhibits. In any event, Martinez 

failed to explain why he did not submit the exhibits from his reply, which were all 

previously available, along with his original motion, so the district court did not 

abuse its discretion in denying reconsideration. Finally, to the extent that Martinez 

has argued that the district court violated the prison mailbox rule, other than his 

reply, which he acknowledges was untimely, timeliness was never at issue. Thus, 

any error would be harmless.

Accordingly, we affirm.

AFFIRMED.

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