UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. JOSHUA J. TINSLEY,
De fendant - Appellant. Nos. 21-2057 & 21-2075 (D.C. No. 1:18- CR-02634-WJ-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BRISCOE , and ROSSMAN , Circuit Judges.

________________ _________________ This appeal grew ou t of Mr. Joshua Ti nsley’s motion for compassionate release. Th e district court denied the motion and a later motion for reconsideration. Mr. Tinsle y appeals the denial of his motion for reconsideration, and we affirm.

* Oral argument would not help us decide the appeal, so we have decided the appeal ba sed on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### March 25, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 12 1. We have jurisdiction and exercise it. The threshold issue involves our ju risdiction. This issue arises because Mr. Tinsley missed the 14-day deadline to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A). The distri ct court denied an extension of time, prompting

 the government to move for dismissal and

 Mr. Tinsley to appeal the deni al of an extension of time. But the government has wi thdrawn its motion to dismiss the appeal, and the failure to timely a ppeal does not create a jurisdictional defect. United States v. Randall , 666 F.3d 1238, 1241 (10th Cir. 2011). Though jurisdiction ex ists, we can dismiss the appeal when the government presse s the delay. Id. But we generally do not dismiss the appeal in the absence of a motion to dismiss. See id. (stating that dismissal of a criminal appeal as untimely generally requ ires the gov ernment to assert the delay as a ground for dismissal). Be cause the government has withdrawn its motion to dismiss, we exercise our jurisdiction. Given this exercise of jurisdiction, the district court’s denial of an extension makes no differe nce, rendering the denial prudentially moot. So we dismiss Mr. Tinsley’s appeal from the denial of an extension of time (Case No. 21-2075). Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 23 2. The district court declines to reconsider its denial of compassionate release. Mr. Tinsley was convic ted of possessing mo re than 500 grams of methamphetamine with intent to di stribute. The conv iction carried a mandatory mi nimum of 120 months, and the guideline range was 324 to 405 months’ imprisonment. Despite the stiff guid eline range, the court sentenced Mr. Tinsley to only 120 months—a downward variance of 204 months. Months after sentencing, a global outbreak of COVID-19 emerged. The emergence of COVID-19 led Mr. Tinsley to move for compassionate release on two grounds:
1. He had sleep apnea, which made him susceptible to serious physical harm from COVID-19.
2. His girlfriend’s son ha d a degenerative bone condition, and the girlfriend had trouble caring fo r the boy and paying for a required operation. The district court denied the mo tion for compassionate release, reasoning that

 Mr. Tinsley’s reasons were not extraordinary and compelling,

 he continued to pose a danger to the public, and

 the statutory sentencing factors weighed against early release. Mr. Tinsley sought reconsideration and presente d extensive ev idence of sleep apnea. The cour t denied the motion fo r reconsideration. Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 34 3. The denial of reconsideration fell within the district court’s discretion. In considering the denial of recons ideration, we apply the abuse-ofdiscretion standard. United States v. Warren , 22 F.4th 917, 927 (10th Cir. 2022). The district court coul d grant reconsideration if

 the controlling law had changed,

 Mr. Tinsley had discovered new evidence, or

 the court had needed to correct a clear error or prevent manifest injustice. Id. We consider the availa bility of reconsideratio n against the backdrop of the standard for co mpassionate release. See 18 U.S.C. § 3582(c)(1)(A). Under this standard, co mpassionate release is available on ly upon the satisfaction of th ree requirements:
1. The defendant has pr esented an extraordinary and compelling reason for early release.
2. Early release would be consis tent with th e Sentencing Commission’s policy statements.
3. Early release would be wa rranted under th e statutory sentencing factors. United States v. McGee , 992 F.3d 1035, 1042 (10th Cir. 2021). The failure to satisfy any of these requiremen ts would prevent early release. United States v. Hald , 8 F.4th 932, 941–47 (10th Cir. 2021). Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 45 Consideration of these requirements is discretionary in two respects. First, we apply the abuse–of–discretion standard to rulings on compassionate release. United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021). Second, irrespecti ve of the standa rd in ruling on compassionate release, we review ru lings on reconsideration only for an abuse of discretion. United States v. Randall , 666 F.3d 1238 , 1241 (10th Cir. 2011). For these reas ons, we apply the abuse–of –discretion standard to the district court’s refusal to recons ider the denial of early release. United
States v. Warren , 22 F.4th 917, 927 (10th Cir. 2022). In denying reconsideration, the district court concluded that Mr. Tinsley had failed to satisfy any of the three requirements. We agree as to the first and third requir ements: (1) the failure to show extraordinary, compelling reasons for early release an d (2) the failure to justify early release based on the stat utory sentencing factors. 1 In our view, the district court did not abuse its discretion in de clining to reconsider the conclusions as to these two requirements. When ruling on the motion for early rel ease, the district court concluded that Mr. Tinsley’s reas ons for early re lease were not extraordinary and compelling. Mr. Tinsley had argued that (1) he was suffering from sleep apnea, rendering him vulnerable to complications if

1 We need not address the second requirement. Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 56 he were to catch COVID-19, and (2) ea rly release was necessary for him to help his girlfriend care for her son, wh o had a degenerative bone condition. The district court concluded that thes e reasons were not extraordinary and compelling for two reasons:
1. Sleep apnea: Mr. Tinsley had relied on a possible impediment to his ability to car e for himself—not a current, substantial diminution in hi s ability to provide self–care. In addition, Mr. Tinsley had not provided do cumentary evidence of his diagnosis with sleep apnea.
2. The bone condition of the girlfriend’s son: The girlfriend was not a spouse or regi stered partner, Mr. Tinsley had not shown an inability of the girlfriend to care for her son, and Mr. Tinsley had committe d many offenses—riski ng separation from the boy—knowing of the boy ’s bone condition. When moving for reconsideration, Mr. Tinsley provided extensive documentation of his diagnos is with sleep apnea, ar gued that the district court had understated the ex tent of COVID-19 infections at his prison, and denied the existence of a requiremen t that he be marri ed to the boy’s primary caregiver. The district cour t rejected these arguments, concluding that

 it had not underestimate d the extent of COVID-19 infections at Mr. Tinsley’s prison,

 little information existe d on the impact of sleep apnea on Mr. Tinsley’s ability to provide self-care, and

 he had failed to show that he was the boy’s pr imary caregiver. These conclusions fell within th e district court’s discretion. Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 67 Mr. Tinsley’s new evidence did not suggest a failure to recognize the extent of COVID-19 infections . The court pointed out that

 all of the COVID-19 cases at the prison had affected staff members and

 no inmate had been in fected by COVID-19. Nor did the new evidence affect th e district court’s consideration of sleep apnea. Mr. Tinsley presented exte nsive evidence of sleep apnea, but he did not show how it had affected his ability to pr ovide self-care. Finally, Mr. Tinsley did not justify reconsideration of the analysis involving the boy’s bone condition. The cour t had not questioned Mr. Tinsley’s concern for the boy. But the court had explained that

 the girlfriend appeared able to care fo r the boy and

 Mr. Tinsley committe d many crimes, risking separation from the boy, with knowledge of the boy’s bon e condition. Mr. Tinsley presents no reas on to question the district court’s explanation. Though Mr. Tinsley does not address the district court’s explanation, he argues on appeal that he was obese, increasing the risk of complications from COVID-19. But he did not ra ise obesity when moving for compassionate release or when seeking reconsid eration. By omitting reliance on obesity in th ose motions, he forfeited reliance on his obesity. See United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019). 2

2 We typically consider forfeited arguments under the plain-error standard. Leffler , 942 F.3d at 1196. But Mr. Tinsley ha s not argued for Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 78 Even if Mr. Tinsley had undermine d the finding of no extraordinary or compelling reasons for early releas e, the court indepe ndently relied on the statutory sentencing factors. Mr. Tinsley had downplayed the seriousness of prior ma rijuana convictions, argu ed that he had selfmedicated with marijuana, and alleged racial targeting. In rejecting these arguments, the court reasoned that Mr. Tinsley had “a clear history of unlawfulness” and had already reduced his se ntence exposure to the methamphetamine charge through his plea agreem ent. R. at 134. Mr. Tinsley does not address the district court’s reasoning, and that reasoning fell within the cour t’s discretion.
4. Conclusion The district court acted within its discretion when denying Mr. Tinsley’s motion for reconsideration. So we affirm the denial of reconsideration. We also grant Mr. Tinsley’s motion to proceed in forma pauperis and deny as moot hi s motion for an emergency ruling.

Entered for the Court

Robert E. Bacharach Circuit Judge

plain error. So we do not consider the possibility of plain error. Id. at 1196, 1199–1200. Appellate Case: 21-2057 Document: 010110662658 Date Filed: 03/25/2022 Page: 8