[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-12636

Non-Argument Calendar

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D.C. Docket No. 9:12-cr-80151-DMM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

FRANK JOSEPH SMITH, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 21, 2021)

Before JORDAN, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

Frank Smith, who is serving a 240-month sentence for producing child 

pornography, appeals pro se the district court’s denial of his motion for 

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compassionate release under Section 603 of the First Step Act of 2018, Pub. L. 115-

391, 132 Stat. 5194 (“First Step Act”) and 18 U.S.C. § 3582(c)(1)(A). He argues 

that the district court abused its discretion in finding that his age of 67 and underlying 

medical conditions were not extraordinary and compelling circumstances in light of 

the COVID-19 pandemic and its impact on his prison facility.1

We review de novo whether a district court had the authority to modify a term 

of imprisonment under § 404 of the First Step Act. United States v. Jones, 962 F.3d 

1290, 1296 (11th Cir. 2020). And we review for abuse of discretion the denial of an 

eligible movant’s request for a reduced sentence under § 404. Id. 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). We

liberally construe the pleadings of pro se litigants. Tannenbaum v. United States, 

148 F.3d 1262, 1263 (11th Cir. 1998).

In 2018, Congress enacted the First Step Act, which, in part, amended 18 

U.S.C. § 3582(c)(1)(A) to increase the use and transparency of compassionate 

release of federal prisoners. See First Step Act § 603. The statute provides that a 

1 Smith appears to suffer from hypertension and claims to have suffered two strokes, two 

spinal fusions, and melanoma.

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“court may not modify a term of imprisonment once it has been imposed” except 

under certain circumstances and further provides:

[T]he court, upon motion of the Director of the Bureau of Prisons, or 

upon motion of the defendant after the defendant has fully exhausted 

all administrative rights to appeal a failure of the Bureau of Prisons 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 . . . if it finds 

that extraordinary and compelling reasons warrant such a reduction.

18 U.S.C. § 3582(c)(1)(A). Section 3582(c)(1)(A) also requires that any reduction 

be consistent with applicable policy statements issued by the sentencing 

commission. Id. Prior to the First Step Act, a district court could grant a sentence

reduction under § 3582(c)(1)(A) only upon a motion by the Federal Bureau of 

Prisons (“BOP”) Director. See First Step Act § 603(b). 

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

§ 1B1.13, which provides that the court may reduce a term of imprisonment “if, after 

considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are 

applicable,” it finds, in relevant part, that extraordinary and compelling reasons 

warrant the reduction. The court must determine 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. 

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§ 3142(g), before it can determine whether extraordinary and compelling reasons 

exist. See U.S.S.G. § 1B1.13; id., comment. (n.1).2

A defendant’s medical condition and age are possible “extraordinary and 

compelling reasons” warranting a sentence reduction. Id. A defendant’s medical 

condition may warrant a sentence reduction if, in relevant part, his ability to provide 

self-care in prison is substantially diminished and he is not expected to recover 

because of: (1) a serious physical or mental condition; (2) a serious functional or 

cognitive impairment; or (3) deteriorating physical or mental health because of the 

aging process. Id., comment. (n.1(A(ii))). A prisoner’s age may be an extraordinary 

or compelling reason if he: (1) is at least 65 years old; (2) is experiencing a serious 

deterioration in physical or mental health because of the aging process; and (3) has 

served at least 10 years or 75 percent of his term, whichever is less. Id., comment. 

(n.1(B)). The commentary also provides that a prisoner may be eligible for a 

sentence reduction if, “[a]s determined by the Director of the Bureau of Prisons, 

there exists in the defendant’s case an extraordinary and compelling reason other 

than, or in combination with,” the other specific examples listed. Id., comment. 

(n.1(D)).

2 This Court has yet to decide in a published opinion whether a district court is required 

to consider or apply USSG § 1B1.13, comment. (n.1) in addressing a motion for compassionate 

release under the First Step Act and 18 U.S.C. § 3582(c).

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A district court must explain its sentencing decisions sufficiently to allow for 

meaningful appellate review. Gall v. United States, 552 U.S. 38, 50 (2007). Where 

consideration of the 18 U.S.C. § 3553(a) factors is mandatory, it is not necessary for 

the district court to state on the record that it has explicitly considered each of the 

§ 3553(a) factors or to discuss each of them. United States v. Kuhlman, 711 F.3d 

1321, 1326 (11th Cir. 2013). Rather, the district court’s acknowledgment that it 

considered the § 3553(a) factors and the parties’ arguments is sufficient. United 

States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).

In Chavez-Meza v. United States, the Supreme Court addressed a district 

court’s order reducing a movant’s sentence under 18 U.S.C. § 3582(c)(2) using an 

administrative form stating that it considered the motion, the § 3553(a) factors, and 

the relevant policy statement. 138 S. Ct. 1959, 1964-65 (2018). Noting the 

simplicity of the petitioner’s case and that all the proceedings involved the same 

judge, the Supreme Court held that the record as a whole, including prior sentencing 

proceedings, satisfied it that the judge considered the parties’ arguments and had “a 

reasoned basis for exercising his own legal decisionmaking authority,” rendering the 

minimal order sufficient. Id. at 1967-68 (quotation marks omitted).

Conversely, in United States v. Johnson, we held that a district court’s denial 

of a motion for early termination of supervised release under § 3583(e)(1) was an 

abuse of discretion because neither its summary order nor the record indicated the 

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basis for its denial. 877 F.3d 993, 1000 (11th Cir. 2017). There, the district court, 

without requesting a government response and providing “no explanation 

whatsoever” for its decision, denied Johnson’s motion in a paperless docket entry. 

Id. at 996. We noted, in response to the government’s argument that the same district 

judge presided over Johnson’s initial trial and sentencing proceedings, that the 

district court did not anywhere indicate that it reviewed Johnson’s trial or sentencing 

record. Id. at 998-99. We explained that affirming the district court’s order would 

not promote meaningful appellate review. Id. at 999-1000.

The district court’s reasoning for its decision is not clear from either its order 

or the record, which precludes meaningful appellate review as to whether it abused 

its discretion. See Gall, 552 U.S. at 50; Johnson, 877 F.3d at 999-1000. The court 

simply stated that Smith failed to establish extraordinary or compelling 

circumstances without any explanation as to whether it determined that U.S.S.G. 

§ 1B1.13’s commentary did not allow it to grant Smith’s motion for the reasons he 

gave or because it determined that Smith’s specific circumstances were not 

extraordinary and compelling. Instead, the district court merely stated that it 

reviewed Smith’s motion and noted, without elaboration, that he could not establish 

extraordinary and compelling circumstances “in light of his offense.” Nor is it clear 

from the district court’s order whether it considered any specific arguments. See 

Chavez-Meza, 138 S. Ct. at 1967-68; Johnson, 877 F.3d at 996, 998-99.

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Accordingly, we vacate the district court’s order and remand for clarification 

as to the basis for its denial of compassionate release.

VACATED AND REMANDED.

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