UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MEGA LESTARI SETIYANINGSIH, Defendant - Appellant. No. 23-8085 (D.C. No. 1:19-CR -00198-NDF-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Mega Setiyaningsih, a federal prisoner pr oceeding pro se, app eals the district court’s order denying her motion to reconsider its previous denial of compassionate release. 1 Because the district court did not a buse its discretion in determining that Setiyaningsih failed to pr offer previously unavailabl e evidence, we affirm.

* After examining the brief and appellate record, this pane l has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Setiy aningsih’s pro se filings. See United States v. Davis , 339 F.3d 1223, 1225 (1 0th Cir. 2003). FILED United States Court of Appeals Tenth Circuit 

### April 22, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 12 Background In June 2020, Setiyaningsih pleaded guilty to possessing methamphetamine with intent to distribute and possessing a fir earm in furtherance of drug trafficking. In accordance with the pl ea agreement, the district cour t sentenced Setiyaningsih to 180 months in prison (120 months on the drug count and 60 months on the gun count, to be served consecutively) and five years of supervis ed release. In October 2021, Setiyaningsih filed he r first pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), c iting a wide range of preexisting medical conditions, inadequate medical care, and the threat posed by the COVID-19 pandemic. The district court denied the mo tion after determining that the 18 U.S.C. § 3553(a) sentencing factors weighed against a sentence re duction, and we affirmed. United States v. Setiyaningsih , No. 21-8093, 2022 WL 21600 01, at *2 (10th Cir. June 15, 2022) (unpublished). In August 2023, Setiyaningsih filed a second pro se motion for compassionate release. This time, in a ddition to citing her various medical conditions and the prison’s allegedly inadequate medical care, Setiyaningsih asked to serve the rest of her sentence through home confin ement so that she could be reunited with her threeyear-old daughter, to whom she gave birth s hortly after she was sentenced in 2020, as well as her 17-year-old son. Setiyaningsih also asked the court to consider her rehabilitative efforts, incl uding her newfound religious fa ith, remorse for her crimes, and commitment to education. Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 23 Ruling on this second motion, the district court focused on whether Setiyaningsih had established extraordin ary and compelling reasons warranting a sentence reduction under § 3582(c)(1)(A). Regarding Setiyaningsih’s family circumstances, the district c ourt concluded that her sepa ration from her children was the “usual product of a parent’s incarcer ation” and that she had not shown her children’s current care was in adequate. R. vol. 1, 66. In addition, the district court determined that Setiyaningsih ’s medical records did not support her allegations about her medical conditions and th at her allegations of inad equate medical care were wholly unsupported. Accordingly, the dist rict court denied Se tiyaningsih’s second motion for compassionate release. Shortly thereafter, Setiyaningsih file d a motion for rec onsideration that attached a letter she had r eceived from her daughter’s car egiver. The caregiver wrote that because she had stopped working due to her health and age, she was behind on her mortgage and other bi lls and would be unable to continue caring for Setiyaningsih’s daughter. The district c ourt denied the motion, ruling that the caregiver’s financial diffi culties did not constitute new evidence warranting reconsideration because Setiyaningsih fail ed to “explain how this information was previously unavailable to her.” Id. at 81. Setiyaningsih appeals. Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 34 Analysis Setiyaningsih argues that th e district court erred in denying her reconsideration motion. 2 Our review is for abuse of discretion. United States v. Randall , 666 F.3d 1238, 1241 (10th Cir. 2011). “A district court abus es its discretion only where it (1) commits legal error, (2) relies on clear ly erroneous factual findings, or (3) where no rational basis exists in the evidence to support its ruling.” United States v. Alfred , 982 F.3d 1273, 1279 (10t h Cir. 2020) (quoting United States v. A.S. , 939 F.3d 1063, 1070 (10th Cir. 2019)). On the other hand, “[a] district court does not abuse its discretion if its ruling ‘falls within th e bounds of permissible choice in the circumstances and is not arbitrar y, capricious, or whimsical.’” United States v. Armajo , 38 F.4th 80, 84 (10th Cir. 2022) (quoting United States v. Gutierrez de Lopez , 761 F.3d 1123, 1132 (1 0th Cir. 2014)). Setiyaningsih first contends , on a procedural note, that the district court erred by construing her reconsiderat ion motion as a motion for re lief from judgment under Federal Rule of Civil Proce dure 60(b). But we have expre ssly “imported the standard

2 For two reasons, we limit our review in this appeal to the order denying reconsideration and do not reach the underlyi ng order denying compassionate release. First, Setiyaningsih’s notice of appeal lists only the order denying reconsideration. See Fed. R. App. P. 3(c)(1)(B) (stating that notice of appeal mu st “designate the judgment—or the appealable order—fro m which the appeal is taken”); Gonzalez v. Thaler , 565 U.S. 134, 147 (2012) (“Rule 3’s dict ates are jurisdicti onal in nature.” (quoting Smith v. Barry , 502 U.S. 244, 248 (1992))). Second, despite mentioning the underlying order in passi ng, Setiyaningsih’s appellat e brief raises arguments exclusively directed at the di strict court’s denial of he r motion for reconsideration. See SCO Grp., Inc. v. Novell, Inc. , 578 F.3d 1201, 1226 (10th Cir. 2009) (“An issue or argument insufficiently raised in a part y’s opening brief is deemed waived.”). Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 45 from [Rule 60(b)] to decide motions for rec onsideration” in crim inal cases, so the district court did not err on this point. United States v. Warren , 22 F.4th 917, 927 (10th Cir. 2022). Setiya ningsih also inaccurate ly suggests that the district court erred by dismissing her motion as untimely. To be sure, the district c ourt noted that she filed her motion outside the 28-day deadlin e for reconsideration motions in civil

cases. See Fed. R. Civ. P. 59(e). But that conc lusion was irrelevant for two reasons. First, the civil deadline does not apply in this criminal case; in stead, reconsideration motions in criminal cases must be filed wi thin the time for filing a notice of appeal. See Randall , 666 F.3d at 1242. Second, the distri ct court drew no legal conclusions from this passing fact and did not deny Se tiyaningsih’s reconsideration motion as untimely. Turning to the merits, a di strict court may grant rec onsideration when it “has misapprehended the facts, a party’s position, or the law.” Id. (quoting United States v. Christy , 739 F.3d 534, 539 (10th Cir. 2014)). “The speci fic grounds” for “granting such motions include ‘(1) an intervening change in th e controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.’” Id. (quoting Christy , 739 F.3d at 539). Setiyaningsih specifi cally contends that the distri ct court failed to liberally construe her reconsiderati on motion when it concluded that the letter from her daughter’s caregiver did not constitute previously unava ilable new evidence. She is correct that courts should liberally construe pro se filings, but “the party requesting [Rule 60(b)] relief . . . b ears the burden of showing th at relief is warranted.” Crow Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 56 Tribe of Indians v. Repsis , 74 F.4th 1208, 1216 (10th Ci r. 2023). Here, the district court concluded that Setiyaningsih failed to carry this burden b ecause the caregiver’s “difficulties stemming from health and age in meeting financial obligations, such as being behind on mortgage pa yments, cannot be presumed to have instantaneously arisen in such a short time si nce last judgment.” R. vol. 1, 81. And the district court noted that although Setiyaningsih “ state [ d ] that such informa tion was previously unavailable,” she did “not explain how this information was previously unavailable to her.” Id. (emphases added). The district court is co rrect that Setiyaningsih’s reconsideration motion lacks any explanation as to why she was previous ly unaware of the car egiver’s financial difficulties. Moreover, Setiyan ingsih appears to have offe red the letter to rebut the district court’s statement in the unde rlying order that th ere was no indication Setiyaningsih’s children were receiving inadequate care. And “[a] motion to reconsider is not a second ch ance for the losing party to make its strongest case or to dress up arguments that previously failed.” Warren , 22 F.4th at 927 (alteration in original) (quoting United States v. Huff , 782 F.3d 1221, 1224 (10th Cir. 2015)). Further, the letter contains repeated references to video calls between Setiyaningsih and the caregiver , and Setiyaningsih’s appella te brief states that the caregiver “repeatedly informed [her] that God would provide.” Aplt. Br. 4 n.2. This demonstrates that Setiyaningsih was eith er aware of the ca regiver’s financial difficulties when she moved for compassionate release or could have ascertained such information using reasonable diligence. See Fed. R. Civ. P. 60(b)(2) (providing Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 67 for relief from judgment based on “newly discovered evidence th at, with reasonable diligence, could not have b een discovered” any earlier); Dronsejko v. Thornton , 632 F.3d 658, 672 (10th Cir. 2011) (affirming denial of Rule 60(b) relief because movants “never adequately explained w hy they could not ha ve discovered the [allegedly new] evidence . . . had they exercised due dilig ence”). Thus, the district court did not abuse its discretion in concl uding that Setiyaningsih ’s newly proffered evidence of the caregiver’s financial hardsh ip did not justify reconsideration because the evidence was not “previously unavailable.” 3 Warren , 22 F.4th at 927 (quoting Christy , 739 F.3d at 539).
Conclusion Because the district court did not a buse its discretion in determining that evidence of the caregiver’s financial hard ship was not previously unavailable, we affirm the order denyi ng reconsideration.

Entered for the Court
Nancy L. Moritz Circuit Judge

3 Having concluded that th e district court was under no obligation to consider the caregiver’s letter , we likewise reject Setiyaningsih ’s additional argument that the district court erred by failing to determine that the letter established an extraordinary and compelling reason for co mpassionate release. Appellate Case: 23-8085 Document: 010111035603 Date Filed: 04/22/2024 Page: 7