USCA11 Case: 21-10416 Date Filed: 10/14/2021 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10416
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY JAY GOLDBERG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:13-cr-80082-KAM-1
____________________
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2 Opinion of the Court 21-10416
Before LAGOA, BRASHER, and MARCUS, Circuit Judges.
PER CURIAM:
Gary Goldberg, a federal prisoner proceeding pro se, appeals
the denial of his motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A), as amended by Section 603(b) of the First Step Act,
Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step
Act”). On appeal, Goldberg argues that the district court abused its
discretion when it denied his motion for compassionate release
based on its consideration of the relevant statutory factors and on
its finding that he posed a danger to the community. After careful
review, we affirm.
We review a district court’s denial of a prisoner’s §
3582(c)(1)(A) motion for abuse of discretion. United States v. Har-
ris, 989 F.3d 908, 911 (11th Cir. 2021). Abuse of discretion review
“means that the district court had a range of choice” and that we
“cannot reverse just because we might have come to a different
conclusion.” Id. at 912 (quotations omitted). A district court
abuses its discretion if it applies an incorrect legal standard, follows
improper procedures in making the determination, or makes
clearly erroneous factual findings. United States v. Barrington, 648
F.3d 1178, 1194 (11th Cir. 2011). We review de novo a district
court’s consideration of the 18 U.S.C. § 3142(g)(1) and (2) factors,
and we review for clear error its consideration the § 3142(g)(3) and
(4) factors. See United States v. Hurtado, 779 F.2d 1467, 1472 (11th
Cir. 1985).
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21-10416 Opinion of the Court 3
Pro se pleadings are held to a less stringent standard than
counseled pleadings and, therefore, are liberally construed. Tan-
nenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
Nevertheless, an appellant abandons a claim when he fails to
plainly and prominently raise it on appeal, or he makes it only by
passing reference or in a perfunctory manner without authority or
argument in support. United States v. Smith, 967 F.3d 1196, 1204
n.5 (11th Cir. 2020), cert. denied, No. 20-7404 (U.S. Apr. 19, 2021).
“To obtain reversal of a district court judgment that is based on
multiple, independent grounds, an appellant must convince us that
every stated ground for the judgment against him is incorrect.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014). If a party fails to challenge any one of those independent
grounds on appeal, he has abandoned any challenge on that
ground, and “it follows that the judgment is due to be affirmed.”
Id.
A district court has no inherent authority to modify a de-
fendant’s sentence and may do so “only when authorized by a stat-
ute or rule.” United States v. Puentes, 803 F.3d 597, 605-06 (11th
Cir. 2015). After the First Step Act, a district court may grant a
prisoner’s motion for compassionate release, “after considering the
factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are
applicable, if it finds that . . . extraordinary and compelling reasons
warrant such a reduction . . . and that such a reduction is consistent
with applicable policy statements issued by the Sentencing Com-
mission.” 18 U.S.C. § 3582(c)(1)(A).
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4 Opinion of the Court 21-10416
The policy statements applicable to § 3582(c)(1)(A) are
found in U.S.S.G. § 1B1.13. See U.S.S.G. § 1B1.13. Section 1B1.13
is applicable to all motions filed under § 3582(c)(1)(A), including
those filed by prisoners. United States v. Bryant, 996 F.3d 1243,
1251–62 (11th Cir.), petition for cert. filed, No. 20-1732 (U.S. June
10, 2021). Relevant here, a district court may not reduce a sentence
under § 1B1.13 unless a reduction would be consistent with §
1B1.13’s definition of “extraordinary and compelling reasons” and
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). U.S.S.G. § 1B1.13. According to the § 1B1.13 commen-
tary, extraordinary and compelling reasons may exist under certain
listed circumstances, including a defendant’s medical condition.
See id., cmt. (n.1). A prisoner’s medical condition may warrant a
sentence reduction if he (1) has a terminal disease, or (2) is suffering
from a physical or mental condition that diminishes his ability to
provide self-care in prison and from which he is not expected to
recover. Id., cmt. (n.1(A)). The commentary also contains a catch-
all provision for “other reasons,” which 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 com-
bination with,” the other specific examples listed. Id., cmt.
(n.1(D)).
In addition to determining whether a movant has offered ex-
traordinary and compelling reasons and whether a reduction or
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21-10416 Opinion of the Court 5
release would be consistent with the policy statement in § 1B1.13,
a district court must also consider “all applicable” § 3553(a) factors
when it grants or denies a motion for compassionate release.
United States v. Cook, 998 F.3d 1180, 1184 (11th Cir. 2021). 1 A
district court is not required to articulate its findings and reasonings
in great detail, but, when we consider a § 3582(c)(1)(A)(i) motion,
we “cannot engage in meaningful appellate review and must vacate
and remand” if the record does not reflect that the district court
considered the applicable factors. Id. at 1185–86 (quotations omit-
ted).
So, we’ve said that 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 the § 3553(a) factors. United
States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). Instead, a
sentence may be affirmed so long as the record indicates that the
district court considered a number of the factors. See United States
v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). “The weight given
1 Under § 3553(a), a district court’s sentence must be sufficient, but not greater
than necessary, to achieve the goals of sentencing, which are as follows: re-
flecting the seriousness of the offense, promoting respect for the law, provid-
ing just punishment, deterring future criminal conduct, protecting the public,
and providing the defendant with any needed training or treatment. 18 U.S.C.
§ 3553(a). Section 3553(a) also requires district courts to consider the nature
and circumstances of the offense, the defendant’s history and characteristics,
the kinds of sentences available, the Sentencing Guidelines, any pertinent pol-
icy statement, the need to avoid disparate sentences, and the need to provide
restitution to any victims. Id.
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6 Opinion of the Court 21-10416
to any specific § 3553(a) factor is committed to the sound discretion
of the district court.” United States v. Croteau, 819 F.3d 1293, 1309
(11th Cir. 2016). Even so, a district court abuses its discretion when
it (1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in con-
sidering the proper factors. United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc).
Under 18 U.S.C. § 3142(g), the court can consider numerous
factors in determining whether an individual is a danger to the
safety of any other persons or to the community, including the fol-
lowing: (1) the nature and circumstances of the offense; (2) the
weight of the evidence against the person; (3) the history and char-
acteristics of the person; and (4) the nature and seriousness of the
danger to any person of the community that would be posed by
the person’s release. 18 U.S.C. § 3142(g). A defendant may pose a
danger to the community not only through physical violence, but
also if he might engage in criminal activity detrimental to the com-
munity. United States v. King, 849 F.2d 485, 487 n.2 (11th Cir 1988).
Here, Goldberg is currently serving a sentence of 156
months’ imprisonment after pleading guilty, in 2013, to one count
of enticing a minor to engage in sexual activity, in violation of 18
U.S.C. § 2422(b). According to the unobjected-to facts in Gold-
berg’s presentence investigation report (“PSI”), his offense in-
volved his use of the promise of money and other items to entice
and exploit two minor girls into permitting him to take
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21-10416 Opinion of the Court 7
photographs of them exposing their breasts, buttocks, and genitals.
Goldberg had repeated contact with the minors and at least once,
took one of them to a gas station bathroom where he performed
oral sex on her. Based on the record, the district court denied Gold-
berg’s motion for compassionate release on three independent
grounds: that Goldberg did not demonstrate “extraordinary and
compelling reasons” to support his early release; that the § 3553(a)
factors did not support his early release; and that if he were released
early, he would present a danger to society.
In this appeal, however, Goldberg has abandoned any chal-
lenge to the district court’s determination that he failed to establish
extraordinary and compelling reasons for release. Smith, 967 F.3d
at 1204 n.5. Goldberg mistakenly claims that the district court
agreed with him that the confluence of his medical conditions and
COVID-19 was an extraordinary and compelling reason for a sen-
tence reduction, but the district court did not do so. Rather, the
district court specifically determined that Goldberg “ha[d] not
demonstrated ‘extraordinary and compelling reasons’ for the [dis-
trict court] to reduce or modify his sentence,” reasoning that none
of his alleged ailments rendered him unable to provide self-care
while incarcerated and were not conditions from which he was not
expected to recover. By failing to challenge the district court’s dis-
positive finding that he failed to demonstrate extraordinary and
compelling reasons warranting release -- a finding that is necessary
for the grant of a motion for compassionate release, see 18 U.S.C.
§ 3582(c)(1)(A); U.S.S.G. § 1B1.13 -- he abandoned any challenge on
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8 Opinion of the Court 21-10416
that ground, and “it follows that the judgment is due to be af-
firmed.” Sapuppo, 739 F.3d at 680.
AFFIRMED.