USCA11 Case: 20-14711 Date Filed: 10/25/2021 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14711
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAM SHANE SWINDLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:15-cr-00247-LSC-SGC-1
____________________
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2 Opinion of the Court 20-14711
Before JORDAN, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
Adam Swindle, proceeding pro se, appeals the District
Court’s denial of his motion for compassionate release under 18
U.S.C. § 3582(c)(1)(A). He argues that the District Court abused its
discretion in finding that he failed to exhaust his administrative
remedies. He also argues that COVID-19 is an extraordinary and
compelling reason justifying his release from prison, that the Dis-
trict Court abused its discretion by applying U.S.S.G. § 1B1.13 to
address his motion, and that the 18 U.S.C. § 3553(a) factors
weighed in favor of his release.
I.
In 2015, Swindle was indicted on three counts involving
child pornography in violation of 18 U.S.C. §§ 2252A(a)(2),
(a)(5)(B), and (b)(2). Swindle pled guilty to counts two (receipt) and
three (possession), and the government dismissed count one (dis-
tribution). Swindle was sentenced to a low-end Guidelines sen-
tence: 168 months of imprisonment. His projected release date is
October 10, 2027.
In August of 2020, Swindle filed a pro se motion for compas-
sionate release, seeking relief based on the COVID-19 pandemic.
Swindle argued that the circumstances surrounding his incarcera-
tion placed him at risk of contracting COVID-19. He did not,
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20-14711 Opinion of the Court 3
however, contend that he suffered from any health problems that
placed him at a higher risk than any other incarcerated individual.
The District Court denied the motion. The Court provided
three reasons for its denial. First, the Court found that Swindle had
failed to exhaust his administrative remedies and that, as such, the
Court did not possess authority to grant release under §
3582(c)(1)(A)(i). Second, the Court found that general concerns
about possible exposure to COVID-19 did not meet the criteria for
“extraordinary and compelling reasons” for a reduction in sentence
as set forth in the Sentencing Commission’s policy statement on
compassionate release. Third, the Court found that guideline §
1B1.13 and the § 3553(a) factors both weighed against allowing
compassionate release in Swindle’s case.
Although the District Court abused its discretion in conclud-
ing it did not possess authority to grant release, it did not abuse its
discretion in concluding that Swindle failed to demonstrate “ex-
traordinary and compelling reasons” warranting a sentence reduc-
tion or in concluding that guideline § 1B1.13 and the § 3553(a) fac-
tors both weighed against allowing compassionate release in Swin-
dle’s case. Accordingly, we affirm.
II.
We review for abuse of discretion a district court’s denial of
a prisoner’s 18 U.S.C. § 3582(c)(1)(A) motion. United States v. Har-
ris, 989 F.3d 908, 911 (11th Cir. 2021). “A district court abuses its
discretion if it applies an incorrect legal standard, follows improper
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4 Opinion of the Court 20-14711
procedures in making the determination, or makes findings of fact
that are clearly erroneous.” Id. (citing Cordoba v. DIRECTV, LLC,
942 F.3d 1259, 1267 (11th Cir. 2019) (quotation marks omitted)).
When a district court “commits a clear error of judgment,” that is
also an abuse of discretion. Id. (internal citation omitted).
We liberally construe pro se filings. United States v. Webb,
565 F.3d 789, 792 (11th Cir. 2009). A defendant abandons any ar-
gument that he does not raise on appeal. United States v. Grimon,
923 F.3d 1302, 1308 (11th Cir. 2019). “To obtain reversal of a dis-
trict court judgment that is based on multiple, independent
grounds,” a defendant must challenge each ground on appeal.
United States v. Maher, 955 F.3d 880, 885 (11th Cir. 2020). If a de-
fendant fails to challenge any of the independent grounds on ap-
peal, we will affirm. Id.
III.
A.
We note as an initial matter that the District Court erred in
concluding that it lacked authority to consider Swindle’s motion
based on Swindle’s failure to exhaust his administrative remedies.
We recently held that Section 3582(c)(1)(A)’s exhaustion require-
ment is not jurisdictional but is instead a “claim-processing rule.”
Harris, 989 F.3d at 911. Because it is a claim-processing rule, it is a
defense that the government can forfeit. Id. at 910, 911. Because
the government did not assert this defense before the District
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20-14711 Opinion of the Court 5
Court, the defense was forfeited. 1 Thus, Swindle is correct that the
District Court abused its discretion in concluding that it lacked au-
thority to consider Swindle’s motion for compassionate release.
B.
The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194
(“First Step Act”) amended 18 U.S.C. § 3582(c)(1)(A) to allow the
court to reduce a defendant’s term of imprisonment upon motion
of the defendant, after the defendant has fully exhausted all admin-
istrative rights to appeal a failure of the Bureau of Prisons (“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).
In order to grant compassionate relief, 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 applica-
ble policy statements issued by the Sentencing Commission. First
Step Act § 603; 18 U.S.C. § 3582(c)(1)(A).
1.
Under 18 U.S.C. § 3582(c)(1)(A)(i), a court cannot modify a
term of imprisonment once it has been imposed unless it finds that
1The government does not dispute the District Court’s error on this point on
appeal.
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6 Opinion of the Court 20-14711
“extraordinary and compelling reasons warrant such a reduction.”
See U.S.S.G. § 1B1.13 & comment. n.1. The policy statements list
four circumstances which may constitute extraordinary and com-
pelling reasons: (1) a prisoner’s medical condition, if he has a ter-
minal disease or is suffering from a physical or mental condition
that diminishes his ability to provide self-care in prison; (2) a pris-
oner’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 poten-
tial caregiver for a minor child or spouse; and (4) if, as 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.
Swindle argues that that the COVID-19 pandemic and the
general challenges it poses for the prison system justify his compas-
sionate release. According to Swindle, he is unable to provide self-
care within the prison due to “a shortage of staff and cleaning sup-
plies.” 2 The record shows, however, that the facility in which he is
located had only one active COVID-19 case within its population
at the time the District Court considered his request for compas-
sionate release. And Swindle does not argue, nor does he provide
any evidence suggesting, that he suffers from any particular health
2 Swindle points to the fact that prison requires inmates to share cells and
bathrooms and does not provide the inmates with cleaning supplies to clean
the surfaces to kill germs, bacteria, and viruses. He also notes that it is very
hard to social distance in prison.
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20-14711 Opinion of the Court 7
condition(s) that place him at a higher risk than the general prison
population. Given these facts, we cannot say that the District Court
abused its discretion in concluding that neither Swindle’s current
condition nor the possibility that he might contract COVID-19 pre-
sent “extraordinary and compelling reasons warrant[ing a sen-
tence] reduction.” Indeed, concluding otherwise would mean that
any prisoner could meet the standard for compassionate release
simply because they were serving prison time during COVID-19.
2.
Additionally, the district court concluded that, even if ex-
traordinary and compelling reasons existed, relief was not war-
ranted in light of the § 3553(a) factors. Where extraordinary and
compelling reasons exist, a district court abuses its discretion if it
fails to consider all applicable § 3553(a) factors before granting or
denying a motion for compassionate release, United States v.
Cook, 998 F.3d 1180, 1183–84 (11th Cir. 2021), but it is not neces-
sary for the district court to state on the record that it explicitly
considered each of the § 3553(a) factors or to discuss each of them.
United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013).
Furthermore, the weight given to any of the § 3553(a) factors is
committed to the sound discretion of the district court. Id.
The sentencing factors listed in 18 U.S.C. § 3553(a) that a dis-
trict court must consider when imposing a sentence include the
need to reflect the seriousness of the offense, promote respect for
the law, provide just punishment, afford adequate deterrence,
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8 Opinion of the Court 20-14711
protect the public from the defendant’s further crimes, and provide
the defendant with appropriate medical care or other correctional
treatment. 18 U.S.C. § 3553(a)(2). They also include the nature
and circumstances of the offense, the history and characteristics of
the defendant, the types of sentences available, the types of sen-
tences established by the applicable guideline range, any pertinent
policy statement issued by the Sentencing Commission, the need
to avoid unwarranted sentencing disparities between similarly sit-
uated defendants, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)–(7).
Swindle appears to argue that his nonviolent history 3 and his
rehabilitation thus far weigh in favor of his release. The District
Court, however, had discretion to weigh other 3553(a) factors
more heavily. Kuhlman, 711 F.3d at 1327. In particular, § 3553(a)
instructs courts to impose a sentence that “reflect[s] the seriousness
of the offense” and creates “adequate deterrence to criminal con-
duct.” 18. U.S.C. § 3553(a). Swindle is serving prison time until
2027 because of his “prolific possession and exchange of child por-
nography on his work computer.” At least one of the images on
his computer involved a prepubescent minor who had not attained
the age of 12. At the time of his request for compassionate release,
Swindle had served 4 years of an 11-year sentence. To allow Swin-
dle to be released before serving even half of his sentence for what
is undeniably a grave crime would neither reflect the “seriousness
3 In fact, Swindle was previously convicted twice of domestic violence.
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20-14711 Opinion of the Court 9
of the offense” nor provide “adequate deterrence” to this type of
criminal conduct. The District Court therefore did not abuse its
discretion when it denied Swindle’s request for compassionate re-
lease in order to “adequately deter the consumption of child por-
nography.”
3.
Finally, under 18 U.S.C. § 3582(c)(1)(A)(i) a court must en-
sure that any sentence reduction is “consistent with applicable pol-
icy statements issued by the Sentencing Commission.” 4 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. Importantly, § 1B1.13(2) states
that a sentence may be reduced only when “[t]he 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).” Id. As the District Court noted,
factors to determine whether a person is a “danger to the safety of
any other person or the community” specifically include whether
the defendant’s offense involved “a minor victim.” The District
Court, after considering that Swindle had possessed and exchanged
a “prolific” 5 amount of child pornography on his work computer,
concluded that the “nature of [the crime Swindle committed]
4 Although some of our sister courts have held that 1B1.13 does not apply to
inmate-initiated motions, we recently held otherwise. See United States v.
Bryant, 996 F.3d 1243, 1247 (11th Cir. 2021) (“1B1.13 is still an applicable policy
statement for a Section 3582(c)(1)(A) motion, no matter who files it”).
5 Law enforcement discovered 75 videos of child pornography on Swindle’s
work computer. Some of those images were of children under the age of 12.
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10 Opinion of the Court 20-14711
implies a strong risk of recidivism and makes Swindle a danger to
the community if he is released.” Given the harms that flow from
child pornography—not only to the child victims but also to soci-
ety at large—it was by no means an abuse of discretion for the Dis-
trict Court to conclude that releasing Swindle might pose a danger
to the safety of another person or to the community.6
III.
Although the District Court abused its discretion by hold-
ing that Swindle failed to exhaust his administrative remedies, it
did not abuse its discretion on other grounds. Namely, the
prison’s allegedly inadequate response to COVID-19, by itself, was
not an extraordinary and compelling reason to grant Swindle re-
lease; the court had the discretion to weigh the nature and circum-
stances of his child pornography convictions more heavily than
other factors; and the court was required to consider § 1B1.13
when addressing his motion. Accordingly, we affirm.
AFFIRMED.
6 Swindle appears to argue that he is not a danger to the community because
he has never been accused or convicted of touching a child and because he
only possessed the child pornography on his work computer. The District
Court, of course, had the discretion to discount such arguments and to con-
clude that Swindle, as a repeat consumer of child pornography, posed a danger
to the community.