USCA11 Case: 21-10682 Date Filed: 12/06/2021 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10682
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT LENORRIS SMITH,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:13-cr-14047-JEM-5
____________________
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2 Opinion of the Court 21-10682
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Herbert Smith pleaded guilty to two counts of Hobbs Act
robbery and one count of possession of a firearm in furtherance of
a crime of violence. Based in part on Smith’s prior criminal history,
which qualified him as a career offender under the U.S. Sentencing
Guidelines, his Guidelines sentencing range was 262–327 months
in prison. The district court varied downward and sentenced him
to 204 months in prison, followed by five years’ supervised release.
After serving almost 7 years of his 17-year prison sentence,
Smith filed a motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A). He argued primarily that his sickle cell disease put
him at high risk of severe illness or death if he were to contract
COVID-19, and that prison conditions made it difficult or impossi-
ble to take appropriate precautions against the virus. He also ar-
gued that the sentencing factors in 18 U.S.C. § 3553(a) weighed in
favor of his release, given the portion of his sentence already
served; the unanticipated severity of any sentence of imprisonment
during the COVID-19 pandemic; and his exemplary behavior, em-
ployment, and completion of educational courses in prison. Fi-
nally, he argued that his clean disciplinary record and positive in-
terpersonal relationships in prison, strong family support, and the
fact that his conduct would be monitored during his term of super-
vised release all showed that he did not pose a danger to the com-
munity.
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21-10682 Opinion of the Court 3
The district court disagreed and denied his motion for com-
passionate release. The court considered the nature of Smith’s of-
fenses—bank robbery at gunpoint—and his history of 11 prior
criminal convictions, including multiple drug and firearm convic-
tions and a conviction for domestic battery against his mother, and
found that Smith was ineligible for a sentence reduction under the
compassionate release statute because he would pose a danger to
the community. The court noted that Smith’s representation that
he would have strong family support after release was belied by the
history of conflict with his mother and his statements at the time
of sentencing indicating that he had no contact with any family
members and was essentially homeless at the time of his last release
from prison. The court also found that Smith’s medical condition
did not constitute an extraordinary and compelling reason for re-
lease under the statute and the relevant Sentencing Commission
policy statement, despite the risk from COVID-19, and that Smith
had failed to show that the § 3553(a) sentencing factors weighed in
favor of his release.
Smith filed a motion for reconsideration, stating that he had
recently contracted COVID-19 and had been hospitalized and
treated with a blood transfusion (because of his sickle cell disease)
before recovering. He reiterated his arguments regarding the risk
from COVID-19 and his exemplary behavior in prison. The district
court denied the motion, finding that Smith had not presented new
law or evidence warranting reconsideration.
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4 Opinion of the Court 21-10682
Smith now appeals the denial of his motion for compassion-
ate release and his motion for reconsideration, arguing that the dis-
trict court (1) applied the wrong legal standard by considering
whether his medical condition constituted an “extraordinary and
compelling” reason for his release under § 1B1.13 of the U.S. Sen-
tencing Guidelines; (2) made factual errors concerning the severity
of his medical condition; and (3) abused its discretion by failing to
consider his reply brief, which was filed almost two months after
the deadline set by the court and docketed after the court issued its
order denying the motion for compassionate release. 1 Notably,
Smith does not challenge the district court’s finding that he would
present a danger to the community if he were released.
That omission is fatal to his appeal. Under § 3582(c)(1)(A)(i),
“a district court may reduce a term of imprisonment if (1) the
§ 3553(a) sentencing factors favor doing so, (2) there are ‘extraordi-
nary and compelling reasons’ for doing so, and, as relevant here,
(3) doing so wouldn’t endanger any person or the community
within the meaning of § 1B1.13’s policy statement.” United States
v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021); see 18 U.S.C.
§ 3582(c)(1)(A)(i); U.S.S.G. § 1B1.13(2). If any one of the necessary
1 We review a district court’s determination about a defendant’s eligibility for
release under § 3582(c) de novo. United States v. Bryant, 996 F.3d 1243, 1251
(11th Cir. 2021). We review a district court’s ruling on an eligible defendant’s
motion for compassionate release for an abuse of discretion. Id. We also re-
view the denial of a motion for reconsideration for an abuse of discretion.
United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004).
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21-10682 Opinion of the Court 5
conditions is not satisfied, the defendant is not eligible for compas-
sionate release and the district court cannot grant his motion for a
sentence reduction. Tinker, 14 F.4th at 1237–38.
Here, therefore, the district court’s finding that Smith posed
a danger to the community meant that he was ineligible for a sen-
tence reduction under § 3582(c)(1)(A) and formed an independent
ground for the denial of his motion for compassionate release—
regardless of whether Smith presented extraordinary and compel-
ling reasons for his release and whether or not the § 3553(a) factors
weighed in his favor. See id. at 1238; United States v. Bryant, 996
F.3d 1243, 1254 (11th Cir. 2021) (if a defendant “is dangerous or if
his circumstances do not match any of the four categories [in
U.S.S.G. § 1B1.13], then he is ineligible for a reduction”). “When
an appellant fails to challenge properly on appeal one of the
grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.” Sapuppo v. All-
state Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Because the district court’s finding that Smith posed a dan-
ger to the community was dispositive of his motion for compas-
sionate release and Smith has not challenged that finding, we need
not reach Smith’s other arguments on appeal. We therefore
AFFIRM the denial of Smith’s motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A) without further discussion.
AFFIRMED.