USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11970
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EMANUL JONES,
a.k.a. David Emanuel Jones,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:07-cr-00009-JDW-TGW-2
____________________
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 2 of 8
2 Opinion of the Court 21-11970
Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
David Emanul Jones, a federal prisoner proceeding pro se,
appeals the district court’s 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. 1 In support, he argues only that the
district court erred in failing to acknowledge that it had the discre-
tion to include the First Step Act’s amendments to one of his stat-
utes of conviction, 18 U.S.C. § 924(c), in its consideration of
whether he demonstrated extraordinary and compelling circum-
stances supporting compassionate release. He has also moved to
“moot” the government’s response brief due to its failure to re-
spond to his initial brief by an initially extended deadline, which
was extended further following two unsuccessful motions by Jones
to appoint counsel. Further, he has requested that we stay further
appellate proceedings in light of two petitions for certiorari filed in
cases arising in other circuits, both of which the Supreme Court has
since denied.
The government has not responded to Jones’s initial brief or
his two motions. Instead, it responds by moving for summary af-
firmance of the district court’s denial of compassionate release and
a stay of the briefing schedule. It argues that our binding precedent
forecloses Jones’s claim that the district court was not bound by
1 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”).
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 3 of 8
21-11970 Opinion of the Court 3
U.S.S.G. § 1B1.13, and the court correctly found that he failed to
show extraordinary and compelling circumstances within the con-
straints of that policy statement.
For ease of reference, we will first address the questions
posed by Jones’s two pending motions, followed by the issue of
summary affirmance.
I.
Our Rules generally require an appellee to serve and file its
brief within 30 days of service of the appellant’s brief. 11th Cir. R.
31-1(a). However, a pending motion for appointment of counsel
tolls the preceding deadline, and allows the appellee to serve and
file its brief within 40 days of our ruling on that motion. Id. 31-1(b).
Moreover, an issue is moot when events have occurred that de-
prive us of the ability to give the appellant meaningful relief.
United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).
As discussed further infra, the circumstances under which a
district court may grant compassionate release are narrow, and we
have held that, in considering whether a movant has made the req-
uisite showing that extraordinary and compelling circumstances
support compassionate release, district courts may only consider
those reasons enumerated in U.S.S.G. § 1B1.13. United States v.
Bryant, 996 F.3d 1243, 1248 (11th Cir.), cert. denied, 142 S. Ct. 583
(2021). Moreover, the Supreme Court recently denied certiorari in
two appeals from other circuits addressing the circumstances that
may constitute extraordinary and compelling reasons. See United
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 4 of 8
4 Opinion of the Court 21-11970
States v. Jarvis, 999 F.3d 442, 444 (6th Cir. 2021), cert. denied, (U.S.
Jan. 10, 2022) (No. 21-568) (determining that a district court may
not include the First Step Act’s amendment to § 924(c) in its con-
sideration of whether extraordinary and compelling circumstances
support compassionate release); United States v. Watford, 2021
WL 3856295 at 1 (7th Cir. 2021) (unpublished), cert. denied, (U.S.
Jan. 10, 2022) (No. 21-551) (same).
Here, both of Jones’s motions on appeal lack merit. First, as
to his motion to “moot” the government’s response brief, his first
intervening motion to appoint counsel, which we denied, tolled
the deadline for the government to file its response brief. In the
meantime, the government moved for summary affirmance, and
because we conclude infra that such relief is warranted, any request
by Jones related to the government’s response brief is now moot.
See Al-Arian, 514 F.3d at 1189.
Second, Jones’s motion to stay further appellate proceedings
is also moot because the Supreme Court has denied certiorari in
both of the decisions he relies on. See id.; Jarvis, 999 F.3d 442, cert.
denied, (U.S. Jan. 10, 2022); Watford, 2021 WL 3856295, cert. de-
nied, (U.S. Jan. 10, 2022).
Therefore, we hereby DENY both of the foregoing motions.
II.
Summary disposition is appropriate, in part, where “the po-
sition of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case,
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 5 of 8
21-11970 Opinion of the Court 5
or where, as is more frequently the case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
Where appropriate, we will review a district court’s denial
of a prisoner’s motion for modification of sentence under 18 U.S.C.
§ 3582(c)(1)(A) for an abuse of discretion. United States v. Harris,
989 F.3d 908, 911 (11th Cir. 2021). An abuse of discretion occurs
when a district court applies an incorrect legal standard, applies the
law in an incorrect or unreasonable fashion, fails to follow proper
procedures in making a determination, or makes clearly erroneous
factual findings. United States v. McLean, 802 F.3d 1228, 1233 (11th
Cir. 2015).
However, an appellant “must convince us that every stated
ground for the judgment against him is incorrect.” Sapuppo v. All-
state Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). If the
“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.” Id. In this respect, an appel-
lant abandons a claim when he makes it only by passing reference
or in a perfunctory manner without authority or argument in sup-
port. United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir.
2020), cert. denied, 141 S. Ct. 2538 (2021). Moreover, although pro
se filings are construed liberally, all litigants must comply with the
applicable procedural rules. See United States v. Padgett, 917 F.3d
1312, 1316 n.3, 1317 (11th Cir. 2019).
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 6 of 8
6 Opinion of the Court 21-11970
District courts lack the inherent authority to modify a term
of imprisonment but may do so to the extent that a statute ex-
pressly permits. 18 U.S.C. § 3582(c)(1)(B). In 2018, Congress en-
acted the First Step Act, which, in part, amended 18 U.S.C.
§ 3582(c)(1)(A) to increase the use and transparency of compassion-
ate release of federal prisoners. See First Step Act § 603. As rele-
vant here, the First Step Act also amended § 924(c), which previ-
ously imposed a 25-year mandatory minimum consecutive sen-
tence for a second or subsequent § 924(c) conviction, even when
both or all such convictions resulted from a single prosecution.
Smith, 967 F.3d at 1210. After the First Step Act, the 25-year man-
datory minimum consecutive sentences now apply “only where
the later conviction is for a § 924(c) violation that occurs after a
previous one has become final. Id.; but see id. at 1212–13 (holding
that the foregoing does not apply retroactively to defendants sen-
tenced before the enactment of the First Step Act).
Even after the First Step Act, however, a “court may not
modify a term of imprisonment once it has been imposed” except
under certain circumstances. 18 U.S.C. § 3582(c).
In the context of compassionate release, the statute requires
exhaustion of remedies and otherwise provides that:
[T]he court, upon motion of the Director of the
[BOP], or upon motion of the defendant after the de-
fendant has fully exhausted all administrative rights
to appeal a failure of the [BOP] to bring a motion on
the defendant’s behalf or the lapse of 30 days from the
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 7 of 8
21-11970 Opinion of the Court 7
receipt of such a request by the warden of the defend-
ant’s facility, whichever is earlier, may reduce the
term of imprisonment . . . after considering the fac-
tors set forth in [18 U.S.C.] section 3553(a) to the ex-
tent that they are applicable, if it finds that—extraor-
dinary and compelling reasons warrant such a reduc-
tion.
Id. § 3582(c)(1)(A)(i) (emphasis added). Thus, we have held that a
district court may reduce a term of imprisonment, under
§ 3582(c)(1)(A), “if (1) the § 3553(a) sentencing factors favor doing
so, (2) there are extraordinary and compelling reasons for doing so,
and . . . (3) doing so wouldn’t endanger any person or the commu-
nity within the meaning of § 1B1.13’s policy statement.” United
States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021) (quotation
marks omitted) (citing 18 U.S.C. § 3582(c)(1)(A) and U.S.S.G. §
1B1.13). The district court may consider these factors in any order,
and the absence of any of the three forecloses a sentence reduction.
See id. at 1237–38.
Here, summary affirmance is appropriate because Jones has,
by failing to address the district court’s finding that the § 3553(a)
factors weighed against compassionate release, abandoned any ar-
gument that it erred in denying compassionate release. Because
that was an independent basis for the court’s decision that he failed
to address, the government’s position is clearly correct as a matter
of law. See Tinker, 14 F.4th at 1237; Sapuppo, 739 F.3d at 680;
Groendyke Transp., Inc., 406 F.2d at 116.
USCA11 Case: 21-11970 Date Filed: 02/25/2022 Page: 8 of 8
8 Opinion of the Court 21-11970
Therefore, we GRANT the government’s motion for sum-
mary affirmance and DENY as moot its motion to stay the briefing
schedule.