USCA11 Case: 21-12077 Date Filed: 03/09/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12077
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNY ALSTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:99-cr-10035-KMM-1
____________________
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2 Opinion of the Court 21-12077
Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
Kenny Alston, a federal prisoner proceeding pro se, appeals
the district court’s denial of his counseled motion for compassion-
ate release under 18 U.S.C. § 3582(c)(1)(A) and earlier partial grant
of his motion for relief pursuant to the First Step Act of 2018, Pub.
L. No. 115-391, § 404, 132 Stat. 5194, 5222. He argues that the dis-
trict court abused its discretion by finding that his medical condi-
tions were not extraordinary and compelling reasons supporting
compassionate release. He also argues that the district court
abused its discretion by not reducing his sentence to time served
under § 404 of the First Step Act. For the reasons discussed below,
we affirm.
I.
We review the denial of a motion for compassionate release
for an abuse of discretion. United States v. Harris, 989 F.3d 908,
911 (11th Cir. 2021). A court abuses its discretion by applying the
wrong legal standard, following improper procedures in making its
determination, making clearly erroneous findings of fact, or com-
mitting a clear error of judgment. Id. at 911–12. We generally re-
view errors that were not raised in the district court for plain error,
and the appellant must establish that there was an (1) error (2) that
was plain (3) affecting his substantial rights. Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904 (2018). To satisfy the third
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21-12077 Opinion of the Court 3
prong, a defendant generally must show that there is a reasonable
probability that the outcome of the proceeding would have been
different if the error had not occurred. Id. at 1904–05. If those con-
ditions are met, we exercise our discretion to correct the error if it
seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings. Id. at 1905. An issue not plainly and prominently
raised on appeal or briefly raised without supporting arguments
and authority is abandoned. United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003); United States v. Smith, 967 F.3d
1196, 1204 n.5 (11th Cir. 2020), cert. denied, 141 S. Ct. 2538 (2021).
A court can modify a term of imprisonment if “extraordi-
nary and compelling reasons” warrant the reduction and if the re-
duction is consistent with policy statements issued by the U.S. Sen-
tencing Commission. 18 U.S.C. § 3582(c)(1)(A). The applicable
policy statement states that, if the defendant is not a danger to oth-
ers, extraordinary and compelling reasons exist when the defend-
ant is (1) suffering from a serious physical or medical condition, (2)
suffering from a serious functional impairment, or (3) experiencing
deteriorating physical health because of the aging process, and one
of the above substantially diminishes his ability to care for himself.
U.S.S.G. § 1B1.13 cmt. n.1(A).
Even if a prisoner has a condition that increases his risk for
severe coronavirus, that condition is not an extraordinary and com-
pelling circumstance unless the condition satisfies the criteria in
§ 1B1.13 cmt. n.1(A). United States v. Giron, 15 F.4th 1343, 1346
(11th Cir. 2021) (“[T]he only circumstances that can rise to the level
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4 Opinion of the Court 21-12077
of extraordinary and compelling reasons for compassionate release
are limited to those extraordinary and compelling reasons as de-
scribed by Section 1B1.13.”). For example, in Harris, we held that
a district court did not abuse its discretion in determining hyper-
tension was not an extraordinary and compelling circumstance
where the Centers for Disease Control and Prevention stated that
hypertension might increase a person’s risk for severe coronavirus.
Harris, 989 F.3d at 912.
Here, we conclude that the district court did not abuse its
discretion by finding that Alston’s medical conditions were not ex-
traordinary and compelling circumstances. We note that, on ap-
peal, Alston has abandoned several conditions he raised below and
raises several new conditions, for which he has not shown plain
error. See Rosales-Mireles, 138 S. Ct. at 1904–05; Jernigan, 341 F.3d
at 1283 n.8. Additionally, Alston’s hypertension was well-man-
aged, his age was not a medical condition that can constitute an
extraordinary and compelling circumstance, his osteoarthrosis did
not increase his risk from coronavirus, and he was receiving coro-
navirus vaccinations. We therefore affirm as to this issue.
II.
We review a court’s denial of a sentence reduction under the
First Step Act for an abuse of discretion. United States v. Stevens,
997 F.3d 1307, 1312 (11th Cir. 2021).
Appellants must specify the judgment or order from which
the appeal is taken. Fed. R. App. P. 3(c)(1)(B). The notice of appeal
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21-12077 Opinion of the Court 5
encompasses all orders that merge into the appealable order. Fed.
R. App. P. 3(c)(4). Without an express statement limiting an appeal
to a part of an order, specific designations do not limit the scope of
the notice of appeal. Fed. R. App. P. 3(c)(6). An appeal cannot be
dismissed for informality of form or title of the notice of appeal.
Fed. R. App. 3(c)(7). We liberally construe Rule 3’s requirements,
especially when the appellant is pro se. United States v. Padgett,
917 F.3d 1312, 1316 (11th Cir. 2019). We liberally allow appeals
from orders not stated in the notice of appeal if the unstated order
was entered prior to the designated order, the orders are inextrica-
bly intertwined, and the appellee is not prejudiced. See Hill v. Bell-
South Telecomms., Inc., 364 F.3d 1308, 1313 (11th Cir. 2004);
McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986). A pro
se brief filed within the time specified by Federal Rule of Appellate
Procedure 4 that gives the notice required by Rule 3 is effective as
a notice of appeal if it is the functional equivalent of a notice of
appeal and indicates an intent to seek appellate review. Smith v.
Barry, 502 U.S. 244, 248–49 (1992).
A defendant’s appeal in a criminal case must be filed within
fourteen days of the entry of the order being appealed. Fed. R. App.
P. 4(b)(1)(A). Upon a finding of excusable neglect or good cause, a
court may extend the time to file a notice of appeal up to thirty
days from the expiration of the deadline otherwise prescribed. Fed.
R. App. P. 4(b)(4). The deadlines in Rule 4(b) are not jurisdictional.
United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009). Ra-
ther, they are “mandatory claim-processing rules[s].” Hamer v.
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6 Opinion of the Court 21-12077
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). So if
the appellee objects, an untimely appeal is due to be dismissed.
Lopez, 562 F.3d at 1314.
Section 2 of the Fair Sentencing Act of 2010, Pub. L. No. 111-
220, § 2, 124 Stat. 2372, 2372, altered the penalties for offenses in-
volving cocaine base in violation of 21 U.S.C. § 841. See 21 U.S.C.
§ 841(b)(1)(A)(iii), (B)(iii). Section 404 of the First Step Act empow-
ered courts to reduce a defendant’s sentence as if the Fair Sentenc-
ing Act had been in effect at the time of the defendant’s conviction.
Turning to the instant case, the government has objected in
its brief that Alston’s notice of appeal, which was signed on June
10, 2021, is untimely as to the district court’s July 2020 order on
Alston’s motion seeking relief under § 404 of the First Step Act and
should be dismissed. Because the government has not waived its
objection to Alston’s untimely notice of appeal, we apply the time
limits of Rule 4(b) and conclude that his appeal as to his motion
under § 404 of the First Step Act is untimely and must be dismissed.
See Lopez, 562 F.3d at 1313.
AFFIRMED IN PART; DISMISSED AS UNTIMELY IN
PART.