USCA11 Case: 21-12793 Date Filed: 08/24/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12793
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIX JACKSON DE LA CRUZ VALVERDE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:16-cr-00243-SDM-AEP-1
____________________
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2 Opinion of the Court 21-12793
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Felix Jackson De La Cruz Valverde appeals the district
court’s order denying his motion for compassionate release. See
18 U.S.C. § 3582(c). The government moves for summary affir-
mance, arguing that there is no substantial question as to the out-
come of the case because Valverde hasn’t challenged the district
court’s finding that he failed to establish an extraordinary and com-
pelling reason justifying his release. We agree with the govern-
ment that its position on appeal is clearly right as a matter of law
and grant its motion for summary affirmance.
In 2016, Valverde pleaded guilty to conspiring with the in-
tent to distribute five kilograms or more of cocaine while on board
a vessel subject to the jurisdiction of the United States, in violation
of 21 U.S.C. section 960(b)(1)(B)(ii) and 46 U.S.C. sections 70503(a)
and 70506(a). The district court sentenced him to 135 months’ im-
prisonment.
In 2021, Valverde filed a motion for compassionate release
under section 3582(c), as modified by the First Step Act. See Pub.
L. No. 115-391, 132 Stat. 5192 (2018). He argued that two extraor-
dinary and compelling reasons warranted compassionate release.
First, Valverde argued that his medical conditions—hypertension
and hyperthyroidism—along with the inherent vulnerabilities of
prisoners made him more susceptible to COVID-19. Second, he
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21-12793 Opinion of the Court 3
contended that his sentence was excessive when compared to his
coconspirator, who was wounded when the Coast Guard shot at
their smuggling boat and was never prosecuted. Valverde also
maintained that the 18 U.S.C. section 3553(a) factors weighed in
favor of his release. And he argued that his release wouldn’t en-
danger the community.
The government opposed Valverde’s motion. The govern-
ment argued that Valverde had failed to establish an extraordinary
and compelling reason justifying compassionate release. The “gen-
eral threat” of exposure to COVID-19, the government argued,
wasn’t an extraordinary and compelling reason. The government
also argued that the section 3553(a) factors weighed against com-
passionate release because Valverde’s arrest was “extraordinarily
dangerous”: while Valverde and his accomplices were smuggling
thirty bales of cocaine in international waters, the Coast Guard had
to “shoot out the engines of the vessel” and seriously injured the
ship’s captain.
The district court denied Valverde’s motion. The district
court found that a “fear of contracting COVID-19” and the fact that
Valverde’s accomplice evaded prosecution were “not ‘extraordi-
nary and compelling’ reasons warranting compassionate release.”
Valverde appeals the denial of his motion for compassionate
release. He argues in his brief that the district court erred in deny-
ing his motion without considering the section 3553(a) factors. But
he doesn’t argue that the district court erred in concluding that he
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4 Opinion of the Court 21-12793
failed to establish an extraordinary and compelling reason for his
release.
The government has moved for summary affirmance. The
government argues that summary affirmance is warranted be-
cause: (1) the district court wasn’t required to consider the section
3553(a) factors in the absence of an extraordinary and compelling
reason; (2) Valverde hasn’t challenged the district court’s finding
that he failed to establish an extraordinary and compelling reason;
and (3) the district court didn’t err in finding that Valverde failed to
establish an extraordinary and compelling reason.
Summary disposition is appropriate where “the position 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, 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). That is
the case here.
Section 3582(c)(1)(A)’s “plain text” provides that a “district
court may reduce a term of imprisonment” if (1) “the [section]
3553(a) sentencing factors favor doing so,” (2) “there are ‘extraor-
dinary and compelling reasons’ for doing so,” and (3) “doing so
wouldn’t endanger any person or the community within the mean-
ing of [guideline section] 1B1.13’s policy statement.” United States
v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). “Because all three
conditions—i.e., support in the [section] 3553(a) factors, extraordi-
nary and compelling reasons, and adherence to [section] 1B1.13’s
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21-12793 Opinion of the Court 5
policy statement—are necessary, the absence of even one would
foreclose a sentence reduction.” Id. at 1237–38.
Here, Valverde’s appeal focuses only on Tinker’s first factor:
the balance of the section 3553(a) sentencing factors. But the dis-
trict court didn’t deny his motion because of the section 3553(a)
factors; it denied his motion because of the lack of an extraordinary
and compelling reason. Having found that Valverde failed to es-
tablish an extraordinary and compelling reason, the district court
didn’t need to consider the section 3553(a) factors. See id.; United
States v. Giron, 15 F4th 1343, 1348 (11th Cir. 2021) (“The plain lan-
guage of [section 3582(c)(1)(A)] means that compassionate release
is permissible only if all three findings are made . . . . If any one of
the necessary findings cannot be made, then compassionate release
is not permissible.”).
It would be a different matter if Valverde had also chal-
lenged the district court’s finding about the absence of an extraor-
dinary and compelling reason. But Valverde failed to challenge
that determination on appeal and has therefore abandoned the is-
sue. See Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995)
(“Issues not clearly raised in the briefs are considered abandoned.”).
And because Valverde “fail[ed] 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).
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6 Opinion of the Court 21-12793
Because Valverde abandoned any challenge to the district
court’s finding that he failed to establish an extraordinary and com-
pelling reason for his release, and because the district court didn’t
err in declining to consider the section 3553(a) factors where
Valverde failed to establish one of the other two Tinker factors, the
government’s position is clearly right as a matter of law. Given our
decisions in Tinker and Giron, there is no substantial question as to
the outcome of this case. We therefore GRANT the government’s
motion for summary affirmance and AFFIRM the district court’s
denial of Valverde’s motion for compassionate release. 1
AFFIRMED.
1
We DENY as moot the motion to stay the briefing schedule.