Case: 22-10425 Document: 00516644714 Page: 1 Date Filed: 02/13/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10425
Summary Calendar FILED
____________ February 13, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Fabian C. Fleifel,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-318-3
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Fabian C. Fleifel, federal prisoner # 57575-018, has appealed the
district court’s order denying his motion for compassionate release, pursuant
to 18 U.S.C. § 3582(c), in which he contended that a sentence reduction was
warranted because the district court had erred at sentencing in determining
the amount of the loss. The district court determined that Fleifel had not
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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shown that there were extraordinary and compelling reasons for a sentence
reduction. See 18 U.S.C. § 3582(c)(1)(A)(i). The court also found that a
reduction was not warranted in light of statutory sentencing factors. See 18
U.S.C. § 3553(a). It construed Fleifel’s attempt to challenge the legality of
his underlying sentence as an unauthorized successive 28 U.S.C. § 2255
motion, which it dismissed for lack of jurisdiction. It denied a certificate of
appealability (COA) from that portion of its decision.
The procedural posture of this case requires Fleifel to obtain a COA.
Although Fleifel did not move for a COA in this court, his notice of appeal is
construed as a COA request. See Fed. R. App. P. 22(b)(2). This requires
him to show that reasonable jurists would find the district court’s decision to
deny relief debatable or wrong, Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or “that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
On the motion of either the director of the Bureau of Prisons or the
defendant, a court may reduce the defendant’s term of imprisonment, after
considering the applicable 18 U.S.C. § 3553(a) factors, if, inter alia, the court
finds that “extraordinary and compelling reasons warrant such a reduction”
and “that such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” § 3582(c)(1)(A)(i). A district
court’s decision to deny a prisoner’s motion for compassionate release is
reviewed for an abuse of discretion. United States v. Chambliss, 948 F.3d 691,
693 (5th Cir. 2020). “[A] court abuses its discretion if it bases its decision on
an error of law or a clearly erroneous assessment of the evidence.” Id.
(internal quotation marks and citation omitted).
Fleifel insists that his motion was filed under § 3582(c), not § 2255;
and he complains that the district court failed to consider whether it had
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erred in determining the amount of the loss and whether its error constituted
an extraordinary and compelling circumstance warranting a sentence
reduction. He asserts that the Government “cannot prove” the amount of
the loss, and he complains that he has not had an opportunity to litigate that
question.
The district court was not obligated to treat Fleifel’s pleading as a
§ 3582(c) motion simply because Fleifel so labeled it. See United States v.
Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983). Section 2255 “is the primary
means of collaterally attacking a federal sentence.” Tolliver v. Dobre, 211 F.3d
876, 877 (5th Cir. 2000). Reasonable jurists would not debate the district
court’s treatment of Fleifel’s motion for compassionate release as an
unauthorized successive § 2255 motion to the extent that it challenged the
legality of the sentence. See Slack, 529 U.S. at 484; see also Santora, 711 F.2d
at 42 n.1; Tolliver, 211 F.3d at 877.
With respect to the motion for compassionate release, Fleifel
contends that the district court erred in considering itself bound by the
guidelines policy statement, U.S.S.G. § 1B1.13, p.s. The district court stated
expressly that it did not consider itself bound by the policy statement.
Motions for compassionate release are inherently discretionary. See Ward v.
United States, 11 F.4th 354, 360 (5th Cir. 2021). Fleifel had the burden to
convince the district court to exercise its discretion. See id. at 360–61. The
district court properly explained why relief was not merited in light of its
application of the sentencing factors. See id. at 360–61. Fleifel’s conclusional
arguments do not show that the district court abused its discretion. See
Chambliss, 948 F.3d at 693.
Fleifel contends that the district court judge is unfairly biased and has
failed to comply with his professional responsibilities. A judge’s adverse
rulings, without more, are insufficient to show judicial bias unless they reveal
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an opinion based on an extrajudicial source or demonstrate such a high degree
of antagonism as to make fair judgment impossible. See Liteky v. United
States, 510 U.S. 540, 555 (1994). No such opinion or antagonism is
discernible in this case. See id.
To the extent a COA is required, a COA is DENIED. Because the
remainder of the appeal is FRIVOLOUS, it is DISMISSED IN PART.
See 5th Cir. R. 42.2.
We WARN Fleifel that the filing of frivolous, repetitive, or otherwise
abusive pleadings in this court or any court subject to this court’s jurisdiction
may result in the imposition of SANCTIONS, including dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this
court or any court subject to this court’s jurisdiction.
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