USCA11 Case: 23-12870 Document: 17-1 Date Filed: 02/23/2024 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12870
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAM WAYNE LEBOWITZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:07-cr-00195-RWS-JFK-1
____________________
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2 Opinion of the Court 23-12870
Before WILSON, LUCK, and BLACK, Circuit Judges.
PER CURIAM:
Adam Lebowitz appeals the district court’s order denying
his motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A) and his motion for reconsideration of that denial.
He asserts the court erred in finding that he was a danger to the
community and that he failed to present extraordinary and com-
pelling reasons to justify his release. The Government moved for
summary affirmance, contending the court did not abuse its discre-
tion in denying the motions because Lebowitz failed to establish
extraordinary and compelling reasons, was a danger to the com-
munity, and the 18 U.S.C. § 3553(a) factors weighed against his re-
lease. After review, 1 we affirm.
District courts lack the inherent authority to modify a term
of imprisonment but may do so within § 3582(c)’s provisions.
18 U.S.C. § 3582(c); United States v. Bryant, 996 F.3d 1243, 1251
1 We review a district court’s denial of an eligible defendant’s request for com-
passionate release under § 3582(c)(1)(A) for abuse of discretion. United States
v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). We review the denial of a motion
for reconsideration for abuse of discretion. United States v. Simms, 385 F.3d
1347, 1356 (11th Cir. 2004). “A district court abuses its discretion if it applies
an incorrect legal standard, follows improper procedures in making the deter-
mination,” makes clearly erroneous factual findings, or commits a clear error
of judgment. Harris, 989 F.3d at 911-12 (quotation marks omitted).
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23-12870 Opinion of the Court 3
(11th Cir. 2021). As amended by § 603(b) of the First Step Act,
§ 3582(c) now provides, in relevant part, that:
the court, upon motion of the Director of the Bureau
of Prisons [BOP], or upon motion of the defendant
after the defendant has fully exhausted all administra-
tive 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 receipt of such a request by the warden
of the defendant’s facility, whichever is earlier, may
reduce the term of imprisonment . . . , after consider-
ing the factors set forth in section 3553(a) to the ex-
tent that they are applicable, if it finds that . . . ex-
traordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent
with applicable policy statements issued by the Sen-
tencing Commission . . . .
18 U.S.C. § 3582(c)(1)(A).
To grant a reduction under § 3582(c)(1)(A), a district court
must find that three necessary conditions are satisfied, which are:
“support in the § 3553(a) factors, extraordinary and compelling rea-
sons, and adherence to § 1B1.13’s policy statement.” United States
v. Tinker, 14 F.4th 1234, 1237-38 (11th Cir. 2021). District courts
do not need to address these three conditions in any particular se-
quence, as the absence of even one forecloses a sentence reduction.
Id.
Summary affirmance is warranted because the Govern-
ment’s position is clearly correct as a matter of law. See Groendyke
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4 Opinion of the Court 23-12870
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) 2 (explain-
ing summary disposition is appropriate, in part, where “the posi-
tion 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”).
Lebowitz forfeited any argument the court erred in weighing the
§ 3553(a) factors by failing to raise the argument in his initial brief.
Where a defendant does not offer any argument regarding an issue
on appeal, he is deemed to have forfeited that issue. See United
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (stat-
ing issues not raised in an initial brief are deemed forfeited and will
not be addressed absent extraordinary circumstances). While Le-
bowitz makes a passing reference to the § 3553(a) factors within his
discussion of the dangerousness issue, his passing reference is insuf-
ficient to raise the district court’s weighing of the § 3553(a) factors
on review. See Brown v. United States, 720 F.3d 1316, 1332 (11th
Cir. 2013) (stating a party must plainly and prominently raise a
claim or issue on appeal, and “[m]erely making passing references
to a claim under different topical headings is insufficient. Instead,
the party must clearly and unambiguously demarcate the specific
claim and devote a discrete section of his argument to it, so the
court may properly consider it.”). Because Lebowitz failed to chal-
lenge one of the grounds on which the district court made its
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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23-12870 Opinion of the Court 5
decision, the court’s judgment is due to be affirmed. See United
States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014).
As such, we do not address whether the court abused its dis-
cretion in finding Lebowitz was a danger to the community or he
failed to present extraordinary and compelling reasons to justify his
release. See Tinker, 14 F.4th at 1237-38. Accordingly, because the
Government’s position is clearly correct as a matter of law, we
GRANT the Government’s motion for summary affirmance. 3 See
Groendyke Transp., Inc., 406 F.2d at 1162.
AFFIRMED.
3 We DENY the Government’s motion to stay the briefing schedule as moot.