USA v. Craig Sizer

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11930
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG SIZER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cr-20715-BB-1
____________________
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2 Opinion of the Court 23-11930
Before J ORDAN , L AGOA, and B LACK , Circuit Judges.
PER CURIAM:
Craig Sizer, proceeding pro se, appeals the district court’s de-
nial of his motion for compassionate release and the denial of his
motion for reconsideration of that order because the district court
did not wait for him to reply to the Government’s response before
denying the motion for compassionate release.1 The Government
responds by moving for summary affirmance, arguing Sizer aban-
doned any argument regarding the district court’s finding he was
not entitled to compassionate release, the district court properly
found that Sizer did not present extraordinary and compelling rea-
sons for granting release, and the district court did not abuse its
discretion in denying Sizer’s motion before he replied to the Gov-
ernment’s response. After review,2 we affirm the district court.
The local rules for the Southern District of Florida provide
that a reply to a response opposing a motion must be filed within
seven days after the response is filed and served. S.D. Fla. Local
Rule 7.1(c)(1). Time is computed in accordance with the applicable
1 We do not address Sizer’s arguments regarding the district court’s denial of
his Federal Rule of Criminal Procedure 36 motion to correct his sentence as
that issue is addressed in a separate appeal.
2 We review a district court’s application of its local rules for an abuse of dis-
cretion. United States v. McLean, 802 F.3d 1228, 1233 (11th Cir. 2015). We re-
view the denial of a motion for reconsideration for abuse of discretion. United
States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004).
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23-11930 Opinion of the Court 3
federal rules of procedure. Id. Under the Federal Rules of Crimi-
nal Procedure, a party who receives service by mail has an addi-
tional three days to file a reply. See Fed. R. Crim. P. 45(c) (providing
an additional three days to respond for parties who receive service
by mail under Rule 49(a)(4)(C)). When a party serves his opponent
by mail, service is complete upon mailing. Fed. R. Crim. P.
49(a)(4)(C). We “will not typically second-guess the district court’s
interpretation of its own Rule regarding timeliness in an effort to
avoid undermining the goal of those standards that local rules seek
to establish.” United States v. McLean, 802 F.3d 1228, 1247 (11th Cir.
2015) (quotation marks and alterations omitted).
The Government is clearly correct as a matter of law that
the district court did not abuse its discretion in denying Sizer’s mo-
tion for compassionate release before Sizer replied.3 See Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)4 (explaining
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”). Under the
3 Sizer does not argue on appeal that the district court erred in finding he did
not state extraordinary and compelling reasons for his release, so he aban-
doned any argument regarding that finding. See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (stating we review pro se pleadings liberally, but issues
not briefed on appeal are abandoned).
4 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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4 Opinion of the Court 23-11930
district court’s local rules, Sizer had ten days to file a reply from the
time the Government mailed its response. S.D. Fla. Local Rule
7.1(c)(1); Fed. R. Crim. P. 45(c); Fed. R. Crim. P. 49(a)(4)(C). And
15 days passed from May 10th, when the Government mailed its
response, until May 25th, when the district court entered its order.
The district court did not apply an incorrect legal standard or make
a clear error of judgment in applying its local rule on timeliness
and deciding to rule on Sizer’s motion without his reply. See
McLean, 802 F.3d at 1233.
And the district court did not abuse its discretion in denying
the motion for reconsideration because there was no evidence the
arguments presented in Sizer’s reply brief would have changed the
outcome of his motion for compassionate release. His proposed
reply discussed the sentencing disparities with his codefendants and
his rehabilitation, which the district court had already found were
not extraordinary and compelling reasons for compassionate re-
lease because they were not recognized under § 1B1.13. U.S.S.G.
§ 1B1.13; United States v. Bryant, 996 F.3d 1243, 1248, 1263, 1265
(11th Cir. 2021). Therefore, his reply would not have changed the
outcome of the court’s order.
Accordingly, because the Government’s position is clearly
correct as a matter of law, we GRANT the motion for summary
affirmance and AFFIRM the district court’s denial of Sizer’s motion
for compassionate release and the denial of his motion for recon-
sideration of that order. See Groendyke Transp., Inc., 406 F.2d at 1162.
AFFIRMED.
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