USA v. Jacobo Feliciano-Francisco

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12980
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOBO FELICIANO-FRANCISCO,
a.k.a. Uriel Castillo-Ochoa,
a.k.a. Kiko,
Defendant-Appellant.
____________________
Appeal from the United States District Court
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2 Opinion of the Court 22-12980
for the Northern District of Florida
D.C. Docket No. 5:13-cr-00032-RH-EMT-1
____________________
Before J ORDAN, NEWSOM , and BRANCH, Circuit Judges.
PER CURIAM:
The district court denied Jacobo Feliciano-Francisco’s mo-
tion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Fe-
liciano-Francisco then filed with the district court a notice of inter-
vening authority, which we construe as a motion for reconsidera-
tion. The district court entered an order explaining why the new
authority didn’t affect its original order and stating that “no action
will be taken.” Feliciano-Francisco appeals that second order. In
particular, he argues that his intervening authority—Concepcion v.
United States, 142 S. Ct. 2389 (2022)—overruled United States v. Bry-
ant, 996 F.3d 1243 (11th Cir. 2021). The government responds that
Bryant isn’t relevant to the district court’s original order. We agree
and summarily affirm.1
Before it may grant a reduction under § 3582(c)(1)(A), a dis-
trict court must find that three necessary conditions are satisfied:
1 We review the denial of a motion for reconsideration for an abuse of discre-
tion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). 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).
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22-12980 Opinion of the Court 3
(1) “support in the § 3553(a) factors,” (2) “extraordinary and com-
pelling reasons,” and (3) “adherence to § 1B1.13’s policy state-
ment.” United States v. Tinker, 14 F.4th 1234, 1237–38 (11th Cir.
2021). The absence of any single condition forecloses a sentence
reduction.
Here, the district court’s original order focused on the first
of these conditions. Reconsidering the § 3553(a) factors, the court
decided “as a matter of discretion that Mr. Feliciano’s sentence
should not be reduced at this time.”
The district court refrained from deciding the second or
third conditions. The court mentioned that Bryant was unfavora-
ble to Feliciano-Francisco on the third, “policy statement” condi-
tion, but it expressed the view that future events might overturn or
override Bryant. Importantly, though, rather than stay the pro-
ceeding pending any such developments, the court proceeded to
deny relief because, in its words, even if Feliciano-Francisco satis-
fied the third condition, “the motion to reduce this sentence would
be denied anyway.”
Feliciano-Francisco’s argument in his intervening-authority
filing didn’t challenge the district court’s determination that the
first condition wasn’t satisfied. Instead, he argued that Concepcion
overruled Bryant. But arguments about the third condition are ir-
relevant to the district court’s decision, which, by its terms, was
based on the first condition.
The district court, therefore, correctly denied the motion for
reconsideration. Because the government’s position on appeal is
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4 Opinion of the Court 22-12980
correct as a matter of law, its motion for summary affirmance is
GRANTED.
AFFIRMED.2
2 We don’t understand Feliciano-Francisco to have appealed the district court’s
original order. To the extent he did, his appeal was untimely. Even assuming
the district court would have granted an extension for “excusable neglect or
good cause,” Fed. R. App. P. 4(b)(4), Feliciano-Francisco had 44 days to appeal.
See United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (holding that crim-
inal appeal timelines apply to § 3582(c) motions); Fed. R. App. P. 4(b)(1)(A)(i).
He noticed this appeal more than 70 days after the original order. Motions
for reconsideration like his—i.e., those filed after 14 days, even if before 44
days—do not toll this time period. United States v. Russo, 760 F.2d 1229, 1230
(11th Cir. 1985) (per curiam).
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