USA v. Taras Hodivsky, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11524
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TARAS HODIVSKY, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cr-00080-KD-B-1
____________________
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2 Opinion of the Court 21-11524
Before JORDAN, ROSENBAUM, and BRASHER, Circuit Judges.
PER CURIAM:
The district court denied Taras Hodivsky, Jr. compassionate
release on the ground that he posed a danger to the community,
and particularly children. On appeal, Mr. Hodivsky argues that the
district court erred by failing to analyze whether his reasons for
seeking release were extraordinary and compelling or to consider
the 18 U.S.C. § 3553(a) factors. Because a finding of danger fore-
closes relief, the district court did not err in not considering the
other conditions for compassionate release. We therefore affirm.
We review
de novo whether a defendant is eligible for a sen-
tence reduction under 18 U.S.C. § 3582(c).
United States v. Bryant,
996 F.3d 1243, 1251 (11th Cir. 2021). If a defendant is eligible for
relief, we review the district court’s decision to grant or deny relief
for an abuse of discretion.
Id.
Generally, a court “may not modify a term of imprisonment
once it has been imposed.” 18 U.S.C. § 3582(c). As relevant here, §
3582(c)(1)(A), however, provides a limited exception:
[T]he court, upon motion of the Director of the Bu-
reau of Prisons, or upon motion of the defendant after
the defendant has fully exhausted all administrative
rights . . . may reduce the term of imprisonment . . .,
after considering the factors set forth in section
3553(a) to the extent that they are applicable, if it finds
that . . . extraordinary and compelling reasons
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21-11524 Opinion of the Court 3
warrant such a reduction . . . and that such a reduction
is consistent with applicable policy statements issued
by the Sentencing Commission.
The “applicable policy statement” to which § 3582(c)(1)(A) refers is
U.S.S.G. § 1B1.13, which states that the court may reduce a term of
imprisonment if, among other things, it “‘determines that . . . the
defendant is not a danger to the safety of any other person or to the
community.’”
United States v. Tinker, 14 F.4th 1234, 1237 (11th
Cir. 2021) (quoting U.S.S.G. § 1B1.13). Thus, under § 3582(c)(1)(A),
the district court may reduce a prisoner’s sentence if (1) there are
extraordinary and compelling reasons for doing so, (2) the factors
listed in 18 U.S.C. § 3553(a) favor doing so, and (3) doing so would
not endanger any person or the community.
Id. If the district court
finds against the prisoner on any one of these requirements, it can-
not grant relief and need not analyze the other requirements.
United States v. Giron, 15 F.4th 1343, 1347-48 (11th Cir. 2021).
See
also Tinker, 14 F.4th at 1237-38 (“[N]othing on the face of 18 U.S.C.
§ 3582(c)(1)(A) requires a court to conduct the compassionate-re-
lease analysis in any particular order.”).
Mr. Hodivsky’s arguments are foreclosed by our precedent.
In determining that Mr. Hodivsky posed a threat to the community
and to children, the district court necessarily found that his release
would be inconsistent with the policy statement in U.S.S.G.
§ 1B1.13, which is one of the three 18 U.S.C. § 3582(c)(1)(A) re-
quirements. Having made that finding, the district court was not
required to consider the other two requirements.
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4 Opinion of the Court 21-11524
Mr. Hodivsky, moreover, does not contest the district
court’s finding that he posed a danger. Because he has abandoned
any challenge to that finding, the district court’s order must be af-
firmed.
See Sapuppo v. Allstate Floridian Ins. Co., 739 f.3d 678, 680
(11th Cir. 2014) (“When an appellant fails to challenge properly on
appeal one of the grounds on which the district court based its judg-
ment, he is deemed to have abandoned any challenge of that
ground, and it follows that the judgment is due to be affirmed.”).
AFFIRMED.
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