USA v. Mark Tomlinson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13818
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK TOMLINSON,
a.k.a. Supa,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:10-cr-00521-TCB-AJB-4
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2 Opinion of the Court 22-13818
____________________
Before R OSENBAUM , NEWSOM , and GRANT, Circuit Judges.
PER CURIAM:
Mark Tomlinson, a federal prisoner proceeding pro se, ap-
peals the denial of his requests for compassionate release under 18
U.S.C. § 3582(c)(1)(A)(i). Tomlinson alleged that he had several de-
teriorating health conditions—including Type 2 diabetes, hyper-
tension, high cholesterol, acid reflux, gout, and sickle cell disease—
which, in the context of the COVID-19 pandemic in a prison set-
ting, amounted to extraordinary and compelling reasons for early
release from his 192-month sentence for drug trafficking. The dis-
trict court ruled that Tomlinson’s medical conditions did not qual-
ify him for early release, and that the statutory sentencing factors
did not warrant a sentence reduction. In response, Tomlinson filed
a motion for reconsideration and a second motion for compassion-
ate release, relying on additional medical records. The court de-
nied both motions, concluding that the additional medical records
did not establish a qualifying medical reason and that the sentenc-
ing factors still weighed against early release.
On appeal, Tomlinson maintains the district court erred in
evaluating his medical conditions and failing to determine that they
qualified as extraordinary and compelling reasons for relief.1 In
1 Tomlinson also raises an issue about administrative exhaustion. We assume
without deciding that Tomlinson properly exhausted both motions.
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22-13818 Opinion of the Court 3
response, the government has moved for summary affirmance,
claiming that the district court’s decision was clearly correct. After
careful review, we grant the government’s motion.
Summary disposition is appropriate where “the result is
clear as a matter of law so that there can be no substantial question
as to the outcome.” Brown v. United States, 942 F.3d 1069, 1076 n.6
(11th Cir. 2019). We review de novo a determination of eligibility
for a § 3582(c) sentence reduction. United States v. Bryant, 996 F.3d
1243, 1251 (11th Cir. 2021). We review the denial of an eligible
prisoner’s § 3582(c)(1)(A) motion for an abuse of discretion. Id.;
United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). A district
court acts within its discretion so long as it does not apply an incor-
rect legal standard, rely on clearly erroneous facts, or commit a
clear error of judgment. Harris, 989 F.3d at 911–12. Issues not
raised on appeal are deemed abandoned. See Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014).
Section 3582(c) grants the district courts limited authority to
reduce the sentences of defendants for “extraordinary and compel-
ling reasons.” 18 U.S.C. § 3582(c)(1)(A)(i). Before granting a reduc-
tion under this provision, the court must find all of the following:
(1) an extraordinary and compelling reason exists under U.S.S.G. §
1B1.13’s policy statement; (2) the reduction is supported by the 18
U.S.C. § 3553(a) sentencing factors; and (3) granting a reduction
would not endanger others. United States v. Giron, 15 F.4th 1343,
1345–46 (11th Cir. 2021); United States v. Tinker, 14 F.4th 1234, 1237
(11th Cir. 2021). “Because all three conditions . . . are necessary,
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4 Opinion of the Court 22-13818
the absence of even one would foreclose a sentence reduction.”
Tinker, 14 F.4th at 1238. Thus, a court may exercise its discretion
to deny a sentence reduction based on the § 3553(a) factors even if
the defendant presents an extraordinary and compelling ground for
relief. Id. at 1239.
Here, the district court properly denied Tomlinson’s mo-
tions for early release under § 3582(c)(1)(A). For starters, we agree
that Tomlinson did not establish an extraordinary and compelling
reason for relief within the meaning of § 1B1.13’s policy statement.
See id. at 1237. The commentary to § 1B1.13 outlines medical, age,
and family circumstances which may qualify as sufficiently “ex-
traordinary and compelling.” See U.S.S.G. § 1B1.13, cmt. n.1(A)–
(C). As relevant here, a non-terminal medical condition may be
grounds for a sentence reduction if it substantially diminishes a
prisoner’s ability to provide self-care in custody and if it is a condi-
tion from which he is not expected to recover. Id., cmt. n.1(A).
We have held that “the confluence of [a prisoner’s] medical
conditions and COVID-19” did not constitute an extraordinary and
compelling reason warranting compassionate release where the
prisoner’s medical conditions did not meet § 1B1.13’s criteria. Gi-
ron, 15 F.4th at 1346–47. We found that the defendant failed to
show his “high cholesterol, high blood pressure, and coronary ar-
tery disease” substantially diminished his ability to provide self-care
as required by § 1B1.13, stating that they “were manageable in
prison, despite the existence of the COVID-19 pandemic.” Id.
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22-13818 Opinion of the Court 5
Tomlinson has not established a medical condition meeting
§ 1B1.13’s criteria. See U.S.S.G. § 1B1.13, cmt. n.1(A). Like in Giron,
while Tomlinson has medical conditions that may put him at
greater risk of severe illness from COVID-19, the medical records
he submitted reflect that his conditions are “manageable in prison,
despite the existence of the COVID-19 pandemic.” See id.
Summary affirmance is independently warranted because
Tomlinson fails to address on appeal the district court’s conclusion
that a sentence reduction was not justified based on the § 3553(a)
sentencing factors. In particular, the court found that early release
would not “properly account for the nature and seriousness of his
drug trafficking activities, promote respect for the law, provide just
punishment, or afford adequate deterrence or protection.”
Because any reduction must be supported by the § 3553(a)
factors, the absence of that requirement “would foreclose a sen-
tence reduction,” even assuming there’s an extraordinary and com-
pelling ground for relief. See Tinker, 14 F.4th at 1238–39. And
“[w]hen an appellant fails to challenge properly on appeal one of
the grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.” Sapuppo, 739 F.3d
at 680. Tomlinson has not briefed one of the grounds on which the
district court denied his requests for compassionate release, so it
follows that the judgment is due to be affirmed on that additional
ground. See id.
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6 Opinion of the Court 22-13818
For these reasons, we affirm the denial of Tomlinson’s July
2022 and August 2022 motions for compassionate release and his
motion for reconsideration related to the July 2022 motion.
AFFIRMED.
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