United States of America v. Christopher D. Billingsley

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER D. BILLINGSLEY,
Defendant - Appellant.
No. 20-6146
(D.C. No. 5:15-CR-00258-F-4)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH,
Circuit Judges.
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Every appellant must state in the opening brief why the district court
erred. Nixon v. City and Cnty. Of Denver, 784 F.3d 1364, 1366 (10th Cir.
2015). Here, though, the appellant misunderstood the basis for the district
court’s ruling. This misunderstanding led the appellant to argue something
* The parties do not request oral argument, and it would not help us
decide the appeal. So we have decided the appeal based on the record and
the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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that was never in dispute: jurisdiction. Because the appellant failed to
challenge the actual basis for the district court’s ruling, we affirm.
The appellant is Mr. Christopher D. Billingsley, a federal prisoner.
He moved for compassionate release based on his comorbidities and the
spread of a pandemic. In addressing this motion, the district court noted
three requirements: (1) jurisdiction, (2) extraordinary and compelling
reasons for compassionate release, and (3) consistency between early
release and achievement of the Sentencing Commission’s policy
statements. The court rejected the motion based on the third requirement,
concluding that Mr. Billingsley continued to pose a danger to the public.
Despite this conclusion, Mr. Billingsley’s opening appeal brief
makes no mention of dangerousness. In the opening brief, Mr. Billingsley
instead says that the district court erroneously denied the motion on
jurisdictional grounds. This statement is inaccurate, for the district court
acknowledged that it had jurisdiction.
Mr. Billingsley also insists in his opening brief that his medical
condition constituted extraordinary and compelling reasons for early
release. But the district court assumed that Mr. Billingsley’s medical
condition would qualify as an extraordinary and compelling reason. With
this assumption, the district court relied solely on Mr. Billingsley’s
dangerousness. Mr. Billingsley nonetheless waited until his reply brief to
address his dangerousness. That was too late, and omission of the issue in
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his opening brief constitutes waiver of the issue. See White v. Chafin,
862 F.3d 1065, 1067 (10th Cir. 2017). So we affirm the denial of
Mr. Billingsley’s motion. 1
Entered for the Court
Robert E. Bacharach
Circuit Judge
1 Mr. Billingsley also moves for leave to proceed in forma pauperis.
We grant this motion.
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