USCA11 Case: 21-13566 Date Filed: 04/18/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13566
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLU VICTOR ALONGE,
a.k.a. Serge Damessi,
a.k.a. Didier Baraze,
Defendant-Appellant.
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2 Opinion of the Court 21-13566
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00092-TCB-LTW-1
____________________
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Olu Victor Alonge, a federal prisoner proceeding pro se, ap-
peals the denial of his motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A), as amended by section 603(b) of the First
Step Act. 1 After Alonge filed his initial brief, the government
moved for summary affirmance or to stay the briefing schedule.
Alonge, in turn, has move to file a response to the government’s
motion out of time, and a second motion to supplement the for-
mer.
For ease of reference, we will discuss the summary affir-
mance motion first, and then Alonge’s motions.
I.
In its motion for summary affirmance, the government ar-
gues that the district court did not abuse its discretion because it
was bound by United States v. Bryant,
996 F.3d 1243 (11th Cir.
2021), and Alonge does not express any qualifying extraordinary
1 Pub. L. No. 115-391,
132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”).
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21-13566 Opinion of the Court 3
and compelling reason. It also asserts that the district court reason-
ably concluded that the § 3553(a) factors did not warrant release.
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). 2
We review de novo whether a district court had the author-
ity to modify a term of imprisonment. United States v. Jones,
962 F.3d 1290, 1296 (11th Cir. 2020). We will review a district
court’s denial of a prisoner’s § 3582(c)(1)(A) motion for abuse of
discretion. United States v. Harris,
989 F.3d 908, 911 (11th Cir.
2021).
A district court has no inherent authority to modify a de-
fendant’s sentence and may do so “only when authorized by a stat-
ute or rule.” United States v. Puentes,
803 F.3d 597, 605–06 (11th
Cir. 2015). The First Step Act expressly permits district courts to
reduce a previously imposed term of imprisonment. Jones,
962 F.3d at 1297. However, the statute provides that a “court may
not modify a term of imprisonment once it has been imposed” ex-
cept under certain circumstances.
18 U.S.C. § 3582(c).
2 We are bound by decisions of the former Fifth Circuit handed down before
October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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4 Opinion of the Court 21-13566
A district court may reduce a prisoner’s term of imprison-
ment under the compassionate release statute “after considering
the factors set forth in [18 U.S.C.] section 3553(a) to the extent that
they are applicable, if it finds that—extraordinary and compelling
reasons warrant such a reduction.”
Id. § 3582(c)(1)(A)(i).
The § 3553(a) factors include, among other things, the na-
ture and circumstances of the defendant’s offense, his history and
characteristics, and the need to protect the public from further
crimes of the defendant.
18 U.S.C. § 3553(a). It is the defendant’s
burden to show that his circumstances warrant a reduction.
18 U.S.C. § 3582(c)(1)(A)(i). The weight given to any specific
§ 3553(a) factor is committed to the sound distraction of the district
court. United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir.
2016). Generally, when a district court considers the § 3553(a) fac-
tors, it need not state on the record that it has explicitly considered
each of them or discuss each of them. See United States v.
Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013).
The compassionate release statute also requires that any re-
duction be consistent with applicable policy statements issued by
the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A). Section
1B1.13 of the Sentencing Guidelines provides the applicable policy
statement for § 3582(c)(1)(A). U.S.S.G. § 1B1.13. The application
notes to § 1B1.13 list four categories of extraordinary and compel-
ling reasons: (A) the defendant’s medical condition, (B) his age, (C)
his family circumstances, including the death of a caregiver of a mi-
nor child, and (D) “other reasons.” Id., cmt. n.1(A)–(D).
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21-13566 Opinion of the Court 5
Subsection D serves as a catch all provision, providing that a pris-
oner may be eligible for relief if, “[a]s determined by the Director
of the [BOP], there exists in the defendant’s case an extraordinary
and compelling reason other than, or in combination with, the rea-
sons described in subdivisions (A) through (C).” Id., cmt. n.1(D).
If there are extraordinary and compelling reasons for com-
passionate release, the district court has the discretion to reduce the
defendant’s term of imprisonment after considering the applicable
§ 3553(a) factors. Id. Commentary also states that extraordinary
and compelling reasons exist under any of the circumstances listed,
provided that the court determines that the defendant is not a dan-
ger to the safety of any other person or to the community, as pro-
vided in
18 U.S.C. § 3142(g). See § 1B1.13, cmt. n.1. However, we
explained that the catch-all provision in the commentary to
§ 1B1.13 did not grant to district courts the discretion to develop
other reasons outside those listed in § 1B1.13 that might justify a
reduction in a defendant’s sentence. Bryant, 996 F.3d at 1248.
First, procedurally, Alonge does not challenge the district
court’s finding that he did not provide evidence of exhausting his
administrative remedies. Therefore, this issue is abandoned. See
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir.
2014). Even if Alonge had not abandoned this issue, he did not al-
lege any facts before the district court showing that he had ex-
hausted his administrative remedies before filing for compassion-
ate release.
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6 Opinion of the Court 21-13566
Second, Alonge’s proposed extraordinary and compelling
reason did not meet the definition of such as defined in U.S.S.G.
§ 1B1.13. In Bryant, we held that the § 1B1.13 policy statement ap-
plied to prisoners requesting compassionate release, and district
courts lacked discretion to develop extraordinary and compelling
reasons outside of what was in the policy statement. Bryant,
996 F.3d at 1262, 1263. Therefore, his argument that his sentencing
disparity qualified as an extraordinary and compelling reason war-
ranting release fails because it does not fit within the policy state-
ment. See U.S.S.G. § 1B1.13 cmt. n.1. As this was a necessary con-
dition for the district court to grant compassionate release, the lack
of this condition means that compassionate release cannot be
granted. See United States v. Tinker,
14 F.4th 1234, 1237–38 (11th
Cir. 2021).
Third, the district court did not abuse its discretion when it
found that the § 3553(a) factors did not merit release. Although the
district court did not discuss each factor explicitly, it did not need
to, and it considered the seriousness of the offense in its order.
Kuhlman, 711 F.3d at 1326. The district court had the discretion to
give great weight to that factor over any other potential factor too.
Croteau, 819 F.3d at 1309. Therefore, it did not abuse its discretion
when it found that the factors did not weigh in Alonge’s favor.
Accordingly, because the government’s position is “clearly
right as a matter of law” we grant its motion for summary affir-
mance and deny as moot Alonge’s motion to hold this appeal in
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21-13566 Opinion of the Court 7
abeyance and the government’s motion to stay the briefing sched-
ule. See Groendyke Transp., Inc.,
406 F.2d at 1162.
II.
In his motions for leave to file an out of time response to the
government’s motion for summary affirmance, Alonge argues that
he should be allowed to file a response out of time due to limited
access to the law library because of the pandemic and that the gov-
ernment’s motion for summary affirmance was flawed.
A response to a motion must be filed within 10 days after
service of the motion unless we shorten or extends the time. Fed.
R. App. P. 27(a)(3)(A). However, we may permit an act to be done
after the requisite time expires for good cause. Id. 26(b).
Here, we deny Alonge’s motions as moot. Although a pro
se litigant should ordinarily be given a fair opportunity to present
his arguments on appeal, Alonge raises arguments in his proposed
supplemental brief that would not change the outcome of the case,
especially as he does not address the independent grounds the dis-
trict court had for denying his motion for compassionate release.
Thus, we deny his motions as moot.
III.
In sum, we GRANT the government’s motion for summary
affirmance and DENY as moot its motion to stay the briefing sched-
ule as well as DENY as moot Alonge’s motions to file an out of
time response and to supplement the out of time response motion.
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8 Opinion of the Court 21-13566
AFFIRMED.
