USCA11 Case: 22-10935 Document: 22-1 Date Filed: 07/19/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10935
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TANYA M. FOX,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:14-cr-00058-RBD-DAB-1
____________________
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2 Opinion of the Court 22-10935
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
This appeal arises from the denial of Tanya M. Fox’s pro se
motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A).
Upon review of the record and the parties’ briefs, we affirm the
district court’s order. 1
In 2014, Ms. Fox was found guilty of 26 counts of conspiracy
to defraud the United States, wire fraud, theft of government prop-
erty, and aggravated identity theft. The district court sentenced
Ms. Fox to a total term of 240 months’ imprisonment and 3 years
of supervised release. Ms. Fox appealed her sentence. We affirmed
but remanded for the limited purpose of correcting a clerical error
in the judgment.
In November of 2020, Ms. Fox filed a pro se motion for com-
passionate release under § 3582(c)(1)(A). The district court denied
the motion for failure to comply with the administrative
1 In her brief, Ms. Fox requested appointment of counsel. See Br. of Appellant
at 13. Ms. Fox has no constitutional or statutory right to counsel for a motion
for compassionate release. See United States v. Webb,
565 F.3d 789 (11th Cir.
2009) (holding that “18 U.S.C. §3006A(c) does not provide a statutory right to
counsel at a § 3582(c)(2) motion or hearing”). Because we do not find “excep-
tional circumstances” here, “such as the presence of facts and legal issues
[which] are so novel or complex as to require the assistance of a trained prac-
titioner,” Ms. Fox’s request is denied. See Kilgo v. Ricks,
983 F.2d 189, 193 (11th
Cir. 1993) (internal quotations omitted).
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22-10935 Opinion of the Court 3
requirements of § 3582—specifically, 30 days had not lapsed from
when Ms. Fox requested relief from the warden of her facility.
A few weeks later, Ms. Fox filed another pro se motion under
§ 3582(c)(1)(A). Ms. Fox sought a sentence reduction because she
believed her medical conditions (hypertension, obesity, diabetes,
sickle cell trait, and anemia) increased her “risk of severe illness and
complications connected to COVID-19.” D.E. 108-1 at 2. Ms. Fox
also argued that the
18 U.S.C. § 3553(a) factors weighed in favor of
a sentence reduction. The district court denied Ms. Fox’s motion,
finding that because she previously contracted COVID-19 and re-
covered, her medical conditions did not constitute an extraordi-
nary and compelling reason for release. The district court further
determined that “[e]ven if Ms. Fox had shown an extraordinary and
compelling reason, the § 3553(a) sentencing factors and [18 U.S.C.]
§ 3142(a) dangerousness factors [did not] favor release.” D.E. 111
at 3.
In February of 2021, Ms. Fox filed her third pro se motion for
relief under § 3582(c)(1)(A). The motion was again based on her
medical conditions and the risks posed by the COVID-19 pan-
demic. Ms. Fox added that “more contagious and virulent” strains
of the virus were detected at the facility where she was incarcer-
ated. See D.E. 112 at 1–2. The district court denied Ms. Fox’s mo-
tion because “the sentencing and dangerousness factors do not fa-
vor her release – and the [s]econd [m]otion [for compassionate re-
lease] does not change the [c]ourt’s calculus.” D.E. 113.
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4 Opinion of the Court 22-10935
By the end of that year, in December of 2021, Ms. Fox filed
a renewed pro se motion for compassionate release—her fourth—
again based on her medical conditions and the ongoing pandemic.
Ms. Fox indicated that she was “still enduring long term effects
from” contracting the COVID-19 virus, that she has 3 comorbidi-
ties “identified by the CDC as comorbidities which increase the risk
of serious illness for those infected with COVID-19,” that the rele-
vant § 3553 factors favor a sentence reduction, and that if granted
relief, she had a reentry plan. D.E. 114 at 1–2, 4. The district court
denied Ms. Fox’s motion, explaining that it had “already considered
and rejected all of [her] arguments.” D.E. 118 at 2. The district
court ruled that there was no extraordinary and compelling reason
for release—noting that Ms. Fox “provid[ed] no evidence indicat-
ing that she is not able to complete self-care, and she previously
both contracted and was vaccinated against COVID-19”—and that
the § 3553(a) factors “strongly disfavor a sentence reduction.” Id.
We review a district court’s denial of a motion for compas-
sionate release for abuse of discretion. See United States v. Harris,
989 F.3d 908, 911 (11th Cir. 2021); United States v. Cook,
998 F.3d
1180, 1183 (11th Cir. 2021). A district court abuses its discretion
when it “applies the wrong law, follows the wrong procedure, ba-
ses its decision on clearly erroneous facts, or commits a clear error
in judgment.” United States v. Brown,
415 F.3d 1257, 1266 (11th Cir.
2005).
As amended by the First Step Act, § 3582(c)(1)(A) allows dis-
trict courts to reduce a term of imprisonment, “after considering
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22-10935 Opinion of the Court 5
the factors set forth in [§] 3553(a) to the extent they are applicable,”
if the court finds that “extraordinary and compelling reasons war-
rant such a reduction” and “that such a reduction is consistent with
applicable policy statements issued by the Sentencing Commis-
sion[.]”
18 U.S.C. § 3582(c)(1)(A). We have held that “a district
court need not analyze the § 3553(a) factors if it finds either that no
extraordinary and compelling reason exists or that the defendant is
a danger to the public.” United States v. Giron,
15 F.4th 1343, 1347
(11th Cir. 2021). Likewise, a district court does not “procedurally
err when it denies a request for compassionate release based on the
§ 3553(a) sentencing factors (or § 1B1.13’s policy statement) with-
out first explicitly determining whether the defendant could pre-
sent ‘extraordinary and compelling reasons.’” United States v.
Tinker,
14 F.4th 1234, 1240 (11th Cir. 2021).
Here, upon review of the record and the parties’ briefing, we
find that the district court did not abuse its discretion in concluding
that Ms. Fox was not entitled to relief under the First Step Act. 2 To
2
The government says that Ms. Fox’s appeal was untimely under Federal Rule
of Appellate Procedure 4(b), which provides a 14-day period to file a notice of
appeal in a criminal case, because the district court denied Ms. Fox’s motion
on February 25, 2022, and Ms. Fox filed her notice of appeal 25 days later on
March 21, 2022. See Br. of Appellee at 7. Ms. Fox’s notice of appeal appears to
have been untimely—though not as untimely as the government claims. The
district court’s order is dated February 24, 2022 and was entered on the docket
on February 25, 2022. See D.E. 118. Ms. Fox’s notice of appeal was stamped
and received by the Clerk of Court on March 21, 2022, but was signed and
dated by Ms. Fox on March 15, 2022. See D.E. 119. Because “a pro se prisoner’s
court filing is deemed filed on the date it is delivered to prison authorities for
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6 Opinion of the Court 22-10935
grant a sentence reduction, the district court must find three con-
ditions are met: “support in the § 3553(a) factors, extraordinary and
compelling reasons, and adherence to § 1B1.13’s policy statement.”
Tinker, 14 F.4th at 1237–38. See also Giron, 15 F.4th at 1348. If all
three requirements are satisfied, “the district court then has discre-
tion—but not the obligation—to impose a new sentence.” Id. at
1239. Accordingly, Ms. Fox must demonstrate not only that she
met the three requirements to be eligible for a sentence reduction,
but that the district court abused its discretion when it exercised its
discretion to deny a sentence reduction. On this record, Ms. Fox
has not made that showing.
At the time of her fourth pro se motion, Ms. Fox asserted that
she was 46 years old, suffered from aggressive arthritis, hyperten-
sion, Type II diabetes, and obesity. Ms. Fox also indicated in her
motion that she previously contracted COVID-19 and was also ad-
ministered the vaccine against the virus. With respect to the §
3553(a) factors, Ms. Fox averred that her offense conduct, though
serious, “involved neither weapons nor allegations of violence,”
that she had “no serious prior criminal history, and [had] been con-
fined more than 7 years on this non-violent case.” D.E. 114 at 4.
mailing,” March 15, not March 21, would be the relevant date we would con-
sider for Rule 4(b) purposes. See Williams v. McNeil,
557 F.3d 1287, 1290 (11th
Cir. 2009). This is still beyond the 14-day period but “the deadline in Rule 4(b)
for a defendant to file a notice of appeal in a criminal case . . . is not jurisdic-
tional,” United States v. Lopez,
562 F.3d 1309, 1313 (11th Cir. 2009), and the
government has not moved to dismiss the appeal.
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22-10935 Opinion of the Court 7
Even assuming there was an extraordinary and compelling
reason for a sentence reduction, the district court was well within
its discretion in concluding that the § 3553(a) factors weighed
against a sentence reduction. See United States v. Rodriguez, No. 22-
12883,
2023 WL 3620954, at *3 (11th Cir. May 24, 2023) (“Because
that finding alone means that one of the necessary conditions for
relief is missing—and thus Rodriguez’s requested relief is fore-
closed—we need not address whether he demonstrated an extraor-
dinary and compelling reason for compassionate release.”). The §
3553(a) factors include, for example, the nature and circumstances
of the offense and the history and characteristics of the defendant;
the need for the sentence imposed to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punish-
ment for the offense; and the need for the sentence imposed to af-
ford adequate deterrence to criminal conduct.
18 U.S.C. § 3553(a).
As the district court noted, it had already considered and re-
jected Ms. Fox’s arguments made in her prior motions for compas-
sionate release. The district court cited its December 22, 2020 or-
der, D.E. 111, and its February 8, 2021 order, D.E. 113. In its De-
cember 22, 2020 order, the district court explained the following:
“Ms. Fox has only served six of her twenty-year-sentence. Releas-
ing her now is not justified, given the need for a sentence that re-
flects the seriousness of his [sic] offense, promotes respect for the
law, provides just punishment, and affords adequate deterrence.”
D.E. 111 (internal citations omitted). The district court further ex-
plained that “Ms. Fox [had] not shown she no longer poses a danger
to the community. Ms. Fox stole over $4 million from the United
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8 Opinion of the Court 22-10935
States and the identities of over 3,000 people.”
Id. (internal cita-
tions omitted). Neither this reasoning, nor reliance on it, was an
abuse of discretion. See United States v. Amedeo,
487 F.3d 823, 832
(11th Cir. 2007) (“The weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district
court[,] and [w]e will not substitute our judgment in weighing the
relevant factors.”) (internal quotations omitted). See also Tinker, 14
F.4th at 1241 (“[A]n acknowledgement by the district court that it
considered the § 3553(a) factors and the parties’ arguments is suffi-
cient”).
Because Ms. Fox did not show that the § 3553 factors weigh
in favor of a sentence reduction, we need not reach Ms. Fox’s re-
maining arguments. Accordingly, we affirm the district court’s de-
nial of Ms. Fox’s motion for compassionate release.
AFFIRMED.
