FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 29, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-4077
(D.C. No. 2:16-CR-00566-TS-1)
STEPHEN PLATO MCRAE, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.**
_________________________________
Defendant-Appellant Stephen McRae, proceeding pro se,1 appeals the district
court’s denial of his motion for compassionate release. See 18 U.S.C.
§ 3582(c)(1)(A). Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the
district court’s order and remand for further proceedings consistent with this order.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). So we deny McRae’s
motion to set the case for oral argument.
1
Because McRae appears pro se, we liberally construe his pleadings but will
not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009).
In September 2016, McRae traveled to an energy facility in Kane County,
Utah, and fired several rifle shots into the facility’s cooling fins. The shots ruptured
the radiator piping, causing the facility’s substation to overheat and fail. As a result,
most of Kane and Garfield Counties lost power for eight hours. It cost the facility’s
owner over $350,000 to repair the damage.2 The FBI later identified McRae as the
shooter, and in May 2019 he pleaded guilty to one count of destruction of an energy
facility, see 18 U.S.C. § 1366(a). The district court sentenced McRae to 96-months’
imprisonment and a 36-month term of supervised release.
In May 2020, with about 53 months of his sentence remaining, McRae filed a
motion seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A). Before 2018,
§ 3582(c)(1)(A) authorized only the Director of the Bureau of Prisons (BOP) to move
for a reduction of a defendant’s sentence. United States v. McGee, 992 F.3d 1035,
1037, 1050 (10th Cir. 2021). But that changed when Congress passed The First Step
Act of 2018, Pub. L. 115-391, 132 Stat. 5194, which conditionally allows prisoners to
file their own motions for sentence reductions. Id. Under the statute as modified by
the First Step Act, a court may reduce a defendant’s sentence “after considering the
factors set forth in section 3553(a) . . . if it finds that . . . extraordinary and
compelling reasons warrant such a reduction” and that “such a reduction is consistent
2
McRae claims that he acted under a “deathly [fear] of global warming” and
wanted to “express opposition” to the burning of fossil fuels. Appellant’s Opening
Br. Continuation Pages at 9–10.
2
with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(1)(A) (emphasis added). The policy statement at issue here provides:
Upon motion of the Director of the Bureau of Prisons under 18 U.S.C.
§ 3582(c)(1)(A), the court may reduce a term of imprisonment . . . if,
after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent
that they are applicable, the court determines that—
(1)(A) Extraordinary and compelling reasons warrant the reduction; or
(B) The defendant (i) is at least 70 years old; and (ii) has served at least
30 years in prison pursuant to a sentence imposed under 18 U.S.C.
§ 3559(c) for the offense or offenses for which the defendant is
imprisoned;
(2) The defendant is not a danger to the safety of any other person or to
the community, as provided in 18 U.S.C. § 3142(g); and
(3) The reduction is consistent with this policy statement.
USSG § 1B1.13 (2018).
Citing his increased health risks if he contracted COVID-19, McRae asked the
district court to convert the remainder of his sentence to home confinement. The
district court agreed with the government that McRae’s “health conditions, in
combination with the COVID-19 pandemic provide[d] extraordinary and compelling
reasons for release.” R. vol. 3 at 301. But, relying on section (2) of the policy
statement, the court nonetheless denied the motion after concluding that McRae still
“pose[d] a substantial danger to the public.” Id.
But in two recent decisions, our Court has concluded that the policy statement
is not “applicable” to compassionate-release motions filed by prisoners under
§ 3582(c)(1)(A). McGee, 992 F.3d at 1050 (joining the Second, Fourth, Sixth, and
3
Seventh Circuits in concluding that “the Sentencing Commission’s existing policy
statement is applicable only to motions for sentence reductions filed by the Director
of the BOP, and not to motions filed directly by defendants” (collecting cases));
United States v. Maumau, 993 F.3d 821 (10th Cir. 2021) (same). Thus, when a
prisoner, not the BOP Director, files a compassionate-release motion, this policy
statement doesn’t apply.3 McGee, 992 F.3d at 1050. Here, McRae, not the BOP
Director, brought the compassionate-release motion. So, as it has turned out, the
district court erred by applying the policy statement.
We thus vacate the district court’s order and remand for proceedings consistent
with McGee, Maumau, and this order.4 Further, though we grant McRae’s motion to
proceed in forma pauperis, see DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
3
In considering compassionate-release motions, courts should continue to
weigh the danger a defendant may pose to the public. But in assessing motions
brought by prisoners under 18 U.S.C. § 3582(c)(1)(A)(i), courts should conduct the
dangerousness inquiry under the § 3553(a) factors. See 18 U.S.C. § 3553(a)(2)(C)
(requiring courts to consider the need “to protect the public from further crimes of
the defendant”).
4
In his Reply Brief, McRae represents that he contracted COVID-19 soon
after filing this appeal. Given that McRae moved for compassionate release based on
his risk of contracting COVID-19, we recognize that the changed circumstances will
likely require McRae to amend his motion or file a renewed application for relief. See
United States v. Roney, 833 F. App’x 850, 855 (2d Cir. 2020) (noting that “the denial
of a motion of this kind generally will not preclude a renewed application based on
changed circumstances”); United States v. Carr, No. 20-1152, 2021 WL 1400705, at
*5 (10th Cir. Apr. 14, 2021) (remanding so the district court could assess the
defendant’s compassionate-release motion in light of McGee and Maumau). We leave
it to the district court’s discretion to decide how best to proceed.
4
Cir. 1991), we deny as moot his motion to appoint counsel and his motion seeking a
temporary restraining order.
Entered for the Court
Gregory A. Phillips
Circuit Judge
5