USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14075
Non-Argument Calendar
________________________
D.C. Docket No. 5:03-cr-00052-TES-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ANTOINE LUSTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 17, 2021)
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
David Luster, a federal prisoner proceeding pro se, appeals the district court’s
denial of his motion for a reduced sentence and compassionate release under 18
USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 2 of 7
U.S.C. § 3582(c)(1)(A)(i), as amended by § 603(b) of the First Step Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018). After careful review, we affirm.
I.
In 2004, Luster was convicted of eight counts of bank robbery, see 18 U.S.C.
§ 2113, and two counts of brandishing a firearm during a crime of violence, see 18
U.S.C. § 924(c)(1)(A), and sentenced to a total of 535 months in prison.1 The total
sentence included a mandatory 25-year consecutive sentence because Luster had a
“second or subsequent conviction” under § 924(c)(1)(A) based on then-binding
precedent. See Deal v. United States, 508 U.S. 129, 134 (1993) (interpreting the 25-
year mandatory minimum as applying to second—or third or fourth—§ 924(c)
convictions within a single prosecution). Luster unsuccessfully challenged his
convictions and sentence on direct appeal and collateral review.
In 2018, Congress enacted the First Step Act, which made two changes
relevant to this case. First, it amended § 3582(c)(1)(A) to permit a court to reduce a
sentence upon a defendant’s motion if it finds that “extraordinary and compelling
reasons warrant such a reduction” and other requirements are met, including
exhaustion of administrative remedies through the Bureau of Prisons (“BOP”). First
1
Luster’s convictions and sentence were based on five separate indictments to which he
entered a guilty plea and subsequently was sentenced in a consolidated proceeding.
2
USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 3 of 7
Step Act, § 603(b). Before, only the Director of the BOP could move for such a
sentence reduction. United States v. Bryant, 996 F.3d 1243, 1250 (11th Cir. 2021).
And second, the First Step Act amended § 924(c)(1)(C) “by striking ‘second
or subsequent conviction under this subsection’ and inserting ‘violation of this
subsection that occurs after a prior conviction under this subsection has become
final.’” First Step Act, § 403(a). In other words, the First Step Act amended the 25-
year penalty enhancement so that it “does not apply to multiple § 924(c) convictions
. . . resulting from a single prosecution.” United States v. Smith, 967 F.3d 1196,
1210 (11th Cir. 2020). But importantly, Congress clarified that this reduced penalty
applied to only those who were sentenced after the date of enactment of the Act. Id.
at 1212; First Step Act, § 403(b).
In June 2020, Luster relied on both amendments in moving for a sentence
reduction under § 3582(c)(1)(A)(i). In his motion, he asserted that his “unjust” 25-
year sentence for a “second or subsequent conviction” under § 924(c) as a “first-time
offender” constituted an extraordinary and compelling reason for reduction because,
in his view, Congress had made clear that he was “convicted under the wrong
statutory interpretation of ‘second or subsequent conviction.’” He also cited being
a “black man with diabetes and hypertension” who faced “constant exposure to
smoke and the harm of the covid 19 crisis.”
3
USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 4 of 7
The district court denied the motion on July 10, 2020. It found that Luster
failed to set forth extraordinary and compelling circumstances that would warrant
compassionate release. It further stated that Luster’s medical conditions were
treatable and that the BOP had instituted procedures to minimize the spread of
COVID-19. Luster timely appealed. A three-judge panel dismissed the appeal as
“frivolous” in November 2020. See United States v. Luster, No. 20-12813 (11th Cir.
Nov. 4, 2020) (order dismissing appeal as frivolous).
Meanwhile, in October 2020, Luster filed a motion under “§ 3582(c)(1)(B)”
seeking to reduce the amount of restitution he owed. Because § 3582(c)(1)(B) does
not independently authorize any relief, the district court construed the motion as
brought under § 3582(c)(1)(A)(i). See 18 U.S.C. § 3582(c)(1)(B) (“[T]he court may
modify an imposed term of imprisonment to the extent otherwise permitted by
statute or by Rule 35 of the Federal Rules of Criminal Procedure.”). The court then
denied the motion, stating that Luster had failed to exhaust his administrative
remedies as required. Luster timely appealed the court’s order, which is the sole
matter currently before us for review. 2
2
Luster has since appealed the denial of a third motion for a sentence reduction under
§ 3582(c)(1)(A)(i), which largely sought a sentence reduction on the same grounds as the first
motion. This matter has been docketed separately and is not before us in this appeal.
4
USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 5 of 7
II.
We review the denial of a defendant’s motion for a sentence reduction under
18 U.S.C. § 3582(c)(1)(A)(i) for an abuse of discretion. United States v. Harris, 989
F.3d 908, 911 (11th Cir. 2021). “While we read briefs filed by pro se litigants
liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (citations omitted). When
an appellant abandons one of the grounds on which the district court based its
judgment, “it follows that the judgment is due to be affirmed.” Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
The First Step Act authorizes a court to grant a defendant’s motion to reduce
his sentence under § 3582(c)(1)(A)(i) if it finds that “extraordinary and compelling
reasons warrant such a reduction” and that the reduction is consistent with the
“applicable policy statement[]” in U.S.S.G. § 1B1.13. 18 U.S.C. § 3582(c)(1)(A)(i);
see Bryant, 996 F.3d at 1248 (holding that courts are bound by § 1B1.13 when
resolving all motions under § 3582(c)(1)(A)(i)). Section 1B1.13’s commentary
outlines several qualifying reasons based on the defendant’s serious medical
conditions, age, or family circumstances. U.S.S.G. § 1B1.13, cmt. n.1(A)–(C).
In addition, the First Step Act generally requires a defendant first to exhaust
administrative remedies by submitting a request to the warden of his facility to bring
a motion on his behalf. See First Step Act, § 603; 18 U.S.C. § 3582(c)(1)(A)(i)
5
USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 6 of 7
(authorizing the court to grant a sentence reduction “after the defendant has fully
exhausted all administrative rights to appeal a failure of the BOP to bring a motion
on the defendant’s behalf or the lapse of 30 days from the receipt of such a request
by the warden of the defendant’s facility, whichever is earlier”). We have held that
this exhaustion requirement is a nonjurisdictional claims-processing rule. Harris,
989 F.3d at 911.
Here, Luster’s appeal fails for several reasons. First, Luster has not briefed,
and therefore has abandoned any challenge to, the only matter properly before this
Court for review—that is, whether the district court erred in denying Luster’s
construed § 3582(c)(1)(A)(i) motion seeking a reduction in restitution for failure to
exhaust administrative remedies. See Timson, 518 F.3d at 874.
Second, nothing in the record suggests that Luster met the exhaustion
requirement by submitting a request to the warden of his facility with regard to his
restitution. See 18 U.S.C. § 3582(c)(1)(A)(i).
Third, we note that a prior panel determined that the only issue Luster raises
on appeal—whether the amendment to § 924(c)(1)(C)’s enhanced penalty
constituted an extraordinary and compelling reason for a sentence reduction—was
“frivolous.” Even assuming we could decide that question anew, the amendment to
§ 924(c)(1)(C)’s enhanced penalty is not an extraordinary and compelling reason as
defined in § 1B1.13, which is the policy statement district courts must apply when
6
USCA11 Case: 20-14075 Date Filed: 08/17/2021 Page: 7 of 7
resolving motions under § 3582(c)(1)(A)(i). See Bryant, 996 F.3d at 1248. A
reduction therefore was not authorized on that ground because it would not be
“consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(1)(A).
And fourth, even leaving aside § 1B1.13, it would be against Congressional
intent to permit a reduction under § 3582(c)(1)(A)(i) based on the amendment in
§ 403 of the First Step Act, because Congress expressly provided that the reduced
penalty does not apply to offenders like Luster who were sentenced before the date
of enactment. See Smith, 967 F.3d at 1212–13; First Step Act, § 403(b). Luster
cannot rely on § 3582(c)(1)(A)(i) to circumvent Congressional intent.
For all these reasons, we affirm the denial of Luster’s construed
§ 3582(c)(1)(A)(i) motion.
AFFIRMED.
7