USCA11 Case: 20-14823 Date Filed: 08/18/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-14823
Non-Argument Calendar
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D.C. Docket No. 2:94-cr-00007-RWS-JCF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY J. COLLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 18, 2021)
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
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Terry Colley appeals the district court’s denial of his motion for
compassionate release, filed pursuant to 18 U.S.C. § 3852(c)(1)(A), as modified by
§ 603(b) of the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. He asserts
that the district court abused its discretion (1) by improperly concluding that it did
not have the authority to consider a statutory change that eliminated mandatory
stacking of offenses, (2) by considering his arguments in support of compassionate
release on a piecemeal basis rather than collectively and by failing to consider
other factors under the U.S.S.G. § 1B1.13’s “catchall” provision, and (3) by
misstating the facility where he was imprisoned. After careful review, we affirm.1
It is well established that a district court has no inherent authority to modify
a defendant’s sentence and may do so “only when authorized by a statute or rule.”
United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015). Prior to the First
Step Act, 18 U.S.C. § 3582(c)(1)(A) allowed the district court to reduce a
prisoner’s term of imprisonment upon motion of the Director of the Bureau of
Prisons (BOP), after considering the factors set forth in 18 U.S.C. § 3553(a), if it
found that extraordinary and compelling reasons warranted such a reduction. The
First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow the court to reduce a
1
We review a district court’s denial of a prisoner’s § 3582(c)(1)(A) motion for an abuse of
discretion. United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). The district court abuses
its discretion if it applies an incorrect legal standard, follows improper procedures in making the
determination, or makes clearly erroneous factual findings. United States v. Barrington, 648
F.3d 1178, 1194 (11th Cir. 2011).
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defendant’s term of imprisonment also upon motion of the defendant, after the
defendant had 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. See First Step Act § 603; 18 U.S.C. § 3582(c)(1)(A). The court must find
that extraordinary and compelling reasons warrant such a reduction, consider the §
3553(a) factors “to the extent that they are applicable,” and find that a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.2 Id. The exhaustion requirement of 18 U.S.C. § 3582(c)(1)(A) is not
jurisdictional. Harris, 989 F.3d at 911.
The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G.
§ 1B1.13, which, notably, has not been amended since the First Step Act was
passed and refers only to a sentence reduction upon a motion from the BOP
Director. See U.S.S.G. § 1B1.13. The commentary to § 1B1.13 states that
extraordinary and compelling reasons exist under any of the circumstances listed,
provided that the court determines that 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). See
2
An appellant’s failure to plainly and prominently raise an issue on appeal by not “devot[ing] a
discrete, substantial portion of his argumentation to that issue” abandons the issue. United States
v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). Accordingly, Colley has abandoned any
argument that the district court abused its discretion by not addressing the 18 U.S.C. § 3553(a)
factors because he does not make that argument at any point in his counseled brief. See id.
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id. § 1B1.13 & comment. (n.1). The commentary lists a defendant’s medical
condition, his age, and family circumstances as possible “extraordinary and
compelling reasons” warranting a sentence reduction. Id. § 1B1.13, comment.
(n.1).
A defendant’s medical condition may warrant a sentence reduction if he
(1) has a terminal disease or (2) is suffering from a physical or mental condition
that diminishes his ability to provide self-care in prison and from which he is not
expected to recover. Id., comment. (n.1(A)). Deteriorating mental or physical
health resulting from the aging process also may constitute an extraordinary or
compelling reason for granting a sentence reduction. Id. A prisoner’s age may be
an extraordinary or compelling reason if the prisoner (1) is at least 65 years old,
(2) is experiencing a serious deterioration in physical or mental health because of
the aging process, and (3) has served at least 10 years or 75 percent of his term,
whichever is less. Id., comment. (n.1(B)).
A prisoner’s rehabilitation is not, by itself, an extraordinary and compelling
reason warranting a sentence reduction. Id., comment. (n.3). The commentary
also contains a catch-all provision for “other reasons,” which provides that a
prisoner may be eligible for a sentence reduction if, “[a]s determined by the
Director of the Bureau of Prisons, there exists in the defendant’s case an
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extraordinary and compelling reason other than, or in combination with,” the other
specific examples listed. Id., comment. (n.1(D)).
We recently concluded that the policy statement in § 1B1.13 is applicable to
all motions filed under § 3582(c)(1)(A), including those filed by prisoners, and
thus, that “district courts may not reduce a sentence under Section 3582(c)(1)(A)
unless a reduction would be consistent with [§] 1B1.13.” United States v. Bryant,
996 F.3d 1243, 1262 (11th Cir. 2021). We also held that district courts do not have
the discretion under the catch-all provision to develop other reasons outside of
those listed in § 1B1.13 that might justify a reduction in a defendant’s sentence.
Id. at 1263–65.
The district court here did not abuse its discretion by determining that Colley
had failed to demonstrate an extraordinary and compelling reason for granting
compassionate release. First, Colley is incorrect that it should have considered the
changes to the stacking provision of 18 U.S.C. § 924(c) because statutory changes
are not listed as an extraordinary and compelling reason under U.S.S.G. § 1B1.13.
See Bryant, 996 F.3d at 1248, 1262.
Next, Colley is incorrect that the district court improperly considered his
arguments separately because the “catchall” provision of § 1B1.13 allows only the
BOP director to determine what “other reasons” would warrant release, not the
district court. See Bryant, 996 F.3d at 1263–64. Here, the district court evaluated
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his medical-condition argument separate from his arguments about his
rehabilitation and the statutory changes to § 924(c). It correctly did not attempt to
determine that his medical condition combined with his other arguments
constituted an extraordinary and compelling reason under the catchall provision of
U.S.S.G. § 1B1.13. The district court was also correct that Colley’s medical
conditions—obesity and hypertension—did not constitute an extraordinary and
compelling reason because it did not meet the criteria in § 1B1.13. U.S.S.G.
§ 1B1.13, comment. (n.1(A)).
Lastly, although the district court appears to have overlooked that Colley
changed facilities after filing his motion for compassionate release, any error was
harmless, as the district court based its decision on the extent to which his medical
conditions increased his risk of severe illness if he caught COVID-19, rather than
his risk of catching COVID-19 based on where he was incarcerated.
Therefore, the district court did not abuse its discretion and we affirm.
AFFIRMED.
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