USCA11 Case: 21-12094 Date Filed: 01/25/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12094
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RENARD ALBURY, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:11-cr-00410-SDM-TBM-1
____________________
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2 Opinion of the Court 21-12094
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Michael Albury, Jr., appeals the district court’s denial of his
request for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), as
amended by § 603(b) of the First Step Act of 2018, 1 which permits
courts to reduce the sentences of defendants when warranted by
“extraordinary and compelling reasons.” After careful review, we
affirm.
In September 2012, the district court sentenced Albury to a
total term of 720 months in prison after a jury convicted him of
four counts of drug trafficking, see 21 U.S.C. § 841(a)(1), two
counts of possession of a firearm in furtherance of a drug-traffick-
ing crime, see 18 U.S.C. § 924(c)(1)(A), and one count of possession
of a firearm after a felony conviction, see 18 U.S.C. §§ 922(g),
924(e)(1). At the time, Albury’s two § 924(c) convictions were sub-
ject to mandatory consecutive sentences of 60 months and 300
months, respectively, based on § 924(c)’s enhanced-penalty provi-
sion for “second or successive” § 924(c) convictions. See 18 U.S.C.
§ 924(c)(1)(C) (2010); see Deal v. United States, 508 U.S. 129, 134–
35 (1993). We affirmed Albury’s convictions on appeal. United
States v. Albury, 782 F.3d 1285 (11th Cir. 2015).
1 Pub. L. No. 115-391, 132 Stat. 5192, 5239 (2018)
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21-12094 Opinion of the Court 3
In April 2021, approximately nine years into the sixty-year
sentence, Albury filed a motion requesting a sentence reduction
under § 3582(c)(1)(A)(i). He identified two grounds for a reduction:
(1) he had a medical condition—obesity—that increased his risk of
severe illness from COVID-19; and (2) § 403 of the First Step Act
amended § 924(c)’s penalty enhancement to prevent its application
to defendants who, like Albury, were convicted of multiple viola-
tions of § 924(c) for the first time in a single prosecution. 2 He fur-
ther contended that the 18 U.S.C. § 3553(a) factors weighed in fa-
vor of relief and that he was not a danger to the community.
After the government responded in opposition, and Albury
replied, the district court denied a sentence reduction. Relying on
our recent decision in United States v. Bryant, 996 F.3d 1243 (11th
Cir. 2021), the court explained that the policy statement in U.S.S.G.
§ 1B1.13 was binding and that Albury’s two asserted grounds for
release did not count as extraordinary and compelling according to
2 Before the First Step Act was enacted, 18 U.S.C. § 924(c) contained a “stack-
ing” provision where, in the case of a second or subsequent conviction under
§ 924(c), a defendant was to be “sentenced to a term of imprisonment of not
less than 25 years.” 18 U.S.C. § 924(c)(1)(C)(i). Section 403(a) of the First Step
Act amended this language so that the 25-year mandatory minimum on a sec-
ond § 924(c) violation applies only when the later conviction is for a § 924(c)
violation that occurs after a previous one has become final. First Step Act
§ 403(a). But § 403(b) explained that the amendments apply only “if a sentence
for the offense has not been imposed as of [the] date of enactment” of the First
Step Act: December 21, 2018. Id. § 403(b). Based on this language, we have
held that § 403 does not apply retroactively. United States v. Smith, 967 F.3d
1196, 1211–13 (11th Cir. 2020).
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4 Opinion of the Court 21-12094
that statement. The court also found that Albury failed to show he
would not endanger the safety of any other person or the commu-
nity if released. Albury now appeals.
We review de novo a determination about a defendant’s el-
igibility for a § 3582(c) sentence reduction. Bryant, 996 F.3d at
1251. We review the denial of an eligible prisoner’s § 3582(c)(1)(A)
motion for an abuse of discretion. Id.; United States v. Harris, 989
F.3d 908, 911 (11th Cir. 2021). A district court retains a “range of
choice,” so long as it does not apply an incorrect legal standard, rely
on clearly erroneous facts, or commit a clear error of judgment.
Harris, 989 F.3d at 911–12.
Under § 3582(c)(1)(A), a district court may grant a defend-
ant’s motion for a sentence reduction, after considering the
§ 3553(a) factors, “if it finds that . . . extraordinary and compelling
reasons warrant such a reduction” and that a “reduction is con-
sistent with applicable policy statements” in the Sentencing Guide-
lines. 18 U.S.C. § 3582(c)(1)(A)(i). The applicable policy statement
is found at U.S.S.G. § 1B1.13, and, under our precedent, a district
court cannot reduce a sentence under § 3582(c)(1)(A) unless a re-
duction would be consistent with § 1B1.13. Bryant, 996 F.3d at
1262.
The defendant has the burden of proving the extraordinary
and compelling reasons he claims warrant a reduction. See United
States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013) (explaining
that in the § 3582(c)(2) context, the defendant bears the burden of
establishing that he qualifies for a sentence reduction). The failure
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21-12094 Opinion of the Court 5
to demonstrate an extraordinary and compelling reason within the
meaning of § 1B1.13 is alone sufficient to “foreclose a sentence re-
duction.” United States v. Tinker, 14 F.4th 1234, 1237–38 (11th Cir.
2021).
The commentary to § 1B1.13 outlines medical, age, and
family circumstances which may qualify as sufficiently “extraordi-
nary and compelling.” See U.S.S.G. § 1B1.13, cmt. n.1(A)–(C). As
relevant here, a non-terminal medical condition may be grounds
for a sentence reduction if it substantially diminishes a prisoner’s
ability to provide self-care in custody and if it is a condition from
which he is not expected to recover. Id., cmt. n.1(A). While the
commentary also authorizes relief for “other reasons,” id. § cmt.
n.1(D), our precedent holds that such other reasons must be deter-
mined by the Bureau of Prisons (“BOP”), not by the courts. See
Bryant, 996 F.3d at 1262–65. In other words, a district court lacks
discretion to develop other reasons outside those listed in § 1B1.13.
Id.
We recently held that “the confluence of [a prisoner’s] med-
ical conditions and COVID-19” did not constitute an extraordinary
and compelling reason warranting compassionate release where
the prisoner’s medical conditions did not meet § 1B1.13’s criteria.
United States v. Giron, 15 F.4th 1343, 1346–47 (11th Cir. 2021). We
found that the defendant failed to show his “high cholesterol, high
blood pressure, and coronary artery disease” substantially dimin-
ished his ability to provide self-care as required by § 1B1.13, stating
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6 Opinion of the Court 21-12094
that they “were manageable in prison, despite the existence of the
COVID-19 pandemic.” Id.
Here, the district court did not err in denying Albury’s mo-
tion for a sentence reduction under § 3582(c)(1)(A)(i). We agree
with the court that Albury did not demonstrate an “extraordinary
and compelling” reason for early release consistent with § 1B1.13.
See Tinker, 14 F.3d at 1237–38; Bryant, 996 F.3d at 1262–64.
First, Albury cannot obtain relief under § 3582(c)(1)(A)(i)
based on the First Step Act’s amendments to § 924(c)’s enhanced-
penalty provision. Like Albury, the defendant in Bryant argued
that he presented extraordinary and compelling reasons for relief
because “he would not be subject to a 25-year mandatory mini-
mum if he were sentenced today.” 996 F.3d at 1250–51. We re-
jected this ground as not consistent with § 1B1.13, explaining that
it was not a medical, age, or family circumstance outlined in the
commentary, and that the BOP had not determined it was an
“other reason[]” warranting relief. See id. at 1262–65; see U.S.S.G.
§ 1B1.13, cmt. n.(A)–(D). Accordingly, Albury’s arguments based
on his enhanced § 924(c) sentence are foreclosed by Bryant. 3
3 Albury claims that the government waived its opposition to this issue by fail-
ing to address it below, but “parties cannot waive the application of the correct
law or stipulate to an incorrect legal test.” Jefferson v. Sewon Am., Inc., 891
F.3d 911, 923 (11th Cir. 2018). Notwithstanding any deficiencies in the gov-
ernment’s response, we must apply binding precedent like Bryant.
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21-12094 Opinion of the Court 7
Second, the district court did not err in finding that Albury’s
obesity was insufficient to warrant relief. For starters, Albury’s
claim that the court failed to consider this ground is not supported
by the record.4 In its order, the court listed the two grounds for
relief asserted by Albury, including his “fear of severe illness should
he contract [COVID-19] because he is obese, which is a factor that
the CDC identifies as increasing the risk of severe illness from
[COVID-19],” and then concluded that “neither of these concerns
is an ‘extraordinary and compelling’ reason warranting compas-
sionate release.” Because the court expressly considered and re-
jected Albury’s obesity as a ground for relief, we decline Albury’s
request to remand for the court to address it anew.
Plus, Albury failed to show that his condition of obesity im-
pairs his ability to care for himself while in prison. See
U.S.S.G.§ 1B1.13; Giron, 15 F.4th at 1346–47. We acknowledge
that, according to the CDC, Albury has a medical condition that
may make a person “more likely to get severely ill from COVID-
19.” 5 But the same was true in Giron, where the defendant sought
4 Albury relies on this Court’s decision in Clisby v. Jones, 960 F.2d 925 (11th
Cir. 1992), which held that district courts must resolve all claims for relief in
the habeas context. Even assuming the rule of Clisby applies here as well,
however, the court satisfied that rule by resolving both grounds for relief that
were asserted in Albury’s motion.
5 See People with Certain Medical Conditions, Centers for Disease Control
and Prevention, www.cdc.gov/coronavirus/2019-ncov/need-extra-precau-
tions/people-with-medical-conditions.html (last visited Jan. 6, 2022)
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8 Opinion of the Court 21-12094
release based on coronary artery disease, among other conditions. 6
Still, we found that the condition was not extraordinary and com-
pelling because it was “manageable in prison, despite the existence
of the COVID-19 pandemic.” Id. The same reasoning applies here.
Albury has made no showing that his obesity is not manageable in
prison, despite the COVID-19 pandemic. Nor has he taken his own
steps to mitigate the risk of contracting the virus or experiencing
severe symptoms by getting vaccinated against the virus. 7
Given our precedent in Bryant and Giron, Albury has failed
to demonstrate an extraordinary and compelling reason for relief
consistent with the binding policy statement in § 1B1.13. Because
that alone is sufficient to “foreclose a sentence reduction,” we need
not address the § 3553(a) factors or whether release would pose a
danger to the community. See Tinker, 14 F.4th at 1237–38. For
these reasons, the district court did not abuse its discretion when it
denied Albury’s motion for early release under § 3582(c)(1)(A).
AFFIRMED.
6 See id.
7It does not appear that Albury objects to vaccination for specific moral, reli-
gious, or medical reasons. Rather, he stated that he refused vaccination based
on the potential for side effects and an unspecified allergic reaction.