USCA11 Case: 21-12608 Date Filed: 09/29/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12608
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUNDRICE MOSS,
a.k.a. Nicalaunto Moss,
a.k.a. Dre,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-12608
D.C. Docket No. 1:13-cr-20368-JLK-1
____________________
Before JORDAN, NEWSOM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant Aundrice Moss, a federal prisoner at USP Yazoo
City, appeals the district court’s denial of his pro se motion for com-
passionate release under 18 U.S.C. § 3582(c). We discern no error
in the district court’s order denying Defendant’s motion, and thus
affirm.
BACKGROUND
In 2013, Defendant was indicted and pled guilty to pos-
sessing a firearm and ammunition as a convicted felon, in violation
of 18 U.S.C. §§ 922(g) and 924(e). Based on the factual proffer sub-
mitted in support of Defendant’s guilty plea, law enforcement ob-
tained evidence during an undercover investigation conducted in
Miami Gardens, Florida between 2012 and 2013 that Defendant
had participated in several transactions involving the sale of guns
and ammunition. At some point during the investigation, under-
cover officers arranged to purchase a pistol and ammunition from
Defendant, and that transaction was completed and captured on
audio and video tape. At the time of the transaction, Defendant
was a convicted felon with three prior felony convictions for a “se-
rious drug offense” as that term is defined by the Armed Career
Criminal Act (“ACCA”), including a 1993 conviction for possessing
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21-12608 Opinion of the Court 3
with intent to distribute cocaine and two separate 2011 convictions
for possessing with intent to sell or deliver cocaine.
Based on his prior drug convictions and other offenses, the
PSR classified Defendant as an armed career criminal and assigned
him a criminal history category of VI. The district court deter-
mined that Defendant qualified as an armed career criminal with a
guidelines range of 180 to 210 months, and it sentenced him to 180
months. This Court affirmed Defendant’s conviction and sentence
on appeal. See United States v. Moss, 592 F. App’x 914 (11th Cir.
2015). In its opinion, the Court rejected Defendant’s argument that
his prior drug convictions did not qualify as “serious drug offenses”
under the ACCA. See id. at 916.
In 2016, Defendant filed a 28 U.S.C. § 2255 motion, in which
he again challenged his ACCA enhancement and argued that his
sentence should be vacated under the Supreme Court’s decision in
Johnson v. United States, 576 U.S. 591 (2015). 1 A magistrate judge
issued a report and recommendation (“R&R”) concluding that the
PSR correctly identified three prior “serious drug” offenses pursu-
ant to the ACCA and recommending that Defendant’s § 2255
1 In Johnson, the Supreme Court invalidated the residual clause of the ACCA,
which defined the term “violent felony” for purposes of the ACCA to include
a felony involving “conduct that presents a serious potential risk of physical
injury to another.” See Johnson, 576 U.S. at 594, 606 (quotation marks omit-
ted).
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4 Opinion of the Court 21-12608
motion be denied. The district court adopted the R&R and de-
clined to issue a certificate of appealability.
In December 2020, Defendant filed a pro se motion for com-
passionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), as
amended by the First Step Act of 2018 (the “First Step Act”). That
statute authorizes a district court to reduce a defendant’s sentence
if the reduction is warranted by “extraordinary and compelling rea-
sons” and if the defendant’s release is consistent with the sentenc-
ing factors set forth in 18 U.S.C. § 3553(a) and the applicable Guide-
lines policy statements. See 18 U.S.C. § 3582(c)(1)(A)(i). 2 In sup-
port of his motion, Defendant cited the COVID pandemic and
noted that his high cholesterol increased his risk of serious illness
from COVID, and he also argued that he should be released to care
for his mother because her health was declining. The district court
denied Defendant’s first motion without prejudice because he did
not exhaust his administrative remedies by requesting compassion-
ate release from the warden of his institution.
Defendant subsequently exhausted his administrative reme-
dies 3 and filed a second motion asking the court to reduce his
2 The statute also includes a provision authorizing a sentence reduction under
certain circumstances if “the defendant is at least 70 years of age” but it is un-
disputed that provision does not apply here. See 18 U.S.C. § 3582(c)(1)(A)(ii).
3 Defendant submitted a request for compassionate release to the warden in
November 2020, and the warden denied relief in June 2021, noting that De-
fendant’s medical records showed he did not suffer from any chronic medical
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21-12608 Opinion of the Court 5
sentence pursuant to § 3582(c). In his second motion, Defendant
argued that he was entitled to a sentence reduction because the
First Step Act amended the Controlled Substances Act (“CSA”) by
replacing the term “felony drug offense” in the CSA with the term
“serious drug felony.” The new language requires a defendant to
have served over a year in jail on a drug conviction for the convic-
tion to qualify as a predicate for certain CSA sentencing enhance-
ments. See First Step Act § 401(a). According to Defendant, the
amendment applied not only to the CSA’s penalty provision but
also to the ACCA’s definition of a “serious drug offense”—meaning
that two of Defendant’s prior Florida drug convictions no longer
qualified as ACCA predicates. Defendant also reasserted in his sec-
ond motion the argument that he should be released in order to
care for his mother, who is in poor health. In addition, Defendant
referenced in his motion—but did not extensively discuss—the
COVID pandemic and the BOP’s “dismal” response to it.
The district court denied Defendant’s second motion on the
merits. The court first rejected Defendant’s statutory language ar-
gument, holding that the First Step Act did not amend or otherwise
change the ACCA’s definition of a “serious drug offense” and, con-
sequently, that Defendant’s prior drug convictions still qualified as
ACCA predicates. In addition, the court determined that Defend-
ant had not asserted a medical condition that qualified as an
condition and that his request to care for his mother did not meet the statutory
criteria for compassionate release for non-medical reasons.
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6 Opinion of the Court 21-12608
extraordinary and compelling reason for his compassionate release,
and that his mother’s condition did not constitute the “death or in-
capacitation of the caregiver of the defendant’s minor child or . . .
spouse” as required to qualify for early release under the “family
circumstances” provision of § 3582(c). Finally, the court stated in
its order that the § 3553(a) sentencing factors weighed against De-
fendant’s early release.
Defendant appeals, arguing that the district court abused its
discretion by denying his motion for compassionate release. As dis-
cussed below, we discern no error in the court’s order and thus af-
firm.
DISCUSSION
We review de novo whether a defendant is eligible for a sen-
tence reduction under § 3582(c). United States v. Giron, 15 F.4th
1343, 1345 (11th Cir. 2021). Once eligibility is established, we re-
view the denial of a defendant’s § 3582(c) motion under the abuse
of discretion standard. See id. “A district court abuses its discretion
if it applies an incorrect legal standard, follows improper proce-
dures in making the determination, or makes findings of fact that
are clearly erroneous.” United States v. Harris, 989 F.3d 908, 911
(11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d
1259, 1267 (11th Cir. 2019) (quotation marks omitted)). The abuse
of discretion standard allows the district court a “range of choice”
that we will not reverse “just because we might have come to a
different conclusion had it been our call to make.” See id. at 912
(quotation marks omitted).
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21-12608 Opinion of the Court 7
As amended by the First Step Act, § 3582(c) authorizes the
district court to reduce a defendant’s sentence if the court finds
that: (1) “extraordinary and compelling reasons warrant such a re-
duction” and (2) the reduction is consistent with the sentencing fac-
tors of § 3553(a) and the “applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The relevant
policy statement, found in USSG § 1B1.13, echoes the statutory re-
quirements, stating that a district court may reduce a defendant’s
sentence “if, after considering the factors set forth in . . . § 3553(a),”
the court determines that: (1) “[e]xtraordinary and compelling rea-
sons warrant the reduction” and (2) “[t]the [d]efendant is not a dan-
ger to the safety of any other person or to the community, as pro-
vided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13. See also United
States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021) (holding that
“1B1.13 is an applicable policy statement for all [§ 3582(c)] mo-
tions” and that district courts do not have discretion “to develop
other reasons that might justify a reduction in a defendant’s sen-
tence” (quotation marks omitted)); United States v. Tinker, 14
F.4th 1234, 1237 (11th Cir. 2021) (listing three necessary conditions
for a sentence reduction under § 3582(c): support in the § 35553(a)
factors, extraordinary and compelling reasons, and adherence to
U.S.S.G. § 1B1.13’s policy statement).
The district court denied Defendant’s § 3582(c) motion for
two reasons. First, the court found that Defendant had failed to
show extraordinary and compelling reasons for his release. Alter-
natively, the court determined that the § 3553(a) sentencing factors
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8 Opinion of the Court 21-12608
militated against Defendant’s release because of his lengthy crimi-
nal history. Either ground is adequate to support the court’s deci-
sion to deny Defendant’s § 3582(c) motion.
As to the first ground, we agree with the district court that
Defendant did not provide any support for the claim that an ex-
traordinary and compelling reason justifies his early release from
prison. The relevant policy statement identifies two extraordinary
and compelling reasons that are potentially implicated here based
on the claims made in Defendant’s motion. See U.S.S.G. § 1B1.13
cmt. n.1(A), (C). First, a prisoner’s medical condition can give rise
to an extraordinary and compelling reason for compassionate re-
lease if the prisoner can show that he is suffering either from a “ter-
minal illness” or a “serious physical or medical condition” that
“substantially diminishes [his] ability . . . to provide self-care” in
prison and “from which he . . . is not expected to recover.” U.S.S.G.
§ 1B1.13 cmt. n.1(A). Second, a prisoner’s family circumstances can
create an extraordinary and compelling reason for early release
based on the “death or incapacitation of the caregiver of the [pris-
oner’s] minor child” or the “incapacitation of the [prisoner’s]
spouse or registered partner when the [prisoner] would be the only
available caregiver for the spouse or registered partner.” U.S.S.G.
§ 1B1.13 cmt. n.1(C). 4
4 A sentence reduction is also permitted by the applicable policy statement
under certain circumstances if the prisoner is at least 65 years old but, again,
Defendant does not claim that provision applies to him. See U.S.S.G. § 1B1.13
cmt. n.1(B). Further, the policy statement contains a catch-all provision that
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21-12608 Opinion of the Court 9
The district court correctly determined that Defendant does
not meet the standard for early release set out in either of the above
provisions. Defendant vaguely references the COVID pandemic as
a reason for his release, but he makes no showing that he has a
“terminal illness” or other “serious . . . condition” that “substan-
tially” interferes with his ability to provide self-care in prison, as
required by the applicable policy statement. See U.S.S.G. § 1B1.13
cmt. n.1(A). As for Defendant’s claim that he needs to care for his
mother, caregiving responsibilities only constitute an extraordi-
nary and compelling reason for early release in situations involving
the death or incapacitation of the caregiver of a defendant’s minor
child or the incapacitation of the defendant’s spouse or registered
partner when the defendant is the only available caregiver for the
spouse or partner. See U.S.S.G. § 1B1.13 cmt. n.1(C). Neither sit-
uation applies here.
Finally, there is no authority to support Defendant’s argu-
ment that the First Step Act’s amendment of the term “felony drug
offense” in the CSA somehow changes the meaning of the term
“serious drug offense” as defined by the ACCA. Indeed, the Gov-
ernment has noted that this Court has rejected this argument,
allows the BOP to find other extraordinary and compelling reasons for a par-
ticular prisoner’s early release, but this Court has held that only the BOP—as
opposed to the court—has the authority to determine that release is warranted
under the catch-all provision. See Bryant, 996 F.3d at 1263 (“We cannot re-
place the phrase ‘[a]s determined by the Director of the [BOP]’ with ‘as deter-
mined by a district court.’”).
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10 Opinion of the Court 21-12608
noting that the referenced amendment applies solely to the CSA
and that it leaves “untouched the definitions of the ACCA’s predi-
cate offenses.” United States v. Wims, 836 Fed. App’x 793, 796
(11th Cir. 2020). See also United States v. Smith, 798 Fed. App’x
473, 476 (11th Cir. 2020) (holding same). Admittedly, Wims and
Smith are unpublished cases, and therefore constitute only persua-
sive authority. Nevertheless, Defendant has cited no published
case calling into question the reasoning of these cases nor offered
any convincing argument disputing their reasoning.
Furthermore, and even assuming Defendant were correct
about the First Step Act amendment, such a change is not an au-
thorized basis for relief under § 3582(c) and its governing policy
statement. As this Court held in Bryant, courts do not have discre-
tion to grant a motion for compassionate release based on an ex-
traordinary and compelling reason that is not contemplated by the
policy statement. See Bryant, 996 F.3d at 1248 (stating that courts
are not authorized “to develop other reasons that might justify a
reduction in a defendant’s sentence” (quotation marks omitted)).
Defendant’s argument that the district court and this Court are
“unrestrained” by U.S.S.G. § 1B1.13 in applying the extraordinary
and compelling reason standard—and that the courts could there-
fore grant relief under § 3582(c) based on his statutory argument—
is foreclosed by this Court’s binding precedent in Bryant. See id.
Defendant’s failure to demonstrate an extraordinary and
compelling reason for his early release is enough, in and of itself, to
foreclose a sentence reduction under § 3582(c). See Giron, 15 F.4th
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at 1347 (“When denying a request for compassionate release, a dis-
trict court need not analyze the § 3553(a) factors if it finds either
that no extraordinary and compelling reason exists or that the de-
fendant is a danger to the public.”). But the district court also held,
in the alternative, that Defendant’s release was not consistent with
the § 3553(a) factors. Defendant argues his early release is sup-
ported by the § 3553(a) factors because of his rehabilitative efforts
while incarcerated. The district court was within its discretion to
reject Defendant’s argument on this point given Defendant’s
lengthy criminal record, which includes multiple arrests since De-
fendant was 15 years old for theft, unlawful possession of weapons
and drugs, possessing with intent to sell drugs, resisting arrest, and
battery on a police officer, among other crimes. See United States
v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (noting that “discre-
tion in weighing sentencing factors is particularly pronounced
when it comes to weighing criminal history”).
CONCLUSION
As the movant, Defendant had the burden of establishing his
entitlement to early release under § 3582(c). See United States v.
Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). The district court
correctly held that Defendant failed to meet that burden here. Fur-
thermore, the court acted within its discretion in holding, in the
alternative, that the § 3553(a) sentencing factors do not support De-
fendant’s release. For both reasons, the district court’s order deny-
ing Defendant’s § 3582(c) motion is AFFIRMED.