USCA11 Case: 22-12062 Document: 48-1 Date Filed: 01/09/2024 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12062
Non-Argument Calendar
____________________
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
D.C. Docket No. 5:03-cr-00052-TES-CHW-2
____________________
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2 Opinion of the Court 22-12062
Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
David Luster, a pro se federal prisoner, appeals the denial of
a motion for a sentence reduction based on a retroactive guideline
amendment under 18 U.S.C. § 3582(c)(2), and a motion for a sen-
tence reduction based on extraordinary and compelling reasons un-
der 18 U.S.C. § 3582(c)(1)(A)(i). After careful review, we affirm the
denial of his motions.
I.
In 2004, Luster pled guilty to 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). Between 2002 and
2003, Luster and an accomplice engaged in eight, armed bank rob-
beries resulting in losses totaling more than $600,000.
When Luster was sentenced, § 924(c)(1)(C) required district
courts to impose a 25-year mandatory minimum consecutive sen-
tence for any “second or subsequent conviction under [§ 924(c)].”
18 U.S.C. § 924(c)(1)(C) (2002). And “[t]he Supreme Court had in-
terpreted the 25-year mandatory minimum as applying to second
(and third, and fourth, and so on) § 924(c) convictions within a sin-
gle prosecution.” United States v. Smith, 967 F.3d 1196, 1210 (11th
Cir. 2020) (citing Deal v. United States, 508 U.S. 129, 131–32 (1993)).
As a result, the district court imposed the minimum 25-year con-
secutive sentence for the second § 924(c) conviction. The court
also ordered more than $600,000 in restitution. We affirmed
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22-12062 Opinion of the Court 3
Luster’s conviction and sentence on direct appeal. United States v.
Luster, 129 F. App’x 599 (11th Cir. 2005) (unpublished table deci-
sion).
In 2018, § 403 of the First Step Act amended § 924(c)(1)(C)
so that the 25-year mandatory minimum did not apply to multiple
§ 924(c) convictions resulting from a single prosecution. See First
Step Act of 2018 § 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 5221–
22; see also Smith, 967 F.3d at 1210. Rather, the 25-year minimum
applies only when a defendant violates § 924(c) “after a prior con-
viction under this subsection has become final.” See 18 U.S.C.
§ 924(c)(1)(C)(i). But Congress did not make the amendment to
the stacking provision retroactive. See First Step Act, § 403(b); see
also Smith, 967 F.3d at 1210–13 (holding that § 403 does not apply
retroactively).
In April 2022, Luster filed a motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2) based on Amendment 599 to U.S.S.G.
§ 2K2.4. He contended that, because he had been sentenced both
for carrying a firearm during a crime of violence under § 924(c) and
for the underlying crime of violence, the sentencing court imper-
missibly double counted conduct by applying sentencing enhance-
ments for brandishing a firearm during the robberies.
Then, in May 2022, Luster filed a “Motion for Reduction in
Sentence Under § 3582(c)(1)(A)(i).” He argued that he had shown
extraordinary and compelling reasons warranting a sentence re-
duction because, were he sentenced when he filed the motion, he
would have been subject to a significantly reduced sentence in light
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4 Opinion of the Court 22-12062
of § 403 of the First Step Act. He also contended that restitution
would not have been authorized after the Supreme Court’s deci-
sions in Sessions v. Dimaya, 584 U.S. __, 138 S. Ct. 1204 (2018), and
Borden v. United States, 593 U.S. __, 141 S. Ct. 1817 (2021).
The district court entered an order expressly denying the
April 2022 motion under § 3582(c)(2). The court explained that
Amendment 599 was in effect at the time of sentencing and so did
not authorize a retroactive sentence reduction under § 3582(c)(2).
The text of the order made no mention of the May 2022 motion for
compassionate release. Nonetheless, the relevant docket entry de-
scribes the court’s order as denying both motions. Luster timely
appealed.
II.
We review de novo a determination of eligibility for a
§ 3582(c) sentence reduction. United States v. Bryant, 996 F.3d 1243,
1251 (11th Cir. 2021); see United States v. Colon, 707 F.3d 1255, 1258
(11th Cir. 2013). We review the denial of an eligible prisoner’s
§ 3582(c)(1)(A) motion for an abuse of discretion. United States v.
Harris, 989 F.3d 908, 911 (11th Cir. 2021). We may affirm for any
reason supported by the record. United States v. Al-Arian, 514 F.3d
1184, 1189 (11th Cir. 2008).
III.
District courts lack the inherent authority to modify crimi-
nal sentences but may do so when authorized by a statute or rule.
United States v. Edwards, 997 F.3d 1115, 1118 (11th Cir. 2021). Luster
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22-12062 Opinion of the Court 5
relies on two statutory provisions that permit sentence reductions
in certain limited circumstances.
First, under § 3582(c)(2), the district court may reduce a sen-
tence that was “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(2)(B). Second, under
§ 3582(c)(1), courts may reduce the sentences of defendants when
warranted by “extraordinary and compelling reasons.” 18 U.S.C.
§ 3582(c)(1)(A)(i); see U.S.S.G. § 1B1.13. But neither provision au-
thorizes a sentence reduction on the facts of this case.
Section 3582(c)(2) does not apply because Luster was not
sentenced based on a sentencing range that was “subsequently . . .
lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2)
(emphasis added). Amendment 599 was in effect as of November
2000, well before Luster’s sentencing in April 2004. United States v.
Pringle, 350 F.3d 1172, 1176 (11th Cir. 2003). Even assuming the
sentencing court erred in applying the amended guideline at sen-
tencing, § 3582(c)(2) “does not authorize a resentencing” to correct
mistakes in an original sentence. Dillon v. United States, 560 U.S.
817, 831 (2010); see also United States v. Moreno, 421 F.3d 1217, 1220
(11th Cir. 2005).
Likewise, Luster failed to show that a reduction was author-
ized under § 3582(c)(1)(A)(i). Before granting a reduction under
this provision, the district court must find that (1) an extraordinary
and compelling reason exists under U.S.S.G. § 1B1.13’s policy state-
ment, (2) the reduction is supported by the § 3553(a) factors, and
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(3) granting a reduction would not endanger others. United States
v. Giron, 15 F.4th 1343, 1345–46 (11th Cir. 2021); United States v.
Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). “Because all three con-
ditions . . . are necessary, the absence of even one would foreclose
a sentence reduction.” Tinker, 14 F.4th at 1238.
When the district court ruled on Luster’s motion in May
2022, the commentary to § 1B1.13 outlined medical, age, and fam-
ily circumstances which qualified as sufficiently “extraordinary and
compelling.” See U.S.S.G. § 1B1.13, cmt. n.1(A)–(C) (Nov. 2021).
While the commentary also authorized relief for “other reasons,”
id. § cmt. n.1(D), we held in Bryant that such other reasons must be
determined by the Bureau of Prisons, not by the courts. See Bryant,
996 F.3d at 1262–65. So a district court could not grant a reduction
for reasons other than those listed in § 1B1.13. Id.
In Bryant, for example, the defendant, like Luster, 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 Bureau of Prisons 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).
Bryant was based on the same version of § 1B1.13 that was
in effect when the district court denied Luster’s motion. So as in
Bryant, Luster’s § 3582(c)(1)(A)(i) motion, based on the First Step
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22-12062 Opinion of the Court 7
Act’s amendments to § 924(c) “stacking” provision and another
change in the law, not on any medical, age, or family circumstance
outlined in the commentary, did not present an extraordinary and
compelling reason under § 1B1.13. See id.
Notably, in November 2023, while this appeal was pending,
an amended version of § 1B1.13 became effective which expressly
added new grounds for relief under 18 U.S.C. § 3582(c)(1)(A)(i) in
response to the First Step Act. See U.S. Sentencing Commission,
Adopted Amendments (Effective November 1, 2023),
https://www.ussc.gov/guidelines/amendments/adopted-amend-
ments-effective-november-1-2023 (last visited December 21, 2023).
In particular, the amendments added a new category in the guide-
line text for “Unusually Long Sentence[s],” which may qualify as
extraordinary and compelling where, among other things, “a
change in the law . . . would produce a gross disparity between the
sentence being served and the sentence likely to be imposed at the
time the motion is filed.” U.S.S.G. § 1B1.13(b)(6) (Nov. 2023).
But that substantive change, which altered the text of the
guideline to create a new ground for relief, does not apply retroac-
tively in this appeal. See United States v. Jerchower, 631 F.3d 1181,
1184 (11th Cir. 2011) (explaining that only “clarifying” amendments
are given retroactive effect on appeal; “substantive” amendments
are “not applied retroactively”); United States v. Summers, 176 F.3d
1328, 1331 (11th Cir. 1999) (“[A]lteration of actual Guideline lan-
guage strongly suggests that a substantive change was being
made.”). Accordingly, we do not consider whether Luster can
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8 Opinion of the Court 22-12062
establish an extraordinary and compelling reason under the new
§ 1B1.13(b)(6). We note that nothing in § 3582(c)(1)(A) prevents
Luster from filing a new motion for a sentence reduction based on
the new version of § 1B1.13.
Finally, Luster maintains that the district court failed to con-
sider the 18 U.S.C. § 3553(a) sentencing factors. See, e.g., United
States v. Cook, 998 F.3d 1180, 1184–85 (11th Cir. 2021) (courts must
“consider all applicable § 3553(a) factors” when resolving
§ 3582(c)(1)(A)(i) motions). But even assuming the court erred in
that regard, the error was harmless because Luster’s failure to
demonstrate an extraordinary and compelling reason under
§ 1B1.13 (Nov. 2021) was alone sufficient to “foreclose a sentence
reduction.” Tinker, 14 F.4th at 1237–38.
For these reasons, the district court properly denied Luster’s
April 2022 motion for a reduction under § 3582(c)(2) and his May
2022 motion for compassionate release under § 3582(c)(1)(A)(i). 1
We affirm.
AFFIRMED.
1 To be specific, we affirm the denial of the motions reflected at docket entries
259 and 261 on the district court’s docket. We note that Luster has filed an
array of other unsuccessful motions for a sentence reduction.