UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ANTONIO DJUAN THOMPSON, Defendant - Appellant. No. 22-6136 (D.C. No. 5:08- CR-00166-D-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Defendant Antonio Djuan Thompson, a federal pris oner appearing pro se, appeals from the district court’s denial of his moti on for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). Exercising jurisdic tion pursuant to 28 U.S.C. § 1291, we affirm th e district court’s decision.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 26, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 12 I In November 2008, Thompson was convict ed following a bench trial of one count of being a felon in possession of a fi rearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and one count of posse ssion of marijuana, in violation of 18 U.S.C. § 844(a). At sentencing, the dist rict court concluded that Thompson was subject to an enhanced sentencing range under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), due to his prior Oklahoma state court conviction for assault and battery with a dangerous w eapon and two prior Oklahoma state court convictions for possession of cocaine with in tent to distribute. The district court sentenced Thompson to a term of impris onment of 235 months, plus a three-year term of supervised release. Thompson filed a direct appeal challenging the de nial of his motion to suppress evidence. Th is court affirmed. United States v. Thompson , 402 F. App’x 378 (10th Cir. 2010). Thompson proceeded to file at least five motions to vacate, set aside, or correct his sentence pursuant to 28 U.S. C. § 2255. All were unsuccessful. See United States v. Thompson , 736 F. App’x 756, 758 ( 10th Cir. 2018) (recounting history of Thompson’s § 2255 motions). Most recently, this cour t denied Thompson authorization to file a successive § 2255 motion asserting that his prior Oklahoma drug convictions do not qua lify as serious drug offe nses under the ACCA. In re Thompson , No. 21-6021 (10th Cir. Mar. 22, 2021). Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 23 On July 14, 2021, Thompson, after exha usting administrative remedies, filed a motion for compassionate rele ase pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). In his motion, Thompson cited to United States v. Cantu , 964 F.3d 924 (10th Cir. 2020), a decision in which this court held that the Ok lahoma criminal statute that gave rise to Thompson’s convictions for possession of co caine with intent to distribute, Okla. Stat. tit. 63, § 2–401(A)(1), is not categori cally a “serious drug offense” for purposes of the ACCA because it app lies to at least three non-fede rally controlled substances. 1 964 F.3d at 934. Thompson argued that, in light of Cantu , his Oklahoma convictions for possession of cocaine with intent to di stribute no longer qualif ied as “serious drug offenses” for purposes of the ACCA and that, as a result, he had se rved more than the statutory maximum sentence, i.e., 120 months, that would apply under current law. Thompson also argued that he had demonstr ated “extraordinary” rehabilitation while incarcerated, that this reha bilitation demonstrated his l ack of dangerousness to the community, and that the § 3553(a) factors weighed in favor of his immediate release. On July 28, 2022, the district c ourt denied Thompson’s motion for compassionate release. In doing so, the district court first addressed and rejected Thompson’s argument that, in light of Cantu , he should not have been sentenced under the ACCA. Specifi cally, the district court concluded that “ Cantu . . . does not

1 In a subsequent unpublishe d opinion, however, this court recognized that the three substances that rende red the statute overbroad we re not added until November 1, 2008, and that, consequen tly, any Oklahoma state conv ictions under § 2-401(A)(1) that occurred before November 1, 2008, are not overbroad and qualify as ACCA predicates. United States v. Traywicks , 827 F. App’x 889, 891 (10th Cir. 2020). Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 34 implicate convictions under ve rsions of § 2-401(A)(1) prior to the 2008 amendment,” and it in turn noted that Thompson’s “dr ug convictions occurre d in 2005 and 2006, both before the [Oklahoma statutory] amendment prompting the Cantu decision.” ROA, Vol. I at 446. The district cour t then addressed and rejected Thompson’s argument that “his rehabilitation effort s while incarcerat ed constitute[d] extraordinary and compelling reas ons to reduce his sentence.” Id . at 447. The district court “recognize[d] that” Thompson “ha[d] made commendable efforts to better himself while in prison,” but it not ed that 28 U.S.C. § 994(t) expressly provides that “‘[r]ehabilitation of the defe ndant alone shall not be considered an extraordinary and compelling reas on’” for a sentence reduction. Id . (quoting statute). Lastly, the district court c oncluded that “the 18 U.S.C. § 3553(a) factors d[id] not support granting his motion” because his “extensive criminal history include[d] multiple drug convictions, multip le convictions for assault with a dangerous weapon, and multiple firearms convi ctions,” and he “ha[d] also committed serious misconduct” while incarcerated,” includi ng “violations for possessing dangerous weapons, engaging in sexual acts , and fighting other inmates.” Id . In other words, the district court noted, “[t]he need for the sentence to address the various goals of sentencing weighs heavily against granting a sentence reduction at this time.” Id . at 448. Thompson filed a time ly notice of appeal. Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 45 II Thompson argues on appeal that the distri ct court “plainly erred in concluding that [he] had two prior ‘serious drug o ffense[s]” because the Oklahoma statute under which he was convicted, Okla. Stat. tit. 63, § 2-401(A)(1), “includes drugs (4- methoxyamphetamine and cyclohexamine) that were not listed as federal controlled substances in 2008, the year of [Thompson’s] federal offense[s].” Aplt. Br. at 6. We review the district court’s ruli ng on Thompson’s compassionate-release motion for an abuse of discretion. United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021). “A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact,” id . (internal quotation marks omitted), or “when it renders a j udgment that is arbitrary, capricious, whimsical, or manifestly unreasonable,” United States v. Lewis , 594 F.3d 1270, 1277 (10th Cir. 2010) (interna l quotation marks omitted). Section 3582(c)(1)(A)(i) al lows defendants, after exhausting administrative remedies afforded by the Bur eau of Prisons, to move for compassionate re lease in the district court. See United States v. Maumau , 993 F.3d 821, 830–3 1 (10th Cir. 2021). A district court may grant a motion fo r compassionate release only if three requirements are met: (1) it “f inds that extraordinary a nd compelling reasons warrant such a reduction”; (2) it “finds that such a reduction is consistent with applicable policy statements issued by the Sentenci ng Commission”; and (3 ) it “considers the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they are applicable.” Id

. at 831. Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 56 In this case, the district court de nied Thompson’s motion for compassionate release for two reasons. Fi rst, it concluded that T hompson failed to establish extraordinary and compelling reasons for a sentence reduction. Second, the district court concluded that the § 3553(a) fact ors did not warrant a sentence reduction. Thompson’s appellate arguments, at be st, address only the first of these reasons. In other words, Thompson ignores en tirely the district court’s analysis of the § 3553(a) factors and its conclusion that those factor s did not warrant a sentence reduction. For that reason alone, we could affirm the district court’s decision. See generally Nixon v. City and Cnty. Of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015) (noting that “[t]he first task of an appellant is to explain . . . why the district court’s decision was wrong”); Shook v. Bd. of Cnty. Comm’rs of Cnty. of El Paso , 543 F.3d 597, 613 n.7 (10th Cir. 2008) (“[W]here a district court’s disposition rests on alternative and adequate grounds, a party w ho, in challenging th at disposition, only argues that one alternativ e is erroneous necessarily loses because the second alternative stands as an inde pendent basis, regardless of the correctness of the first alternative.”); Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10t h Cir. 2008) (noting that

“ [p]ro se status does not excuse the obligati on of any litigant to comply with the fundamental requirements of the Federal Rules of . . . Appellate Procedure”). Even ignoring this fatal problem, we conclude that the arguments that Thompson actually makes on appeal do nothing to undermine the district court’s conclusion that he failed to establish extraordinary and compelling reasons for a sentence reduction. Liberall y construing Thompson’s argum ents, he appears to be Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 67 challenging the district court’s rejecti on of his argument that, in light of Cantu , he should not have been sentenced under th e ACCA. Specifically, Thompson contends that two Oklahoma scheduled drugs—4-m ethoxyamphetamine and cyclohexamine— “were not listed as federal controlled substa nces in 2008, the y ear” he was convicted of his federal offenses. Aplt. Br. at 6. But, as the governmen t correctly points out, both of these drugs were Sc hedule I federally controlled substances at the time Thompson was convicted of his federal offe nses in 2008, and remain such today. See 21 C.F.R. § 1308.11(d)(7) (202 3) (4-methoxyamphetamine); id . § 1308.11(d)(7) (2007) (4-methoxyamphetamine); id. § 1308.11(d)(32) (2023) (cyclohexamine); id

. § 1308.11(d)(31) (2007) (cyclohexamine).
III The district court’s judgment is AFFI RMED. Thompson’s motion for leave to proceed on appeal in fo rma pauperis is DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 22-6136 Document: 010110804091 Date Filed: 01/26/2023 Page: 7