UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MICHAEL DEWAYNE BELL, 

 Defendant - Appellant. 

No. 22-5111 

(D.C. No. 4:06-CR-00140-GKF-1) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, BRISCOE, and EID, Circuit Judges. 

_________________________________ 

Michael Dewayne Bell, a federal prisoner appearing pro se, appeals the district 

court’s denial of his motion for compassionate release under 18 U.S.C. 

§ 3582(c)(1)(A)(i), and the dismissal of his motion for miscellaneous relief under 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 21, 2023

Christopher M. Wolpert 

Clerk of Court

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Federal Rule of Civil Procedure 59(e). Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm.1

I. BACKGROUND 

A. First Step Act 

The First Step Act allows federal prisoners to move for compassionate release 

in district court after exhausting administrative remedies at the Bureau of Prisons. 

See United States v. Maumau, 993 F.3d 821, 830-31 (10th Cir. 2021). The court may 

grant the motion only when it finds that 

(1) “extraordinary and compelling reasons” warrant release; 

(2) release is “consistent with applicable policy statements issued by the 

Sentencing Commission”; and 

(3) release is warranted after considering the applicable 18 U.S.C. § 3553(a) 

factors. 

Id. at 831; see 18 U.S.C. § 3582(c)(1)(A)(i). In general, “district courts may deny 

compassionate-release motions when any of the three prerequisites listed in 

§ 3582(c)(1)(A) is lacking.” Maumau, 993 F.3d at 831 n.4 (quotations omitted); see 

also United States v. McGee, 992 F.3d 1035, 1043 (10th Cir. 2021). The district 

court here denied Mr. Bell’s motion based on his failure to meet the first 

prerequisite—extraordinary and compelling reasons. 

1

 Because Mr. Bell appears pro se, “we liberally construe his filings, but we will 

not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 

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B. Life Imprisonment under 18 U.S.C. § 3559(c) 

Mr. Bell was sentenced to life imprisonment under the “Three Strikes” 

provision of 18 U.S.C. § 3559(c). Under this statute, “a person who is convicted in a 

court of the United States of a serious violent felony shall be sentenced to life 

imprisonment if the person has been convicted . . . on separate prior occasions in a 

court of the United States or of a State of 2 or more serious violent felonies.” 

18 U.S.C. § 3559(c)(1)(A)(i). An offense may qualify as a “serious violent felony” if 

it falls under the statute’s 

(1) enumeration clause, which lists certain offenses, including “robbery (as 

described in section 2111, 2113, or 2118)”; 

(2) elements or force clause, which includes “any other offense punishable by 

a maximum term of imprisonment of 10 years or more that has as an 

element the use, attempted use, or threatened use of physical force against 

the person of another”; or 

(3) residual clause, which is an offense that, “by its nature, involves a 

substantial risk that physical force against the person of another may be 

used in the course of committing the offense.” 

Id. § 3559(c)(2)(F). 

C. Procedural History 

In 2007, a jury convicted Mr. Bell of (1) aggravated bank robbery, in violation 

of 18 U.S.C. § 2133(a) and (d); and (2) using, brandishing, and carrying a firearm 

during and in relation to a crime of violence, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(ii). Based on his two prior convictions in Oklahoma state court for 

serious violent felonies, he was sentenced to two consecutive mandatory life prison 

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terms under 18 U.S.C. § 3559(c)(1)(A)(i).2

 This court affirmed Mr. Bell’s 

convictions and sentences. See United States v. Bell, 290 F. App’x 178 (10th Cir. 

2008) (unpublished). His repeated post-conviction challenges were unsuccessful. 

See, e.g., United States v. Bell, 2022 WL 2965793 (10th Cir. 2022) (unpublished). 

On October 3, 2022, Mr. Bell moved in district court for compassionate 

release under 18 U.S.C. § 3582(c)(1)(A)(i). First, he argued that he would receive a 

lower sentence today—not mandatory life—because his two predicate offenses no 

longer qualify for sentencing enhancement under § 3559(c)(2)(F). Second, he urged 

that his age, health, length of incarceration, participation in educational courses, 

favorable institutional conduct, family support, and release plan support 

compassionate release. The Government filed its opposition to Mr. Bell’s motion on 

October 25, 2022. The district court denied the motion on November 3. 

In rejecting Mr. Bell’s first argument alleging sentence disparity, the district 

court said that his two prior Oklahoma convictions for robbery by force and fear 

under Okla. Stat. tit. 21 § 791 and robbery by force under Okla. Stat. tit. 21 § 801 

both “include as an element that the robbery be accomplished by force or fear,” and 

therefore remain predicates under the elements clause of § 3559(c)(2)(F)(ii). ROA, 

Vol. I at 134 (quotations omitted). Thus, “[i]f sentenced today, defendant would be 

subject to the same § 3559(c)(1)(A) enhanced penalty as employed at his original 

2

 Mr. Bell does not contest that his federal convictions for armed bank robbery 

and use of a firearm during a crime of violence are serious violent felonies under 

18 U.S.C. § 3559(c)(2)(F). 

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sentencing,” so Mr. Bell’s sentence disparity argument did “not rise to [the] level of 

[an] ‘extraordinary and compelling reason’” warranting a sentencing reduction under 

§ 3582(c)(1)(A)(i). Id. 

Addressing Mr. Bell’s second argument based on age, health, and other 

factors, the district court said these factors, individually or collectively, also did not 

“rise to [the] level of ‘extraordinary and compelling reasons.’” Id. at 135. The court 

explained that “[a]lthough defendant’s institutional adjustment and program 

participation are, based on his length of imprisonment, generally favorable, his 

rehabilitative efforts are not extraordinary and compelling. Further, the Court finds 

that a middle-aged inmate suffering from hypertension, his only reported health 

concern, falls well short of factors worthy of consideration under § 3582(c).” 

Id. at 134-35. 

On November 14, Mr. Bell’s reply to the Government’s opposition to the 

motion was filed along with a motion to supplement his reply brief. On 

November 18, the court entered a minute order stating that, because it had denied the 

motion for compassionate release on November 3, the motion to supplement the reply 

brief “is moot.” Id. at 168. 

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On December 2, Mr. Bell filed his Rule 59(e) motion.3

 On December 20, the 

district court dismissed the Rule 59(e) motion for lack of jurisdiction. Id. at 181. In 

its order, the court 

(1) said that because it had “already ruled on [Mr. Bell’s] motion for reduction 

of sentence” and that “his request for an extension of time to reply to [the 

Government’s] response in opposition is moot,” and that the court was 

“under no obligation to permit defendant the opportunity to respond to [the 

Government’s] position relative to his § 3582(c) motion for miscellaneous 

relief”; 

(2) noted that Rule 59(e) does not apply in criminal cases;4

 and 

(3) determined that Mr. Bell had failed “to assert[, as required under 

Rule 59(e),] an intervening change in controlling law, the availability of 

new evidence previously unavailable, or the need to correct a clear error or 

prevent manifest injustice.” 

ROA, Vol. I at 179-81. 

On January 3, 2023, Mr. Bell filed a motion to supplement his Rule 59(e) 

motion. The docket does not show a disposition on this motion. Mr. Bell had filed 

three notices of appeal by the time this motion was filed.5

3

 The Government contends that Mr. Bell’s Rule 59(e) motion was untimely. 

Aplee. Br. at 15-16. Because we resolve this appeal on other grounds, we do not 

address this question. 

4

 In United States v. Warren, 2 F.4th 917 (10th Cir. 2022), this court 

“conclude[d that] motions for reconsideration can be filed under § 3582 in this 

circuit.” Id. at 926. The motion for reconsideration in Warren was not styled as a 

Fed. R. Civ. P. 59(e) motion. Because we resolve this appeal on other grounds, we 

need not address here whether the district court could properly dispose of Mr. Bell’s 

motion on the ground that Rule 59(e) is meant to be used only in civil proceedings. 

5

 On December 5, 2022, Mr. Bell filed a motion under Federal Rule of Civil 

Procedure 60(b)(4) asking the district court to void the 2021 judgment denying him 

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Mr. Bell now appeals. He has filed a brief, and the Government has filed an 

answer brief. Mr. Bell has not filed a reply brief. 

II. DISCUSSION 

“We review the denial of First Step Act relief for an abuse of discretion, the 

same as other post-trial motions. Likewise, we review the district court’s denial of a 

motion for reconsideration for abuse of discretion.” United States v. Warren, 

22 F.4th 917, 927 (10th Cir. 2022) (quotations and citations omitted). 

In his brief, Mr. Bell lists four issues, each alleging procedural error. Aplt. Br. 

at vi. His list lacks a challenge to the district court’s rejection of his sentencingdisparity argument or of his argument based on other factors. Failure to raise an 

issue in an opening brief waives that issue. Compania de Inversiones Mercantiles 

S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 58 F.4th 429, 475 (10th Cir. 

2023). Read liberally, however, Mr. Bell’s brief appears to touch on the sentencingdisparity argument in its discussion of his procedural challenges, so we will address 

this issue. But we see only passing reference in Mr. Bell’s brief to the district court’s 

rejection of his argument for release based on age, health, and other factors, see Aplt. 

Br. at 3, so we will not analyze those factors here, though we note that Mr. Bell has 

not shown the district court abused its discretion. 

post-conviction relief on his motion under 28 U.S.C. § 2255 and to reopen the 

proceedings. ROA, Vol. I at 174-76. This motion is not relevant to this appeal. 

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We first discuss Mr. Bell’s sentencing disparity argument and then turn to his 

assertions of procedural error. 

A. Sentencing Disparity 

The district court did not err in determining that Mr. Bell still qualifies for 

mandatory life sentences under 18 U.S.C. § 3559(c)(1)(A)(i). The court did not 

abuse its discretion in determining that Bell’s “mistaken” assertion of sentencing 

disparity did “not rise to [the] level of [an] ‘extraordinary and compelling reason’ 

warranting a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(1).” 

ROA, 134. Vol. I at

In his brief, Mr. Bell discusses the Supreme Court’s decision in Johnson v. 

United States, 576 U.S. 591 (2015), which invalidated the “residual clause” in the 

Armed Career Criminal Act (“ACCA”) as unconstitutionally vague, and United 

States v. Davis, 139 S. Ct. 2319 (2019), which similarly held the residual clause in 

18 U.S.C. § 924(c)(3)(B) to be unconstitutionally vague. Aplt. Br. at 4. He contends 

that when he was sentenced in 2007, “the government did not explicitly rely on the 

enumerated offense, elements, or residual clause definition of ‘serious violent felony’ 

in § 3559(c).” Id. at 5. His argument implies that (1) the residual clause in 

§ 3559(c)(2)(F)(ii) is unconstitutional after Johnson and Davis, and (2) the 

sentencing court relied on the residual clause to find his Oklahoma convictions to be 

violent felonies. 

Neither the Supreme Court nor this court has addressed the constitutionality of 

the residual clause in § 3559(c)(2)(F)(ii). We can rely, though, on Johnson and 

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Davis to support a conclusion on direct appeal that the residual clause of similarly 

worded statutes are unconstitutionally vague, see United States v. Greer, 881 F.3d 

1241, 1247 (10th Cir. 2018). But Mr. Bell has not shown here, just as he failed to 

show in earlier proceedings, that it is more likely than not he was sentenced under 

§ 3559(c)(2)(F)(ii)’s residual clause. See United States v. Copeland, 921 F.3d 1233, 

1242 (10th Cir. 2019) (recognizing the preponderance standard); United States v. 

Driscoll, 892 F.3d 1127, 1135 (10th Cir. 2018) (adopting “more likely than not” 

standard under Johnson). In an earlier proceeding, the district court held that Mr. 

Bell had failed to show the sentencing court had relied on the residual clause in 

finding that his prior convictions qualified as serious violent felonies under 

§ 3559(c)(2)(F). See United States v. Bell, 2022 WL 1501765 (N.D. Okla. 2017).

Mr. Bell also relies on Eaton v. United States, 2017 WL 3037435 

(D.N.D. 2017), an unpublished out-of-circuit district court case, which held that the 

Oklahoma offense of robbery by force or fear under Okla. Stat. tit. 21 § 791 is not a 

violent felony under the ACCA’s elements clause. Although the Government does 

not specifically address Eaton in its brief, it points out, Aplee. Br. at 10, as did the 

district court in United States v. Bell, 2022 WL 1501765 (N.D. Okla. 2017), that Tenth 

Circuit panels have concluded in unpublished decisions that robbery by force under 

Oklahoma law satisfies the elements clause of the ACCA’s definition of “violent 

felony,” which is virtually identical to the elements clause in § 3559(c)(2)(F)(ii). 

See United States v. Goldlock, 794 F. App’x 725, 728 (10th Cir. 2019) (unpublished) 

(1993 robbery conviction under Okla. Stat. tit. 21 § 791 satisfied the ACCA’s elements 

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clause); United States v. Byers, 739 F. App’x 925, 928 (10th Cir. 2018) (unpublished) 

(1998 conviction for robbery with a firearm under Okla. Stat. tit. 21 § 801 satisfied either 

elements or enumerated offense clause of ACCA); United States v. Hill, 722 F. App’x 

814, 817 (10th Cir. 2018) (unpublished) (conviction under Okla. Stat. tit. 21 § 801 

required proof of the use, threatened use, or attempted use of physical force and qualified 

as a violent felony under the elements clause of the ACCA). 

Based on the foregoing, we conclude that Mr. Bell has failed to show the district 

court erred in determining his sentence could be the same today as it was in 2007 and in 

rejecting his sentence-disparity argument. 

B. Procedural Challenges 

Mr. Bell contends the district court abused its discretion by failing to: 

(1) Allow him to supplement his Rule 59(e) motion for reconsideration before 

dismissing it. 

This issue is not properly before this court. The district court denied Mr. 

Bell’s Rule 59(e) motion on December 20, 2022. Mr. Bell filed his motion to 

supplement his Rule 59(e) motion on January 3, 2023. He filed a notice of appeal on 

December 2 and again on December 30, 2022. He also filed a notice of appeal on 

January 3, the same day he filed his motion to supplement. The January 3 notice 

refers specifically to the district court’s orders denying his motions for 

compassionate release, to supplement his plan for release, and for relief under 

Rule 59(e). According to the docket, the district court did not rule on his January 3, 

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2023 motion to supplement his Rule 59(e) motion. It therefore falls outside the scope 

of his notices of appeal, and we lack jurisdiction to consider it. 

(2) Review his reply to the Government’s opposition to his compassionate 

release motion. 

Mr. Bell’s reply was filed on November 14, 2022, 11 days after the district 

court denied his motion for compassionate release. On that same day, he also filed a 

motion to supplement his reply, which the district court deemed moot in a minute 

entry on November 18. In its December 20 order denying Mr. Bell’s Rule 59(e) 

motion, the district court said that under the Federal Rules of Criminal Procedure and 

the court’s local rules, see N.D. Okla. Local Crim R. 47-2, it was “under no 

obligation to permit defendant the opportunity to respond to [the Government’s 

opposition] to his § 3582(c) motion for miscellaneous relief.” ROA, Vol. I at 180. 

Mr. Bell has not shown otherwise. Also, any error was harmless because neither Mr. 

Bell’s reply nor his motion to supplement the reply calls into question the district 

court’s analysis of his sentence-disparity argument. 

(3) Consider language from Concepcion v. United States, 142 S. Ct. 2389 

(2022). 

Mr. Bell argues, as he did in his November 14, 2022 reply, that the district 

court did not consider the following language from Concepcion v. United States: 

The question in this case is whether a district court 

adjudicating a motion under the First Step Act may consider 

other intervening changes of law (such as changes to the 

Sentencing Guidelines) or changes of fact (such as behavior 

in prison) in adjudicating a First Step Act motion. The Court 

holds that they may. 

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142 S. Ct. at 2396. But the district court’s order is consistent with this language. It found 

that, “[i]f sentenced today, defendant would be subject to the same § 3559(c)(1)(A) 

enhanced penalty as employed at his original sentencing.” ROA, Vol. I at 134. Also, any 

error in not specifically discussing the passage from Concepcion was harmless because, 

as discussed above, there has been no intervening change of law or fact that would alter 

the status of Mr. Bell’s prior state robbery crimes as violent felony offenses under 

§ 3559(c)(2)(F). 

(4) Order the Government to send him a copy of its opposition to his 

compassionate release motion. 

Mr. Bell contends the district court should have ordered the Government to 

send him a copy of its opposition to his compassionate release motion once he 

informed the court in his November 14, 2022 motion to supplement his reply that he 

had not received it.6

 He contends this hampered his ability to present in his 

Rule 59(e) motion “what was (1) an intervening change in the controlling law, 

(2) when new evidence previously was unavailable, and (3) the need to correct clear 

error or prevent manifest injustice.” Aplt. Br. at 9. 

As noted above, the district court pointed out that Mr. Bell did not have a right 

to reply to the Government’s opposition. Although Mr. Bell may have benefitted 

from having the Government’s opposition to prepare his Rule 59(e) motion, he had in 

6

 The Government certified that it mailed the opposition to Mr. Bell. ROA, 

Vol. I at 118. Mr. Bell explains that he relies on the Bureau of Prisons to deliver 

mail to him. Aplt. Br. at 9. 

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hand the court’s order denying his compassionate release motion. And he has not 

shown an intervening change in controlling law, new and previously unavailable 

evidence, or a clear error that may have altered the outcome on his motion. So if 

there was error in not ordering the Government to send a copy of its opposition to the 

compassionate release motion to Mr. Bell, the error was harmless. 

III. CONCLUSION 

We affirm the district court. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

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