UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

STEPHEN PLATO McRAE, 

 Defendant - Appellant. 

No. 21-4092 

(D.C. No. 2:16-CR-00566-TS-1) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, MURPHY, and EID, Circuit Judges. 

_________________________________ 

 Defendant-Appellant Stephen McRae, proceeding pro se,1

 appeals the district 

court’s denial of his motion for compassionate release. See 18 U.S.C. § 3582(c)(1)(A). 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 

*

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

unanimously that oral argument would not materially help determine 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 This order and judgment is not binding precedent, 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. 

1

 Because McRae appears pro se, we liberally construe his pleadings but will 

not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 

2009). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 17, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 1
2 

BACKGROUND 

In 2019, McRae pleaded guilty to one count of destruction of an energy facility in 

violation of 18 U.S.C. § 1366(a). The district court sentenced him to 96 months’ 

imprisonment and 36-months’ supervised release. 

 In 2020, McRae moved for compassionate release under 18 U.S.C. 

§ 3582(c)(1)(A), citing increased health risks if he contracted COVID-19. Under that 

section, a court may reduce a defendant’s sentence “after considering the factors set forth 

in section 3553(a) . . . if it finds that . . . extraordinary and compelling reasons warrant 

such a reduction” and that “such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i)–(ii) 

(emphasis added). 

The district court agreed that McRae’s health conditions, given the pandemic, 

constituted extraordinary and compelling reasons for release. But relying on what it 

considered to be the “applicable” policy statement, U.S.S.G. § 1B1.13,2

 the district court 

2

 The policy statement provides: 

Upon motion of the Director of the Bureau of Prisons under 18 

U.S.C. § 3582(c)(1)(A), the court may reduce a term of 

imprisonment . . . if, after considering the factors set forth in 18 

U.S.C. § 3553(a), to the extent that they are applicable, the court 

determines that— 

(1)(A) Extraordinary and compelling reasons warrant the 

reduction; or 

(B) The defendant (i) is at least 70 years old; and (ii) has served at 

least 30 years in prison pursuant to a sentence imposed under 18 

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 2
3 

found that McRae remained a danger to the public and denied his motion. McRae 

appealed. 

 Less than a year after the district court issued its order, we altered the applicable 

legal landscape. In United States v. McGee, 992 F.3d 1035 (10th Cir. 2021), we 

concluded that § 1B1.13 “is applicable only to motions for sentence reductions filed by 

the Director of the BOP, and not to motions filed directly by defendants.” Id. at 1050; 

United States v. Maumau, 993 F.3d 821, 836–37 (10th Cir. 2021) (same). 

McRae, rather than the BOP Director, filed his compassionate-release motion. So 

the district court erred by applying the policy statement. United States v. McRae, 845 F. 

App’x 804, 806 (10th Cir. 2021). Thus, we vacated the district court’s order and 

remanded for proceedings consistent with McGee, Maumau, and our order. Id. 

On remand, after recognizing that § 1B1.13 was inapplicable, the district court 

again denied McRae relief. This time, for two reasons. First, the district court found that 

McRae hadn’t shown, based on COVID-19 concerns alone, an “extraordinary and 

compelling” reason for release. This was so because between the district court’s initial 

review of McRae’s motion and its review on remand, McRae received two doses of the 

U.S.C. § 3559(c) for the offense or offenses for which the 

defendant is imprisoned; 

(2) The defendant is not a danger to the safety of any other person 

or to the community, as provided in 18 U.S.C. § 3142(g); and 

(3) The reduction is consistent with this policy statement. 

U.S.S.G. § 1B1.13 (2018). 

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 3
4 

Moderna COVID-19 vaccine.3

 The district court reasoned that McRae’s fully vaccinated 

status, despite the possibility of new variants, reduced his risk of complications. 

Second, the district court found that, even if McRae could show an extraordinary 

and compelling circumstance, it would still deny his motion after considering the 

§ 3553(a) factors.4

 The district court noted that: (1) McRae had expressed a desire to 

continue targeting producers of fossil fuel, the very activity for which he was convicted; 

(2) his sentence reflected the seriousness of his conduct; and (3) his sentence was 

necessary to deter him and others and to protect the public. 

DISCUSSION 

 We review a district court’s denial of a compassionate release motion for abuse of 

discretion. See United States v. Mannie, 971 F.3d 1145, 1147–48 (10th Cir. 2020). “A 

district court abuses its discretion when it relies on an incorrect conclusion of law or a 

clearly erroneous finding of fact.” United States v. Piper, 839 F.3d 1261, 1265 (10th Cir. 

2016) (citation omitted). 

3

 The government informed the district court of this development through 

supplemental briefing. 

4

 The § 3553(a) factors are: (1) “the nature and circumstances of the offense 

and the history and characteristics of the defendant”; (2) “the need for the sentence 

imposed to reflect the seriousness of the offense”; (3) “the kinds of sentences 

available”; (4) “the kinds of sentences available and sentencing range established 

for” the offense at the time of sentencing; (5) “any pertinent policy statement” in 

effect at the time of the defendant’s sentencing; and (6) “the need to avoid 

unwarranted sentence disparities among defendants with similar records who have 

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1)–(6). 

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 4
5 

Most of McRae’s brief concerns the violence at his prison; BOP’s alleged 

miscalculation of his security level; BOP’s refusal to release him on home-confinement; 

BOP’s past management of the pandemic within federal prisons; the length of his 

sentence; and the district court’s alleged bias against him. As best as we can surmise, 

McRae argues that the district court erred because it failed to acknowledge that his 

criminal conduct was merely “Civil Disobedience.” Opening Br. at 6. And his “Civil 

Disobedience,” in his view, was less harmful than the harm he sought to prevent through 

his criminal conduct—the burning of coal. Id. at 6–7. But none of these arguments were 

raised before the district court, so they are waived. See Wilburn v. Mid-South Health 

Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003). 

Waiver issues aside, McRae does not address the district court’s ruling in a 

substantive, non-frivolous way. He says that the district court’s denial of his motion “was 

not supported by facts,” but provides no further explanation. Opening Br. at 1–2. 

In any event, McRae does not dispute the one fact supporting the district court’s 

finding of no extraordinary and compelling circumstances: that McRae received two 

doses of the Moderna COVID-19 vaccine. Nor does he dispute that COVID-19 vaccines 

reduce the risks associated with the disease. See Benefits of Getting a COVID-19 

Vaccine, Centers for Disease Control and Prevention (last updated Feb. 25, 2022), 

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html. 

Given the effectiveness of COVID-19 vaccines, we agree with the Sixth and 

Seventh Circuits that “a defendant’s incarceration during the COVID-19 pandemic—

when the defendant has access to the COVID-19 vaccine—does not present an 

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 5
6 

‘extraordinary and compelling reason’ warranting a sentence reduction.” United States v. 

Lemons, 15 F.4th 747, 751 (6th Cir. 2021) (citing United States v. Broadfield, 5 F.4th 

801, 803 (7th Cir. 2021)). We also agree “that a prisoner who is ‘unable to receive or 

benefit from a vaccine’ may still be able to show ‘extraordinary and compelling reasons’ 

warranting a sentence reduction.” Id. (quoting Broadfield, 5 F.4th at 803). 

Thus, because McRae received and benefited from a COVID-19 vaccine, the 

district court did not abuse its discretion in denying McRae’s motion.5

Nor did the district court abuse its discretion when applying the § 3553(a) factors 

to deny McRae’s motion on alternative grounds. Given how the district court weighed the 

factors, “we are not left with a definite and firm conviction that the district court made a 

clear error of judgment or exceeded the bounds of permissible choice in the 

circumstances.” United States v. Hald, 8 F.4th 932, 950 (10th Cir. 2021) (cleaned up). 

5

 McRae argues that his vaccine status is insufficient because he has yet to 

receive a booster shot. But as the government noted, the issue of the advisability of 

booster shots was not before the district court. If McRae believes that his risk of 

complications from COVID-19 has changed, he may raise his concerns in an 

amended motion or a renewed application for relief. See McRae, 845 F. App’x. at 806 

n.4. 

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 6
7 

CONCLUSION 

For these reasons, we affirm the district court’s denial of McRae’s motion for 

compassionate release. We also grant McRae’s motion to proceed on appeal in forma 

pauperis. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 7