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 appella te record, this pa nel has determined unanimously that oral argument would not materially help dete rmine 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 This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 liber ally 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: 12 BACKGROUND In 2019, McRae pleaded guilty to one count of destruction of an energy facility in violation of 18 U.S.C. § 13 66(a). The district court se ntenced him to 96 months’ imprisonment and 36-month s’ supervised release. In 2020, McRae moved for comp assionate 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 sent ence “after considering the factors set forth in section 3553(a) . . . if it finds that . . . extraordinary and compelling reasons warrant such a reduction” and that “suc h 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 consider ing the factors set forth in 18 U.S.C. § 3553(a), to the extent th at they are applicable, the court determines that— (1)(A) Extraordinary and comp elling 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: 23 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 onl y to motions for sentence reductions filed by the Director of the BOP, and not to mo tions filed directly by defendants.” Id. at 1050; United States v. Maumau , 993 F.3d 821, 836–37 (1 0th Cir. 2021) (same). McRae, rather than the BO P Director, filed his compa ssionate-release motion. So the district court erred by a pplying 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 re asons. 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 offens e 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 provide d 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: 34 Moderna COVID-19 vaccine. 3 The district court reasoned that McRae’s fully vaccinated status, despite the possibility of new varian ts, 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 othe rs 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 re lies 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 ci rcumstances of the offense and the history and characteristics of the defendant”; (2) “the need for the sentence imposed to reflect the seriousness of th e offense”; (3) “the kinds of sentences available”; (4) “the kinds of sentences available and sentenci ng 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 defe ndants with similar records who have been found guilty of similar conduc t.” 18 U.S.C. § 3553(a)(1)–(6). Appellate Case: 21-4092 Document: 010110658713 Date Filed: 03/17/2022 Page: 45 Most of McRae’s brief concerns the vi olence 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 w ithin 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 erre d because it failed to acknowledge that his criminal conduct was merely “Civil Disobedi ence.” Opening Br. at 6. And his “Civil Disobedience,” in his view, was less harmful th an 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 ad dress 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 fu rther 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 associat ed with the disease. See Benefits of Getting a COVID-19
Vaccine , Centers for Disease Control and Pr evention (last updated Feb. 25, 2022), https://www.cdc.gov/coronavirus/2019- ncov/vaccines/vaccine-benefits.html

. Given the effectiveness of COVID-19 v accines, we agree with the Sixth and Seventh Circuits that “a defendant’s in carceration 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: 56 ‘extraordinary and compelling reason’ warranting a sentence reduction.” United States v.
Lemons , 15 F.4th 747, 751 (6 th Cir. 2021) (citing United States v. Broadfield , 5 F.4th 801, 803 (7th Cir. 2021)). We also agree “tha t 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 bene fited 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 disc retion when applying the § 3553(a) factors to deny McRae’s motion on alternative grounds . Given how the distri ct 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 th e 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 becau se he has yet to receive a booster shot. But as the government noted, the issue of the advisability of booster shots was not before th e 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 renewe d 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: 67 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