UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HEATHER CARR, Defendant - Appellant. No. 20-1152 (D.C. No. 1:16-CR -00054-WJM-1) (D. Colorado)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, McHUGH , and CARSON , Circuit Judges.

________________ _________________ Heather Carr pleaded guilty to one count of conspiracy to defraud the federal government and is serving a 57-month se ntence. After exhausting her administrative remedies with the Federal Bureau of Pris ons (“BOP”), Ms. Carr, re lying on procedures established by the First Step Act (“FSA”), file d a motion in the district court for sentence modification and compassionate release pursu ant to 18 U.S.C. § 3582(c)(1)(A). Ms. Carr contended she satisfied the “e xtraordinary and compelling reasons” standard and was eligible for a sentence modifi cation based on changes in her eldest daughter’s ability to care for Ms. Carr’s two minor children. Th e district court applied United States

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 14, 2021 Christopher M. Wolpert Clerk of Court2 Sentencing Commission, Guidelines Manua l §1B1.13 (Nov. 2018), to define “extraordinary and compelling reasons” and concluded Ms. Carr wa s not eligible for relief. In our recent decisions in United States v. McGee , ___ F.3d ___, 2021 WL 1168980 (10th Cir. 2021), and United States v. Maumau , ___ F.3d ___, 2021 WL 1217855 (10th Cir. 2021), we he ld USSG §1B1.13 is not pres ently an “applicable” policy statement that controls the definition of “e xtraordinary and compelling reasons” when a prisoner initiates a § 3582(c)(1)(A) proceedi ng. Accordingly, we vacate the district court’s order denying relief, and we rema nd for reconsideration in light of McGee and
Maumau

. I. BACKGROUND
A. Conviction & Sentence In 2010, Ms. Carr and two co-defenda nts conspired to defraud the U.S. Department of Education by submitting false claims for stude nt loan applications. The conspiracy lasted just over two years and fe atured Ms. Carr and her co-defendants using the social security numbers of over 150 in mates in association with college admissions and financial aid requests. After identifying victims by way of inmate locator searches, Ms. Carr used databases available through he r employment as an underwriter to obtain the inmates’ social security numbers. The financial aid app lications sought approximately $1.3 million in federal funds and resulted in the Department of Education disbursing $562,487.85. In 2016, a grand jury issued a tw enty-nine-count indictment, charging Ms. Carr with one count of conspiracy to defraud the federal government and3 multiple counts of wire fraud, mail fraud, and aggravated identit y theft. In 2018, pursuant to a written plea agreement, Ms. Carr pleaded guilty to the conspiracy to defraud the federal government charge in exchange for dism issal of the other twentyeight counts. A presentence investigation report (“PSR”) established a tentative Guidelines range of 70 to 87 months’ impris onment. As a result of the dismissal of the aggravated identify th eft counts, Ms. Carr avoide d a consecutive mandatory minimum sentence of 24 months’ imprisonment. After resolving objections to the PSR , the district court established a Guidelines range of 57 to 71 months’ impr isonment. Citing in part Ms. Carr’s lastminute refusal to testify at th e trial of a co-defendant in breach of her plea agreement, the government sought a 63-mont h sentence. The district c ourt sentenced Ms. Carr to 57 months’ imprisonment. In selecting this sentence, the district court discussed Ms. Carr’s family circumstances and th e impact of the sentence on her minor children. At the time of sent encing, Ms. Carr had two youn g children, ages seven and three. Ms. Carr’s youngest child had been di agnosed with autism a nd required special schooling. The childcare plan during Ms. Ca rr’s incarceration was for her oldest daughter, who was then twenty-two and ma rried, to take care of Ms. Carr’s two youngest children. 1

B. 18 U.S.C. § 3582(c)(1)(A) and Ms. Carr’ s Motion for Compassionate Release Following enactment of the FSA, 18 U.S.C. § 3582(c)(1)(A) reads:

1 The father of Ms. Carr’s two youngest children was one of Ms. Carr’s codefendants and was also facing incarceration.4 (c) Modification of an impo sed term of imprisonment— The court may not modify a term of impris onment once it has been imposed except that—

(1) in any case— (A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative ri ghts to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the recei pt of such a request by the warden of the defendant’s faci lity, whichever is earlier, may reduce the term of imprisonmen t (and may impose a term of probation or supervised release w ith or without conditions that does not exceed the unserved porti on of the original term of imprisonment), after considering th e factors set forth in section 3553(a) to the extent that they are applicable, if it finds that— (i) extraordinary and compe lling reasons warrant such a reduction * * * and that such a reduction is cons istent with applicable policy statements issued by the Sentencing Commission (emphasis added). Prior to the enactment of the FSA, only the Director of the BOP could move for compassionate release on a prisoner’s behalf under § 3582(c)(1)(A). See, e.g. , United States v. Smartt , 129 F.3d 539, 541 (10th Ci r. 1997) (petitioner not eligible for compassionate re lease absent motion from BOP Di rector). As is apparent from the emphasized language, a prisoner now, after exhausting administrative remedies with the BOP, ma y initiate the sentencing modi fication process by filing a § 3582(c)(1)(A) motion in the first instance. McGee , 2021 WL 1168980, at *5. But the FSA did not change the requirements a pr isoner must demonstrate to obtain relief: (1) “extraordinary and compelling reasons” warrant a sentence reduction; (2) the sentence reduction is consiste nt with “applicable policy statements issued by the Sentencing Commission”; and (3) the reduction is consistent with the district court’s5 consideration of the 18 U.S.C. § 3553( a) factors. 18 U.S.C. § 3582(c)(1)(A); see also
McGee , 2021 WL 1168980, at *5. In 2019, Ms. Carr asked the BOP to fi le a motion in dist rict court for a sentence modification asserting she was en titled to compassionate release because her eldest daughter was e xperiencing difficulties caring fo r Ms. Carr’s two youngest children. Specifically, Ms. Ca rr asserted her eldest daught er had separated from her husband, partially due to the strain fro m caring for the children, and was now experiencing financial challenges impacting her ability to continue caring for them. Ms. Carr contended her eldest daughter particularly lack ed the means and ability to care for Ms. Carr’s youngest child, give n his special needs. The BOP denied Ms. Carr’s request. Ms. Carr, proceeding pro se , filed a motion in the district court under § 3582(c)(1)(A), arguing she was entitled to a sentence modification based on changed family circumstances. 2 The government opposed the motion, arguing Ms. Carr did not satisfy the “extraordin ary and compelling reasons” standard for obtaining compassionate releas e, as that term is defi ned by USSG §1B1.13, because the Guidelines provision allows for compa ssionate release based on changed family circumstances only where a ch ild’s caretaker is “decea sed” or “incapacitated.”

2 Ms. Carr, in her pro se motion, also sought a senten ce modification to a term of home confinement under 18 U.S.C. § 3624(c )(2). The district court denied relief under that provision, and Ms . Carr, on appeal, does not c ontest this aspect of the district court’s order.6 Counsel entered an appearance on Ms. Carr’s behalf and ar gued that, after passage of the FSA, the decision of whether Ms. Carr presented “extraordinary and compelling reasons” rested with the di strict court, not the BOP. 3 The district court acknowledged the ongoing disagreement among district courts regarding whether USSG §1B1.13 remains an applicab le policy statement controlling the definition of “extraord inary and compelling circumstances.” Specifically, the district court noted the opinion of a different district court in
Maumau , holding that USSG §1B1.13 is not an applicable policy statement controlling inmate-filed § 3582(c)(1)(A) mo tions. But the district court nonetheless relied exclusively on USSG §1B1.13, and th at section’s accompanying application notes, to define “extraordi nary and compelling reasons” and “family circumstances” for purposes of resolving Ms. Carr’s motion. 4 Applying that standard, the district

3 Ms. Carr’s counsel also raised argum ents based on the COVID-19 pandemic, which the district court rejected. On app eal, Ms. Carr’s briefi ng does not make any mention of COVID-19; thus, any argumen ts premised on COVID-19 available to Ms. Carr at the time of this appeal are waived for pur poses of this appeal and foreclosed for purposes of the remand proceeding. See United States v. Cooper , 654 F.3d 1104, 1128 (10th Cir. 2011) (argumen t not adequately raised on appeal is waived); Estate of Cummings v. Community Health Sys., Inc. , 881 F.3d 793, 801 (10th Cir. 2018) (“Failing to raise an issue on appeal . . . has the same consequences for that litigation as an adve rse appellate ruling on that i ssue. Thus, the mandate rule applies not only to issues on which the higher court ruled but also forecloses litigation of issues decided by the district c ourt but [forgone] on appeal or otherwise waived.”) (quoting Doe v. Chao , 511 F.3d 461, 466 (4th Ci r. 2007)) (alteration in original).

4 The district court decided Ms. Carr’s motion before any Tenth Circuit law existed regarding the appli cability of the current version of USSG §1B1.13 post-FSA and even before any other circuit had reach ed the issue. Thus, the district court’s seeming uncertainty regarding the applicab ility of USSG §1B1.13 is understandable.7 court found that while Ms. Carr’s eldest daughter faced more challenges providing childcare than at the time of sentencing, she had done an “admirable job” caring for the children and was not “in capacitated.” ROA, Vol. I at 448. The district court therefore denied Ms. Carr’s motion, with out considering whether the 18 U.S.C. § 3553(a) factors favored impositi on of a different sentence. On appeal, Ms. Carr advances three arguments. First, she argues USSG §1B1.13 is not an applicable policy statem ent and does not control the definition of “extraordinary and compelling reasons” because it does not reflect the FSA’s changes to § 3582(c)(1)(A). Second, she contends the evidence supports that her eldest daughter is “incapacitated.” 5 Third, she faults the distri ct court for not considering the 18 U.S.C. § 3553(a) factors before denying relief. The go vernment, as in McGee and Maumau , argues the language of 28 U.S.C. §§ 994(a)(2)(C) and (t) and 18 U.S.C. § 3582(c)(1)(A) gives the Sentencing Commi ssion the power to define “extraordinary and compelling reasons” for purposes of co mpassionate release. Based on this, the government contends USSG §1B1.13 is controlling and Ms. Carr has not satisfied the definition of “family circumstances” in the a pplication notes to that provision. In the alternative, the government as serts the district court re cognized USSG §1B1.13 is not controlling yet exercised its discretion to rely upon and appl y the definition of “family circumstances” from the application notes. Finally , the government contends

5 Because we conclude the district c ourt on remand is free to adopt its own interpretation of “extraordinary and co mpelling” that may not include the requirement the caretaker be “incapacitate d,” we do not consider this argument.8 that once the district court concluded Ms. Carr was not elig ible for relief because she had not demonstrated “extraordinary and co mpelling circumstances ,” it would have been pointless for the di strict court to conduct a § 3553(a) analysis.
II. DISCUSSION
A. Standard of Review This court applies an overarching abuse of discretion standard to a district court’s order denying relief on an 18 U.S.C. § 3582(c)(1)(A) motion. United States v. Mannie , 971 F.3d 1145, 1154 (10th Cir. 2020). Howeve r, to the extent the parties’ arguments require us to interpret § 3582(c)(1)(A) and the scope of the district court’s authority to grant relief under that provisio n, we apply de novo review. McGee , 2021 WL 1168980, at *4.
B. USSG §1B1.13 is Not Presently an “Applicable” Policy Statement As noted earlier, for a district court to have authority to modify a sentence, a prisoner must demonstrate “extraordinary an d compelling reasons” for modification, and the modification must be consistent with “app licable” policy statements in the Sentencing Guidelines. 18 U.S.C. § 3582(c)(1)(A); see also McGee , 2021 WL 1168980, at *5. Congress delegated authority to the Sentencing Commission to (1) establish the criteria a district court must apply before modifying a sentence; (2) define the term “extraordinary and compelling reasons” in § 3582(c)(1)(A); a nd (3) provide “a list of specific examples” that qualify as “extraordinary and comp elling reasons” allowing for sentence modification. 28 U.S.C. § 994(t). In re sponse, the Sentencing Commission promulgated USSG §1B1.13, which establishes two crite ria for a sentence modification, including9 “extraordinary and compelling reasons” at issu e in this appeal. The application notes provide four categories or examples of “ex traordinary and compe lling reasons”: (1) the defendant’s medical condition; (2) the defenda nt’s age; (3) family circumstances; and (4) other reasons. USSG §1B1.13 cmt. n.1. The Sentencing Commission, however, has not amended USSG §1B1.13 since the passage of the FSA. 6 As a result, multiple aspects of USSG §1B1.13 and the application notes to that section continue to refer to th e sentencing modification process as a process necessarily instituted by a motion filed by the BOP. See USSG §1B1.13 (“Upon motion of the Director of the Bur eau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment . . . .”); see also id . cmt. n.1(D) (“ Other Reasons. —As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combina tion with, the reasons described in subdivisions (A) through (C).”). Mo st notably, Application Note 4 states, in part, “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A).” Id. cmt. n.4 (emphasis added).

6 The lack of any amendment to USSG §1B1.13 is not attributable to any dilatoriness by the Sentencing Commission. The Commission has lacked a fourmember quorum to vote on and adopt any amendments since 2019, a deficiency that only the President and Senate can cure. See United States v. McGee , ___ F.3d ___, 2021 WL 1168980, at *11 (10th Cir. 2021); United States v. McCoy , 981 F.3d 271, 282 n.6 (4th Cir. 2020). See 28 U.S.C. § 991(a) (establishi ng process for adding new members to the Sentencing Commission).10 Based on USSG §1B1.13’s focus on a motion filed by the BOP, four other circuits concluded the policy statement is not, in its current form, “applicable” to compassionate release motions filed by prisoners under 18 U.S.C. § 3582(c)(1)(A). See United States v. Brooker , 976 F.3d 228, 235–37 (2d Cir. 2020); United States v. McCoy , 981 F.3d 271, 282–85 (4th Cir. 2020); United States v. Jones , 980 F.3d 1098, 1109– 11 (6th Cir. 2020); United States v. Gunn , 980 F.3d 1178, 1180 (7th Cir. 20 20). We recently joined these circuits, holding “the Sentencing Commission ’s existing policy statement is applicable only to motions for sentence reductions filed by the Director of the BOP, and not to motions filed directly by defendants.” McGee , 2021 WL 1168980, at *12; see also
Maumau , 2021 WL 1217855, at *12 (same ). And because USSG §1B1.13 is not presently a policy statement “applicable” to § 3582(c)(1)(A) motions filed by prisoners, the district court has the authority to exercise its independent discretion to define the term “extraordinary and compelling reasons.” See McGee , 2021 WL 1168980, at *8 (holding district courts “have the authority to determine for themselves what constitutes ‘extraordinary and compellin g reasons,’ but that this authority is effectively circumscribed by . . . the requirement that a district court find that a reduction is consistent with applicable policy statemen ts issued by the Sentencing Commission”); see also Maumau , 2021 WL 1217855, at *9 (same quotation).
McGee and Maumau control here and favor Ms. Carr’s position on appeal. While it is possible the district court recognized it had authority to define “extraordinary and compelling reasons,” it is not apparent the district court recognized USSG §1B1.13 was no longer controlling. Although it was within the district court’s discretion to conclude11 the application notes to USSG §1B1.13 still provided the best defi nition and description of “extraordinary and compelling reasons” unde r the circumstances of Ms. Carr’s case, three reasons cause us to conclude the dist rict court did not exer cise its independent authority and discretion. First, the district court decided Ms. Carr’s motion prior to any circuit court addressing the issue and while di strict courts across the country were split on the issue. See Brooker , 976 F.3d at 234 (analyzing the i ssue at the appellate level for the first time and discussing a split amo ng district courts on the issue). And the district court did not affirmatively state whether it belie ved the current version of USSG §1B1.13 continued to control the criteria for “extra ordinary and compelling reasons” after the effective date of the FSA. For this reason, the district court’s single citation to the district court opinion in Maumau does not convince us the dist rict court knew it was free to define “extraordinary and compelling reasons” for itself. Second, the district court relied exclusively on USSG §1B1.13 to define the term without explaining why the provision provided the best or most appropriate defin ition. Third, the district court’s lack of explanation for why it relied upon USSG §1B 1.13 must be viewed against the long history of that provision c ontrolling the definition of “e xtraordinary and compelling reasons” and prisoners’ eligibility for resentencing through § 3582(c)(1)(A). Accordingly, we conclude it is best to perm it the district court another opportunity to review Ms. Carr’s motion in light of McGee and Maumau

. C. Why Remand is Appropriate Rather than Peremptorily Granting Relief Ms. Carr asks us to direct the district cour t to modify her sentence and to order her release from custody. We decline to do so. Th e decision of whether to modify Ms. Carr’s12 sentence should rest, in the first instance, with the district court. As we suggest above, it is not entirely clear from the district court’ s order whether the district court believed it was constrained by USSG §1B1.13. If the di strict court did exercise its independent authority to define “extrao rdinary and compelling reas ons” and concluded USSG §1B1.13 provided the best definition, it should be provided an opportun ity to put forth its reasoning. Cf. McCoy , 981 F.3d at 283 (noting USSG §1B1.13 is not necessarily in conflict with the FSA, notwithstan ding that it is not controlling); Gunn , 980 F.3d 1180 (“The substantive aspects of the Sentencing Commission’s an alysis in § 1B1.13 and its Application Notes provide a working defi nition of ‘extraordinary and compelling reasons’ . . . . In this way the Commission’s analysis can guide discretion without being conclusive.”). Further, even if Ms. Carr satisfies th e “extraordinary and compelling reasons” requirement, she still must show that a sent ence modification is warranted under the 18 U.S.C. § 3553(a) factors. 18 U.S.C. § 3582(c)(1)(A); see also McGee , 2021 WL 1168980, at *5. This court reviews a district court’s evaluation of the § 3553(a) factors for an abuse of discretion. United States v. Sanchez-Leon , 764 F.3d 1248, 1267 (10th Cir. 2014). It is not apparent how the § 3553 (a) factors will break in Ms. Carr’s case on remand. 7 We review a district court’s ultimat e determination on whether to grant a

7 Although Ms. Carr faults the district court for not considering the § 3553(a) factors before denying reli ef, our recent decisions in McGee and Maumau clarify that a district court need not consid er those factors if it concl udes a prisoner is not eligible for sentence modification because she ha s not satisfied the “extraordinary and compelling reasons” threshold. McGee , 2021 WL 1168980, at *6; see also United States v. Maumau , ___ F.3d ___, 2021 WL 1217855, at *7 n.4 (10th Cir. 2021).13 sentence modification for an abuse of discretion. Mannie , 971 F.3d at 1154. This deferential standard applies because of the di strict court’s intimate knowledge of the case, including the defendant’s char acteristics. And, here, the same district court judge presided over Ms. Carr’s initial sentencing and her § 3582(c)(1)(A) proceeding, increasing the benefit of allowing the distri ct court to make this determination. Accordingly, we remand to the district court to weigh these factors in the first instance.
III. CONCLUSION Concluding it is not apparent the distri ct court exercised its own authority and discretion when it relied upon USSG §1B1.13 to define “extraordinary and compelling reasons,” we VACATE the district court’s order and REMAND for further proceedings consistent with McGee and Maumau and this order. Entered for the Court
Carolyn B. McHugh Circuit Judge