[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14597

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

GLEN SPEARING MATTHEWS, 

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:01-cr-00018-MTT-CHW-1

____________________

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2 Opinion of the Court 20-14597

Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

Glen Matthews appeals the district court’s order denying his 

motion for compassionate release pursuant to 18 U.S.C. 

§ 3582(c)(1)(A). Mr. Matthews argues that the district court erred 

in concluding that the sentencing disparity in his case was not an 

“extraordinary and compelling” reason for compassionate release 

under U.S.S.G. § 1B1.13. He asserts that United States v. Bryant, 

996 F.3d 1243 (11th Cir. 2021), petition for cert. denied, No. 20-1732 

(U.S. Dec. 6, 2021), was erroneously decided because § 1B1.13 and 

its enabling clause, 28 U.S.C. § 994(t), are unconstitutional and thus 

non-binding on district courts. After review of the parties’ briefs 

and the record, we affirm.1

I 

In 2001, a jury convicted Mr. Matthews of three counts of 

armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 

2113(d); three counts of possession of a firearm during a crime of 

violence, in violation of 18 U.S.C. § 924(c); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 

§§ 922(g) and 924(e)(1). The district court sentenced him to 1,047 

months in prison.

1 Because we write for the parties, and assume their familiarity with the record, we set out only what is necessary to explain our decision.

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20-14597 Opinion of the Court 3

Following the Supreme Court’s decision in Johnson v. 

United States, 576 U.S. 591 (2015), we granted Mr. Matthews leave 

to file a successive 28 U.S.C. § 2255 motion based on his argument 

that the enhanced portion of his sentence under the Armed Career 

Criminal Act was no longer valid. In March of 2017, the district 

court granted Mr. Matthews’ § 2255 motion and resentenced him

to 840 months in prison.

On October 6, 2020, Mr. Matthews filed a motion for compassionate release. He argued that the portion of his new sentence 

pertaining to the three § 924(c) counts was 45 years longer than it 

would have been had he been sentenced after Congress’ enactment

of the First Step Act. This sentencing disparity, Mr. Matthews contended, presented an “extraordinary and compelling” reason to reduce his sentence.

The district court denied Mr. Matthews’ motion, finding 

that he had “failed to provide extraordinary and compelling circumstances that would warrant relief.” D.E. 258 at 2. The district 

court explained that the issues raised by Mr. Matthews were “not 

governed by the compassionate release statute found at 18 U.S.C. 

§ 3582(c)(1)(A) and [the] sentencing guidelines found at [U.S.S.G.]

§ 1B1.13 . . . [because] § 1B1.13 primarily deals with grounds for 

compassionate release based on the defendant’s medical condition, 

family circumstances and whether the defendant is a danger to the 

safety of any other person or the community.” Id.

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This appeal followed.2

II 

A 

Typically, we review a district court’s denial of a

§ 3582(c)(1)(A) motion under an abuse of discretion standard. See, 

e.g., United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). 

Where a party fails to raise an objection before the district court, 

however, our review of the challenge on appeal is for plain error. 

See United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006).

Mr. Matthews argues, for the first time on appeal, that 28 

U.S.C. § 994(t) constitutes an unconstitutional delegation of authority to the United States Sentencing Commission. Thus, he contends that U.S.S.G. § 1B1.13 is void and did not bind the district 

court. Because Mr. Matthews did not object to the 

2 Mr. Matthews’ notice of appeal was untimely—he deposited his notice of 

appeal in the prison’s mailbox two days after the 14-day period to appeal had 

lapsed. See Fed. R. App. P. 4(b)(1). We “customarily treat a late notice of 

appeal in a criminal case as a motion for an extension of time pursuant to Fed. 

R. App. P. 4(b) and remand the case to the district court for a determination 

of excusable neglect.” Sanders v. United States, 113 F.3d 184, 186 (11th Cir. 

1997). In this case, however, the government has explicitly waived the untimeliness argument and asked us to consider Mr. Matthews’ arguments rather than remand for an excusable neglect determination. See Answer Br. at 

4–6. Because the deadlines in Rule 4(b) are not jurisdictional, and given the 

government’s explicit waiver, we consider Mr. Matthews’ appeal on the merits. See United States v. Lopez, 562 F.3d 1309, 1312–13 (11th Cir. 2009).

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constitutionality of either § 994(t) or § 1B1.13 in the district court, 

plain error review applies. See id.

Under plain error review, an error is reversible only if we 

conclude that (1) an error occurred, (2) the error was plain, and 

(3) the error affected substantial rights. See id. “An error is not 

plain unless it is contrary to explicit statutory provisions or to onpoint precedent in this Court or the Supreme Court.” United 

States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009). If the three 

criteria are met, we may reverse for plain error if the error seriously 

affected the fairness, integrity, or public reputation of the judicial 

proceedings. See Nash, 438 F.3d at 1304.

B 

Mr. Matthews’ arguments are foreclosed by our decision in 

Bryant—a fact he concedes. See Initial Br. at 36. Nevertheless, he 

“maintains that § 1B1.13 was not an ‘applicable policy statement’ 

to his motion,” id. at 37, and urges us to conclude that § 994(t) and 

Application Note 1(D) to § 1B1.13 are unconstitutional despite Bryant.3

In Bryant, we held that “a district court cannot grant a motion for reduction if it would be inconsistent with the [Sentencing] 

3 Mr. Matthews argues that we decided Bryant incorrectly, citing to opinions 

from eight of our sister circuits. We acknowledge that other circuits have 

reached different results, but as a later panel Bryant is binding on us and applies 

to Mr. Matthews’ motion. We note that the Supreme Court denied certiorari 

in Bryant, thereby declining an opportunity to resolve the circuit split.

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6 Opinion of the Court 20-14597

Commission’s policy statement defining ‘extraordinary and compelling reasons.’” 996 F.3d at 1249. The Commission’s definition, 

we concluded, is binding on district courts. See id. at 1251–52. We

explained that in § 994(t) Congress commanded the Sentencing 

Commission to publish a policy statement that defines “extraordinary and compelling” reasons for compassionate release, which the 

Sentencing Commission did in § 1B1.13. See id. at 1247, 1251.

Further, we stated that Application Note 1(D) to § 1B1.13, 

which allows the Director of the BOP to determine “extraordinary 

and compelling” reasons to reduce a defendant’s sentence that fall 

outside the scope of the reasons in subdivisions (A) through (C), 

does not conflict with § 3582(c)(1)(A). See 996 F.3d at 1263. Because “[t]he BOP can . . . take a position on a defendant-filed motion, . . . Application Note 1(D) has a field of application there as 

well.” Id. at 1264. As such, in considering defendant-filed

§ 3582(c)(1)(A) motions, district courts must still follow the “extraordinary and compelling” reasons as determined by the BOP 

and may not independently determine what “extraordinary and 

compelling” reasons exist for reducing a defendant’s sentence. See 

id.

Mr. Matthews’ challenge to the constitutionality of 28 

U.S.C. § 994(t) and U.S.S.G. § 1B1.13 fails under the plain error 

standard because he has not identified any statute or controlling 

precedent declaring these provisions unconstitutional. See Schultz, 

565 F.3d at 1357. Additionally, based on our holding in Bryant, the

district court did not err in denying Mr. Matthews’ motion for 

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compassionate release because a sentencing disparity is not one of 

the “extraordinary and compelling” grounds for which the district 

court may grant relief under § 1B1.13.

III 

We affirm the district court’s order denying Mr. Matthews’ 

motion for compassionate release.

 AFFIRMED. 

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