UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL CRESPIN, Defendant - Appellant. No. 23-2111 (D.C. No. 1:14-CR-01759-WJ-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ Michael Crespin appeals the district cour t’s denial of his request for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A ), commonly known as compassionate release. Mr. Crespin argues that the district court abused its discretion and that this court should apply the 2023 amendments to the U.S. Sentencing Commission Guidelines’ policy statement on motions for compassionate release, U.S.S.G. § 1B1.13, enacted after the district c ourt’s ruling. Exerci sing jurisdiction under 28 U.S.C. § 1291, we affirm.

* 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 

### June 21, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 12 I. BACKGROUND Mr. Crespin is currently serving a 156-month prison sent ence. He pleaded guilty to armed robbery in September 2015 and was sentenced in April 2016. He is expected to be released in to a residential reentry cen ter on November 14, 2025. Mr. Crespin filed a pro se motion fo r compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) with the district court in July 2022, after exhausting his administrative remedies with the Federal Bureau of Pris ons (“BOP”). The district court appointed counsel, w ho filed a renewed motion for compassionate release in April 2023. In his counseled motion, Mr. Crespin argued that the 18 U.S.C. § 3553(a) factors supported his compassionate release. 1 He asserted that his post-conviction rehabilitation and familial connections ar e favorable aspects of his history and characteristics; his age and familial support mean he has a low likelihood of recidivism; he needs to care for his son with terminal brain cancer, his aging mother, and his grandson; and he has served a majority of his sentence. A few weeks later, on May 3, 2023, the Sentencing Commission issued a notice and comment regarding amendments to the Guidelines, including amendments to § 1B1.13. Sentencing Guidelines for Unit ed States Courts, 88 Fed. Reg. 28254,

1 Mr. Crespin also argued th at if he were sentenced following the August 2016 amendments to the Guidelines’ definition of a “crime of violence,” he would no longer be labeled a career offender under the Guidelines, and thus he was eligible for a sentence reduction. He does not raise this issue on appeal, and we do not consider it. Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 23 28254 (May 3, 2023). Among other amendments to § 1B1.13, the no tice declared that the policy statement would be amended to expressly apply to de fendant-filed motions for compassionate release, rather than just those filed by the BOP. Id. at 28256–57. It also indicated the intent to address directly and expand th e family circumstances that may warrant compassionate rele ase, rather than referencing a more limited set of qualifying family circumstances in the commentary to the policy statement. Id. These amendments did not go into e ffect until November 1, 2023. Id. at 28254. In July 2023, the district court conc luded that Mr. Crespin’s grounds for compassionate release were not sufficiently extraordinar y and compelling to warrant relief. As to Mr. Crespin’s family circ umstances, the main issue on appeal, the district court explained th at, considering the then-cont rolling version of U.S.S.G. § 1B1.13 (Nov. 2021) and its commentary rega rding family circumstances that would justify compassionate rele ase, Mr. Crespin could no t show that his family circumstances warranted rele ase because he never argued he was the only available caregiver to his ailing mother and son, as well as his grandson. Indeed, his Presentence Investigation Re port (“PSR”) indicates he ha s three adult relatives who could provide the necessary care. Acco rdingly, the district court denied compassionate release. On appeal, Mr. Crespin focuses only on his family circumstances, namely his need to care for his son, mo ther, and grandson. He also claims we should review his motion de novo and give him the benefit of the § 1B1.13 amendments. Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 34 II. DISCUSSION
A. Standard of Review “Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed . . . .” United States v. Maumau , 993 F.3d 821, 830 (10th Cir. 2021) (quoting Freeman v. United States , 564 U.S. 522, 526 (2011)). “This rule of finality is subject to a few na rrow exceptions[,] one of which is contained in [18 U.S.C.] § 3582(c)(1), sometimes calle d the compassionate release statute.” United States v. Hemmelgarn , 15 F.4th 1027, 1029 (10th Cir. 20 21) (alterations in original) (internal quotation marks omitte d). We have adopted a three-part test for reviewing compassionate release motions, pursuant to the plain text of 18 U.S.C. § 3582(c)(1)(A)(i). United States v. McGee , 992 F.3d 1035, 1042–43 (10th Cir. 2021). At step one, “a district court must [] find whether extraordinary an d compelling reasons warrant a sentence reduction.” United States v. Bradley , 97 F.4th 1214, 1217 (10th Cir. 2024) (internal quotation marks omitted). At step two, a dist rict court must “find whether such reduction is consistent with applicab le policy statements issued by the Sentencing Commission.” Id. (quotation marks omitted). Fina lly, at step three, a district court must “consider any applicable 18 U.S.C. § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case.” Id. (quotation marks omitted). “A district court may deny compassionate-release motions when a ny of the three prerequisites listed in § 3582(c)(1)(A) is lacki ng and do[es] not need to address the others.” Hemmelgarn , 15 F.4th at 1029 (alteration in origin al) (internal quotation marks omitted). Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 45 We review a district court’s order denyin g compassionate release for an abuse of discretion. Id. at 1031. “A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” Id. (quotation marks omitted). “Because the weighing of the § 3553(a) factors is committed to the discretion of the district court, we cannot reverse unless we ha ve a definite and firm conviction that the lower 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, 949 (10t h Cir. 2021) (internal quotation marks omitted).
B. Applicability of the Guidelines’ 2 023 Policy Statement Amendments Mr. Crespin argues that we should c onsider his motion for compassionate release de novo under the § 1B1.13 amendments that have now gone into effect. “As a general rule, it is the guide lines provisions in effect at the time of sentencing that must be applied by the district court.” United States v. Kissick , 69 F.3d 1048, 1052 (10th Cir. 1995), abrogated on other gr ounds by United States v. Horey , 333 F.3d 1185, 1187–88 (10t h Cir. 2003). And again, we review the denial of compassionate release for abuse of discretion, and failure to apply proposed amendments is not a legal error. See id. ; Hemmelgarn , 15 F.4th at 1031. We may, however, apply the Guidelines de novo on appeal in the limited circumstance when there is an intervening amendment to the Guidelines with retroactive effect. See Kissick , 69 F.3d at 1052. “Congress has granted the Sentencing Commission the authority to determine wh ether and to what extent guidelines amendments that reduce sentences wi ll be given retroactive effect.” Id. “Pursuant to Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 56 28 U.S.C. § 994, the Commission has promul gated [U.S.S.G.] § 1B1.10, which lists specific amendments that sentencing cour ts may apply retroactively to reduce a defendant's sentence.” Id. However, “even if an amendmen t is not listed in [U.S.S.G.] § 1B1.10, sentencing and revi ewing courts may still give retroactive effect to amendments that are ‘clarifyi ng (as opposed to substantive).’” Id. (quoting United States v. Capers , 61 F.3d 1100, 1109 (4th Cir. 1995)). Because § 1B1.10 does not list the 2023 amendments to § 1B1.13, we must review whether the amendments are substantive or clarifying. See United States Sentencing Commission, Guidelines Manual , § 1B1.10(d), p.s. (Nov. 2023). In determining whether a Guidelines amendmen t is substantive or clarifying, “[a] variety of factors may be considered, in cluding the Commission’s characterization of the amendment, whether the amendment change s the text of the guidelines or merely the accompanying commentary, and whethe r the amendment alters the controlling pre-amendment interpretation of the guideline at issue.” Kissick , 69 F.3d at 1052. We conclude the § 1B1.13 amendmen ts are substantive and may not be retroactively applied to Mr. Crespin’s motion. Under the Guidelines in effect at the time of the district court’s decision, th e commentary to § 1B1.13 stated that extraordinary and compelling reasons under the heading of family circumstances included “[t]he death or incapacitation of th e caregiver of the defendant’s minor child or minor children” and “[t]he incapacitation of the defendant ’s spouse or registered partner when the defendant would be the on ly available caregiver for the spouse or registered partner.” U.S. S.G. § 1B1.13, comment. (n.1(C)) (Nov. 2021). The body of Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 67 the policy statement, however, referenced only the requirement that “extraordinary and compelling reasons warrant the reduction.” Id. § 1B1.13(1)(A), p.s. (Nov. 2021). Under the 2023 amendments, the policy st atement now specifically enumerates family circumstances courts may consider in deciding a motion for compassionate release. 2 See id. § 1B1.13(b)(3), p.s. (Nov. 2023). These are substan tial edits to the text of the policy statement, given that these circumstances ar e now enumerated in the body of the policy stat ement itself, rather than the commentary, and the amendments have expanded upon the types of family circumstances which may be considered in granting compassionate re lease. These substantial edits favor a conclusion the amendment is substa ntive, rather than clarifying. See Kissick , 69 F.3d

2 The circumstances enumerated under the 2023 amendments are: (A) The death or incapacitation of the caregiver of the defendant’s minor child or the defendant’s child who is 18 years of age or older and incapable of self-care b ecause of a mental or physical disability or a medical condition. (B) The incapacitation of the defendant ’s spouse or registered partner when the defendant would be the onl y available caregiver for the spouse or registered partner. (C) The incapacitation of the defenda nt’s parent when the defendant would be the only available caregiver for the parent. (D) The defendant establishes that ci rcumstances similar to those listed in paragraphs (3)(A) through (3)(C) exist involving any other immediate family member or an individual whos e relationship with the defendant is similar in kind to that of an i mmediate family member, when the defendant would be the only available caregiver for such family member or individual . . . . U.S.S.G. § 1B1.13(b)(3), p.s. (Nov. 2023). Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 78 at 1052; see also id. at 1053 (“[A]n amendment that effectively overrules existing precedent should be classifi ed as substantive rather than clarifying.”). Additionally, the Sentencing Commission e xplained in its notice regarding this amendment that “[t]he amendment expands the list of specified extraordinary and compelling reasons . . . to better account fo r and reflect the plain language of section 3582(c)(1)(A), its legislative history, and decisions by cour ts made in the absence of a binding policy statement.” 88 Fed. Reg. at 28257. This characterization of the amendment as aligning the policy statement mo re firmly with judicial trends and the governing statutory framew ork suggests that the Commission intended to make a substantive overhaul to § 1B1.13. See Kissick , 69 F.3d at 1052. We accordingly hold that the amendments are subs tantive, rather th an clarifying, and we thus may not retroactively apply the 2023 amendments to § 1B1.13 de novo to Mr. Crespin’s motion for compassionate release.
C. Extraordinary and Compelling Reasons Mr. Crespin also raises several arguments asserting that the district court abused its discretion in denying his motion for compa ssionate release. We conclude the district court did not abuse its discretion in reviewing Mr. Crespin’s motion. First, Mr. Crespin argues that the distri ct court erred by decl aring itself not bound to § 1B1.13 in evaluating Mr. Crespin’s moti on for compassionate release. At the time the district court decided Mr. Crespin’s motion, § 1B1.13 was not an applicable policy statement to a moti on for compassionate release filed by a defendant and instead applied only to BOP-filed motions. See U.S.S.G. § 1B1.13, p.s. (Nov. 2021). Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 89 During that time, we accordingly held dist rict courts were not bound by § 1B1.13 in deciding defendant-filed motions. McGee , 992 F.3d at 1050; see also Maumau , 993 F.3d at 836–37. Thus , although the district court in this case referred to § 1B1.13 (Nov. 2021) for guidance, the court correctly concluded that it was not bound by the applicable policy statements in determining whether Mr. Crespin demonstrated extraordinary and compelling reas ons for compassionate release. 3 Mr. Crespin also makes several allegations that the district court abused its discretion in reviewing his assertions that he is entitled to compassionate release for extraordinary and compelling re asons and nevertheless denyin g relief. We conclude that the district court did not abuse its discretion. 4

3 Were the district court c onsidering this motion today, § 1B1.13 as applied to step two would constrain the court’s discre tion under step one. When a district court considers whether a defendant has shown extraordinary and compelling reasons for release under step one of the § 3582(c)(1)(A) three-part test, the court’s discretion “is bounded by the requirement under step two of the statutory test that a reduction in sentence be consistent with applicable policy statements issued by the Sentencing Commission.” United States v. Maumau , 993 F.3d 821, 832 (10th Cir. 2021). And the § 1B1.13 amendments explicitly expanded a pplicability of the policy statement to defendant-filed motions for compassionate release in November 2023. U.S.S.G. § 1B1.13(a), p.s. (Nov. 2023). But the dist rict court was not so constrained when deciding this motion in July 2023. See Maumau , 993 F.3d 836–37; United States v. McGee , 992 F.3d 1035, 1050 (10th Cir. 2021).

4 Mr. Crespin also asserts that “if there was any question of f act, [the district court] should have held an emergency evid entiary hearing to a ddress it.” Appellant’s Br. at 12–13. We review the district cour t’s decision to deny a compassionate-release evidentiary hearing for abuse of discretion. See United States v. Pinson , 835 F. App’x 390, 395 n.6 (10th Cir. 2020) (unpublis hed). There is no requirement under § 3582(c)(1)(A) for district courts to hold evidentiary hearings on motions for compassionate release. United States v. Hemmelgarn , 15 F.4th 1027, 1032 n.3 (10th Cir. 2021). Additionally, before the distri ct court, Mr. Crespin moved for an evidentiary hearing only in a conclusory statement at the end of his reply brief, Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 910 Mr. Crespin argues that the district court made a clea r error by finding that he was not the only availabl e caregiver for his son. 5 On this point, Mr. Crespin seems to assert that the district c ourt erred by misunderstanding hi s letter to the court on his family situation, which he claims states th at his son has no one to care for him as he fights cancer due to his mother’s death, his being unmarried, and Mr. Crespin’s current wife’s illness. But th is letter does not establish th at Mr. Crespin’s wife cannot care for his son due to her illness. In the letter, Mr. Crespin stated, “[M]y wife has been doing her best to help him.” ROA at 479. Furthermore, Mr. Crespin represented in his reply brief before the district court that “[h]is wi fe, who was recently diagnosed with congestive heart failure a nd is struggling to manage her health condition as well, has had to take on the increasingly difficult task of helping her own family as well as helping care for [Mr. Crespin’s] son.” Id. at 471. While this

without any argument or support in the record. “[T]he general rule in this circuit is that a party waives issues and arguments ra ised for the first time in a reply brief.” M.D. Mark, Inc. v. Kerr-McGee Corp. , 565 F.3d 753, 768 n.7 (10th Cir. 2009). Because Mr. Crespin failed to adequately move for a hearing before the district court, the district court did not abuse its discre tion by not granting an evidentiary hearing on the motion.

5 Mr. Crespin also claims the district court erred as a matter of law in concluding that he needed to show he had an incapacitated minor child without a caregiver to be entitled to compassionate release to care for the child. But the commentary for the then-controlling Guid elines policy stat ement explicitly contemplates that a defe ndant shows an extraordinary and compelling reason by establishing “[t]he death or incapacitation of the caregiver of the defendant’s minor child or minor children.” U.S.S.G. § 1B 1.13, comment. (n.1(C)(i)) (Nov. 2021). And again, in any event, the district cour t was not bound by the then-controlling policy statement because it applied only to BOP -filed motions for compassionate release. Maumau , 993 F.3d at 836–37; McGee , 992 F.3d at 1050. Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 1011 letter suggests that Mr. Cr espin’s wife is facing challe nges in caring for herself and her family, we cannot conclude the distri ct court clearly e rred in finding that Mr. Crespin’s son is receiving care as he fights cancer. See Hald , 8 F.4th at 949 (“[W]e cannot reverse unless we have a defin ite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” (internal quotation marks omitted)). Add itionally, as the Government points out, the medical records Mr. Crespi n filed with his motion illustrate that Mr. Crespin’s son is doing we ll and has a care network of family and friends helping him through treatment. Mr. Crespin also briefly notes that th e record shows that his minor grandson needs care. But Mr. Crespin cites no record evidence maki ng this showing. And the weight of authority indicates that the defendant carries the burden on a motion for compassionate release to show he is entitled to relief. See United States v. Snyder , No. 22-3089, 2023 WL 370901, at *3 (10th Ci r. Jan. 24, 2023) (affirming district court’s conclusion on abuse of discretion review that the defendant did not meet his burden to show “an extraordinary and comp elling circumstance warranting a sentence reduction”); United States v. Avalos Banderas , 39 F.4th 1059, 1062 (8th Cir. 2022) (placing the burden to show entitlement to compassionate releas e under § 3582(c)(1) on the defendant); United States v. Centeno-Morales , 90 F.4th 274, 279 (4th Cir. 2024) (“A movant for compassionate rele ase bears the burden of showing why the § 3553(a) factors justify a modified sentence.”); United States v. Moreno , 519 F. Supp. 3d 937, 941 (D. Kan. 2021) (“The moving defendant bears the burden Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 1112 of establishing that such a ‘compassi onate release’ is warranted under [§ 3582(c)(1)].”). Mr. Crespin’ s failure to support this cl aim defeats his argument. Mr. Crespin next argues th at the district court erre d in finding he was not the only available caregiver for his mother. Mr. Crespin asse rts that “the only current information before the district court was that Mr. Crespin’s sister is not able to be the sole caregiver to their 83-y ear-old mother.” Appellant’s Br. at 12. But the record citation provided does not even address his family circum stances. Mr. Crespin goes on to assert that the district court er red when it “based its finding on general information in Mr. Crespin’s [PSR] from eight years ago, which merely indicated that he has a sister and two other adult children.” Id. But the PSR was on the record before the district court on this motion. Furthermore, Mr . Crespin cited the PSR in his reply brief before the district court. And Mr. Cr espin provided no additional information to the district court to s how that he would be the only available caregiver. The district court committed no cl ear error by relying on the PSR to reach its conclusion that other caregivers are available for Mr. Crespin’s mother. Finally, Mr. Crespin asserts that the dist rict court erred in not granting relief under the “catch-all” provision of th e then-controlling policy statement. See U.S.S.G. § 1B1.13, comment. (n.1(D)) (Nov. 2021). But again, the district court was not bound by any of the § 1B1.13 (Nov. 2021) pr ovisions because prior to the 2023 amendments, § 1B1.13 applied onl y to motions filed by the BOP. See Maumau , 993 F.3d at 836–37; McGee , 992 F.3d at 1050. And in a ny event, Mr. Crespin has failed to provide any basis for relief under the discretionary catch-all provision of the Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 1213 policy statement that has not already prove d inadequate under the other provisions of the non-binding policy statement. The dist rict court made no legal error here.
III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of Mr. Crespin’s motion for compassionate release.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 23-2111 Document: 010111068187 Date Filed: 06/21/2024 Page: 13