[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14865

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

WAYNE BURCKS, 

a.k.a. Wayne Burkes, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:15-cr-60330-WPD-1

____________________

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 1 of 14
2 Opinion of the Court 20-14865

Before ROSENBAUM, ANDERSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Wayne Burcks, an inmate at FCI Jesup who is 

serving a 180-month sentence arising from his Hobbs Act robbery 

conviction in 2016, appeals the district court’s denial of his motion 

for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We find 

no error in the district court’s order denying Defendant’s motion, 

and thus affirm.

BACKGROUND 

Defendant was indicted in 2015 for committing a robbery by 

means of actual and threatened force (Hobbs Act robbery), in violation of 18 U.S.C. § 1951(a). He pled guilty pursuant to a plea 

agreement and was convicted of the Hobbs Act robbery charge in 

2016. 

Based on the factual proffer supporting Defendant’s guilty 

plea, the robbery occurred on May 31, 2015. On that date, four 

individuals wearing masks and gloves entered a Mayors jewelry 

story in the Fort Lauderdale Galleria Mall and began smashing the 

display counters with large hammers and removing high-end 

watches. Two customers and three employees who were in the 

store at the time ran in fear to take shelter in offices and underneath 

furniture. 

The four masked individuals eventually left the store with 

48 watches, including 25 Rolexes and 5 Tag Heuers, whose total 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 2 of 14
20-14865 Opinion of the Court 3

retail value exceeded $250,000. They exited the mall and entered a 

Hyundai Elantra that was waiting by the exit doors in the mall 

parking garage with its passenger doors open. A witness followed 

the Hyundai from the parking garage, maintaining sight of the vehicle until police arrived. Shortly thereafter, five individuals were 

seen exiting the Hyundai and entering an Infiniti QX56 parked just 

off the highway. As they changed cars, the group dropped a bag 

containing several watches, gloves, a ski cap, and a hammer, all of 

which were collected as evidence. 

A high-speed chase ensued, during which multiple police 

and civilian vehicles were damaged. The Infiniti eventually 

crashed into a fence, at which time all the vehicle’s occupants fled 

on foot. Two of the occupants, Malcolm Williams and Zavier 

McGee, were apprehended, and several pieces of clothing were obtained from inside the Infiniti and along the flight paths of the fleeing individuals. Williams and McGee identified Defendant as being 

involved in the planning of the Mayors robbery and as the getaway 

driver of the Hyundai and the Infiniti. DNA testing on the items 

recovered from the Infiniti indicated that Defendant was the major 

contributor of DNA located on a bandana recovered from the 

driver’s seat as well as DNA found on gloves recovered near the 

scene where the Infiniti crashed. 

A PSR was prepared following Defendant’s guilty plea. The 

PSR assigned Defendant a base offense level of 20, and applied a 

four-level enhancement under USSG § 2B3.1(b)(2)(D) because a 

dangerous weapon was used to commit the robbery and a twoUSCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 3 of 14
4 Opinion of the Court 20-14865

level enhancement under § 2B3.1(b)(7)(C) because the loss exceeded $95,000. In addition, Defendant was determined to be a 

career offender pursuant to USSG § 4B1.1(a) based on his prior convictions for Hobbs Act conspiracy, assaulting a federal corrections 

officer, and burglary of an occupied dwelling. The career offender 

designation increased Defendant’s offense level to 32. After applying a three-level reduction for acceptance of responsibility, Defendant’s total offense level was calculated to be 29, which with Defendant’s criminal history category of VI yielded a recommended guidelines range of 151 to 188 months in prison. 

Defendant objected to his classification as a career offender, 

arguing that neither Hobbs Act conspiracy nor assault on a federal 

corrections officer was a crime of violence. The district court sustained the objection. The court also sustained Defendant’s objection to the dangerous weapon enhancement applied in the PSR. 

Without the career offender and dangerous weapon enhancements, the court determined that Defendant’s offense level was 22 

and his criminal history category VI, resulting in a recommended 

Guidelines range of 84 to 105 months. 

Nevertheless, the court granted the Government’s request

for an upward variance and imposed a sentence of 180 months 

based on Defendant’s extensive criminal history. In support of the 

upward variance, the court noted that Defendant had 23 prior felony convictions for crimes similar to the Hobbs Act robbery that 

led to his conviction in this case, including prior “smash and grab” 

crimes that ended in high-speed chases, and that Defendant had 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 4 of 14
20-14865 Opinion of the Court 5

spent most of his adult life in a near constant cycle of crime sprees 

interrupted only by prison sentences. For example, the court noted 

that Defendant had been sentenced to 114 months on a Hobbs Act 

robbery charge in 2005, during which sentence Defendant had assaulted a federal corrections officer, and that just four months after 

his release from that sentence in 2014, Defendant was arrested for 

stealing over $500 from a local Wal-Mart. Given Defendant’s history, and applying the § 3553(a) factors, the court concluded that 

an upward variance to 180 months was required to act as a deterrent and to promote respect for the law. This Court affirmed Defendant’s sentence on appeal, holding that the district court had 

committed no procedural error and that the sentence was substantively reasonable and below the statutory maximum of 20 years for 

Defendant’s offense in this case. 

Defendant filed a timely motion under 28 U.S.C. § 2255 to 

vacate his sentence, arguing that his guilty plea was based on the 

promise of a shorter sentence, that the Government had breached 

the plea agreement, and that defense counsel was ineffective for 

failing to raise the issue. The district court denied Defendant’s 

§ 2255 motion, concluding that Defendant’s plea was voluntary 

and that he had not been promised a lower sentence than he received. The district court, and subsequently this Court, declined 

to issue a certificate of appealability (“COA”). Thereafter, Defendant filed a Rule 60(b)(6) motion, again challenging the legality of 

the upward variance and asserting other procedural errors in his 

conviction and sentence. The district court dismissed that motion, 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 5 of 14
6 Opinion of the Court 20-14865

concluding that it was in substance an unauthorized successive motion to vacate Defendant’s sentence, for which Defendant must obtain permission from this Court to file. Defendant has filed various 

other motions during his imprisonment, all of which likewise have 

been denied. 

In December 2020, Defendant filed a pro se motion for compassionate release from prison pursuant to 18 U.S.C. 

§ 3582(c)(1)(A), which authorizes a district court to reduce a defendant’s sentence if the reduction is warranted by “extraordinary 

and compelling reasons” and if the defendant’s release is consistent 

with the sentencing factors set forth in 18 U.S.C. § 3553(a) and the 

applicable Guidelines policy statements. See 18 U.S.C. 

§ 3582(c)(1)(A)(i).1 In support of his motion, Defendant stated that 

he is on medication for high cholesterol and an enlarged prostate, 

that he has a history of asthma and bronchitis, and that he tested 

positive for COVID-19 in July 2020, with lingering symptoms such 

as chest pains, shortness of breath, and high blood pressure. Defendant advised the district court that there was another outbreak 

of COVID at FCI Jesup in November 2020, and that he did not believe he would survive a second wave of the disease. As a separate 

issue, Defendant noted in his motion that he had been convicted of 

Hobbs Act robbery, which since the time he was sentenced had 

1 A sentence reduction is also permitted by § 3582(c) under certain circumstances if the defendant is 70 years old or older and has served at least 30 years 

in prison, but those conditions are not met in this case. See 18 U.S.C. 

§ 3582(c)(1)(A)(ii). 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 6 of 14
20-14865 Opinion of the Court 7

been determined by the Eleventh Circuit not to be a crime of violence. In support of his motion, Defendant enclosed letters of community support, a positive COVID test from July 2020, and various 

medical records. The records documented one incident of bronchitis in August 2020, an enlarged prostate, and prescriptions for a 

cholesterol medication, aspirin, and prednisone. 

The district court denied Defendant’s § 3582(c) motion. The 

court noted that, at the time of his motion, Defendant was 44 years 

old and he had only served about one-third of his 180-month sentence. The court determined that Defendant had not shown that 

any of his health complaints constituted “extraordinary and compelling” reasons for relief. In addition, the court concluded that the 

COVID-19 conditions at FCI Jesup did not warrant relief as a general matter or even when considering the specific facts proffered by 

Defendant. The court determined in the alternative that the 

§ 3553(a) factors did not support Defendant’s release, because a reduced sentence in Defendant’s case “would not promote respect 

for the law or act as a deterrent” given Defendant’s extensive criminal history. The court declined to consider Defendant’s sentencing argument based on the status of Hobbs Act robbery as a crime 

of violence, stating that such extraneous issues are not relevant to 

a ruling on compassionate release under § 3582(c). 

Defendant subsequently sent a letter in which he advised the 

district court that FCI Jesup was on lockdown after 80 out of 116 

inmates in his dormitory tested positive for COVID-19, including 

Defendant’s roommate. Defendant acknowledged that he had 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 7 of 14
8 Opinion of the Court 20-14865

tested negative, but he argued that the conditions at FCI Jesup were 

not stable. 

Defendant now appeals the district court’s denial of his motion for compassionate release, arguing that the court erred by failing to recognize that his health conditions—asthma, bronchitis, hypertension, and lingering symptoms from a previous bout of 

COVID-19—put him at higher risk for COVID complications and 

thus justify his release under § 3582(c), reiterating that FCI Jesup 

was (at the time Defendant filed his appellate brief in early 2021) 

experiencing its third outbreak of COVID, and repeating his argument that an intervening change in the law regarding the status of 

Hobbs Act robbery as a crime of violence warranted his release. 

Defendant does not expressly address in his brief the district court’s 

alternative ground for denying his motion for compassionate release based on its consideration of the relevant § 3553(a) factors, 

beyond his proffer of argument and letters of community support 

suggesting that Defendant has been rehabilitated and is “willing[] 

to change.” As discussed below, we find no error in the district 

court’s order denying Defendant’s motion for compassionate release, and thus affirm. 

DISCUSSION 

We review de novo whether a defendant is eligible for a sentence reduction under § 3582(c). United States v. Giron, 15 F.4th 

1343, 1345 (11th Cir. 2021). Once eligibility is established, we review the denial of a defendant’s § 3582(c) motion under the abuse 

of discretion standard. See id. “A district court abuses its discretion 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 8 of 14
20-14865 Opinion of the Court 9

if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that 

are clearly erroneous.” United States v. Harris, 989 F.3d 908, 911 

(11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d 

1259, 1267 (11th Cir. 2019) (quotation marks omitted)). The abuse 

of discretion standard allows the district court a “range of choice” 

that we will not reverse “just because we might have come to a 

different conclusion had it been our call to make.” See id. at 912 

(quotation marks omitted). 

As amended by the First Step Act, § 3582(c) authorizes the 

district court to reduce a defendant’s sentence if the court finds 

that: (1) “extraordinary and compelling reasons warrant such a reduction” and (2) the reduction is consistent with the sentencing factors of § 3553(a) and the “applicable policy statements issued by the 

Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The applicable policy statement, found in USSG § 1B1.13, echoes the statutory requirements, stating that a district court may reduce a defendant’s sentence “if, after considering the factors set forth in . . . 

§ 3553(a),” the court determines that: (1) “[e]xtraordinary and compelling reasons warrant the reduction” and (2) “[t]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).” U.S.S.G. § 1B1.13. See also 

United States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021) (holding that “1B1.13 is an applicable policy statement for all 

[§ 3582(c)(1)(A)] motions” and that district courts do not have discretion “to develop other reasons that might justify a reduction in 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 9 of 14
10 Opinion of the Court 20-14865

a defendant’s sentence” (quotation marks omitted)); United States 

v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021) (listing three necessary conditions for a sentence reduction under § 3582(c): support 

in the § 35553(a) factors, extraordinary and compelling reasons, and 

adherence to U.S.S.G. § 1B1.13’s policy statement).

The district court denied Defendant’s § 3582(c) motion for 

two reasons. First, the court found that Defendant had failed to 

show extraordinary and compelling reasons for his release. Alternatively, the court determined that the § 3553(a) sentencing factors 

militated against Defendant’s release. Either ground is adequate to 

support the district court’s decision to deny Defendant’s § 3582(c) 

motion.

As to the first ground, we agree with the district court that 

Defendant did not provide adequate support for his claim that he 

has medical conditions that satisfy the extraordinary and compelling reason standard and thus justify his release from prison. The 

relevant policy statement provides that a defendant’s medical condition is an extraordinary and compelling reason for a sentence reduction if the defendant: (1) has a terminal illness such as cancer, 

ALS, or end-stage organ disease or (2) suffers from a serious physical or mental condition that “substantially diminishes” his ability 

“to provide self-care” in prison and from which he is not expected 

to recover. U.S.S.G. § 1B1.13 cmt. n.1(A). Defendant has made no 

showing of either. 

In addition, Defendant fails to explain how any of his 

claimed conditions increase his risk of severe disease from COVIDUSCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 10 of 14
20-14865 Opinion of the Court 11

19 or otherwise constitute an extraordinary and compelling reason 

for his release from prison. At 44, Defendant is below the age identified by the CDC to trigger an increased risk from COVID-19. Defendant’s medical records indicate that he has contracted and recovered from COVID-19, and that he is now vaccinated against the 

virus, having received his first dose of the Moderna vaccine on 

March 25, 2021 and his second dose on April 21, 2021. Accordingly, 

we discern no error in the district court’s conclusion that the 

COVID-19 pandemic does not, by itself, require Defendant’s release pursuant to § 3582(c)(1). See Giron, 15 F.4th at 1346 (affirming the district court’s holding that the defendant’s high cholesterol, high blood pressure, and coronary artery disease were not 

extraordinary and compelling reasons for early release where all 

those conditions were “manageable in prison, despite the existence 

of the COVID-19 pandemic”); Harris, 989 F.3d at 912 (upholding 

the district court’s denial of compassionate release to an inmate 

with hypertension, despite the possible increased risk from 

COVID-19).

The Government concedes that, in certain circumstances, 

an inmate not expected to recover from a condition identified by 

the CDC as increasing the risk of severe disease from COVID-19 

might satisfy the extraordinary and compelling- reason standard, 

even if the condition would not support compassionate release in 

ordinary times. And in a supplemental filing, the Government advises the Court that it has revised its position to include in this category conditions that the CDC had previously indicated “might” 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 11 of 14
12 Opinion of the Court 20-14865

entail a greater risk of severe illness from COVID—as opposed to 

those conditions identified by the CDC as definitively entailing 

such a risk—such as asthma and hypertension, but only if the inmate has not been offered the COVID vaccine or has not already 

been infected with the virus. Although Defendant’s medical records arguably support his claim to have hypertension, the records 

also show that Defendant has not only had and recovered from 

COVID, but he is also fully vaccinated against the COVID-19 virus.2 Thus, notwithstanding the Government’s expanded position

as to what condition can potentially give rise to an extraordinary 

and compelling reason for compassionate release during the 

COVID-19 pandemic, we find no error in—nor any reason to revisit—the district court’s determination that Defendant’s medical 

conditions do not satisfy the standard. 

Defendant’s failure to demonstrate an extraordinary and 

compelling reason is alone enough to foreclose a sentence reduction under § 3582(c). See Giron, 15 F.4th at 1347 (“When denying 

a request for compassionate release, a district court need not analyze the § 3553(a) factors if it finds either that no extraordinary and 

2 Defendant’s medical records do not support his claim to have asthma and 

they show only one documented incident of bronchitis. Other conditions 

claimed by Defendant, such as his enlarged prostate, are not included in the 

Government’s revised position as to the medical conditions that can constitute 

an extraordinary and compelling reason for early reason because of the 

COVID pandemic. Furthermore, Defendant’s records indicate that Defendant is being treated for all his documented conditions, including his enlarged 

prostate. 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 12 of 14
20-14865 Opinion of the Court 13

compelling reason exists or that the defendant is a danger to the 

public.”). But the district court also held, in the alternative, that 

Defendant’s release was not consistent with the § 3553(a) factors 

because of Defendant’s extensive criminal history. See United 

States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (noting that 

“discretion in weighing sentencing factors is particularly pronounced when it comes to weighing criminal history”). To that 

end, the district court noted that Defendant “is 44 years old and has 

served about one-third” of his 180-month sentence on a Hobbs Act 

robbery conviction that followed 23 prior felony convictions by 

Defendant. Under the circumstances, the court concluded, “a reduced sentence would not promote respect for the law[] or act as a 

deterrent”—two § 3553(a) factors that weighed heavily in the 

court’s initial sentencing decision as to Defendant as well as in the 

court’s alternative ruling denying Defendant’s § 3582(c) motion. 

We find no abuse of discretion in the court’s application of the 

§ 3553(a) factors as an alternative ground to deny Defendant’s motion for compassionate release in this case. 

Finally, that Hobbs Act robbery is no longer designated a 

crime of violence does not warrant Defendant’s early release under 

§ 3582(c). As discussed above, the district court agreed with Defendant’s argument, raised at sentencing, that Hobbs Act robbery 

did not qualify as a crime of violence, and thus sustained Defendant’s objection to his career offender designation. Nevertheless, 

the court applied an upward variance and sentenced Defendant to 

180 months because of his extensive criminal history. This Court 

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 13 of 14
14 Opinion of the Court 20-14865

upheld the sentence on appeal, and the district court and this Court 

have now several times rejected variations of Defendant’s argument that he was improperly sentenced for the Hobbs Act robbery 

in this case. Reconsideration of the argument yet again on Defendant’s motion for compassionate release is not warranted. See 

United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (“This 

Circuit has been very clear in holding that a sentencing adjustment 

undertaken pursuant to [§ 3582(c)] does not constitute a de novo 

resentencing.”). 

In short, the district court did not abuse its discretion when 

it concluded that Defendant had failed to show an extraordinary 

and compelling reason to support his § 3582(c) motion for compassionate release. Likewise, the court acted within its discretion 

when it determined, in the alternative, that the § 3553(a) sentencing factors do not support Defendant’s early release from prison. 

For both reasons, the district court’s order denying Defendant’s 

§ 3582(c) motion is AFFIRMED.

USCA11 Case: 20-14865 Date Filed: 01/31/2022 Page: 14 of 14