[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13920

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MICHAEL A. SIMMONS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:03-cr-21012-CMA-1

____________________

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2 Opinion of the Court 22-13920

Before JORDAN, LAGOA, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Michael Simmons, a federal prisoner, appeals the 

district court’s denial of his motion for compassionate release pursuant to 18 U.S.C. § 3582(c). We discern no error in the district 

court’s order, and thus affirm.

BACKGROUND

Defendant was indicted in 2003 on multiple counts involving conspiracy to possess with intent to distribute cocaine and crack 

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, conspiracy to 

possess with intent to distribute marijuana in violation of 21 U.S.C. 

§§ 841(a)(1) and 846, conspiracy to use and carry a firearm during 

and in relation to drug trafficking crimes in violation of 18 U.S.C. 

§ 924(c)(1)(A), possessing and brandishing a firearm in furtherance 

of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A), 

and possession of a firearm as a convicted felon in violation of 18 

U.S.C. § 924(g)(1) and (e). As described in the Presentence Investigation Report (“PSR”), the indictment stemmed from an encounter 

between Defendant and Miami-Dade police detectives at a “drug 

hole” in an open field in Opa Locka, Florida. When detectives approached the field, they saw Defendant carrying an AK-47 style rifle 

with an extended capacity magazine. Defendant discarded the rifle 

and attempted to flee, but he was arrested within a few minutes as 

he tried to pass through a police perimeter. Detectives later found 

the rifle in a nearby bush, and they seized several dozen baggies of 

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cocaine, crack cocaine, and marijuana—all packaged for sale—

from Defendant and other men arrested on the scene.

Defendant told detectives in a post-arrest statement that he 

had been in the drug trade for years, and that he was currently 

working as a gunman for the Opa Locka drug hole. A criminal records check revealed that Defendant was a convicted felon at the 

time of his arrest.

Defendant pled guilty to all the counts set out above except 

the § 924(c) count for conspiring to use a firearm during a drug trafficking crime, which the Government agreed to dismiss. The PSR 

assigned Defendant a base offense level of 26 under USSG 

§ 2K2.1(a)(1) and, following a series of adjustments not relevant to 

this appeal, set his total offense level at 29. The PSR determined 

Defendant’s criminal history category to be VI because of his career 

offender status. Applying USSG § 4B1.1(c)(2)(A), the PSR calculated Defendant’s recommended guidelines range to be 300 to 308 

months. The district court sentenced Defendant to a total of 300 

months in prison, comprised of 180 months as to each of the cocaine counts and the felon in possession count and 60 months on 

the marijuana count, all to run concurrently and to be followed by 

a consecutive term of 120 months for the § 924(c) count. 

Defendant filed a motion in 2019 to reduce his sentence pursuant to § 404 of the First Step Act of 2018 (the “First Step Act”), 

arguing that he was eligible for a sentence reduction pursuant to 

the Fair Sentencing Act of 2010 and its modifications to mandatory 

minimums in cases involving crack cocaine. The district court 

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denied the motion, and this Court affirmed the denial. See United 

States v. Simmons, 2021 WL 3140300, at *2 (11th Cir. July 26, 2021) 

(holding that Defendant’s conviction under § 841(b)(1)(C) was not 

a “covered offense” under the First Step Act because the Fair Sentencing Act had not modified the statutory penalties for that subsection). 

In September 2022, Defendant filed a pro se motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). As 

amended by the First Step Act, that statute authorizes a district 

court to reduce a defendant’s sentence if the reduction is warranted 

by “extraordinary and compelling reasons” and if it 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 argued that 

he was entitled to compassionate release based on the Supreme 

Court’s decision in Concepcion v. United States, 597 U.S. 481 (2022) 

and this Court’s decision in United States v. Jackson, 36 F.4th 1294 

(11th Cir.), vacated, No. 21-13963 (11th Cir. 2022), and superseded, 

55 F.4th 846 (11th Cir. 2022), cert. granted, 143 S. Ct. 2457 (2023). In 

Concepcion, the Supreme Court held that district courts may consider “intervening changes of law” in adjudicating a First Step Act 

motion. Concepcion, 597 U.S. at 484. In Jackson, a panel of this 

1 Section 3582(c)(1)(A) also authorizes a sentence reduction under certain circumstances if “the defendant is at least 70 years of age” but Defendant does 

not argue that he qualifies for an age-based sentence reduction. See 18 U.S.C. 

§ 3582(c)(1)(A)(ii). 

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Court held that a defendant’s prior Florida convictions for sale and

possession with intent to sell cocaine were not “serious drug offenses” under the Armed Career Criminal Act (“ACCA”) because, 

applying the categorical approach and assuming the convictions involved ioflupane, ioflupane was no longer a controlled substance

under federal law at the time the defendant committed his federal 

firearms offense. See Jackson, 36 F.4th at 1304. Defendant argued 

in his motion that he potentially would be subject to a shorter sentence after this Court’s decision in Jackson, warranting a modification to his sentence pursuant to Concepcion.

The district court appointed defense counsel to represent 

Defendant and ordered the parties to brief, among other issues, 

whether the holding in Jackson that a conviction for the sale of cocaine in violation of Florida Statutes § 983.13 did not qualify as a 

“serious drug offense” under the ACCA was an “intervening 

change of law” warranting consideration of a sentence reduction 

for Defendant. Through his newly appointed counsel, Defendant 

filed a notice indicating that he agreed with the Government that 

Jackson did not constitute an intervening change of law because it 

had been vacated and superseded by a new decision that no longer 

supported his argument. See United States v. Jackson, 55 F.4th 846, 

862 (11th Cir. 2022) (holding that the defendant’s Florida cocaine 

convictions were, in fact, “serious drug offense[s]” under the 

ACCA). Defendant stated in the notice that he disagreed with this 

Court’s decision in United States v. Bryant, 996 F.3d 1243 (11th Cir. 

2021) limiting the “extraordinary and compelling” circumstances 

that authorize a court to grant a sentence reduction under 

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§ 3582(c)(1)(A) to those circumstances that were, at that time, set 

out in Application Notes 1(A) through (C) to USSG § 1B1.13—that 

is, the defendant’s (1) serious medical condition, (2) age, or (3) qualifying family circumstances. Nevertheless, Defendant acknowledged that the court was bound by Bryant. Based on these submissions, the district court denied Defendant’s motion.

Defendant appeals, arguing that the district court erred by 

denying his motion for compassionate release pursuant to Bryant. 

According to Defendant, Bryant has been undermined to the point 

of abrogation by this Court’s en banc decision in United States v. 

Dupree, 57 F.4th 1269 (11th Cir. 2023). As discussed below, we do 

not agree that Dupree abrogated Bryant. Moreover, given the developments in Jackson, Defendant failed to present to the district 

court any viable basis for granting his motion for a sentence reduction under § 3582(c)(1)(A). Accordingly, we affirm the district 

court’s denial of the motion.

DISCUSSION

We review de novo whether a defendant is eligible for compassionate release under § 3582(c).2 United States v. Giron, 15 F.4th 

2 The Government urges us to apply the plain error standard of review, based 

on Defendant’s concession below that Bryant was binding on the district court. 

We decline to do so. Defendant stated in his briefing below that he disagreed 

with Bryant, and he specifically argued that the court should not be limited by 

the commentary to §1B1.13 when determining whether there were extraordinary and compelling circumstances justifying a sentence reduction in his case. 

Accordingly, we review de novo the district court’s ruling on Defendant’s eligibility for relief under § 3582(c). See Giron, 15 F.4th at 1345.

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1343, 1345 (11th Cir. 2021). Once eligibility is established, we review the denial of a defendant’s motion for compassionate release 

under § 3582(c) for an abuse of discretion. See id. “A district court 

abuses its discretion 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, 911–12 (11th Cir. 2021) (quoting Cordoba v. DIRECTV, 

LLC, 942 F.3d 1259, 1267 (11th Cir. 2019)). 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)(1)(A) authorizes 

the district court to grant a defendant’s motion for compassionate 

release if the court finds that: (1) “extraordinary and compelling 

reasons warrant” such relief and (2) the defendant’s early release 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). When Defendant filed his motion and when 

the district court reviewed it, the Sentencing Commission’s policy 

statement identified only four categories of “extraordinary and 

compelling” reasons that could make a movant eligible for a sentence reduction: (1) the defendant’s serious medical condition, 

(2) the defendant’s age, (3) a qualifying family circumstance involving the defendant’s status as the only potential caregiver for a minor child or spouse, and (4) “other reasons” as determined by the 

Director of the Bureau of Prisons. See Bryant, 996 F.3d at 1249–50. 

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This Court held in Bryant that the last “catch-all” category did not 

“grant discretion to courts to develop ‘other reasons’ that might 

justify a reduction in a defendant’s sentence.” Id. at 1247–48 (holding that “1B1.13 is an applicable policy statement for all [§ 3582(c)] 

motions” and that district courts do not have discretion “to develop 

other reasons that might justify a reduction in a defendant’s sentence” (quotation marks omitted)). 

Thus, the policy statement cited above, which was in effect 

when Defendant filed his motion and when the district court ruled 

on it, identified three extraordinary and compelling reasons that 

can authorize a court to grant a motion for compassionate release 

under § 3582(c). See USSG § 1B1.13, comment. n.1(A)-(C) (2021). 

First, a defendant’s medical condition can constitute an extraordinary and compelling reason for release if the defendant can show 

he is suffering either from a “terminal illness” or a “serious physical 

or medical condition” that “substantially diminishes [his] ability . . . 

to provide self-care” in prison and “from which he . . . is not expected to recover.” USSG § 1B1.13, comment. n.1(A) (2021). Second, release is permitted under certain circumstances if the defendant is at least 65 years old. See USSG § 1B1.13, comment. n.1(B) 

(2021). And finally, a defendant’s family circumstances can create 

an extraordinary and compelling reason for release based on the 

“death or incapacitation of the caregiver of the defendant’s minor 

child” or the “incapacitation of the defendant’s spouse or registered 

partner when the defendant would be the only available caregiver 

for the spouse or registered partner.” USSG § 1B1.13, comment. 

n.1(C) (2021). As noted, Bryant held that the “catch-all” allowed the 

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BOP, but not the court, to determine there are other extraordinary 

and compelling reasons for a particular defendant’s release. See Bryant, 996 F.3d at 1263 (“We cannot replace the phrase ‘[a]s determined by the Director of the [BOP]’ with ‘as determined by a district court.’”). 

The district court correctly determined that Defendant did 

not meet the standard for compassionate release set out in any of 

the above provisions. Defendant did not allege a serious medical 

condition, a qualifying family circumstance, or an age-related basis 

for his release. He argued instead that he qualified for compassionate release because: (1) changes in the law since his conviction 

would result in a shorter sentence if applied in his case and (2) his 

post-conviction rehabilitation efforts justified relief. Defendant 

concedes on appeal, as he did below, that Bryant precludes granting 

his § 3582(c)(1)(A) motion based on those factors. See Bryant, 996 

F.3d at 1265 (“Because [the defendant’s] motion does not fall within 

any of the reasons that [§] 1B1.13 identifies as extraordinary and 

compelling, the district court correctly denied his motion for a reduction of his sentence.” (quotation marks omitted)).

Nevertheless, Defendant argues he is entitled to relief on appeal because Bryant has been abrogated by this Court’s en banc decision in Dupree. As an initial matter, we do not agree that Bryant 

has been abrogated by Dupree. Dupree held that because the text of 

USSG § 4B1.2 unambiguously excludes inchoate offenses from the 

definition of a “controlled substance offense” under that Guideline, 

it is impermissible to rely on the commentary in Application Note 

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1 to § 4B1.2 to conclude that an inchoate offense does in fact so 

qualify. See Dupree, 57 F.4th at 1277–79. Consistent with its holding, the Court in Dupree expressly overruled any prior precedent 

holding that the commentary in Application Note 1 constitutes a 

binding interpretation of § 4B1.2(b). Id. at 1280. But Dupree said 

nothing about USSG § 1B1.13, the Guideline at issue in this case. 

And we cannot conclude based on the very different language of 

USSG § 4B1.2 and its commentary that Dupree precludes the reliance on the commentary to USSG § 1B1.13 that is required by Bryant. Thus, under the prior panel precedent rule, Bryant remains 

binding precedent. See United States v. Dudley, 5 F.4th 1249, 1265 

(11th Cir. 2021) (“Under our prior precedent rule, a prior panel’s 

holding is binding on all subsequent panels unless and until it is 

overruled or undermined to the point of abrogation by the Supreme Court or this court sitting en banc.” (quotation marks omitted)). 

Moreover, and even assuming Bryant had been abrogated by 

Dupree, the district court’s order denying Defendant’s motion is 

due to be affirmed because Defendant failed to present any viable 

basis upon which to grant the motion. This Court may affirm “for 

any reason supported by the record, even if not relied upon by the 

district court.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th 

Cir. 2008) (quotation marks omitted). Importantly, it was Defendant’s burden to show that his circumstances warranted a sentence 

reduction under § 3582(c)(1)(A). See United States v. Hamilton, 715 

F.3d 328, 337 (11th Cir. 2013). He clearly did not meet that burden 

here. 

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The only “extraordinary and compelling” reasons Defendant offered in support of his motion were: (1) an intervening 

change in the law per this Court’s decision in Jackson and (2) his 

post-conviction rehabilitation efforts. As to the first reason, although Defendant’s career offender status based on a prior Florida 

cocaine conviction might have been called into question by this 

Court’s initial decision in Jackson, that decision was vacated and superseded by a decision affirming that Defendant’s Florida conviction does in fact qualify as a “serious drug offense” for purposes of 

the ACCA. See Jackson, 55 F.4th at 859–62. Indeed, Defendant conceded below, and he acknowledges on appeal, that Jackson no 

longer supports his argument. Defendant argues, for the first time 

on appeal, that he also is entitled to relief based on changes in the 

law announced in Rehaif v. United States, 139 S. Ct. 2191 (2019), New 

York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 

(2022), and Terry v. United States, 141 S. Ct. 1858 (2021). But Defendant does not explain in any detail why he is entitled to a sentence reduction based on these cases, and he abandoned the cursory argument he makes on appeal by failing to raise it below. See 

Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th 

Cir. 2004) (“This Court has repeatedly held that an issue not raised 

in the district court and raised for the first time in an appeal will not 

be considered by this court.” (quotation marks omitted)). 

Regarding Defendant’s second proffered reason for a sentence modification, rehabilitation “is not, by itself, an extraordinary 

and compelling reason” for a sentence modification. See USSG 

§ 1B1.13(d). Given that there has not been a change in the relevant 

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law, and that Defendant does not suggest any other circumstance 

that warrants a sentence modification in his case, rehabilitation is 

not a proper ground for granting his § 3582(c) motion. 

Finally, we note that the relevant Guideline provisions have 

been amended since the district court ruled on Defendant’s motion. The new version of the policy statement has been moved 

from the commentary to the text of USSG § 1B1.13, and it includes 

in its definitions of “extraordinary and compelling reasons” several 

circumstances that go beyond what is contemplated by Bryant and 

that are closer to the grounds Defendant asserted in his motion. 

See USSG § 1B1.13(b)(5) and (6) (November 2023) (authorizing the 

district court to consider “other reasons” that may justify a sentence reduction, as well as a “change in the law” under certain circumstances). We cannot retroactively apply that amendment in 

this appeal, however. See United States v. Handlon, 97 F.4th 829, 833 

(11th Cir. 2024) (explaining that the 2023 amendment to USSG 

§ 1B1.13 is a “substantive” amendment rather than a “clarifying” 

amendment and, as such, it cannot be applied retroactively on appeal). 

In short, the district court did not err when it determined 

that Defendant was ineligible for compassionate release because he 

“failed to present an extraordinary and compelling reason for relief 

recognized by the Sentencing Commission’s policy statement.” See 

id. at 833. As this Court explained in Handlon:

Congress delegated the power to define what should 

be considered extraordinary and compelling reasons 

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for a sentence reduction to the Sentencing Commission, not the courts. A district court is right to reject 

a rationale for a sentence reduction that does not fall 

within any of the reasons that 1B1.13 identifies as extraordinary and compelling.

Id. (citations and quotation marks omitted). Defendant’s asserted 

changes in the law and rehabilitation efforts were “not included in 

the list of reasons the Sentencing Commission considered to be extraordinary and compelling, so his motion was properly denied.” 

See id. (quotation marks omitted). 

CONCLUSION

For the foregoing reasons, the court’s order denying Defendant’s § 3582(c) motion is AFFIRMED.

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