[ DO NOT PUBLISH] 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

____________________ USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 1 of 132 Opinion of the Court 22

- 13920

Before J ORDAN , L AGOA , and J ULIE C ARNES , Circuit Judges.

PER CURIAM: Defendant Michael Simmons, a federal prisoner, appeals thedistrict 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.

BAC KGROUNDDefendant 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 viola tion 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 viol ation of 18 U.S.C. § 924(c)(1)(A), and possess ion 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 USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 2 of 1322

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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 currentlyworking 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 exceptthe § 924(c) count for conspiring to use a firearm during a drug trafficking crime, which the Government agreed to dismiss. The PS R 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 hi s 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 o f 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 pu rsuant 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 distr ict court USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 3 of 134 Opinion of the Court 22

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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 sta tute 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 pol icy 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 decisi on 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)(i i). USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 4 of 1322

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Court held that a defendant’s prior Florida convictions for sale andpossession 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 arguedin his motion that he potentially would be subject to a shorter sentence after this Court’s decision in Jackson , warranti ng 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 not ice 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 USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 5 of 136 Opinion of the Court 22

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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 § 1B 1.13

— thatis, 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 motio n. 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 se ntence 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 s entence 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. USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 6 of 1322

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1343, 134 5 (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 stan dard, followsimproper 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 willnot reverse “just because we might have come to a different conclusion had it been our call to make.” See id. at 912 (quo tation 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 isconsistent 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 revi ewed it, the Sentencing Commission’s policy statement identified only four categories of “extraordinary andcompelling” 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. USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 7 of 138 Opinion of the Court 22

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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 al l [§ 3582(c)] motions” and that district courts do not have discretion “to developother 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 Defend ant 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).
Fir st, 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 [hi s] 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 USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 8 of 1322

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BOP, but not the co urt, 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

- r elated basisfor 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 tha t [§] 1B1.13 identifies as extraordinary andcompelling, 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 “con trolled substance offense” under that Guideline, it is impermissible to rely on the commentary in Application Note USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 9 of 1310 Opinion of the Court 22

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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, th e 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 b inding 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 t he 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). Im portantly, 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. USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 10 of 1322

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The only “extraordina ry 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), a nd 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
Ac cess 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 mark s 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 chan ge in the relevant USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 11 of 1312 Opinion of the Court 22

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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 havebeen 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 th edistrict 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.4t h 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 USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 12 of 1322

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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).

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

. USCA11 Case: 22-13920 Document: 33-1 Date Filed: 05/08/2024 Page: 13 of 13