United States v. Aundrice Moss

USCA11 Case: 21-12608 Date Filed: 09/29/2022 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12608

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AUNDRICE MOSS,

a.k.a. Nicalaunto Moss,

a.k.a. Dre,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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2 Opinion of the Court 21-12608

D.C. Docket No. 1:13-cr-20368-JLK-1

____________________

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

PER CURIAM:

Defendant Aundrice Moss, a federal prisoner at USP Yazoo

City, appeals the district court’s denial of his pro se motion for com-

passionate release under 18 U.S.C. § 3582(c). We discern no error

in the district court’s order denying Defendant’s motion, and thus

affirm.

BACKGROUND

In 2013, Defendant was indicted and pled guilty to pos-

sessing a firearm and ammunition as a convicted felon, in violation

of 18 U.S.C. §§ 922(g) and 924(e). Based on the factual proffer sub-

mitted in support of Defendant’s guilty plea, law enforcement ob-

tained evidence during an undercover investigation conducted in

Miami Gardens, Florida between 2012 and 2013 that Defendant

had participated in several transactions involving the sale of guns

and ammunition. At some point during the investigation, under-

cover officers arranged to purchase a pistol and ammunition from

Defendant, and that transaction was completed and captured on

audio and video tape. At the time of the transaction, Defendant

was a convicted felon with three prior felony convictions for a “se-

rious drug offense” as that term is defined by the Armed Career

Criminal Act (“ACCA”), including a 1993 conviction for possessing

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21-12608 Opinion of the Court 3

with intent to distribute cocaine and two separate 2011 convictions

for possessing with intent to sell or deliver cocaine.

Based on his prior drug convictions and other offenses, the

PSR classified Defendant as an armed career criminal and assigned

him a criminal history category of VI. The district court deter-

mined that Defendant qualified as an armed career criminal with a

guidelines range of 180 to 210 months, and it sentenced him to 180

months. This Court affirmed Defendant’s conviction and sentence

on appeal. See United States v. Moss, 592 F. App’x 914 (11th Cir.

2015). In its opinion, the Court rejected Defendant’s argument that

his prior drug convictions did not qualify as “serious drug offenses”

under the ACCA. See id. at 916.

In 2016, Defendant filed a 28 U.S.C. § 2255 motion, in which

he again challenged his ACCA enhancement and argued that his

sentence should be vacated under the Supreme Court’s decision in

Johnson v. United States, 576 U.S. 591 (2015). 1 A magistrate judge

issued a report and recommendation (“R&R”) concluding that the

PSR correctly identified three prior “serious drug” offenses pursu-

ant to the ACCA and recommending that Defendant’s § 2255

1 In Johnson, the Supreme Court invalidated the residual clause of the ACCA,

which defined the term “violent felony” for purposes of the ACCA to include

a felony involving “conduct that presents a serious potential risk of physical

injury to another.” See Johnson, 576 U.S. at 594, 606 (quotation marks omit-

ted).

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4 Opinion of the Court 21-12608

motion be denied. The district court adopted the R&R and de-

clined to issue a certificate of appealability.

In December 2020, Defendant filed a pro se motion for com-

passionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), as

amended by the First Step Act of 2018 (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 rea-

sons” and if the defendant’s release is consistent with the sentenc-

ing factors set forth in 18 U.S.C. § 3553(a) and the applicable Guide-

lines policy statements. See 18 U.S.C. § 3582(c)(1)(A)(i). 2 In sup-

port of his motion, Defendant cited the COVID pandemic and

noted that his high cholesterol increased his risk of serious illness

from COVID, and he also argued that he should be released to care

for his mother because her health was declining. The district court

denied Defendant’s first motion without prejudice because he did

not exhaust his administrative remedies by requesting compassion-

ate release from the warden of his institution.

Defendant subsequently exhausted his administrative reme-

dies 3 and filed a second motion asking the court to reduce his

2 The statute also includes a provision authorizing a sentence reduction under

certain circumstances if “the defendant is at least 70 years of age” but it is un-

disputed that provision does not apply here. See 18 U.S.C. § 3582(c)(1)(A)(ii).

3 Defendant submitted a request for compassionate release to the warden in

November 2020, and the warden denied relief in June 2021, noting that De-

fendant’s medical records showed he did not suffer from any chronic medical

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21-12608 Opinion of the Court 5

sentence pursuant to § 3582(c). In his second motion, Defendant

argued that he was entitled to a sentence reduction because the

First Step Act amended the Controlled Substances Act (“CSA”) by

replacing the term “felony drug offense” in the CSA with the term

“serious drug felony.” The new language requires a defendant to

have served over a year in jail on a drug conviction for the convic-

tion to qualify as a predicate for certain CSA sentencing enhance-

ments. See First Step Act § 401(a). According to Defendant, the

amendment applied not only to the CSA’s penalty provision but

also to the ACCA’s definition of a “serious drug offense”—meaning

that two of Defendant’s prior Florida drug convictions no longer

qualified as ACCA predicates. Defendant also reasserted in his sec-

ond motion the argument that he should be released in order to

care for his mother, who is in poor health. In addition, Defendant

referenced in his motion—but did not extensively discuss—the

COVID pandemic and the BOP’s “dismal” response to it.

The district court denied Defendant’s second motion on the

merits. The court first rejected Defendant’s statutory language ar-

gument, holding that the First Step Act did not amend or otherwise

change the ACCA’s definition of a “serious drug offense” and, con-

sequently, that Defendant’s prior drug convictions still qualified as

ACCA predicates. In addition, the court determined that Defend-

ant had not asserted a medical condition that qualified as an

condition and that his request to care for his mother did not meet the statutory

criteria for compassionate release for non-medical reasons.

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6 Opinion of the Court 21-12608

extraordinary and compelling reason for his compassionate release,

and that his mother’s condition did not constitute the “death or in-

capacitation of the caregiver of the defendant’s minor child or . . .

spouse” as required to qualify for early release under the “family

circumstances” provision of § 3582(c). Finally, the court stated in

its order that the § 3553(a) sentencing factors weighed against De-

fendant’s early release.

Defendant appeals, arguing that the district court abused its

discretion by denying his motion for compassionate release. As dis-

cussed below, we discern no error in the court’s order and thus af-

firm.

DISCUSSION

We review de novo whether a defendant is eligible for a sen-

tence reduction under § 3582(c). United States v. Giron, 15 F.4th

1343, 1345 (11th Cir. 2021). Once eligibility is established, we re-

view the denial of a defendant’s § 3582(c) motion under the abuse

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

if it applies an incorrect legal standard, follows improper proce-

dures 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).

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21-12608 Opinion of the Court 7

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 re-

duction” and (2) the reduction is consistent with the sentencing fac-

tors of § 3553(a) and the “applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The relevant

policy statement, found in USSG § 1B1.13, echoes the statutory re-

quirements, 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 rea-

sons warrant the reduction” and (2) “[t]the [d]efendant is not a dan-

ger to the safety of any other person or to the community, as pro-

vided 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)] mo-

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

other reasons that might justify a reduction in a defendant’s sen-

tence” (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. Alter-

natively, the court determined that the § 3553(a) sentencing factors

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8 Opinion of the Court 21-12608

militated against Defendant’s release because of his lengthy crimi-

nal history. Either ground is adequate to support the court’s deci-

sion to deny Defendant’s § 3582(c) motion.

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

Defendant did not provide any support for the claim that an ex-

traordinary and compelling reason justifies his early release from

prison. The relevant policy statement identifies two extraordinary

and compelling reasons that are potentially implicated here based

on the claims made in Defendant’s motion. See U.S.S.G. § 1B1.13

cmt. n.1(A), (C). First, a prisoner’s medical condition can give rise

to an extraordinary and compelling reason for compassionate re-

lease if the prisoner can show that he is suffering either from a “ter-

minal 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.” U.S.S.G.

§ 1B1.13 cmt. n.1(A). Second, a prisoner’s family circumstances can

create an extraordinary and compelling reason for early release

based on the “death or incapacitation of the caregiver of the [pris-

oner’s] minor child” or the “incapacitation of the [prisoner’s]

spouse or registered partner when the [prisoner] would be the only

available caregiver for the spouse or registered partner.” U.S.S.G.

§ 1B1.13 cmt. n.1(C). 4

4 A sentence reduction is also permitted by the applicable policy statement

under certain circumstances if the prisoner is at least 65 years old but, again,

Defendant does not claim that provision applies to him. See U.S.S.G. § 1B1.13

cmt. n.1(B). Further, the policy statement contains a catch-all provision that

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21-12608 Opinion of the Court 9

The district court correctly determined that Defendant does

not meet the standard for early release set out in either of the above

provisions. Defendant vaguely references the COVID pandemic as

a reason for his release, but he makes no showing that he has a

“terminal illness” or other “serious . . . condition” that “substan-

tially” interferes with his ability to provide self-care in prison, as

required by the applicable policy statement. See U.S.S.G. § 1B1.13

cmt. n.1(A). As for Defendant’s claim that he needs to care for his

mother, caregiving responsibilities only constitute an extraordi-

nary and compelling reason for early release in situations involving

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

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

partner when the defendant is the only available caregiver for the

spouse or partner. See U.S.S.G. § 1B1.13 cmt. n.1(C). Neither sit-

uation applies here.

Finally, there is no authority to support Defendant’s argu-

ment that the First Step Act’s amendment of the term “felony drug

offense” in the CSA somehow changes the meaning of the term

“serious drug offense” as defined by the ACCA. Indeed, the Gov-

ernment has noted that this Court has rejected this argument,

allows the BOP to find other extraordinary and compelling reasons for a par-

ticular prisoner’s early release, but this Court has held that only the BOP—as

opposed to the court—has the authority to determine that release is warranted

under the catch-all provision. See Bryant, 996 F.3d at 1263 (“We cannot re-

place the phrase ‘[a]s determined by the Director of the [BOP]’ with ‘as deter-

mined by a district court.’”).

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10 Opinion of the Court 21-12608

noting that the referenced amendment applies solely to the CSA

and that it leaves “untouched the definitions of the ACCA’s predi-

cate offenses.” United States v. Wims, 836 Fed. App’x 793, 796

(11th Cir. 2020). See also United States v. Smith, 798 Fed. App’x

473, 476 (11th Cir. 2020) (holding same). Admittedly, Wims and

Smith are unpublished cases, and therefore constitute only persua-

sive authority. Nevertheless, Defendant has cited no published

case calling into question the reasoning of these cases nor offered

any convincing argument disputing their reasoning.

Furthermore, and even assuming Defendant were correct

about the First Step Act amendment, such a change is not an au-

thorized basis for relief under § 3582(c) and its governing policy

statement. As this Court held in Bryant, courts do not have discre-

tion to grant a motion for compassionate release based on an ex-

traordinary and compelling reason that is not contemplated by the

policy statement. See Bryant, 996 F.3d at 1248 (stating that courts

are not authorized “to develop other reasons that might justify a

reduction in a defendant’s sentence” (quotation marks omitted)).

Defendant’s argument that the district court and this Court are

“unrestrained” by U.S.S.G. § 1B1.13 in applying the extraordinary

and compelling reason standard—and that the courts could there-

fore grant relief under § 3582(c) based on his statutory argument—

is foreclosed by this Court’s binding precedent in Bryant. See id.

Defendant’s failure to demonstrate an extraordinary and

compelling reason for his early release is enough, in and of itself, to

foreclose a sentence reduction under § 3582(c). See Giron, 15 F.4th

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at 1347 (“When denying a request for compassionate release, a dis-

trict court need not analyze the § 3553(a) factors if it finds either

that no extraordinary and compelling reason exists or that the de-

fendant 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. Defendant argues his early release is sup-

ported by the § 3553(a) factors because of his rehabilitative efforts

while incarcerated. The district court was within its discretion to

reject Defendant’s argument on this point given Defendant’s

lengthy criminal record, which includes multiple arrests since De-

fendant was 15 years old for theft, unlawful possession of weapons

and drugs, possessing with intent to sell drugs, resisting arrest, and

battery on a police officer, among other crimes. See United States

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

tion in weighing sentencing factors is particularly pronounced

when it comes to weighing criminal history”).

CONCLUSION

As the movant, Defendant had the burden of establishing his

entitlement to early release under § 3582(c). See United States v.

Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). The district court

correctly held that Defendant failed to meet that burden here. Fur-

thermore, the court acted within its discretion in holding, in the

alternative, that the § 3553(a) sentencing factors do not support De-

fendant’s release. For both reasons, the district court’s order deny-

ing Defendant’s § 3582(c) motion is AFFIRMED.