USCA11 Case: 20-10450 Date Filed: 04/11/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10450
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILBERT MCKREITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:01-cr-06095-DMM-1
____________________
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2 Opinion of the Court 20-10450
Before JORDAN, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Wilbert McKreith appeals the district court’s denial of his
motion for compassionate release. After oral argument and a thor-
ough review of the record and the briefs, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
McKreith robbed ten banks between 1999 and 2001 and was
convicted of twelve counts: seven counts of bank robbery, in vio-
lation of 18 U.S.C. section 2113(a); two counts of possession of a
firearm as a felon, in violation of 18 U.S.C. section 922(g)(1); and
three counts of use of a firearm during a bank robbery, in violation
of 18 U.S.C. section 924(c)(1)(A).
When McKreith was sentenced in 2003, section
924(c)(1)(C)(i) provided a mandatory minimum sentence of
twenty-five years’ imprisonment “[i]n the case of a second or sub-
sequent conviction” under section 924(c).
18 U.S.C. §
924(c)(1)(C)(i) (2003). The mandatory minimum applied to “sec-
ond (and third, and fourth, and so on) [section] 924(c) convictions
within a single prosecution,” resulting in “stacked” sentences.
United States v. Smith,
967 F.3d 1196, 1210 (11th Cir. 2020). Be-
cause McKreith had a prior conviction from 1991 for use of a fire-
arm during a bank robbery, his section 924(c) convictions in this
case were second or subsequent convictions.
McKreith was sentenced to ninety-two and a half years in
prison: seventeen and a half years for the seven section 2113(a)
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20-10450 Opinion of the Court 3
counts and ten years for the two section 922(g) counts, all running
concurrently; and twenty-five years for each of the three section
924(c) counts, with each running consecutively to the other two
and to the other counts. McKreith appealed his convictions and
sentence, and we affirmed. See United States v. McKreith, 140 F.
App’x 112 (11th Cir. 2005).
In 2018, Congress amended section 924(c)(1)(C)’s stacked-
sentence provision through the First Step Act. See
18 U.S.C.
§ 924(c)(1)(C) (2018). After the amendment, the stacked-sentence
provision no longer applied “to multiple [section] 924(c) convic-
tions . . . resulting from a single prosecution.” Smith, 967 F.3d at
1210. But the First Step Act’s amendment to the stacked-sentence
provision wasn’t retroactive. Id. at 1210–13.
In 2019, McKreith moved for compassionate release under
18 U.S.C. section 3582(c)(1)(A). He argued that the non-retroactive
amendment of section 924(c)(1)(C)’s stacking provision “create[d]
an extraordinary and compelling reason” to reduce his sentence to
time served. He also sought compassionate release because of his
age.
The district court denied the motion because McKreith
“fail[ed] to demonstrate extraordinary and compelling reasons for
compassionate release,” he was only sixty-one years old,1 and he
1 McKreith said that sixty years old was “the required age . . . warrant[ing]
compassionate release consideration,” but this is wrong. The policy statement
in guideline section 1B1.13(1)(B) applies only to defendants seventy years or
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4 Opinion of the Court 20-10450
had not served enough of his sentence. The district court explained
that it had “review[ed] [McKreith]’s motion, the [g]overnment’s re-
sponse[,] and the U.S. Probation[’]s [a]nalysis.”
After we appointed counsel for McKreith on appeal, the par-
ties told us that they had not received the probation analysis that
the district court mentioned in its order. The parties jointly moved
for a limited remand for the district court to clarify “whether [it]
actually relied on new information” in the analysis, and for the par-
ties to “respond to any new information.” We granted the joint
motion and remanded the case “on a limited basis for further pro-
ceedings as outlined in the motion.”
The district court then gave the parties the probation analy-
sis and asked them to address it. In response, McKreith argued that
the probation analysis had been drafted prior to decisions from
other courts of appeals holding that district courts could consider
“any” extraordinary and compelling reason for release in a compas-
sionate release proceeding. McKreith also gave a new ground for
compassionate release: “his susceptibility to [COVID-19]” and the
“harshness” of prison conditions during the pandemic. The gov-
ernment responded that McKreith’s new health ground was out-
side the scope of the limited remand.
older, U.S.S.G. § 1B1.13(1)(B)(i), and application note 1(B) applies only to de-
fendants sixty-five years or older, id. § 1B1.13 cmt. n.1(B)(i). On appeal,
McKreith does not argue that the district court erred in denying his motion
based on his age.
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20-10450 Opinion of the Court 5
The district court entered an order clarifying that it “did not
rely on” the probation analysis when it denied McKreith’s motion
for compassionate release. It explained its typical process for de-
ciding compassionate release motions: it “order[ed] a response
from both the government and probation,” and “[i]f they differed,
[it] would appoint counsel, disclose the conflict, and set the matter
for hearing.” The district court said that it did not believe that it
ever relied on new information from probation, but if it had done
so, it “would have disclosed that information to counsel.” The dis-
trict court also explained that “the nature of the offense and history
of violence weighed heavily against [McKreith’s] release” and that,
even if our limited remand allowed it to consider McKreith’s new
health claim, its “decision remain[ed] unchanged.”
STANDARD OF REVIEW
We review the district court’s denial of a motion for com-
passionate release for an abuse of discretion. See United States v.
Harris,
989 F.3d 908, 911 (11th Cir. 2021). A district court abuses
its discretion when it “applies an incorrect legal standard, follows
improper procedures,” makes “clearly erroneous” factual findings,
or “commits a clear error of judgment.”
Id. at 911–12 (quoting Cor-
doba v. DIRECTV, LLC,
942 F.3d 1259, 1267 (11th Cir. 2019), and
citing United States v. Brown,
415 F.3d 1257, 1266 (11th Cir. 2005)).
DISCUSSION
“District courts may modify a prison sentence after it is im-
posed only as authorized by statute or rule.” United States v.
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6 Opinion of the Court 20-10450
Denson,
963 F.3d 1080, 1086 (11th Cir. 2020); see also
18 U.S.C. §
3582(c)(1)(B) (providing that a district court “may modify an im-
posed term of imprisonment to the extent otherwise expressly per-
mitted by statute” or by rule 35). Under section 3582(c)(1)(A)’s
“plain text,” a “district court may reduce a term of imprisonment”
if (1) “the [section] 3553(a) sentencing factors favor doing so,” (2)
“there are ‘extraordinary and compelling reasons’ for doing so,”
and (3) “doing so wouldn’t endanger any person or the community
within the meaning of [guideline section] 1B1.13’s policy state-
ment.” United States v. Tinker,
14 F.4th 1234, 1237 (11th Cir.
2021).
Application note 1 to guideline section 1B1.13 defines “ex-
traordinary and compelling reasons.” U.S.S.G. § 1B1.13 cmt. n.1;
see also United States v. Bryant,
996 F.3d 1243, 1248 (11th Cir. 2021)
(“[Guideline section] 1B1.13 is an applicable policy statement for all
[s]ection 3582(c)(1)(A) motions . . . .”). In his motion for compas-
sionate release, McKreith contended that the non-retroactive
amendment of section 924(c)(1)(C) was “an extraordinary and
compelling reason” under section 3582(c)(1)(A)(i) and application
note 1(D).
McKreith argues on appeal that the district court abused its
discretion in denying his motion in three ways. First, he asserts
that the district court had an improperly limited view of its author-
ity to reduce sentences under application note 1(D) in guideline
section 1B1.13. Second, McKreith maintains that the district court
did not properly consider the section 3553(a) factors. And third, he
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20-10450 Opinion of the Court 7
contends that the district court followed improper procedures
when it considered the probation analysis.
As to McKreith’s first argument, he now concedes that it is
foreclosed by Bryant. We explained in Bryant that district courts
are limited to the medical condition-, age-, and family-related cir-
cumstances in application notes 1(A), (B), and (C) in guideline sec-
tion 1B1.13 because application note 1(D) allows only the Bureau
of Prisons—not the district court—to come up with other reasons
for compassionate release. 996 F.3d at 1248. McKreith argued in
his motion for compassionate release that the district court could
consider the non-retroactive amendment of section 924(c)(1)(C) as
an extraordinary and compelling circumstance under application
note 1(D)’s catchall provision. But, under Bryant, the district court
couldn’t depart from the limited circumstances in application notes
1(A), (B), and (C). Id.; see also United States v. Giron,
15 F.4th 1343,
1347 (11th Cir. 2021) (explaining that district courts are “precluded
. . . from finding extraordinary and compelling reasons within the
catch[]all provision beyond those specified by the Sentencing Com-
mission in [s]ection 1B1.13”). Thus, the district court did not abuse
its discretion by recognizing that its authority to reduce McKreith’s
sentence was limited to those circumstances.
As to McKreith’s second argument, he maintains that the
district court did not consider the section 3553(a) factors. Although
a district court may not grant a motion for compassionate release
unless it first “consider[s] the factors set forth in section 3553(a) to
the extent that they are applicable,”
18 U.S.C. § 3582(c)(1)(A), the
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8 Opinion of the Court 20-10450
district court did not grant McKreith’s motion. Rather, it denied
McKreith’s motion because of the lack of extraordinary and com-
pelling reasons. Thus, the district court didn’t need to consider the
section 3553(a) factors. See Tinker, 14 F.4th at 1237–38 (“Under
[section] 3582(c)(1)(A), the court must find that all necessary con-
ditions are satisfied before it grants a reduction. Because all three
conditions—i.e., support in the [section] 3553(a) factors, extraordi-
nary and compelling reasons, and adherence to [section] 1B1.13’s
policy statement—are necessary, the absence of even one would
foreclose a sentence reduction.”); Giron, 15 F.4th at 1348 (“The
plain language of [section 3582(c)(1)(A)] means that compassionate
release is permissible only if all three findings are made . . . . If any
one of the necessary findings cannot be made, then compassionate
release is not permissible.”).
Finally, as to McKreith’s third argument, he contends that
the district court abused its discretion when it relied on the proba-
tion analysis to deny his motion for compassionate release.
Under United States v. Jules,
595 F.3d 1239, 1245 (11th Cir.
2010), “each party” “in a [section] 3582(c)(2) proceeding” “must be
given notice of and an opportunity to contest new information re-
lied on by the district court.” But the district court “need not per-
mit re-litigation of any information available at the original sen-
tencing.”
Id. “Nor is either party entitled to any response when
the court does not intend to rely on new information.”
Id.
Here, the district court said that it “did not rely on” any new
information from the probation analysis. McKreith gives us no
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20-10450 Opinion of the Court 9
good reason to doubt the district court’s clarification and we can
find none. As Bryant makes clear, nothing in the probation analysis
could have made the non-retroactive amendment of section
924(c)(1)(C) an extraordinary and compelling circumstance.
In any event, even if the district court did rely on the proba-
tion analysis, which it didn’t, McKreith had the opportunity to re-
view the analysis and to rebut it. After hearing McKreith’s new
health claim, the district court explained that it would still deny his
motion. Thus, any error in considering the probation analysis
would have been harmless. See Giron, 15 F.4th at 1349 n.4 (ex-
plaining that an error is harmless when “the district court would
have imposed the same sentence without the error” (quotation
omitted)).
McKreith maintains that we should issue a full remand be-
cause the district court “did not address any of the new infor-
mation” in the probation analysis and did not address his response
“to that information.” But the purpose of the limited remand—a
limited remand McKreith jointly sought with the government—
was merely for the district court to clarify “whether [it] actually re-
lied on new information” in the analysis, and for the parties to “re-
spond to any new information.” The district court’s answer to the
jointly sought limited remand was unequivocal: it didn’t rely on
any new information and didn’t rely on the probation analysis.
The district court also explained what its ruling would be if
it could consider McKreith’s new health ground raised in his re-
sponse. If the limited remand allowed it to consider this new claim,
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10 Opinion of the Court 20-10450
the district court said, its decision to deny compassionate release
“remain[ed] unchanged.” Thus, a full remand is unnecessary be-
cause the district court answered the question posed by the limited
remand, and it addressed what its ruling would be even if its discre-
tion was broader than the limited remand.
Because the district court did not abuse its discretion when
it denied McKreith’s motion for compassionate release, we affirm.
AFFIRMED.
