Amendment 822 Forecloses Dupree-Based Career-Offender Relief in Compassionate Release; “Other Reasons” Must Match Enumerated Gravity

Amendment 822 Forecloses Dupree-Based Career-Offender Relief in Compassionate Release; “Other Reasons” Must Match Enumerated Gravity

Introduction

In United States v. Travis Lamont Smith, No. 24-11460 (11th Cir. Mar. 24, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed the denial of a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Proceeding pro se, Travis Smith argued he was no longer a career offender in light of the Eleventh Circuit’s en banc decision in United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), and that the district court improperly parsed his asserted “other reasons” for release—COVID-era communication restrictions, harsh prison conditions, and post-sentencing rehabilitation—rather than evaluating them in combination.

The panel’s opinion is significant for its straightforward application of the U.S. Sentencing Commission’s 2023 amendments to the Guidelines, especially:

  • U.S.S.G. § 4B1.2 (Amendment 822), which moved inchoate offenses into the text of the controlled-substance-offense definition, thereby neutralizing Dupree for post-amendment purposes; and
  • U.S.S.G. § 1B1.13 (Amendment 814), which now governs defendant-filed compassionate-release motions, adding a “similar in gravity” catchall for “other reasons,” cabining the use of changes in law to “unusually long sentences” with “gross disparity,” and codifying that rehabilitation alone is insufficient.

Against this backdrop, the court held that Smith could not establish an “extraordinary and compelling reason” under § 1B1.13 and thus failed the threshold requirement for compassionate release.

Summary of the Opinion

The Eleventh Circuit affirmed the district court’s denial of Smith’s § 3582(c)(1)(A) motion. The court held:

  • No eligibility under § 1B1.13(b)(6) (change-in-law for unusually long sentences): While Dupree had excluded inchoate offenses from the definition of “controlled substance offense” in the former § 4B1.2(b), the Sentencing Commission’s November 1, 2023 amendment (Amendment 822) moved inchoate offenses into the text of § 4B1.2. Because current law again includes drug conspiracies within the definition, Smith remains a career offender; there is no “gross disparity” between his 2014 sentence and the sentence likely imposed today. Thus, he is not eligible under § 1B1.13(b)(6).
  • Catchall “other reasons” (§ 1B1.13(b)(5)) not met: Smith’s asserted reasons—rehabilitation, COVID-era communication limits, and harsh conditions—whether considered separately or together, are not “similar in gravity” to the enumerated categories in § 1B1.13(b). Rehabilitation alone cannot qualify (see § 1B1.13(d)), and the combined circumstances still do not rise to the required level.
  • Safety valve and other arguments: Smith’s safety-valve claim fails given a prior Eleventh Circuit ruling rejecting his contention about his 2004 convictions. Arguments premised on Amendment 782 and the Ex Post Facto Clause were not considered because they were raised for the first time in his reply brief.
  • Affirmance on any basis: Even if the district court discussed reasons separately, the panel considered them in combination and affirmed on grounds supported by the record.

Analysis

Precedents and Authorities Cited

  • United States v. Tinker, 14 F.4th 1234 (11th Cir. 2021): Sets out the three-prong framework for compassionate release: (1) extraordinary and compelling reasons; (2) consistency with § 1B1.13; and (3) § 3553(a) factors. Any prong’s failure ends the analysis.
  • United States v. Giron, 15 F.4th 1343 (11th Cir. 2021): Establishes standards of review: de novo for eligibility under § 3582(c)(1)(A); abuse of discretion thereafter. It also requires sufficient explanation by district courts to permit appellate review.
  • United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc): Held that the former § 4B1.2(b)’s text did not include inchoate offenses (like conspiracy), and commentary could not expand the text. The Smith panel explains that this interpretive victory was superseded for post–November 1, 2023 motions by Amendment 822, which now includes inchoate offenses in § 4B1.2(d).
  • U.S.S.G. § 1B1.13 (2023) (Amendment 814): The policy statement now expressly applies to defendant-filed motions and identifies exclusive categories of extraordinary and compelling reasons, a “similar in gravity” catchall (§ 1B1.13(b)(5)), and the limited use of changes in law for unusually long sentences (§ 1B1.13(b)(6), (c), (d)).
  • U.S.S.G. § 4B1.2 (2023) (Amendment 822): The definition of “controlled substance offense” now includes inchoate offenses in the Guideline text, eliminating the gap identified in Dupree for post-amendment cases.
  • U.S.S.G. § 5C1.2 and § 2D1.1(b)(18) (Amendment 817): The Commission aligned § 5C1.2 with 18 U.S.C. § 3553(f), potentially broadening safety-valve eligibility and a related two-level reduction, but Smith’s specific facts (and prior appellate ruling) precluded relief.
  • United States v. Chalker, 966 F.3d 1177 (11th Cir. 2020): Issues raised for the first time in a reply brief will not be considered.
  • United States v. Castillo, 899 F.3d 1208 (11th Cir. 2018): The appellate court may affirm on any basis supported by the record.

Legal Reasoning

The court proceeds in two principal steps: (1) assessing eligibility under § 1B1.13’s extraordinary-and-compelling framework; and (2) rejecting Smith’s alternative theories (safety valve and late-raised arguments).

1) “Change in Law” under § 1B1.13(b)(6) and the Effect of Amendment 822

Section 1B1.13(b)(6) allows a change in law to count as an extraordinary and compelling reason only in tightly circumscribed circumstances. A defendant must have: (a) received an unusually long sentence; (b) served at least 10 years; and (c) experienced a change in law that would produce a “gross disparity” between the sentence being served and the sentence likely to be imposed now, after individualized consideration. Additionally, § 1B1.13(c) bars the use of changes in law to establish extraordinary and compelling reasons except as permitted under (b)(6).

Smith’s theory was that Dupree eliminated his career-offender status (because his instant offense was an inchoate drug conspiracy), thereby creating a gross disparity between his 2014 sentence and the sentence he would receive today. The panel rejected this argument because the Sentencing Commission’s Amendment 822, effective November 1, 2023, expressly includes inchoate offenses within the text of § 4B1.2. As a result, under current law, Smith’s drug-conspiracy conviction is again a qualifying controlled-substance offense for career-offender purposes. With the enhancement still applicable, Smith cannot demonstrate the requisite “gross disparity,” defeating eligibility under § 1B1.13(b)(6).

Notably, the panel also corrected Smith’s argument about timing: Amendment 822 took effect on November 1, 2023, not December 2023. Because Smith filed his motion after the amendment’s effective date, the operative definition foreclosed his Dupree-based claim.

2) “Other Reasons” under § 1B1.13(b)(5) and Rehabilitation under § 1B1.13(d)

The revised policy statement permits courts to consider “any other circumstance or combination of circumstances” as extraordinary and compelling only if they are “similar in gravity” to the enumerated categories (serious medical conditions, advanced age, narrowly defined family circumstances, or serious abuse in custody).

Smith identified three such “other reasons”: (i) COVID-era restrictions that limited communication with loved ones, (ii) generally harsh prison conditions, and (iii) post-sentencing rehabilitation (courses, certificates, and largely avoiding discipline). The Eleventh Circuit concluded that:

  • Rehabilitation alone cannot establish an extraordinary and compelling reason (§ 1B1.13(d)).
  • The asserted conditions and communication barriers—even accounting for the pandemic—are not comparable in gravity to the enumerated categories in § 1B1.13(b)(1)–(4).
  • Considering these circumstances in combination, they still do not rise to the requisite level under § 1B1.13(b)(5). The panel explicitly conducted a de novo review on this eligibility question and affirmed.

Thus, Smith failed the first Tinker prong (extraordinary and compelling reasons). Consistent with Tinker and Giron, the panel did not need to reach dangerousness under § 3142(g) or the § 3553(a) factors.

3) Safety Valve and Issue Preservation

Smith also invoked the safety valve, pointing to 2023 changes (Amendment 817) aligning § 5C1.2 with the statutory criteria in § 3553(f) and the related two-level reduction in § 2D1.1(b)(18). The panel held this avenue foreclosed because the Eleventh Circuit had already rejected Smith’s argument regarding his 2004 convictions on appeal, undermining his attempt to reduce his criminal-history score. In addition, arguments premised on Amendment 782 and the Ex Post Facto Clause were disregarded because he raised them for the first time in reply, contrary to Chalker’s preservation rule.

Impact and Practical Implications

This decision underscores several important post-2023 realities in the Eleventh Circuit (and, as to the Guidelines, nationally):

  • Dupree’s window has closed for inchoate drug offenses: For compassionate-release motions filed after November 1, 2023, Amendment 822’s inclusion of inchoate offenses in § 4B1.2(d) removes Dupree as a basis to show that drug-conspiracy convictions no longer qualify as controlled-substance offenses. Defendants cannot establish a “gross disparity” under § 1B1.13(b)(6) on this theory because current law still yields the career-offender enhancement.
  • “Unusually long sentence” is a narrow, fact-intensive path: Even where a defendant has served at least 10 years, § 1B1.13(b)(6) requires a demonstration that a change in law would produce a gross disparity in current sentencing outcomes, after individualized consideration. Where the “change” has been superseded by subsequent Guideline amendments (as here), the path is foreclosed.
  • Catchall “other reasons” has teeth: Courts will compare defendant’s asserted reasons—alone and in combination—against the gravity of the enumerated examples in § 1B1.13(b)(1)–(4). Generalized hardships (e.g., pandemic-era restrictions, non-extreme prison conditions) and rehabilitation typically fall short, especially given § 1B1.13(d)’s express limitation on rehabilitation.
  • Issue preservation remains critical: Arguments first raised in a reply brief will not be considered. Defendants must present all grounds in their opening brief to preserve them for review.
  • Affirmance on any basis: Even if a district court’s articulation is imperfect (e.g., considering reasons separately), the court of appeals may affirm if the record supports denial under the appropriate combined analysis.

Complex Concepts Simplified

  • Compassionate Release (18 U.S.C. § 3582(c)(1)(A)): A mechanism allowing courts to reduce a term of imprisonment if (1) extraordinary and compelling reasons exist, (2) any applicable policy statement (here, § 1B1.13) is satisfied, and (3) the § 3553(a) factors favor reduction.
  • U.S.S.G. § 1B1.13 (2023): The Sentencing Commission’s policy statement now applicable to defendant-filed motions. It lists exclusive categories (medical, age, family, abuse) and a “catchall” for other reasons with a “similar in gravity” requirement. It also limits the use of changes in law and states rehabilitation alone is insufficient.
  • Career Offender (§§ 4B1.1, 4B1.2): A status that significantly increases the guideline range if the defendant was at least 18 at the time of the instant offense, the instant offense is a felony that is a crime of violence or controlled-substance offense, and the defendant has at least two qualifying prior felony convictions. After Amendment 822 (Nov. 1, 2023), inchoate offenses like conspiracy count as controlled-substance offenses.
  • Inchoate Offense: An offense that involves steps toward committing a crime—such as attempt or conspiracy—but is not the completed offense.
  • “Unusually Long Sentence” Change-in-Law Provision (§ 1B1.13(b)(6)): Allows a change in law to be considered as an extraordinary reason only if the defendant has served 10+ years of an unusually long sentence and the change would create a gross disparity compared to today’s likely sentence after individualized assessment.
  • Rehabilitation (§ 1B1.13(d)): Rehabilitation alone cannot be the extraordinary reason for release, but it can be considered with other circumstances once eligibility is otherwise established.
  • Safety Valve (§ 5C1.2; 18 U.S.C. § 3553(f)): A provision that can exempt qualifying drug offenders from mandatory minimums and, under § 2D1.1(b)(18), yield a two-level reduction. Amendment 817 broadened eligibility to mirror § 3553(f), but individual criminal history and role still control.
  • Standards of Review: “De novo” means the appellate court gives no deference to the district court’s legal determinations (e.g., eligibility). “Abuse of discretion” is deferential and applies after eligibility is established.
  • Issue Preservation (Reply-brief waiver): Arguments raised for the first time in a reply brief are ordinarily deemed waived and will not be considered on appeal.

Conclusion

United States v. Travis Lamont Smith offers a clear post-2023 roadmap for compassionate-release litigation in the Eleventh Circuit. The court confirms that Amendment 822’s re-inclusion of inchoate offenses in the text of § 4B1.2 eliminates Dupree as a vehicle for establishing a “change in law” extraordinary reason under § 1B1.13(b)(6) for career-offender drug-conspiracy cases. It also reinforces the rigor of the “similar in gravity” standard for § 1B1.13(b)(5)’s catchall and the Commission’s directive that rehabilitation alone cannot qualify as extraordinary and compelling. Finally, the decision underscores the importance of properly preserving arguments and the appellate court’s authority to affirm on any record-supported basis.

Bottom line: after the 2023 Guideline amendments, defendants seeking compassionate release must anchor their claims in reasons commensurate with the enumerated categories in § 1B1.13(b), and change-in-law arguments will succeed only in the rare case that satisfies § 1B1.13(b)(6)’s exacting “unusually long sentence” and “gross disparity” criteria under current law.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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