Danger Finding Alone Bars Compassionate Release, Despite First Step Act Anti‑Stacking and Concepcion: Eleventh Circuit’s Decision in United States v. Harrell

Court: U.S. Court of Appeals for the Eleventh Circuit (Non-Argument Calendar, Not for Publication)

Panel: Judges Jill Pryor, Brasher, and Marcus (per curiam)

Date: September 2, 2025

Docket No.: 24-13045

Introduction

This commentary examines the Eleventh Circuit’s per curiam decision in United States v. Michael Harrell, affirming the denial of a federal prisoner’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Harrell, proceeding pro se, is serving a 744-month sentence for a series of violent bank robberies and attempted robberies. He argued that (1) a change in law concerning 18 U.S.C. § 924(c) “stacking” rendered his sentence “unusually long” within the meaning of U.S.S.G. § 1B1.13(b)(6), and (2) he no longer posed a danger to the community; he further contended that the district court misapplied the Supreme Court’s decision in Concepcion v. United States, 597 U.S. 481 (2022).

The core issue on appeal was narrow: whether the district court abused its discretion by denying relief based on its finding that Harrell remains a danger to the community under U.S.S.G. § 1B1.13(a)(2) and 18 U.S.C. § 3142(g). The Eleventh Circuit affirmed, emphasizing that a danger finding, standing alone, forecloses compassionate release, regardless of any asserted extraordinary and compelling reasons, including those rooted in non-retroactive changes to sentencing law.

Summary of the Judgment

The Eleventh Circuit affirmed the district court’s denial of compassionate release. Applying abuse-of-discretion review, the court held:

Compassionate release under § 3582(c)(1)(A) requires three independent predicates: the § 3553(a) factors must support a reduction; the defendant must show “extraordinary and compelling reasons”; and the defendant must not pose a danger to the community, consistent with U.S.S.G. § 1B1.13. See United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021).
These predicates may be considered in any order, and failure to satisfy any one of them is dispositive. Tinker, 14 F.4th at 1237–38.
The district court’s factual finding that Harrell remains a danger to the community, given the nature and circumstances of multiple armed bank robberies and attempted robberies, was not clearly erroneous and therefore not an abuse of discretion.
Because the danger finding independently barred relief, the court did not reach Harrell’s arguments concerning “extraordinary and compelling reasons” under the amended U.S.S.G. § 1B1.13(b)(6) or his reliance on Concepcion.

Analysis

Precedents Cited and Their Role

United States v. Harris, 989 F.3d 908 (11th Cir. 2021): Establishes the standard of review—abuse of discretion—for § 3582(c)(1)(A) denials. Abuse of discretion exists where the court applies an incorrect legal standard, follows improper procedures, makes clearly erroneous factual findings, or commits a clear error of judgment. The panel invoked Harris to frame its deferential appellate posture.
United States v. Puentes, 803 F.3d 597 (11th Cir. 2015): Reinforces that district courts have no inherent authority to modify sentences; they may do so only when authorized by statute or rule. This underscores that compassionate release is a tightly cabined statutory mechanism.
United States v. Tinker, 14 F.4th 1234 (11th Cir. 2021): Critical within the Eleventh Circuit, Tinker holds that compassionate release requires: (1) § 3553(a) supports reduction; (2) extraordinary and compelling reasons exist; and (3) the defendant is not a danger under § 1B1.13. The absence of any one factor forecloses relief, and the court may analyze them in any order. The Harrell panel relies on Tinker to affirm on the danger prong alone.
United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007): Provides the definition for clear error in factual findings. The court references Robertson in upholding the district court’s danger assessment as supported by substantial evidence and not clearly erroneous.
Concepcion v. United States, 597 U.S. 481 (2022): Recognizes broad discretion for district courts adjudicating § 404 First Step Act resentencing motions to consider intervening changes in law and fact. Importantly, Concepcion also acknowledges that in other statutory settings—explicitly naming § 3582(c)(1)(A)—Congress has limited discretion via binding policy statements. The Eleventh Circuit cites this to explain why Concepcion does not relax the mandatory constraints of § 1B1.13 in compassionate release cases.
First Step Act of 2018, Pub. L. No. 115-391, § 403: Eliminated the pre-2018 “stacking” regime for § 924(c) by requiring that the 25-year recidivist enhancement applies only after a prior § 924(c) conviction has become final. The panel notes this change and, citing Hewitt v. United States, 145 S. Ct. 2165 (2025), describes how the Act ended stacking for first-time offenders charged with multiple § 924(c) counts in a single indictment. However, § 403 was only partially retroactive, applying to cases not yet sentenced as of enactment.
U.S.S.G. § 1B1.13 (as amended) and § 3142(g):
- Section 1B1.13(a)(2) requires that a defendant “not [be] a danger to the safety of any other person or to the community” as defined by § 3142(g) to obtain compassionate release.
- Section 1B1.13(b)(6) now recognizes as potentially “extraordinary and compelling” an “unusually long sentence” where a change in law would create a gross disparity between the sentence served and the sentence likely to be imposed today, provided the defendant has served at least 10 years, with individualized circumstances considered.

Legal Reasoning: How the Court Reached Its Decision

The panel’s reasoning is straightforward and adheres closely to Eleventh Circuit framework:

Correct legal framework: The court reiterated the three-part structure from Tinker for § 3582(c)(1)(A) motions: § 3553(a) factors, extraordinary and compelling reasons, and no danger under § 1B1.13. Failure on any prong ends the inquiry.
Focus on the “danger” prong: The district court found that Harrell remains a danger to the community. This finding drew heavily on the nature and circumstances of his offenses under § 3142(g)(1): multiple coordinated bank robberies and attempts during which co-conspirators brandished firearms, threatened and assaulted tellers and customers (including knocking a teller unconscious and striking a customer), and stole substantial sums, with Harrell serving as the getaway driver, casing banks in advance, recruiting a co-defendant adept at stealing cars, providing stolen plates, fueling the vehicles, and supplying gloves, clothing, and equipment.
Mitigation considered but outweighed: The district court acknowledged substantial mitigating evidence—honorable Navy service, prior security clearance, prison programming and work, low risk designation, lack of disciplinary incidents, family support, and positive recommendations. Nonetheless, it concluded that the violent, planned nature of the robberies and related conduct outweighed these mitigating factors for purposes of the danger analysis. The appellate court found no clear error in that weighing.
Deference to factual findings: Applying the clearly erroneous standard to the district court’s danger determination, the Eleventh Circuit found substantial evidence supported it and, thus, no abuse of discretion under Harris and Robertson.
Disposition without reaching other grounds: Given Tinker’s any-order rule and the dispositive effect of the danger finding, the panel declined to address whether Harrell had shown “extraordinary and compelling reasons” under § 1B1.13(b)(6) or whether Concepcion altered the analysis. The court also underscored that Concepcion itself recognizes that § 3582(c)(1)(A) is constrained by Sentencing Commission policy statements, confirming that Concepcion does not expand compassionate release discretion beyond § 1B1.13’s conditions.

Impact: Why This Decision Matters

Although unpublished, the decision is instructive for practitioners in the Eleventh Circuit on several points:

Danger remains a standalone bar: Even after the Sentencing Commission’s 2023–2024 amendments to § 1B1.13 (including the new “unusually long sentence” ground in § 1B1.13(b)(6)), a district court may deny compassionate release solely because the defendant remains a danger under § 3142(g), without reaching the other requirements.
Concepcion’s limits are clear in this context: While Concepcion expanded judicial discretion in § 404 resentencings to consider intervening changes, it also acknowledged that § 3582(c)(1)(A) is different: policy statements govern and must be followed. Defendants cannot invoke Concepcion to bypass § 1B1.13’s no-danger requirement.
924(c) anti-stacking changes help, but are not dispositive: The First Step Act’s elimination of “stacking” may produce the kind of “gross disparity” contemplated by § 1B1.13(b)(6), especially where a defendant has served 10 or more years. But such a showing does not overcome an adverse danger finding.
Weight of original offense conduct: This decision illustrates that violent, planned conduct—particularly involving firearms and harm to victims—can outweigh even strong rehabilitative evidence in the danger calculus. Defense filings must directly address public-safety risks with concrete release plans, supervision conditions, and credible risk-reduction evidence.
Appellate deference is significant: Because danger determinations are fact-intensive and reviewed for clear error, district courts’ decisions will often be sustained if supported by the record, even where mitigating evidence exists.

Complex Concepts Simplified

Compassionate release (18 U.S.C. § 3582(c)(1)(A)): A statute allowing courts to reduce a prison term if three conditions are met: the § 3553(a) factors support it, “extraordinary and compelling reasons” exist, and the defendant is not a danger to any person or the community, consistent with Sentencing Commission policy statements.
U.S.S.G. § 1B1.13: The Sentencing Commission’s policy statement guiding compassionate release. It lists possible “extraordinary and compelling” reasons and requires that the defendant not pose a danger to the community (referencing § 3142(g)).
§ 1B1.13(b)(6): A newer provision recognizing that a non-retroactive change in law may be considered in assessing extraordinary reasons where the defendant has served at least 10 years, and the change would produce a “gross disparity” between the original sentence and what would likely be imposed now, considering individualized circumstances.
“Stacking” under 18 U.S.C. § 924(c): Pre-2018, multiple § 924(c) counts charged in the same case could trigger a 25-year mandatory minimum on each “second or subsequent” count. The First Step Act ended this for first-time offenders by requiring that the 25-year enhancement apply only after a prior § 924(c) conviction is final. This change was not fully retroactive for already-sentenced cases.
Concepcion v. United States: A Supreme Court case allowing courts in § 404 resentencings (crack-cocaine cases) to consider intervening changes in law or fact. However, Concepcion also notes that in compassionate release cases, Congress has limited discretion by requiring adherence to the Sentencing Commission’s policy statements.
“Danger” under § 3142(g): Courts assess danger by considering the nature and circumstances of the offense, weight of the evidence, the defendant’s history and characteristics, and the seriousness of the danger posed by release.
Standard of review—abuse of discretion/clear error: Appellate courts defer significantly to district courts. A factual finding is clearly erroneous only when the entire record leaves the appellate court firmly convinced a mistake has been made.
Per curiam and non-argument calendar: “Per curiam” means the opinion is by the court, not a specific judge. A non-argument calendar case is decided without oral argument, typically because the panel deems it suitable for decision on the briefs.

Application to the Facts of Harrell

The district court credited Harrell’s positive institutional record and background but emphasized the violent nature of the underlying offenses and his integral role in planning and facilitating them: casing banks, recruiting an accomplice skilled in stealing vehicles, supplying tools and equipment, and acting as getaway driver. Co-conspirators brandished semiautomatic firearms, threatened employees and customers, inflicted head injuries, and stole substantial funds. The appellate court held that those facts, viewed through § 3142(g), supported the district court’s danger finding. Because Tinker permits denial on any one required element, the Eleventh Circuit affirmed without deciding whether the First Step Act’s anti-stacking change, via § 1B1.13(b)(6), provided an extraordinary and compelling reason.

Practice Pointers

Address danger head-on: In the Eleventh Circuit, danger is a threshold gatekeeper. Provide specific, verifiable release plans, third-party supervision, treatment enrollment, housing, employment offers, and, where available, validated risk assessments.
Tie rehabilitation to risk reduction: Document how programming meaningfully mitigates identified risk factors. Letters of support are helpful, but courts will look for concrete behavioral change linked to public safety.
When citing § 1B1.13(b)(6): Quantify the “gross disparity” between the original sentence and the likely present-day sentence; show more than just a legal change—explain why, given individualized circumstances, the resulting sentence is extraordinarily harsh relative to current norms.
Don’t overread Concepcion: Emphasize that compassionate release remains constrained by § 1B1.13. Concepcion cannot eliminate the no-danger requirement.

Conclusion

United States v. Harrell reaffirms a central tenet of Eleventh Circuit compassionate release jurisprudence: a district court’s supported finding that the defendant remains a danger to the community independently defeats a § 3582(c)(1)(A) motion. The decision underscores that even in the wake of the First Step Act’s anti-stacking reforms and the Sentencing Commission’s expanded compassionate release policy, public safety remains a non-negotiable prerequisite. Concepcion does not dilute this requirement; it confirms that compassionate release is governed by binding policy statements.

For future litigants, the message is clear: arguments based on non-retroactive changes in law and compelling rehabilitation will not prevail unless they are coupled with persuasive, evidence-backed showings that the defendant will not endanger any person or the community. In the Eleventh Circuit, that showing is indispensable.

Note: This commentary summarizes and analyzes an unpublished Eleventh Circuit decision. Unpublished decisions are not binding precedent, but they offer persuasive guidance on the court’s application of governing law.