Eleventh Circuit: U.S.S.G. § 1B1.13(b)(6)’s Ten-Year Service Requirement Is Mandatory, and Constitutional ACCA “Occasions” Claims Do Not Expand Compassionate-Release Eligibility

Case: United States v. Bernard Moore (No. 25-13539)
Court: Court of Appeals for the Eleventh Circuit
Date: 2026-06-10 (per curiam; non-published; summary affirmance)

1. Introduction

This appeal arose from Bernard Moore’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) after serving roughly eight years and eight months of a 240-month sentence. Moore had been convicted (2017) of drug-trafficking offenses (21 U.S.C. §§ 841, 846) and firearms offenses including felon-in-possession (18 U.S.C. § 922(g)(1)) and possession of a firearm in furtherance of drug trafficking (18 U.S.C. § 924(c)). His original sentence included application of the Armed Career Criminal Act (ACCA) mandatory minimum under 18 U.S.C. § 924(e)(1), and his sentence had previously been affirmed on direct appeal.

The key issues on appeal were whether Moore identified an “extraordinary and compelling reason” under the binding policy statement U.S.S.G. § 1B1.13 based on (i) a claimed constitutional change in law tied to ACCA “different occasions” factfinding (invoking Erlinger), (ii) rehabilitation and prison conduct, and (iii) whether the “unusually long sentence” route in U.S.S.G. § 1B1.13(b)(6) could be satisfied without meeting its express ten-year service requirement.

2. Summary of the Opinion

The Eleventh Circuit granted the government’s motion for summary affirmance and affirmed. It held:

  • The district court did not “refuse” to consider Moore’s constitutional argument; it considered it (as part of the § 1B1.13(b)(5) catch-all analysis) and still found Moore’s circumstances not “similar in gravity” to enumerated reasons.
  • The district court did not abuse its discretion in concluding Moore failed to carry his burden to show extraordinary and compelling reasons; rehabilitation alone cannot qualify, and the court’s discussion of a disciplinary citation did not change the outcome.
  • The ten-year requirement in U.S.S.G. § 1B1.13(b)(6) is mandatory; because Moore had not served ten years, he was ineligible under that provision.
  • Moore abandoned any challenge to denial of reconsideration by inadequate briefing; in any event, reconsideration was properly denied because it rehashed arguments.

3. Analysis

3.1 Precedents Cited

Framework, standards of review, and summary disposition

  • United States v. Giron, 15 F.4th 1343 (11th Cir. 2021): The court relied on Giron for (i) de novo review of eligibility under § 3582(c)(1)(A), (ii) abuse-of-discretion review for denial where eligibility exists, and (iii) the principle that the defendant bears the burden to show extraordinary and compelling reasons.
  • United States v. Llewlyn, 879 F.3d 1291 (11th Cir. 2018): Cited for abuse-of-discretion review of denial of a motion for reconsideration.
  • Groendyke Transp., Inc. v. Davis, 406 F.2d 1158 (5th Cir. 1969): Provided the summary-affirmance standard—appropriate where one party is “clearly right as a matter of law” or the appeal is frivolous.
  • Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc): Cited to confirm that former Fifth Circuit decisions (like Groendyke) bind the Eleventh Circuit.

Eligibility constraints: policy statements and sequencing

  • United States v. Tinker, 14 F.4th 1234 (11th Cir. 2021): Cited for the three-part structure: (1) extraordinary and compelling reason, (2) consistency with U.S.S.G. § 1B1.13, and (3) favorable § 3553(a) factors. The opinion treats these as required prerequisites, not an open-ended equitable inquiry.
  • Concepcion v. United States, 597 U.S. 481 (2022): Used in two ways: (i) to emphasize Congress can “expressly” limit sentencing-modification discretion through policy statements; and (ii) to distinguish cases where eligibility is conceded from cases like Moore’s, where eligibility itself is the threshold dispute.

Constitutional ACCA “different occasions” argument and limits of compassionate release

  • Erlinger v. United States, 602 U.S. 821 (2024): Held that the Constitution requires a unanimous jury to find beyond a reasonable doubt that prior offenses were committed on different occasions for ACCA to apply. Moore invoked Erlinger as a “change in constitutional law” supporting compassionate release. The Eleventh Circuit did not decide Erlinger’s retroactivity, and it did not treat Erlinger as automatically establishing an extraordinary and compelling reason.
  • Rutherford v. United States, No. 24-820, 2026 WL 1485535 (U.S. May 28, 2026): The opinion quoted Rutherford to reinforce that eligibility is cabined: Congress prohibits reductions unless extraordinary and compelling reasons exist. It also noted (in a footnote) that Rutherford “invalidated” U.S.S.G. § 1B1.13(b)(6) to the extent it makes non-retroactive statutory changes a basis of eligibility, but the panel declined to decide whether that reasoning extends to Moore’s constitutional-change theory because Moore failed the ten-year requirement anyway.
  • Fernandez v. United States, No. 24-556, 2026 WL 1485476 (U.S. May 28, 2026): Cited to deny as moot Moore’s request for abeyance; Fernandez reiterated that collateral attacks on conviction validity must proceed via 28 U.S.C. § 2255, not § 3582.

Frivolousness and appellate forfeiture/abandonment

  • Trump v. Clinton, 161 F.4th 671 (11th Cir. 2025): Cited for defining a frivolous appeal as one lacking factual basis or ignoring governing law. The panel deemed Moore’s “refused to weigh Erlinger at all” argument frivolous because the record showed the district court did consider it.
  • Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014): Used twice for abandonment principles: issues not properly raised in the opening brief (or raised first in reply) are deemed abandoned.
  • Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949 (11th Cir. 2009): Cited for the rule that reconsideration cannot be used to relitigate old matters or raise arguments that could have been raised earlier.

Guideline authority and the ten-year rule

  • United States v. Handlon, 97 F.4th 829 (11th Cir. 2024): Quoted for the proposition that Congress delegated defining “extraordinary and compelling reasons” to the Sentencing Commission, not courts—supporting a strict reading of § 1B1.13(b)(6).

Case history

  • United States v. Moore, 954 F.3d 1322 (11th Cir. 2020): Cited to note the prior affirmance of Moore’s sentence on direct appeal.

3.2 Legal Reasoning

A. The opinion’s controlling structure: eligibility first

The court treated compassionate release as a tightly cabined mechanism. Before any discretionary weighing, the defendant must satisfy the “extraordinary and compelling” requirement as defined through U.S.S.G. § 1B1.13. The panel’s reliance on United States v. Tinker and its discussion of Concepcion v. United States (as limited by express congressional constraints) underscore a sequencing principle: broad sentencing discretion applies only after the defendant clears eligibility gates set by statute and the Commission’s policy statement.

B. Catch-all “other reasons” under U.S.S.G. § 1B1.13(b)(5): similarity-in-gravity as the limiting concept

Moore tried to aggregate (i) a constitutional argument based on Erlinger v. United States, (ii) rehabilitation, and (iii) a release plan as “other reasons” under § 1B1.13(b)(5). The district court rejected the combination as not “similar in gravity” to the enumerated categories (medical, age, family, or victim-of-abuse circumstances). The Eleventh Circuit affirmed that approach.

Critically, the panel disposed of Moore’s primary appellate framing (“the district court refused to consider Erlinger”) by pointing to the district court’s alternative holding expressly stating it considered the constitutional challenge along with other circumstances and still found them insufficiently grave. That record-based resolution allowed the panel to avoid deciding whether a court is required to consider Erlinger in this posture, and it also supported the panel’s conclusion that Moore’s contention was frivolous under Trump v. Clinton.

The panel also highlighted that § 1B1.13(c) permits considering non-retroactive changes in law only “for purposes of determining the extent” of a reduction once extraordinary and compelling reasons are otherwise established—reinforcing the eligibility/extent distinction.

C. Rehabilitation, prison conduct, and burden of proof

Moore argued the district court overemphasized a disciplinary citation (possession of a dangerous weapon) and mischaracterized his conduct (a broom-handle incident during a riot). The Eleventh Circuit treated this as non-outcome-determinative because:

  • The district court had already found the combined circumstances not “similar in gravity” to enumerated reasons before mentioning the citation.
  • Moore bore the burden to show extraordinary and compelling reasons (United States v. Giron).
  • 28 U.S.C. § 994(t) bars treating “Rehabilitation of the defendant alone” as an extraordinary and compelling reason.

D. U.S.S.G. § 1B1.13(b)(6): the ten-year service requirement as a hard eligibility threshold

Moore asserted that § 1B1.13(b)(6)’s “has served at least 10 years” language should operate as a flexible benchmark. The Eleventh Circuit rejected that reading as “clearly correct as a matter of law” in favor of the guideline’s express prerequisite: without ten years served, the “unusually long sentence” provision does not apply.

The court grounded this in (i) 28 U.S.C. § 994(t) (Commission directed to “describe” extraordinary and compelling reasons and “criteria to be applied”), and (ii) United States v. Handlon (courts do not have free-form authority to define extraordinary and compelling reasons contrary to the Commission’s criteria).

The opinion acknowledged Rutherford v. United States recently “invalidated” § 1B1.13(b)(6) to the extent it makes non-retroactive statutory changes a basis of eligibility, but the panel declined to reach any extension of that holding because Moore failed the independent ten-year requirement.

E. Reconsideration: forfeiture and, alternatively, merits

The panel applied Sapuppo v. Allstate Floridian Ins. Co. to find abandonment due to inadequate opening-brief argument. Alternatively, it cited Wilchombe v. TeeVee Toons, Inc. to hold that reconsideration was properly denied because Moore merely repeated prior arguments.

3.3 Impact

  • Reinforces bright-line eligibility gates under amended § 1B1.13. The decision signals that, in the Eleventh Circuit, the textual prerequisites in U.S.S.G. § 1B1.13—including § 1B1.13(b)(6)’s “at least 10 years” service requirement—are treated as mandatory eligibility conditions, not flexible standards.
  • Constrains the use of constitutional “change in law” arguments in compassionate release. Even where a defendant invokes a significant constitutional development like Erlinger v. United States, the panel’s approach emphasizes that the inquiry remains whether the circumstances are “similar in gravity” to enumerated reasons (or otherwise qualify under the policy statement), not whether the original sentence might now be viewed as constitutionally problematic.
  • Highlights the eligibility/extent distinction in § 1B1.13(c). Changes in law may influence the extent of a reduction only after extraordinary and compelling reasons are otherwise established.
  • Procedural discipline on appeal. The case illustrates that mischaracterizing the record (e.g., claiming the district court “refused” to consider an argument it did consider) may lead to summary affirmance, and that failure to brief issues in the opening brief leads to abandonment under Sapuppo v. Allstate Floridian Ins. Co..

4. Complex Concepts Simplified

  • “Compassionate release” (18 U.S.C. § 3582(c)(1)(A)): A limited mechanism allowing courts to reduce a sentence after finding (among other things) an “extraordinary and compelling reason,” as defined and constrained by the Sentencing Commission’s policy statement.
  • “Extraordinary and compelling reasons”: Not a free-floating equitable standard. The court must apply U.S.S.G. § 1B1.13, which lists qualifying categories and restricts the catch-all to circumstances “similar in gravity” to those categories.
  • Catch-all “other reasons” (U.S.S.G. § 1B1.13(b)(5)): Allows consideration of other circumstances, but only if they are comparable in seriousness to the listed reasons (medical, age, family, abuse in custody).
  • “Unusually long sentence” (U.S.S.G. § 1B1.13(b)(6)): A specific route that, by its text, applies only if the defendant “has served at least 10 years.” This panel treated that as a strict prerequisite.
  • ACCA “different occasions” fact: Under Erlinger v. United States, a jury (not a judge) must find beyond a reasonable doubt that prior offenses occurred on different occasions before ACCA’s enhanced penalty applies.
  • “Summary affirmance”: An expedited appellate disposition appropriate where the outcome is legally clear or the appeal is frivolous, as described in Groendyke Transp., Inc. v. Davis.

5. Conclusion

United States v. Bernard Moore reinforces a rule-bound view of compassionate release: eligibility depends on meeting the Commission’s criteria in U.S.S.G. § 1B1.13, and courts will enforce textual thresholds such as § 1B1.13(b)(6)’s ten-year service requirement. The decision also underscores that invoking major constitutional developments like Erlinger v. United States does not, without more, convert a compassionate-release motion into a vehicle for remedying alleged sentencing constitutional defects—especially where the defendant cannot show circumstances “similar in gravity” to the guideline’s enumerated categories.