              Case: 19-14287    Date Filed: 08/10/2020   Page: 1 of 4



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-14287
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:95-cr-00751-UU-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

MARVIN GRIFFIN,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (August 10, 2020)

Before JILL PRYOR, BRASHER and MARCUS, Circuit Judges.

PER CURIAM:

      Marvin Griffin, pro se, appeals the district court’s denial of his motion to

reduce sentence, which the district court construed as seeking relief under § 404(b)

of the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222
               Case: 19-14287     Date Filed: 08/10/2020    Page: 2 of 4



(“First Step Act”). On appeal, Griffin argues that the district court erred because it

only considered his eligibility for relief under § 404(b) of the First Step Act -- a

claim he says he did not raise -- and did not consider the compassionate-release claim

he raised under 18 U.S.C. § 3582(c)(1)(A) and § 603 of the First Step Act. After

careful review, we vacate and remand.

      We review de novo the district court’s determination of the scope of its

authority to reduce a sentence under 18 U.S.C. § 3582 and the First Step Act. United

States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020); United States v. Melvin, 556

F.3d 1190, 1191 (11th Cir. 2009). Issues raised for the first time in a reply brief are

deemed waived. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682-83 (11th

Cir. 2014).

      Section 3582(c)(1)(A)(i) currently provides:

      [T]he court, upon motion of the Director of the Bureau of Prisons, or
      upon motion of the defendant after the defendant has fully exhausted
      all administrative rights to appeal a failure of the Bureau of Prisons to
      bring a motion on the defendant’s behalf or the lapse of 30 days from
      the receipt of such a request by the warden of the defendant’s facility,
      whichever is earlier, may reduce the term of imprisonment . . . if it finds
      that extraordinary and compelling reasons warrant such a reduction[.]

18 U.S.C. § 3582(c)(1)(A). The district court must also find that a reduction is

consistent with applicable policy statements issued by the Sentencing Commission.

Id. Prior to the First Step Act, the district court could grant this remedy only by

motion of the Bureau of Prisons’ (“BOP”) Director. See First Step Act § 603(b).


                                          2
              Case: 19-14287     Date Filed: 08/10/2020    Page: 3 of 4



      The policy statements applicable to § 3582(c)(1)(A) are found in U.S.S.G. §

1B1.13, which provides that the court must determine that the defendant is not a

danger to the safety of any other person or to the community, as provided in 18

U.S.C. § 3142(g), before it can determine whether extraordinary and compelling

reasons exist. See U.S.S.G. § 1B1.13; id., comment. (n.1). The policy statements

list medical conditions and age of the defendant or certain family circumstances as

examples of extraordinary and compelling reasons. Id., comment. (n.1).

      The government has conceded on appeal that the district court overlooked

Griffin’s compassionate-release claim. We note, however, that the government’s

concession alone is not enough for us to vacate the district court’s order denying

Griffin’s first motion to reduce sentence. See United States v. Matchett, 802 F.3d

1185, 1194 (11th Cir. 2015) (“[C]onfessions of error do not relieve [us] of the

performance of the judicial function” (quotations omitted)).

      Nevertheless, we agree with the parties that Griffin sought compassionate-

release relief from the district court under § 3582(c)(1)(A), as amended by § 603 of

the First Step Act, and did not seek any relief under § 3582(c)(1)(B). In his motion

to the district court, Griffin made numerous references to extraordinary

circumstances and his achievements while incarcerated.            See 18 U.S.C. §

3582(c)(1)(A) (providing that the court may reduce a defendant’s sentence if, inter

alia, it finds that extraordinary and compelling circumstances warrant the reduction).


                                          3
                Case: 19-14287       Date Filed: 08/10/2020       Page: 4 of 4



Additionally, as we’ve noted, the First Step Act modified § 3582(c)(1)(A) to allow

Griffin to seek this kind of relief himself, rather than allowing only the director of

the BOP to do so. See id.; see also First Step Act § 603(b). Further, and most telling,

Griffin neither asked for relief based on a reduction in the statutory sentencing ranges

for crack cocaine offenses under § 404(b), nor did he cite to § 404(b). Accordingly,

because the district court addressed only a claim for relief under § 404(b) of the First

Step Act -- a claim Griffin did not raise -- and did not address Griffin’s claim for

compassionate release under § 3582(c)(1)(A), we vacate the district court’s order

denying relief and remand to allow the district court to consider Griffin’s

compassionate-release claim in the first instance. 1

       VACATED AND REMANDED WITH INSTRUCTIONS.




1
 To the extent Griffin made an argument in his reply brief about seeking another order from the
district court recommending his participation in a drug treatment program, he waived it in our
Court by raising it for the first time in his reply brief. See Sapuppo, 739 F.3d at 682-83.
                                               4
