NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-2708 ______

UNITED STATES OF AMERICA

v. ERIC CRAFT, Appellant ___________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-02-cr-00011-001) District Judge: Honorable Matthew W. Brann ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 18, 2023 ____________

Before: GREENAWAY, JR., PHIPPS, and CHUNG, Circuit Judges.

(Opinion filed: May 30, 2023)

___________

OPINION* ___________

PHIPPS, Circuit Judge.

The First Step Act of 2018 permits inmates to file motions for compassionate-

release sentence reductions, and Eric Craft, an inmate at United States Penitentiary Lee,

filed such a motion in the District Court pro se.

(b), 132 Stat.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 5194, 5239 (amending

(c)(1)(A)). His motion sought to reduce the 480-

month prison sentence that he received in 2003 for manslaughter in connection with drug

trafficking in violation of

(j)(2). At the time of Craft’s sentencing, the

U.S. Sentencing Guidelines were mandatory and the career-offender provision of

Guideline § 4B1.1 was interpreted more stringently. See United States v. Booker,

(2005) (discussing and eliminating prior mandatory Guidelines

regime); United States v. Nasir,

, 470–72 (3d Cir. 2021) (en banc) (holding

that inchoate crimes no longer qualify as predicate offenses under § 4B1.2(b), the

companion provision to § 4B1.1). Because those provisions, which affected the

calculation of his sentence, subsequently changed, Craft argued in his compassionate-

release motion that his sentence should be reduced. But the statute that the First Step Act amended to permit inmates to move for

compassionate release,

(c)(1)(A), does not allow a sentence reduction

unless, among other things, it is warranted by “extraordinary and compelling reasons.”

Under binding precedent, United States v. Andrews,

(3d Cir. 2021),

subsequent, non-retroactive changes in the law do not constitute extraordinary and

compelling reasons. See

. And here, in exercising jurisdiction over Craft’s

post-trial motion, see

, the District Court determined that the changes in

law that Craft identified were not retroactive, and it denied Craft’s motion on that basis.

See Lloyd v. United States,

(3d Cir. 2005) (holding that Booker is not retroactive on collateral review);

(c)(2) (discussing retroactivity of

Guidelines amendments passed “by the Sentencing Commission”); U.S.S.G. § 1B1.10(a);

cf. United States v. Wood,

(3d Cir. 2008) (explaining that, in general, an

2 appellate court reviews “a sentence under the version of the Guidelines in effect at the

time of sentencing”).

Through a timely notice of appeal, Craft invoked the jurisdiction of this Court.

See

. Craft now argues that a subsequent Supreme Court decision,

Concepcion v. United States,

(2022), abrogates Andrews. That is

mistaken because Concepcion involved the remedial provisions of § 404(b) of the First

Step Act for “covered offense[s]” – those involving crack cocaine committed before

August 3, 2010. See id. at 2397, 2401 (citing First Step Act § 404(b), 132 Stat. at 5222).

But Andrews did not involve a sentence for a crack-cocaine offense, and the

compassionate-release motion there did not implicate § 404(b) of the First Step Act. See

Andrews,

. Rather, Andrews concerned precisely the same statute as is at issue here:

(c)(1)(A). Thus, Concepcion does not abrogate Andrews,

and like the movant in Andrews, Craft was not sentenced for a crack-cocaine offense. So

Andrews controls, and under its holding, Craft’s proffered subsequent, non-retroactive

changes in the law are not extraordinary and compelling reasons for a sentence reduction.

See United States v. King,

(7th Cir. 2022) (“Concepcion is irrelevant to

the threshold question whether any given prisoner has established an ‘extraordinary and

compelling’ reason for release.”).

Apart from his attack on Andrews, Craft contends that the District Court should

have considered this Court’s current interpretations of the Guidelines in evaluating his motion for compassionate release. But the cases that Craft cites for that proposition –

United States v. Knight,

(3d Cir. 2001) and United States v. Syme,

(3d Cir. 2002) – involved direct appellate review of a judgment of conviction, not

compassionate release motions. See Knight,

; Syme,

.

3 Thus, those cases are not in tension with Andrews’s holding that subsequent, non-

retroactive changes in the law are not extraordinary and compelling reasons.

Accordingly, revised judicial interpretations of the Guidelines do not satisfy the

extraordinary and compelling requirement for granting a compassionate release motion.

Craft’s briefing also alludes to other grievances related to the denial of his motion

for compassionate release. Through a separate order, this Court already addressed the

District Court’s denial of his motion to appoint counsel. See United States v. Craft,

, at *2 n.2 (3d Cir. Feb. 6, 2023) (“We also discern no abuse of

discretion in the District Court’s decision to deny Craft’s motion for the appointment of

counsel.”). Any remaining legal arguments have not been adequately preserved in

District Court, see Garza v. Citigroup Inc.,

(3d Cir. 2018), or were not raised in his opening appellate brief, see Kost v. Kozakiewicz,

(3d Cir.

1993).

***

For the foregoing reasons, in denying Craft’s motion for compassionate release,

the District Court did not abuse its discretion by applying an incorrect legal standard or

otherwise, see Andrews,

, and its order will be affirmed.

4