UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7297

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMAL DONTAE BURNELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:17-cr-00132-LRL-1)

Submitted: February 18, 2021 Decided: February 23, 2021

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Jamal Dontae Burnell, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jamal Dontae Burnell appeals the district court’s order denying his motion for

compassionate release under

(c)(1)(A), as amended by the First Step Act

of 2018 (“First Step Act”),

(b)(1),

, 5239. We

vacate the court’s order and remand for further proceedings.

Motions for compassionate release may be filed by the Director of the Bureau of

Prisons (BOP) and, after the passage of the First Step Act, by “the defendant after the

defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] 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.”

(c)(1)(A); see United States v. McCoy,

(4th Cir. 2020). “[A]

court may reduce a defendant’s sentence if the court finds that extraordinary and

compelling reasons warrant such a reduction and that the reduction is consistent with

applicable policy statements issued by the Sentencing Commission, and if the [18 U.S.C.]

§ 3553(a) sentencing factors merit a reduction.” McCoy,

(alterations and

internal quotation marks omitted).

The district court determined that Burnell could bring a motion on his own behalf

because the warden of his facility had failed to respond to his request for compassionate

release within 30 days. The court, however, concluded that Burnell had failed to identify

extraordinary and compelling reasons for granting his motion. In so ruling, the court stated

that it was bound by the Sentencing Commission’s definition of extraordinary and

2 compelling reasons outlined in U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.1, p.s.,

which do not cover the circumstances described in Burnell’s motion.

We have recently held, however, that USSG § 1B1.13, p.s., is not an applicable

policy statement in the context of a motion for compassionate release filed by an inmate

and, thus, does not circumscribe the category of extraordinary and compelling reasons a

district court may consider in granting an inmate’s motion for compassionate release.

McCoy,

. In fact, “the Commission has yet to issue a policy statement

that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A).”

Id. at 275. District courts, therefore, may “consider any extraordinary and compelling

reason for release that a defendant might raise.” Id. at 284 (internal quotation marks

omitted).

Because the district court did not have the benefit of McCoy when it denied

Burnell’s motion for compassionate release, we vacate the court’s order and remand for

further consideration. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

VACATED AND REMANDED

3