United States of America v. Bruce K. Stewart, also known as, BRUSHON ALI STEWART, also known as, WAALI ZAKIE…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 22-2770
UNITED STATES OF AMERICA
v.
BRUCE K. STEWART, also known as, BRUSHON ALI
STEWART, also known as, WAALI ZAKIE BRUTON,
also known as, L. B.,
Appellant
Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal Action No. 1-02-cr-00062-001)
District Judge: Honorable Maryellen Noreika
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 27, 2023
Before: KRAUSE, ROTH and AMBRO, Circuit Judges

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(Opinion Filed: November 14, 2023)
Mary K. Healy
Eleni Kousoulis
Office of Federal Public Defender
800 King Street
Suite 200
Wilmington, DE 19801
Counsel for Appellant
Alexander P. Ibrahim
Jesse S. Wenger
Office of United States Attorney
1313 N. Market Street
Hercules Building, Suite 400
Wilmington, DE 19801
Counsel for Appellee

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OPINION OF THE COURT
AMBRO, Circuit Judge
Bruce Stewart appeals the District Court’s denial of his
motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i). For the reasons that follow, we affirm.
Under 18 U.S.C. § 3582(c)(1)(A), commonly referred
to as the “compassionate release” provision, district courts may
reduce a term of imprisonment when warranted by
“extraordinary and compelling reasons.” Id. If a court finds
those reasons exist, it then turns to the sentencing factors in 18
U.S.C. § 3553(a) to determine whether compassionate release
is appropriate. See § 3582(c)(1)(A)(i).
Section 3582 does not define “extraordinary and
compelling,” so courts may consult the Sentencing
Commission’s policy statements—which are non-binding in
the context of prisoner-initiated motions—“to form a working
definition” of the phrase. United States v. Andrews, 12 F.4th
255, 260 (3d Cir. 2021). But in Andrews we held that neither
the length of a lawfully imposed sentence nor any
nonretroactive change to mandatory minimum sentences
establishes “extraordinary and compelling” circumstances
warranting release. Id. at 261-62. We also explained that those
proposed reasons, while immaterial to the extraordinary-and-
compelling threshold inquiry, may be relevant “at the next step
of the analysis,” when the court weighs the § 3553(a) factors.
Id. at 262.

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Stewart is serving a life sentence for drug trafficking,
racketeering, and attempted money laundering. In January
2022, he moved for compassionate release. In support of that
motion, he argued that (1) his record of rehabilitation, (2) the
risks posed by the COVID-19 pandemic, and (3) his status as a
survivor of an attempted prison rape all qualify as
extraordinary and compelling reasons warranting a sentence
reduction. The District Court disagreed. It thus declined to
analyze whether Stewart’s release would be consistent with the
§ 3553(a) factors. See Andrews, 12 F.4th at 262.
Stewart challenges the District Court’s determination
as, among other things, failing to consider whether the
Supreme Court’s decision in Concepcion v. United States, 142
S. Ct. 2389 (2022), abrogated our opinion in Andrews.
Concepcion concerned motions brought under § 404(b)
of the First Step Act of 2018. See Pub. L. 115-391, § 404(b),
132 Stat. 5222. That provision is a different vehicle for
defendants to request a sentence reduction; it governs
resentencing of imprisoned individuals who have been
convicted of certain offenses involving crack cocaine. 142 S.
Ct. at 2396-97. In Concepcion, the Supreme Court addressed
the type of evidence a court may consider after finding a
defendant is eligible for relief under § 404(b), a threshold that
is met if the defendant committed a “covered offense.” Id. at
2397, 2401.

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If a defendant clears that threshold for eligibility, a court
at resentencing may “consider intervening changes of law or
fact in exercising [its] discretion to reduce a sentence.” Id. at
2404. The Supreme Court emphasized district courts’
historical exercise of “broad discretion to consider all relevant
information at an initial sentencing” or sentence-modification
hearing. Id. at 2398-99. With this background, we turn to
Stewart’s appeal.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291. A grant
of compassionate release is a purely discretionary decision.
See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir.
2020). We therefore review the District Court’s decision to
deny Stewart’s motion for abuse of discretion. Id. Under that
standard, we will not disturb the Court’s determination unless
we are left with “a definite and firm conviction that [it]
committed a clear error of judgment in the conclusion it
reached.” Id. (alteration in original) (internal quotation marks
omitted) (quoting Oddi v. Ford Motor Co., 234 F.3d 136, 146
(3d Cir. 2000)).
We first address Stewart’s argument that the Supreme
Court’s decision in Concepcion abrogated our holding in
Andrews. Stewart is not the first appellant to raise that
argument in our Court. See, e.g., United States v. Craft, No.
22-2708, 2023 WL 3717545 (3d Cir. May 30, 2023); United
States v. Williams, No. 22-3219, 2023 WL 3496340 (3d Cir.
May 17, 2023); United States v. Badini, No. 22-2476, 2023
WL 110529 (3d Cir. Jan 5, 2023); United States v. Barndt, No.
22-2548, 2022 WL 17261784 (3d Cir. Nov. 29, 2022); United
States v. Hall, No. 22-2152, 2022 WL 4115500 (3d Cir. Sept.
9, 2022); United States v. Bledsoe, No. 22-2022, 2022

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WL 3536493 (3d Cir. Aug. 18, 2022). As we have never
written precedentially on the continued validity of Andrews,
we do so here.
Stewart argues that Concepcion requires us to abandon
Andrews and hold that district courts may exercise broad
discretion at any time during sentence modification
proceedings. He claims the limitations Andrews imposed on
courts’ discretion—namely, that the length of a lawfully
imposed sentence and non-retroactive sentencing reductions
are not “extraordinary and compelling” reasons warranting
relief under § 3582(c)(1)(A)(i)—conflict with Concepcion’s
broad grant of discretion to “consider any relevant materials at
an initial sentencing or in modifying that sentence.” Reply Br.
8-9 (emphasis in original) (quoting Concepcion, 142 S. Ct. at
2400). Because Concepcion permits courts to consider
intervening changes of law or fact in exercising their discretion
to reduce a sentence under § 404(b), Stewart appears to believe
that it likewise permits the District Court in this case to
consider “the disparity between his life sentence and the
sentences that similarly situated defendants received
previously and receive today.” Appellant Opening Br. 21.
Stewart’s reliance on the Supreme Court’s reasoning in
Concepcion is misplaced because the issue here is whether he,
like the defendant in Andrews, is eligible for a sentence
reduction under § 3582(c)(1)(A). As the Government
observes, the defendant’s eligibility for § 404(b) relief was not
even at issue in Concepcion because the Government had
conceded it. Government Br. 18; see 142 S. Ct. at 2397. The
opinion instead dealt with the type of evidence a district court
may consider after it finds a defendant qualifies for a sentence
reduction under § 404(b). Id. at 2401. It does not bear on—

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indeed, Concepcion says nothing about—the “threshold
question” of whether “any given prisoner has established an
‘extraordinary and compelling’ reason for release” under
§ 3582(c)(1)(A)(i). United States v. King, 40 F.4th 594, 596
(7th Cir. 2022).
So Concepcion did not, as Stewart suggests, permit
district courts to exercise broad discretion at any time during
sentence modification proceedings; that is only after a
defendant clears the threshold eligibility hurdle.1 As the
Government observes, Concepcion cited § 3582(c)(1)(A) as an
example where Congress “expressly cabined district courts’
discretion by requiring [them] to abide by the Sentencing
Commission’s policy statements.” 142 S. Ct. at 2401. Absent
changes in the applicable policy statements, our holding in
Andrews remains undisturbed—and with it the limits imposed
on courts’ discretion when determining whether extraordinary
and compelling reasons warrant relief.2
1 Indeed, our approach to compassionate release motions runs
a similar course as that laid out in Concepcion concerning First
Step Act motions. Once a defendant successfully shows
“extraordinary and compelling circumstances,” then the
district court may consider intervening changes in the law as
part of the sentence-reduction inquiry. See Andrews, 12 F.4th
at 262.
2 We acknowledge the Commission’s proposed amendments to
the Sentencing Guidelines that took effect on November 1,
2023 and expanded the list of “extraordinary and compelling
reasons” that may warrant sentence reductions under
§ 3582(c)(1)(A), including for some individuals with
“unusually long sentences.” See U.S. Sentencing Comm’n,
Guidelines Manual, §1B1.13(b)(6) (Nov. 1, 2023). We may

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That leads us to the second issue: whether the District
Court erred in concluding that Stewart’s justifications for
release did not qualify as extraordinary and compelling.
Though we commend Stewart’s rehabilitation efforts,3 the
District Court is correct that rehabilitation cannot “by itself”
serve as an extraordinary and compelling reason for his release.
See USSG §1B1.13(d); 28 U.S.C. § 994(t). Likewise, we have
no quibble with the Court’s finding that Stewart’s “increased
risk of getting very sick from COVID-19 appears at most to be
minimally increased over that of others.” App. 14; see
Andrews, 12 F.4th at 262. Our decision in United States v. Raia
makes clear that “the mere existence of COVID-19 in society .
. . cannot independently justify compassionate release[.]” 954
F.3d 594, 597 (3d Cir. 2020). It does not foreclose a possible
claim of onerous conditions in the midst of a rampant
pandemic, but such a claim is unlikely to succeed in the current
state of milder infections and fewer hospitalizations and
deaths.
consider their effect on the validity of Andrews in an
appropriate case. But we decline to do so today.
3 We note that the District Court’s initial speculation about
Stewart’s violent criminal history only served to introduce his
outstanding personal growth during incarceration. See App. 11
(“The Court does not point this out to retread old ground, but
to show that some of the changes described in Mr. Stewart’s
motion are quite noteworthy.”). Though we may at times
discourage this type of speculation, we think it plain that the
District Court was not analyzing Stewart’s request for relief
with a “jaundiced eye.” United States v. Mateo-Medina, 845
F.3d 546, 554 (3d Cir. 2017) (internal citation omitted).

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Finally, the Court did not abuse its discretion by
refusing to credit as extraordinary and compelling Stewart’s
status as a survivor of an attempted prison rape. It took
seriously Stewart’s allegation that he recently was the victim
of an attempted rape, as do we. But it also observed that he
“raised this charge” for the first time in his compassionate
release motion, even though “there is a large and sophisticated
regime already in place to handle allegations of prisoner rape.”
App. 13. Because he did not pursue available remedies, and
thus the Bureau of Prisons had no opportunity to investigate,
Stewart had no evidence “to substantiate [his] claims.” Id. The
District Court acted within its discretion in holding that a mere
allegation of prison rape, without more, is not an extraordinary
and compelling reason for early release. See USSG
§1B1.13(b)(4) (“[T]he misconduct must be established by a
conviction in a criminal case, a finding or admission of liability
in a civil case, or a finding in an administrative proceeding,
unless such proceedings are unduly delayed or the defendant is
in imminent danger.”).
* * * * *
Because the District Court acted within its discretion in
rejecting Stewart’s reasons for compassionate release, we
affirm.

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