FILED
`United States Court of Appeals
`Tenth Circuit
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`April 29, 2021
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`Christopher M. Wolpert
`Clerk of Court
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`UNITED STATES COURT OF APPEALS
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`FOR THE TENTH CIRCUIT
`_________________________________
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`UNITED STATES OF AMERICA,
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` Plaintiff - Appellee,
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`v.
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`STEPHEN PLATO MCRAE,
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` Defendant - Appellant.
`_________________________________
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`
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`
`
`No. 20-4077
`(D.C. No. 2:16-CR-00566-TS-1)
`(D. Utah)
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`ORDER AND JUDGMENT*
`_________________________________
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`Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.**
`_________________________________
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`Defendant-Appellant Stephen McRae, proceeding pro se,1 appeals the district
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`court’s denial of his motion for compassionate release. See 18 U.S.C.
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`§ 3582(c)(1)(A). Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the
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`district court’s order and remand for further proceedings consistent with this order.
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`* This order and judgment is not binding precedent, except under the doctrines
`of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
`its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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`** After examining the briefs and appellate record, this panel has determined
`unanimously that oral argument would not materially assist in the determination of
`this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). So we deny McRae’s
`motion to set the case for oral argument.
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` Because McRae appears pro se, we liberally construe his pleadings but will
`not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
`2009).
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` 1
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`In September 2016, McRae traveled to an energy facility in Kane County,
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`Utah, and fired several rifle shots into the facility’s cooling fins. The shots ruptured
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`the radiator piping, causing the facility’s substation to overheat and fail. As a result,
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`most of Kane and Garfield Counties lost power for eight hours. It cost the facility’s
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`owner over $350,000 to repair the damage.2 The FBI later identified McRae as the
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`shooter, and in May 2019 he pleaded guilty to one count of destruction of an energy
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`facility, see 18 U.S.C. § 1366(a). The district court sentenced McRae to 96-months’
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`imprisonment and a 36-month term of supervised release.
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`In May 2020, with about 53 months of his sentence remaining, McRae filed a
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`motion seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A). Before 2018,
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`§ 3582(c)(1)(A) authorized only the Director of the Bureau of Prisons (BOP) to move
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`for a reduction of a defendant’s sentence. United States v. McGee, 992 F.3d 1035,
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`1037, 1050 (10th Cir. 2021). But that changed when Congress passed The First Step
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`Act of 2018, Pub. L. 115-391, 132 Stat. 5194, which conditionally allows prisoners to
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`file their own motions for sentence reductions. Id. Under the statute as modified by
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`the First Step Act, a court may reduce a defendant’s sentence “after considering the
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`factors set forth in section 3553(a) . . . if it finds that . . . extraordinary and
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`compelling reasons warrant such a reduction” and that “such a reduction is consistent
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`2 McRae claims that he acted under a “deathly [fear] of global warming” and
`wanted to “express opposition” to the burning of fossil fuels. Appellant’s Opening
`Br. Continuation Pages at 9–10.
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`2
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`with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
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`§ 3582(c)(1)(A) (emphasis added). The policy statement at issue here provides:
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`Upon motion of the Director of the Bureau of Prisons under 18 U.S.C.
`§ 3582(c)(1)(A), the court may reduce a term of imprisonment . . . if,
`after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent
`that they are applicable, the court determines that—
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`(1)(A) Extraordinary and compelling reasons warrant the reduction; or
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`(B) The defendant (i) is at least 70 years old; and (ii) has served at least
`30 years in prison pursuant to a sentence imposed under 18 U.S.C.
`§ 3559(c) for the offense or offenses for which the defendant is
`imprisoned;
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`(2) 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); and
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`(3) The reduction is consistent with this policy statement.
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`USSG § 1B1.13 (2018).
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`Citing his increased health risks if he contracted COVID-19, McRae asked the
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`district court to convert the remainder of his sentence to home confinement. The
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`district court agreed with the government that McRae’s “health conditions, in
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`combination with the COVID-19 pandemic provide[d] extraordinary and compelling
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`reasons for release.” R. vol. 3 at 301. But, relying on section (2) of the policy
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`statement, the court nonetheless denied the motion after concluding that McRae still
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`“pose[d] a substantial danger to the public.” Id.
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`But in two recent decisions, our Court has concluded that the policy statement
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`is not “applicable” to compassionate-release motions filed by prisoners under
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`§ 3582(c)(1)(A). McGee, 992 F.3d at 1050 (joining the Second, Fourth, Sixth, and
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`3
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`Seventh Circuits in concluding that “the Sentencing Commission’s existing policy
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`statement is applicable only to motions for sentence reductions filed by the Director
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`of the BOP, and not to motions filed directly by defendants” (collecting cases));
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`United States v. Maumau, 993 F.3d 821 (10th Cir. 2021) (same). Thus, when a
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`prisoner, not the BOP Director, files a compassionate-release motion, this policy
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`statement doesn’t apply.3 McGee, 992 F.3d at 1050. Here, McRae, not the BOP
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`Director, brought the compassionate-release motion. So, as it has turned out, the
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`district court erred by applying the policy statement.
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`We thus vacate the district court’s order and remand for proceedings consistent
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`with McGee, Maumau, and this order.4 Further, though we grant McRae’s motion to
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`proceed in forma pauperis, see DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
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`3 In considering compassionate-release motions, courts should continue to
`weigh the danger a defendant may pose to the public. But in assessing motions
`brought by prisoners under 18 U.S.C. § 3582(c)(1)(A)(i), courts should conduct the
`dangerousness inquiry under the § 3553(a) factors. See 18 U.S.C. § 3553(a)(2)(C)
`(requiring courts to consider the need “to protect the public from further crimes of
`the defendant”).
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` 4
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` In his Reply Brief, McRae represents that he contracted COVID-19 soon
`after filing this appeal. Given that McRae moved for compassionate release based on
`his risk of contracting COVID-19, we recognize that the changed circumstances will
`likely require McRae to amend his motion or file a renewed application for relief. See
`United States v. Roney, 833 F. App’x 850, 855 (2d Cir. 2020) (noting that “the denial
`of a motion of this kind generally will not preclude a renewed application based on
`changed circumstances”); United States v. Carr, No. 20-1152, 2021 WL 1400705, at
`*5 (10th Cir. Apr. 14, 2021) (remanding so the district court could assess the
`defendant’s compassionate-release motion in light of McGee and Maumau). We leave
`it to the district court’s discretion to decide how best to proceed.
`4
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`Cir. 1991), we deny as moot his motion to appoint counsel and his motion seeking a
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`temporary restraining order.
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`Entered for the Court
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`Gregory A. Phillips
`Circuit Judge
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`5
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