STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 71). For the following reasons, it is recommended that the motion be denied.

BACKGROUND

On December 18, 2013, Defendant pleaded guilty to one count each of possession of a firearm by a convicted felon and possession with intent to distribute cocaine base. Change of Plea, ECF No. 27; Superseding Information 1-2, ECF No. 26. Before sentencing, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (ECF No. 34). Based on Defendant's status as a career offender, USPO calculated a Guidelines sentencing range of 120 months on the firearms charge and 151 to 188 months on the cocaine charge. PSR ¶ 74, ECF No. 34. On March 25, 2014, the Court sentenced Defendant to 169 months' imprisonment on the cocaine charge and 120 months concurrent on the firearms charge followed by three years of supervised release on each count to run concurrently. Judgment 2-3, ECF No. 39. The Court ordered the sentence to run consecutively to a state sentence Defendant was serving. Id. at 2.

On April 17, 2015, Defendant moved to vacate his sentence, and on July 25, 2016, he moved to reduce his sentence pursuant to amendment 782 to the Guidelines (ECF Nos. 44, 48). The Court denied both his motion to reduce sentence on December 6, 2016, and his motion to vacate on July 27, 2017 (ECF Nos. 51, 56). Defendant filed a second motion to vacate on April 30, 2018, but the Court dismissed that motion as an impermissible second or successive petition. R. & R. 2, May 1, 2018, ECF No. 62; Order, May 29, 2018, ECF No. 63 (adopting recommendation). On May 14, 2019, Defendant moved to reduce his sentence under the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018), and 18 U.S.C. § 3582(c)(1)(B) (ECF No. 65). The Court denied that motion on July 2, 2019 (ECF No. 70).

The Court received Defendant's pro se motion for compassionate release on December 28, 2021 (ECF No. 71). Defendant contends he should be granted compassionate release based on 1) errors by the Federal Bureau of Prisons (“BOP”) in calculating his good time credits; 2) his entitlement to a sentence reduction under the First Step Act of 2018, 3) double jeopardy, 4) improper use of prior convictions for career offender enhancement, and 5) an improper search and seizure. Mot. for Compassionate Release 1-4, ECF No. 71. The Government responded to Defendant's motion on February 17, 2022 (ECF No. 74). His motion is ripe for review.

DISCUSSION

A district court “‘may not modify a term of imprisonment once it has been imposed except' under certain circumstances.” United States v. Harris, 989 F.3d 908, 909 (11th Cir. 2021) (quoting 18 U.S.C. § 3582(c)). One circumstance is the compassionate release exception provided in 18 U.S.C. § 3582(c)(1)(A). Id. at 909-10. Under that section, a prisoner may obtain compassionate release if, “after considering the factors set forth in [18 U.S.C. § 3553(a)], ” the district court finds that “extraordinary and compelling reasons warrant such reduction . . . and that such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). The Sentencing Commission's policy statement for compassionate release is found at U.S.S.G. § 1B1.13. Under the policy statement, a defendant must show that he “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). Further, a defendant must show that “extraordinary and compelling reasons warrant the reduction.” U.S.S.G. § 1B1.13(1)(A). A defendant bears the burden of proving entitlement to compassionate release. See United States v. Mantack, 833 Fed.Appx. 819, 819-20 (11th Cir. 2021) (per curiam) (citing United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014)).

Defendant fails to show extraordinary and compelling reasons warranting compassionate release. The Sentencing Commission policy statement provides four circumstances that constitute extraordinary and compelling reasons for a sentence reduction. U.S.S.G. § 1B1.13 cmt. n.1. The first is a qualifying medical condition. U.S.S.G. § 1B1.13 cmt. n.1(A). A medical condition qualifies if “[t]he defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). A defendant need not show a “probability of death within a specific time period, ” and “[e]xamples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.” Id. In the alternative, a defendant's medical condition qualifies if he or she is:

(I) suffering from a serious physical or medical condition, (II) suffering from a serious functional or cognitive impairment, or (III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

The second and third circumstances qualifying as extraordinary and compelling reasons are the defendant's age and family circumstances. U.S.S.G. § 1B1.13 cmt. n.1(B), (C). Here, Defendant is neither over the age of sixty-five, nor does he rely on family circumstances, so these circumstances are also inapplicable to him.

The fourth circumstance is “other reasons, ” which is where “[a]s determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13 cmt. n.1(D). “‘[O]ther reasons' are limited to those determined by the [BOP], not by courts.” United States v. Lee, 857 Fed.Appx. 556, 558 (11th Cir. 2021) (per curiam) (citing United States v. Bryant, 996 F.3d 1243, 1246-49 (11th Cir. 2021)). Therefore, a district court lacks the authority to determine if a defendant's circumstances qualify as an “other reason” under U.S.S.G. § 1B1.13 cmt. n.1(D). Bryant, 996 F.3d at 1247-48, 1263. There is no evidence that the BOP has determined that Defendant presents an extraordinary and compelling reason for compassionate release. Thus, the fourth circumstance does not apply to Defendant either.

In summary, Defendant fails to satisfy any of the four circumstances for compassionate release. Further, his motion lacks merit for other reasons. Regarding the BOP's calculation of good time credits, such claims challenge the execution, rather than the validity of the sentence, and must be brought as a habeas petition under 28 U.S.C. § 2241 in the district court for the district in which the inmate is incarcerated. See United States v. Kinsey, 393 Fed.Appx. 663, 664 (11th Cir. 2010) (per curiam) (noting that § 2241 “is the appropriate means by which an inmate may challenge the [BOP's] calculation and execution of his sentence” (citing Bishop v. Reno, 210 F.3d 1295, 1304 n.14 (11th Cir.2000))); United States v. Spaulding, Nos. 6:12-cr-17, 6:13-cr-1, 6:15-cv-107, 2020 WL 907873, at *1 (S.D. Ga. Feb. 25, 2020) (“Spaulding must bring her claim for sentencing credits pursuant to 28 U.S.C. § 2241, and she must file such a petition in the district of her confinement ....”). As Defendant is housed at FCI Bennettsville, this would be the United States District Court for South Carolina, Florence Division. 28 U.S.C. § 121(3).

As for Defendant's argument for release based on the First Step Act of 2018, the Court has already considered and denied a sentence reduction on that ground. Order, July 2, 2019.

Finally, Defendant's remaining grounds relating to double jeopardy, improper use of prior convictions for enhancement, and improper search and seizure are challenges to his conviction and sentence that should have been raised in a timely appeal or motion to vacate. They are not the proper subject for a motion for compassionate release. See United States v. Burke, No. 21-10346, 2021 WL 6102098, at *2 (11th Cir. 2021) (per curiam) (“18 U.S.C. § 3582(c) is not a proper basis for addressing collateral attacks on a conviction or sentence[.]”).

CONCLUSION

For the foregoing reasons, it is recommended that Defendant's motion for compassionate release (ECF No. 71) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof.

The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”

SO RECOMMENDED.