United States v. Troy Holmes ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1772
___________
UNITED STATES OF AMERICA
v.
TROY HOLMES,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-08-cr-00495-001)
District Judge: Honorable Harvey Bartle III
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 7, 2022
Before: KRAUSE, MATEY and PHIPPS, Circuit Judges
(Opinion filed: August 25, 2022)
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OPINION *
_________
PER CURIAM
Troy Holmes appeals pro se from the District Court’s order denying his motion
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The Government has
filed a motion for summary affirmance. For the following reasons, we grant the
Government’s motion and will summarily affirm the District Court’s judgment.
I.
In 2008, a jury sitting in the United States District Court for the Eastern District of
Pennsylvania found Holmes guilty of conspiracy, carjacking, and using a firearm in
furtherance of a crime of violence. See 18 U.S.C. §§ 371, 2119, and 924(c)(1). At
sentencing, the District Court determined that Holmes qualified as a “career offender”
under § 4B1.1(c) of the Sentencing Guidelines because he had committed at least two
prior crimes of violence. The District Court sentenced him to 300 months’
imprisonment, followed by five years of supervised release. Holmes later moved to
vacate his sentence pursuant to 28 U.S.C. § 2255, but the District Court denied relief.
In May 2020, Holmes filed a pro se motion for compassionate release under 18
U.S.C. § 3582(c)(1)(A)(i), asserting that, due to numerous underlying health conditions,
he was at risk of serious complications or death should he contract COVID-19. The
District Court denied relief, and we affirmed. United States v. Holmes, 839 F. App’x
681, 682 (3d Cir. 2021) (per curiam) (not precedential).
Holmes filed a second pro se motion for compassionate release in March 2022,
which he later amended. 1 He again asserted that he faced increased risks with respect to
1
It is undisputed that Holmes complied with § 3582(c)(1)(A)’s thirty-day lapse provision
by filing a request for compassionate release with his warden before turning to the
2
COVID-19. He also raised several challenges to his convictions and sentences and
argued that various alleged errors qualified as “extraordinary and compelling” reasons
warranting compassionate release. Specifically, he claimed that recent district court
caselaw makes clear that his New Jersey conviction for aggravated assault does not
constitute a “crime of violence” under the Career Offender Guideline, and that his
sentence under § 924(c) violates Alleyne v. United States, 570 U.S. 99 (2013), because a
jury did not find that he had “brandished” a firearm during the carjacking. The District
Court rejected these arguments and concluded that Holmes had not demonstrated
“extraordinary and compelling reasons” justifying a sentence reduction under 18 U.S.C.
§ 3582(c)(1)(A)(i). 2
Holmes appealed. The Government now moves for summary affirmance. See 3d
Cir. L.A.R. 27.4.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
ruling on a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) for
abuse of discretion. See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020).
We agree with the Government that “no substantial question is presented” by
District Court. See 18 U.S.C. § 3582(c)(1)(A).
2
Because the District Court concluded that Holmes did not demonstrate “extraordinary
and compelling reasons” justifying his release, it did not consider the factors set forth in
18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A).
3
this appeal. 3d Cir. L.A.R. 27.4. First, the District Court did not abuse its discretion in
determining that Holmes’s concerns regarding COVID-19 did not amount to
“extraordinary and compelling reasons” under § 3582(c)(1)(A)(i), as he did not present
any evidence that his health had worsened since the time of his initial motion, and he is
now fully vaccinated. See United States v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021)
(“[T]o the extent prisons do offer some unique challenges, the vaccine now significantly
reduces the risks associated with COVID-19”).
Second, to the extent that Holmes argues that he is entitled to compassionate
release because of alleged sentencing errors, he essentially presents another challenge to
the validity of his sentences, and such challenges are typically brought under 28 U.S.C.
§ 2255 instead. See Calderon v. Thompson, 523 U.S. 538, 553 (1998) (holding that a
prisoner may not circumvent AEDPA’s restrictions by labeling a second or successive
application for habeas relief something else); Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002) (stating that motions to vacate “pursuant to 28 U.S.C. § 2255 are the
presumptive means by which federal prisoners can challenge their convictions or
sentences”); see also United States v. Fine, 982 F.3d 1117, 1118–19 (8th Cir. 2020)
(rejecting a similar challenge as inappropriately brought under § 3582). Moreover,
Holmes’s argument that he would receive a lesser sentence today in light of Alleyne does
not provide an “extraordinary and compelling reason” for compassionate release. 3 Cf.
3
We cannot consider Holmes’s argument based on Rosemond v. United States, 572 U.S.
65 (2014), because he did not present it to the District Court. See Jenkins v.
4
United States v. Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021) (holding that the
nonretroactive changes to § 924(c) are not “extraordinary and compelling” reasons for
purposes of § 3582(c)(1)(A)).
Accordingly, we grant the Government’s motion and will summarily affirm the
District Court’s judgment. 4
Superintendent of Laurel Highlands, 705 F.3d 80, 88 n.12 (3d Cir. 2013).
4
The Government’s request for leave to file its motion for summary affirmance out of
time is denied as unnecessary.
5