United States v. Okechuku ( 2021 )

Case: 20-10710 Document: 00516105276 Page: 1 Date Filed: 11/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2021
No. 20-10710
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Theodore E. Okechuku,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-481-1
Before Davis, Jones and Elrod, Circuit Judges.
Per Curiam:*
Theodore E. Okechuku, federal prisoner # 59813-060, is serving a
300-month sentence for conspiring to unlawfully distribute hydrocodone
outside the scope of professional practice and without a legitimate medical
purpose as part of an alleged pill mill and two counts of using, carrying, and
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10710 Document: 00516105276 Page: 2 Date Filed: 11/23/2021
No. 20-10710
brandishing a firearm during and in relation to a drug-trafficking crime and
conspiring to do the same. He appeals the district court’s denials of his
motions for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and
for reconsideration. Our review is for abuse of discretion. See United States
v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020); United States v. Rabhan,
540 F.3d 344, 346 (5th Cir. 2008). 1
With the exception of Okechuku’s argument that he is at an increased
risk of COVID-19 because of his health issues, his remaining claims of
extraordinary and compelling reasons for compassionate release rely on new
facts and arguments that were not before the district court and therefore will
not be considered by this court. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999); Theriot v. Parish of Jefferson, 185 F.3d 477,
491 n.26 (5th Cir. 1999). We also will not consider the Government’s
assertion that Okechuku has been vaccinated as that fact was not before the
district court. Nor do we consider Okechuku’s argument, raised for the first
time on appeal, that compassionate release was warranted because other
similarly situated defendants have received lesser sentences. See Leverette,
183 F.3d at 342; Theriot, 185 F.3d at 491 n.26.
After the district court denied Okechuku’s motions, we concluded
that a district court addressing a prisoner’s own § 3582(c)(1)(A) motion is
not bound by the U.S.S.G. § 1B1.13 policy statement or its commentary. See
United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021). Rather, the
1
We do not address whether Okechuku satisfied § 3582(c)(1)(A)’s exhaustion
requirement with respect to all of his claims as the requirement is a non-jurisdictional
claims processing rule, and this case can be resolved on the merits. See United States v.
Franco, 973 F.3d 465, 467-68 (5th Cir.), cert. denied, 141 S. Ct. 920 (2020). We nevertheless
note that because Okechuku fails to address the district court’s finding that his claim of
exposure to COVID-19 was unexhausted, any challenge to that finding has been abandoned.
See United States v. Cothran, 302 F.3d 279, 286 n.7 (5th Cir. 2002).
2
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No. 20-10710
district court is “bound only by § 3582(c)(1)(A)(i) and . . . the sentencing
factors in [18 U.S.C.] § 3553(a).” Id.
Here, the district court did not abuse its discretion by referencing the
§ 1B1.13 policy statement or its commentary because it also based its decision
that release was not warranted on the § 3553(a) factors, and we can affirm on
that basis. See Chambliss, 948 F.3d at 693. Moreover, while Okechuku
disagrees with the district court’s weighing of the § 3553(a) factors, such
disagreement does not suffice to show error. See id. at 694. Accordingly, the
district court’s denials of Okechuku’s motions for compassionate release and
reconsideration are AFFIRMED. His motion for the appointment of
counsel is DENIED.
3