United States v. Thompson ( 2021 )

Case: 20-40381 Document: 00515695170 Page: 1 Date Filed: 01/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 5, 2021
No. 20-40381 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Chadwick Marvin Thompson,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
No. 6:13-CR-23-1
Before Jones, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Chadwick Thompson pleaded guilty of conspiracy to distribute and to
possess with intent to distribute methamphetamine. The district court de-
nied his request for compassionate release from prison on account of his
underlying health issues and the COVID-19 pandemic (“COVID”). We
affirm the denial.
I.
Thompson was indicted on fourteen counts arising from a drug traf-
ficking conspiracy. He reached an agreement with the government and
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No. 20-40381
pleaded guilty to Count One: conspiracy to distribute and to possess with
intent to distribute methamphetamine. Because that was Thompson’s third
felony conviction, the court deemed him a career offender and sentenced him
to 240 months’ imprisonment. He is an inmate at the Federal Correctional
Institution (“FCI”) in Texarkana, Texas, where he has served less than eight
of his twenty years.
Thompson is forty-three years old, suffers from hypertension and high
cholesterol, and had a stroke over ten years ago, from which he suffers no
lingering effects.1 On April 13, 2020, he submitted a request to FCI’s war-
den, seeking compassionate release based on his underlying health conditions
and the resulting heightened risk of severe symptoms from COVID. Al-
though the warden acknowledged Thompson’s “legitimate concerns and
fears about the spread and effects” of COVID, those concerns did not “war-
rant an early release from [his] sentence.” Accordingly, the warden denied
the request on May 5. On May 15, Thompson filed a motion for compas-
sionate release in the district court under 18 U.S.C. § 3582; the court denied
it about a week later. He appeals that denial.
II.
The general rule is that “court[s] may not modify a term of impris-
onment once it has been imposed . . . .” 18 U.S.C. § 3582(c). But that is
subject to a few exceptions. Relevant here, if “extraordinary and compelling
reasons” justify a reduction, courts appropriately may reduce the sentence
1
Thompson also asserts, for the first time on appeal, that he is obese. Although it
would not alter our view of the case, because he raises that fact for the first time on appeal,
we do not address it. Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An
appellate court may not consider new evidence furnished for the first time on appeal and
may not consider facts which were not before the district court at the time of the challenged
ruling.”).
2
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No. 20-40381
“after considering the factors set forth in section 3553(a) . . . .”
§ 3582(c)(1)(A), (c)(1)(A)(i). The district court did not find any “extraor-
dinary and compelling reasons” warranting compassionate release and there-
fore did not consider the § 3553(a) factors.2 We review that determination
for abuse of discretion.3
Although not dispositive, the commentary to the United States Sen-
tencing Guidelines (“U.S.S.G.”) § 1B1.13 informs our analysis as to what
reasons may be sufficiently “extraordinary and compelling” to merit com-
passionate release. Rivas, 2020 WL 6437288, at *2. The comments to the
U.S.S.G. provide four “extraordinary and compelling reasons” that may jus-
tify reducing a prison term: (1) medical conditions, (2) age, (3) family circum-
stances, and (4) “[o]ther [r]easons.” U.S.S.G. § 1B1.13 cmt. n.1(A)–(D)
(2018).4 As relevant here, the comments describe the circumstances in
which a “[m]edical [c]ondition” might be sufficiently serious to warrant
release. Id. § 1B1.13 cmt. n.1(A). That is limited to two circumstances: where
the defendant has either a terminal illness or a condition “that substantially
diminishes the ability of the defendant to provide self-care . . . .” Id.
2
The government contends that, even if Thompson’s health issues present “an
extraordinary or compelling reason for release,” the district court still properly denied
release, because “he remains a danger to the community.” But because we affirm the dis-
trict court’s disposition on the question precedent, we need not address that issue.
3
See, e.g., United States v. Rivas, No. 20-10360, 2020 WL 6437288, at *2 (5th Cir.
Nov. 2, 2020) (per curiam) (unpublished) (citing United States v. Hernandez, 645 F.3d 709,
712 (5th Cir. 2011) (per curiam)).
4
We recognize and opt not to weigh in on the split of authority as to whether this
catch-all provision delegates only to the Bureau of Prisons—and not the courts—the task
of identifying “other reasons” justifying early release. See United States v. Ruffin, 978 F.3d
1000, 1006–08 (6th Cir. 2020) (describing the circuit split). Even if courts properly can
invoke the catch-all provision, Thompson’s case does not present sufficiently compelling
“other reasons” for release, for the reasons explained below.
3
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No. 20-40381
Thompson does not assert that his ability to care for himself has
diminished, much less “substantially” so. Id. To the contrary, his hyper-
tension and high cholesterol are managed effectively by medication. More-
over, Thompson previously has reported that he suffers no lingering effects
from his 2009 stroke.
We acknowledge that Thompson’s chronic illnesses place him at a
higher risk of severe symptoms, should he contract COVID, is true for a
person without these illnesses.5 Nonetheless, as the district court noted, it is
uncertain that he is at a significantly higher risk than is the general inmate
population. In fact, nearly half of the adult population in the United States
suffers from hypertension.6 And roughly 12% of Americans suffer from high
cholesterol.7 Thus, we cannot say that either of those conditions makes
Thompson’s case “extraordinary.”8 Unfortunately, both are commonplace.
And we cannot conclude that his increased risk makes either “terminal.” See
5
See People with Certain Medical Conditions, CTRS. FOR DISEASE CONTROL AND
PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-
conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2
019-ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html (Dec. 1, 2020) (listing
underlying medical conditions that pose a higher risk of severe illness from COVID).
6
Dep’t of Health and Hum. Servs., Ctrs. for Disease Control
and Prevention, Nat’l Ctr. for Health Stats., NCHS Data Brief
No. 364, Hypertension Prevalence Among Adults Aged 18 and Over:
United States, 2017–2018, at 1 (Apr. 2020),
https://www.cdc.gov/nchs/data/databriefs/db364-h.pdf.
7
Dep’t of Health and Hum. Servs., Ctrs. for Disease Control
and Prevention, Nat’l Ctr. for Health Stats., NCHS Data Brief
No. 363, Total and High-Density Lipoprotein Cholesterol in
Adults: United States 2015–2018, at 1 (Apr. 2020),
https://www.cdc.gov/nchs/data/databriefs/db363-h.pdf.
8
See Extraordinary, Black’s Law Dictionary (11th ed. 2019) (“[b]eyond
what is usual, customary, regular, or common”).
4
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U.S.S.G. § 1B1.13 cmt. n.1(A)(i).
To the extent that courts may grant compassionate release for “other
reasons,” see supra note 4, we agree with the district court that none here is
sufficient. To be sure, courts around the country, in some exceptional cases,
have granted compassionate release where the defendant has demonstrated
an increased risk of serious illness if he or she were to contract COVID. E.g.,
United States v. Zukerman, 451 F. Supp. 3d 329, 336 (S.D.N.Y. 2020). Even
where they have denied release, some courts have assumed that the pan-
demic, combined with underlying conditions, might be an extraordinary and
compelling reason for compassionate release. E.g., United States v. Pawlow-
ski, 967 F.3d 327, 330 (3d Cir. 2020). But that is certainly not a unanimous
approach to every high-risk inmate with preexisting conditions seeking com-
passionate release.9
The courts that granted compassionate release on those bases largely
have done so for defendants who had already served the lion’s share of their
sentences and presented multiple, severe, health concerns.10 Even where the
9
See, e.g., United States v. Gipson, 829 F. App’x 780, 781 (9th Cir. 2020) (affirming
denial of compassionate release for a defendant with preexisting conditions who had
already contracted COVID); United States v. Lambert, 829 F. App’x 117, 117–18 (6th Cir.
2020) (affirming denial of compassionate release for hydrocephalus); United States v. Ray-
mer, No. 4:17-CR-153, 2020 WL 3451855, at *3–4 (E.D. Tex. June 23, 2020) (concluding
that a borderline-obese 43-year-old man, suffering from fatty liver disease, bronchitis, and
asthma, and who had contracted COVID, did not qualify for early release); United States v.
Martinez-Arias, No. 2:11-cr-00598, 2020 WL 5210938, at *3–4 (S.D. Tex. Sept. 1, 2020)
(finding no extraordinary circumstances for a 58-year-old inmate suffering from diabetes,
hypertension, and high cholesterol).
10
See, e.g., Zukerman, 451 F. Supp. 3d at 335–36 (approving home incarceration in
light of COVID for an obese 75-year-old man with diabetes and hypertension); United
States v. Rodriguez, 451 F. Supp. 3d 392, 394, 405, 407 (E.D. Pa. 2020) (reducing sentence
to time served, because of COVID, for an inmate who was 1½ years from release after serv-
ing 17 years and suffered from diabetes, hypertension, and liver abnormalities); United
States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325, at *2 (S.D. Tex. Mar. 30, 2020)
5
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court denied the motion on grounds other than the lack of “extraordinary and
compelling reasons,” the defendants’ medical conditions oftentimes were
more serious than are Thompson’s.11 Fear of COVID doesn’t automatically
entitle a prisoner to release. Thompson can point to no case in which a court,
on account of the pandemic, has granted compassionate release to an other-
wise healthy defendant with two, well-controlled, chronic medical conditions
and who had completed less than half of his sentence.
AFFIRMED.
(granting compassionate release for COVID for a defendant who had served over 80% of
his reduced sentence and suffered from end stage renal disease, diabetes, and
hypertension).
11
See, e.g., Ruffin, 978 F.3d at 1002, 1008 (describing a defendant’s health condi-
tions, which included a blood disorder, heart problems, high blood pressure, high choles-
terol, and blood clots, before determining that the district court did not abuse its discretion
in balancing the § 3553(a) factors); United States v. Jones, No. 20-3701, 2020 WL 6817488,
at *2 (6th Cir. Nov. 20, 2020) (affirming denial on § 3553(a) factors after district court
assumed that the defendant, who was over 40, obese, and had had tuberculosis, presented
an extraordinary and compelling reason for compassionate release); Pawlowski, 967 F.3d
at 328–29, 331 (affirming denial on § 3553(a) factors after the government conceded that
the defendant, who had heart disease, COPD, dyspnea, and only one lung, presented extra-
ordinary and compelling reasons for release in light of COVID); United States v. Spencer,
No. 20-3721, 2020 WL 5498932, at *1, *3 (6th Cir. Sept. 2, 2020) (unpublished) (affirming
a district court’s denial on § 3553(a) factors after assuming that the defendant, who was
obese and suffered from a heart condition, demonstrated extraordinary and compelling
circumstances).
6