United States v. Kenneth Cherry, Jr.

BLD-053 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2780
___________
UNITED STATES OF AMERICA
v.
KENNETH EUGENE CHERRY, JR.,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-19-cr-00122-001)
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
December 15, 2022
Before: AMBRO, KRAUSE, and PORTER, Circuit Judges
(Opinion filed December 28, 2022)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Federal prisoner Kenneth Eugene Cherry, Jr., appeals pro se from the District
Court’s decision denying his third motion for compassionate release. The Government
has moved to summarily affirm. For the reasons that follow, we grant the Government’s
motion and will summarily affirm the District Court’s judgment.
I.
In May 2021, the District Court sentenced Cherry to 15 years in prison and three
years of supervised release for a host of firearm-related offenses.1 Five months later, he
filed his first compassionate-release motion, citing his medical conditions (including
asthma and epilepsy) and the COVID-19 pandemic. A district court may not grant
compassionate release unless it finds that (1) “extraordinary and compelling reasons”
warrant a sentence reduction, and (2) a balancing of the applicable 18 U.S.C. § 3553(a)
factors weighs in favor of a reduction. See 18 U.S.C. § 3582(c)(1)(A); United States v.
Pawlowski, 967 F.3d 327, 329 (3d Cir. 2020). 2 In November 2021, the District Court
denied Cherry’s motion, concluding that he had failed to meet either of these two
requirements. Regarding the § 3553(a) factors, the District Court highlighted the
“extreme seriousness” of Cherry’s offenses, noting that he had been convicted of multiple
counts involving firearms trafficking. (Dist. Ct. Mem. entered Nov. 10, 2021, at 7.) The
1
Cherry’s projected release date is in 2032.
2
The reduction also must be “consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).
2
District Court also pointed out that Cherry had served only a small portion of his
sentence, and it explained that “[r]eleasing him now would not appropriately reflect the
nature and circumstances of his offense, promote just punishment, or afford adequate
deterrence to criminal conduct.” (Id. at 7-8.)
Cherry did not appeal from that denial of compassionate release. Instead, in
February 2022, he filed a second compassionate-release motion. He once again relied on
his medical conditions and the pandemic, and he also pointed to his family
circumstances, such as the fact that his young son was born prematurely and suffers from
medical issues. In May 2022, the District Court denied the motion, concluding that
Cherry had again failed to meet the “extraordinary and compelling reasons” requirement
(the court did not discuss the § 3553(a) factors). Cherry appealed from that decision, but
the Clerk of this Court ultimately dismissed that appeal based on Cherry’s failure to file a
brief. See C.A. No. 22-2018.
In July 2022, Cherry filed a third compassionate-release motion, reiterating
arguments from his previous motions, highlighting additional medical issues, and
criticizing his medical care in prison. On September 14, 2022, the District Court denied
this motion, concluding that (1) Cherry had yet again failed to meet the “extraordinary
and compelling reasons” requirement, and (2) he did not establish that a rebalancing of
3
the § 3553(a) factors in his favor was warranted. Cherry now appeals from the District
Court’s September 14, 2022 decision.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
district court’s denial of compassionate release for abuse of discretion. See United States
v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021). Under this standard, “we will not disturb
the [district] court’s determination unless we are left with a definite and firm conviction
that [it] committed a clear error of judgment in the conclusion it reached.” Id. (second
alteration in original) (internal quotation marks omitted). We may summarily affirm a
district court’s decision if the appeal fails to present a substantial question. See 3d Cir.
I.O.P. 10.6.
Regardless of whether Cherry’s third compassionate-release motion could satisfy
the “extraordinary and compelling reasons” requirement, the District Court did not abuse
its discretion in denying that motion. As noted above, the District Court’s November
2021 decision denying Cherry’s first compassionate-release motion examined the
§ 3553(a) factors and concluded that a balancing of those factors did not weigh in his
favor. Although the November 2021 decision is not the subject of this appeal, the
District Court’s analysis there is relevant here, for the District Court, in denying the third
compassionate-release motion that Cherry filed in less than a year, concluded that he had
failed to show that a rebalancing of the § 3553(a) factors in his favor was warranted. We
find the District Court’s § 3553(a) analysis in its November 2021 decision persuasive,
and we cannot conclude that the District Court committed a clear error of judgment in
4
rejecting the argument that the § 3553(a) factors warranted a different result this time
around.
Because this appeal does not present a substantial question, we grant the
Government’s motion to summarily affirm, and we will summarily affirm the District
Court’s decision denying Cherry’s third compassionate-release motion.3
3
We also grant the Government’s request for leave to file its motion for summary
affirmance, as well as its request to be excused from filing a brief.
5