United States v. Markwann Gordon

CLD-185 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1311
___________
UNITED STATES OF AMERICA
v.
MARKWANN LEMEL GORDON,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2:99-cr-00348-002)
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
June 30, 2022
Before: AMBRO, SHWARTZ and BIBAS, Circuit Judges
(Opinion filed: July 8, 2022)
____________________________________
___________
OPINION*
___________
PER CURIAM
In December 1999, following a jury trial in the United States District Court for the
Eastern District of Pennsylvania, Markwann Lemel Gordon was convicted of seven
counts each of: conspiracy to commit bank robbery, see 18 U.S.C. § 371; armed bank rob-
bery, see id. § 2113(d); and using and carrying a firearm during and in relation to a crime
of violence, see id. § 924(c). The District Court sentenced Gordon to 1500 months in
prison for the seven armed robberies, followed by 188 months’ imprisonment on the re-
maining counts. We affirmed. United States v. Gordon, 290 F.3d 539 (3d Cir. 2002).
In January 2021, while he was incarcerated at FCI-Coleman in Florida, Gordon
filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).1 Gordon ar-
gued that the following factors constituted “extraordinary and compelling reasons” war-
ranting a reduction in his sentence: changes in the § 924(c) sentencing scheme since the
time of his sentencing; the draconian length of his sentence; his young age when he com-
mitted the crimes; the disparity between his sentence and those of his co-conspirators; the
steps he has taken toward rehabilitation; and the risk of serious illness posed by COVID-
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
It is undisputed that Gordon 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 Dis-
trict Court. See 18 U.S.C. § 3582(c)(1)(A).
2
19. The District Court rejected his arguments and denied relief.2 Gordon appealed. The
Government now moves for summary affirmance.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s rul-
ing on a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) for an abuse
of discretion. See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020).
We grant the motion and will summarily affirm the District Court’s judgment be-
cause “no substantial question is presented” by the appeal.3 3d Cir. L.A.R. 27.4. First,
although Gordon correctly notes that he would have received a lesser sentence had he
been sentenced today, we have made clear that “Congress’s nonretroactive sentencing re-
ductions [to § 924(c)] are not extraordinary and compelling reasons for purposes of
§ 3582(c)(1)(A).” United States v. Andrews, 12 F.4th 255, 262 (3d Cir. 2021). This rea-
soning also undermines Gordon’s argument that the duration of his sentence alone is a
basis for his release. See id. Next, the District Court correctly concluded that Gordon’s
rehabilitative efforts, while laudable, likewise did not meet the § 3582 criteria. See 28
U.S.C. § 994(t) (providing that “rehabilitation . . . alone shall not be considered an ex-
traordinary and compelling reason” for a sentence reduction). Finally, we see no clear er-
ror of judgment in the District Court’s determinations that Gordon’s age when he com-
mitted the crimes, the disparity between his sentence and those of his co-conspirators
2
Because the District Court concluded that Gordon 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
We also grant the Government’s request for leave to file its motion for summary affir-
mance out of time.
3
(who pleaded guilty), and his concerns regarding COVID-19 did not amount to “extraor-
dinary and compelling reasons” under § 3582(c)(1)(A)(i). We have considered Gordon’s
objections to the District Court’s exercise of its discretion and conclude that they are mer-
itless.
Accordingly, we grant the Government’s motion and will summarily affirm the Dis-
trict Court’s judgment. The Government’s motion to be relieved from filing a brief is
granted.
4