United States v. Omar Folk

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2924
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UNITED STATES OF AMERICA
v.
OMAR SIERRE FOLK,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 1-11-cr-00292-001)
District Judge: Honorable John E. Jones, III
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 16, 2021
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Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.
(Opinion Filed: January 6, 2022)
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OPINION*
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GREENAWAY, JR., Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Omar Folk seeks review of the District Court’s denial of his application for
compassionate release,1 pursuant to 18 U.S.C. § 3582(c)(1)(A).2 For the reasons set forth
below, we will affirm.
A. Background
A jury found Folk guilty of distribution and possession with intent to distribute
280 grams or more of cocaine base, use of a firearm in furtherance of drug trafficking,
and being a felon in possession of a firearm. Folk received a sentence of 264 months’
1
In his brief before us, Folk mentions numerous issues, such as a challenge to his
career offender status and the First Step Act. All of those issues are unrelated to the
application for compassionate release. As such, none of them will be addressed in this
opinion.
2
Section 3582(c)(1)(A) provides in relevant part that
The court may not modify a term of imprisonment once it has been
imposed except that--
(1) in any case--
(A) the court, . . . upon motion of the defendant after the
defendant has fully exhausted all administrative rights to appeal a
failure of the Bureau of Prisons to bring a motion on the defendant’s
behalf or the lapse of 30 days from the receipt of such a request by
the warden of the defendant’s facility, whichever is earlier, may
reduce the term of imprisonment (and may impose a term of
probation or supervised release with or without conditions that does
not exceed the unserved portion of the original term of
imprisonment), after considering the factors set forth in section
3553(a) to the extent that they are applicable, if it finds that--
(i) extraordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A).
2
imprisonment in 2013. This Court affirmed his judgment of conviction.
On May 14, 2020, Folk’s counsel wrote to the warden of FCI Allenwood, where
Folk was incarcerated, requesting compassionate release based on Folk’s serious health
conditions, including prior gall bladder surgery, chronic liver disease, issues with his
kidneys, and prior surgery on his knee and Achilles tendon. The warden denied this
request on June 1, 2020.
Folk then moved for compassionate release in the District Court,3 asserting that
Folk’s medical history constituted extraordinary and compelling circumstances justifying
his request. The motion noted Folk’s hypertension, irritable bowel syndrome, allergic
rhinitis, intermittent periods of diarrhea, major depressive disorder, anxiety disorder,
reflux esophagitis, chronic inflammation of his small intestine, obesity, chronic duodenal
ulcers, and ongoing pain from arthroscopic surgery on his knee as bases for relief.
Additionally, the motion noted that these underlying medical conditions placed Folk at an
increased risk of contracting COVID-19, thus establishing an extraordinary and
compelling reason warranting his release.
The government opposed this motion, noting that while Folk’s hypertension may
place him at higher risk of harm from COVID-19, there was only one active case of
3
Before the District Court, Folk argued that administrative exhaustion would be
futile, although the government noted Folk had satisfied the procedural prerequisites for
judicial review. The District Court did not comment on this question and neither party
has raised it before us. We therefore will assume Folk has satisfied the exhaustion
requirement of § 3582(c)(1)(A).
3
COVID-19 among the inmates at FCI Allenwood. The government also observed that
Folk had not identified where he would reside if released, thus presenting the possibility
that he would be residing in a community with a higher risk of exposure to COVID-19
than the risk he faced in FCI Allenwood. The government further argued that Folk
continued to present a danger to the community, as evidenced by his criminal history,
repeated parole violations, failed rehabilitation efforts, and confrontation with hospital
staff during his incarceration.
Finding that Folk’s health condition failed to present an extraordinary and
compelling reason for compassionate release, the District Court denied Folk’s motion.
The District Court noted that “only his current diagnosis of hypertension is a condition
that the CDC has identified as one that might elevate the risk of serious illness or death
were [Folk] to contract COVID-19.” App. 13. However, based on “the extensive
medical records supplied by the Government [it appears] that Folk is being treated by his
institution for his condition, although he is not always compliant with taking his
medications.” Id. In addition, the District Court stated that Folk had recently lost weight
so that “his current BMI is no longer reflective of obesity.” Id. In addition to evaluating
Folk’s medical conditions, the District Court examined the conditions at Folk’s place of
incarceration, observing that as of the date of the District Court’s decision, there were
“zero active inmate cases of COVID-19 at FCI-Allenwood Medium,” although three staff
members had COVID-19. Id.
4
Based on this information, the District Court concluded that it had “no objective
basis to find that Folk is at imminent risk of being exposed to or contracting COVID-19
at his facility.” Id. The District Court also found that Folk presented a continuing danger
to the community and that application of the factors set forth in 18 U.S.C. § 3553(a)
supported the decision to deny compassionate release.
Folk filed a notice of appeal, which, on its face, appeared to be untimely. This
Court remanded “to the District Court for the limited purpose of determining whether
excusable neglect or good cause exist[ed] to extend the time to file a notice of appeal”
pursuant to Fed. R. App. P. 4(b)(4). Order dated April 2, 2021 (Docket Entry 7). The
District Court found good cause existed to extend the time for filing the notice of appeal.
B. Analysis4
On appeal, Folk challenges the District Court’s decision that he is a danger to the
community, the District Court’s application of the § 3553(a) factors, and the District
Court’s consideration of U.S.S.G. § 1B1.13. In addition, Folk asserts that his underlying
medical problems, including hypertension and obesity, place him at greater risk of
contracting COVID-19.5
4
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “We . . . review a district court’s decision to
deny a compassionate-release motion for abuse of discretion.” United States v. Andrews,
12 F.4th 255, 259 (3d Cir. 2021).
5
As the District Court noted, Folk has lost weight and is no longer obese, as per
his BMI.
5
The District Court did not abuse its discretion here. As the District Court noted,
the Centers for Disease Control and Prevention (“CDC”) have identified hypertension as
“possibly . . . mak[ing] you more likely to get severely ill from COVID-19.” People with
Certain Medical Conditions | CDC, www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions, last visited Nov. 1, 2021 at 5:17 pm.6
Since the District Court found no extraordinary or compelling circumstances, there
was no need to address the § 3553(a) factors. United States v. Pawlowski, 967 F.3d 327,
329 (3d Cir. 2020) (noting that § 3582(c)(1)(A) requires a district court to first determine
if extraordinary and compelling reasons warrant a reduction in sentence and then consider
the § 3553 factors). We therefore need not address Folks’s arguments concerning him
continuing to be a danger to the community, the District Court’s application of the
§ 3553(a) factors, and the District Court’s consideration of U.S.S.G. § 1B1.13.
C. Conclusion
For the foregoing reasons, we will affirm the District Court’s order denying
compassionate release.
6
In addition, at the time of the District Court’s decision in August 2020, there
were no inmate cases of COVID-19 at Allenwood Medium. As the District Court stated,
there is no imminent risk of Folk contracting COVID-19 at his facility.
6