United States v. Chehab

Case: 20-10855 Document: 00516093746 Page: 1 Date Filed: 11/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 15, 2021
No. 20-10855
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Emir Adel Chehab,
Defendant—Appellant.
Appeal from the United States District Court for
the Northern District of Texas
USDC No. 4:18-cr-298-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Emir Adel Chebab filed a motion for compassionate release from
prison. The district court denied the motion. Finding no abuse of discretion,
we affirm.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-10855
I.
Emir Adel Chehab is serving a four-year prison sentence for
conspiring to commit money laundering. On July 9, 2020, he filed a motion
arguing that the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
(2018), entitles him to compassionate release. See United States v. Franco, 973
F.3d 465, 467 (5th Cir. 2020) (explaining that the First Step Act amended 18
U.S.C. § 3582(c)(1)(A) to allow inmates to move for compassionate release
after exhausting administrative remedies). He argued that his advanced age
and unspecified medical conditions in combination with the threat posed by
the Covid-19 pandemic justified compassionate release.
The district court denied Chehab’s motion on August 11, 2020. First,
it noted that Chehab offered no proof that he exhausted his administrative
remedies, as required by 18 U.S.C. § 3582(c)(1)(A). Second, it found that
Chehab had not shown the “extraordinary and compelling reasons,” 18
U.S.C. § 3582(c)(1)(A)(i), that are required to warrant compassionate
release. Specifically, Chehab did not present evidence of any specific medical
condition beyond his advanced age, and his advanced age coupled with
general concerns about Covid-19 were insufficient to constitute
“extraordinary and compelling reasons” for compassionate release. Chehab
timely appealed the district court’s motion on August 17, 2020. † In our court,
†
Chehab also filed a second motion for compassionate release in the district court
on September 8, 2020. In this motion, Chehab identified his specific medical conditions—
four herniated disks and high blood pressure—and claimed that he had exhausted
administrative remedies. The district court construed this filing as a motion for
reconsideration of its denial of Chehab’s first compassionate release motion. The district
court denied the motion on October 1, 2020. Chehab did not appeal from this denial. See
Smith v. Barry, 502 U.S. 244, 248 (1992) (holding that “courts should construe [Federal]
Rule [of Appellate Procedure] 3 liberally when determining whether” a prisoner has
properly noticed an appeal, but also emphasizing that “noncompliance is fatal to an
appeal”). So we need not consider whether that denial constituted an abuse of discretion.
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Chehab filed a motion for compassionate release and a motion to appoint
counsel. He also filed motions asking to file a supplemental brief and exhibit.
II.
We review the district court’s denial of Chehab’s compassionate
release motion for abuse of discretion. United States v. Chambliss, 948 F.3d
691, 693 (5th Cir. 2020). “[A] court abuses its discretion if it bases its
decision on an error of law or a clearly erroneous assessment of the
evidence.” Id. (internal quotation marks omitted). “The courts that granted
compassionate release . . . largely have done so for defendants who had
already served the lion’s share of their sentences and presented multiple,
severe, health concerns.” United States v. Thompson, 984 F.3d 431, 434–45
(5th Cir. 2021).
Chehab’s motion presented no specific health concerns beyond
Covid-19 and advanced age, and he had served approximately half his
sentence when the district court denied his motion. A district court does not
abuse its discretion by denying a compassionate release motion under such
circumstances. See id. at 435 (upholding denial of compassionate release
motion based partly on “fear of COVID” where defendant had two well-
controlled chronic medical conditions and had completed less than half his
sentence).
Chehab also argues that the district court could have and should have
waived § 3582(c)(1)(A)’s exhaustion requirement. Cf. Valentine v. Collier,
956 F.3d 797, 807 (Higginson, J., concurring in the judgment) (“[S]everal
courts have concluded that this [exhaustion] requirement is not absolute and
that it can be waived by the government or by the court.”). We need not
consider this argument because, as just discussed, the district court was
within its discretion to find that Chehab did not present “extraordinary and
compelling reasons to warrant” compassionate release even if he had
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No. 20-10855
exhausted administrative remedies or the court or government waived the
exhaustion requirement.
Finally, Chehab filed four motions in our court, all of which we deny.
First, he asked us to order his compassionate release. We deny that motion
because the text of § 3582 requires that such motions be addressed by the
sentencing court. See also United States v. Glenewinkel, 831 F. App’x 158, 159
(5th Cir. 2020) (finding no authority that an appellate court may reduce a
federal prisoner’s sentence in the first instance under § 3582). Second,
Chehab moved to appoint counsel. We deny this motion because the interest
of justice does not require the appointment of counsel here. See United States
v. Okpalobi, 831 F. App’x 715, 716 (5th Cir. 2020). Third, Chehab moved to
file a supplemental brief. We deny this motion because Chehab’s proposed
brief merely invokes a handful of district court cases, most of which are from
outside this circuit and none of which change the applicable law or bind this
court. Fourth, Chehab moves to file a new exhibit. We deny this motion
because the proposed exhibit was not before the district court. See Kemlon
Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981) (“A court
of appeals will not ordinarily enlarge the record on appeal to include material
not before the district court.”).
* * *
The district court’s judgment is AFFIRMED. Chehab’s motions for
compassionate release, for appointment of counsel, to file a supplemental
brief, and to file a new exhibit are DENIED.
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