United States v. Cumins

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 19, 2021
• Docket: 20-7039
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 19, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 20-7039 v. (D.C. No. 6:19-CR-00017-RAW-2) (E.D. Okla.) SHARA TYESHA CUMINS,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________

This case grew out of the COVID-19 pandemic. The pandemic has

endangered all Americans, but the danger is heightened for Americans with

certain respiratory ailments. These dangers have led

• prison officials to place some prisoners on home confinement under the newly enacted CARES Act, Pub. L. No. 116–136, 134 Stat. 281 (2020) and

* Because oral argument would not materially aid our consideration of the appeal, we have decided the appeal based on the briefs and record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). • courts to grant early release to some prisoners under the First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194. Invoking both statutes, Ms. Shara Tyesha Cumins asked the district

court to order home confinement or to require release based on her time

served. The district court denied both requests and declined to reconsider

these rulings. Ms. Cumins appeals. (We assume, for the sake of argument,

that Ms. Cumins is appealing both the denial of relief and the denial of

reconsideration.) We affirm.

The district court declined to order home confinement, reasoning that

only the Bureau of Prisons can put an inmate in home confinement. The

court was right. Home confinement amounts to a designation of the home

as the place of imprisonment. Like other placement decisions, this one is

reserved to the Bureau of Prisons’ Director. CARES Act, Pub. L. 116–136,

134 Stat. 281, § 12003(b)(2); see United States v. Alam, 960 F.3d 831, 836

(6th Cir. 2020) (stating that the CARES Act provides authority for the

Bureau of Prisons to identify prisoners suited for home confinement).

Ms. Cumins also asked the district court to order early release. The

government concedes that the court could order early release upon a

finding of extraordinary and compelling reasons. 18 U.S.C.

§ 3582(c)(1)(A)(i). The district court concluded that Ms. Cumins’s reasons

for early release were not extraordinary and compelling, and we review

2 that conclusion under the abuse-of-discretion standard. United States v.

Mannie, 971 F.3d 1145, 1147–48 (10th Cir. 2020).

In declining to order early release, the court acknowledged that it

could order early release for prisoners with a serious medical condition

diminishing the ability to provide self-care. U.S. Sent’g Guidelines Manual

§ 1B1.13 cmt. 1(A)(ii)(I) (U.S. Sent’g Comm’n 2018).

In district court, Ms. Cumins alleged a serious medical condition

consisting of hypertension and asthma. 1 The district court concluded that

Ms. Cumins’s hypertension had resolved, and she does not question this

conclusion. She instead relies on a diagnosis of asthma, which the Bureau

of Prisons confirmed roughly two weeks before she moved for early

release. The parties disagree, however, on the severity of her asthma.

The government acknowledged that the risk from COVID–19 is

particularly severe for people suffering from moderate or severe asthma.

But the government pointed out in district court that Ms. Cumins had not

proven that her asthma was moderate or severe.

1 Ms. Cumins also argues that the court failed to consider that her children’s caregiver is sick, her husband is incarcerated, and she is a first- time offender. But the court recognized that it could order early release upon incapacitation of the caregiver of a prisoner’s children. U.S. Sent’g Guidelines Manual § 1B1.13 cmt. 1(C)(i) (U.S. Sent’g Comm’n 2018). And the court noted Ms. Cumins’s criminal history and her responsibility for her children. But the court reasoned that it had already considered these factors when imposing the sentence.

3 On appeal, Ms. Cumins argues that she has obtained evidence that

her asthma is severe. But the district court couldn’t abuse its discretion by

failing to consider documents that had not been presented to it.

Nor could we consider those documents because they haven’t been

presented to us. We are not a court of first resort; our role is only to decide

whether the district court abused its discretion in denying relief. We can

consider only those documents in the record on appeal, and that record is

limited to the docket sheet, the documents filed in district court, and

transcriptions of the proceedings in district court. Fed. R. App. P. 10(a);

see Anthony v. United States, 667 F.2d 870, 875 (10th Cir. 1981) (stating

that we are confined to the record on appeal and powerless to build a new

record).

The district court not only questioned the severity of Ms. Cumins’s

asthma but also reasoned that the statutory sentencing factors would not

support early release. The court pointed out that it had varied downward at

the initial sentencing, and Ms. Cumins does not question this part of the

district court’s reasoning.

In our view, the district court acted within its discretion. It was up to

the Bureau of Prisons to decide whether Ms. Cumins was a suitable

candidate for home confinement. The court appropriately considered the

possibility of early release. These considerations included Ms. Cumins’s

risk factors for COVID–19, but she presented no allegations or evidence

4 establishing that her asthma was moderate or severe. And the district court

reasoned that the statutory sentencing factors would weigh against early

release. This reasoning fell within the realm of discretion afforded to the

district court. So we affirm the denial of Ms. Cumins’s motion and the

denial of reconsideration.

Entered for the Court

Robert E. Bacharach Circuit Judge