United States v. David Dupree

• Court: Court of Appeals for the Third Circuit
• Decided: September 26, 2022
• Docket: 22-2318
• Status: Unpublished

Opinion

DLD-236 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2318

___________

UNITED STATES OF AMERICA

v.

DAVID DUPREE, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-08-cr-00170-002) District Judge: Honorable Yvette Kane ____________________________________

Submitted on the Appellee’s Motion for Summary Affirmance Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 September 8, 2022

Before: CHAGARES, Chief Judge, KRAUSE, and MATEY, Circuit Judges

(Opinion filed: September 26, 2022) _________

OPINION* _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. David Dupree, a 45-year-old inmate currently serving a sentence at FCI Otisville,

appeals pro se from the District Court’s order denying his motion for compassionate

release filed pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The Government has filed a

motion for summary affirmance. For the reasons that follow, we grant the Government’s

motion and will summarily affirm.

In 2009, Dupree was convicted of armed bank robbery, see 18 U.S.C. § 2113, use

of a firearm during a crime of violence, see 18 U.S.C. § 924(c), and conspiracy to commit

armed bank robbery, see 18 U.S.C. § 371. He was sentenced as a career offender to 332

months of imprisonment. We affirmed his conviction and sentence on direct appeal, see

United States v. Dupree, 472 F. App’x 108, 110 (3d Cir. 2012), and later affirmed the

denial of his prior motion for compassionate release, see United States v. Dupree, 852 F.

App’x 656 (3d Cir. 2021).

In March 2022, Dupree filed a second motion for compassionate release. He

argued that he had presented extraordinary and compelling circumstances warranting his

release, namely his having contracted COVID-19 and suffering from various other

medical issues. The District Court denied the motion, explaining that it had denied

Dupree’s previous motion because even if he had presented extraordinary and compelling

reasons, the sentencing factors in 18 U.S.C. § 3553(a) counseled against release, and that

Dupree had not “persuaded the Court to alter its view.” Dist. Ct. Order 3, ECF No. 409.

Dupree timely appealed and filed an opening brief. The Government has moved for

summary affirmance of the District Court’s order.

2 We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

order denying the motion for compassionate release for an abuse of discretion and will

not disturb that decision unless the District Court committed a clear error of judgment.

See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). We may summarily

affirm a district court’s order if the appeal fails to present a substantial question. See

Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4

and I.O.P. 10.6.

The compassionate-release provision states that a district court “may reduce the

term of imprisonment” and “impose a term of probation or supervised release” if it finds

that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §

3582(c)(1)(A)(i). Before granting compassionate release, a district court must consider

“the factors set forth in section 3553(a) to the extent that they are applicable.” §

3582(c)(1)(A). Those factors include, among other things, “the nature and circumstances

of the offense and the history and characteristics of the defendant,” § 3553(a)(1), and the

need for the sentence “to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense”; “to afford adequate deterrence to

criminal conduct”; and “to protect the public from further crimes of the defendant,”

§ 3553(a)(2)(A)-(C).

In assessing Dupree’s prior motion for compassionate release, the District Court

found that he had not made a showing of extraordinary and compelling circumstances

warranting release related to the threat of COVID-19, and that, even if he had, the

§ 3553(a) factors counseled against release. See ECF No. 384 at 3. We affirmed that

3 decision in full, noting in particular that the circumstances of his offense included his

pointing a gun at numerous people during a bank robbery, and that the sentence he is

serving was calculated below the guidelines and in accordance with the other § 3553(a)

factors. See Dupree, 852 F. App’x at 658 (citing, inter alia, United States v. Ruffin, 978

F.3d 1000, 1008 (6th Cir. 2020) (noting that sentence reduction was not warranted where,

among other factors, “the court had already varied downward by five years from Ruffin’s

guidelines range when imposing [a] lengthy sentence”)).

Because there has been no relevant, intervening change since his first motion, the

District Court did not abuse its discretion in denying this second motion. Dupree did

contract COVID-19 in January 2022 but, as the District Court explained, the prior denial

ultimately was based on an assessment of the § 3553(a) factors, not the lack of

extraordinary and compelling circumstances. Dist. Ct. Order 3, ECF No. 409 (“Dupree is

a career offender who received a below-guidelines sentence calculated to address the risk

he poses to the public.”). Dupree has not presented any argument to prompt “a definite

and firm conviction” that the District Court clearly erred in weighing the § 3553(a)

factors. Pawlowski, 967 F.3d at 330 (citation omitted).

Accordingly, Dupree’s appeal does not present a substantial question, and we will

summarily affirm the District Court’s order.