USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-6718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE FOX,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Chief District Judge. (7:16-cr-00059-MFU-1)
Submitted: March 29, 2024 Decided: April 23, 2024
Before WYNN and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion. Judge Richardson dissents.
David Lee Fox, Appellant Pro Se. S. Cagle Juhan, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 2 of 5
PER CURIAM:
David Lee Fox appeals the district court’s order denying his 18 U.S.C.
§ 3582(c)(1)(A) motion for compassionate release. The district court denied Fox’s motion,
finding that he failed to demonstrate extraordinary and compelling reasons for a sentence
reduction. We vacate the district court’s order and remand for further proceedings.
When deciding whether to reduce a defendant’s sentence based on “extraordinary
and compelling” circumstances under § 3582(c)(1)(A)(i), a district court generally
proceeds in three steps. United States v. High, 997 F.3d 181, 185-86 (4th Cir. 2021). First,
the district court decides whether “extraordinary and compelling” circumstances support a
sentence reduction. 18 U.S.C. § 3582(c)(1)(A)(i). Second, the district court considers
whether granting a sentence reduction is “consistent with applicable policy statements
issued by the [United States] Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).
Because the Sentencing Commission’s policy statement applicable to defendant-filed
motions for compassionate release had not been enacted when Fox filed his compassionate
release motion, the district court was “empowered to consider any extraordinary and
compelling reason for release that a defendant might raise.” United States v. McCoy, 981
F.3d 271, 284 (4th Cir. 2020) (cleaned up). Third, the district court considers whether the
18 U.S.C. § 3553(a) factors, “to the extent that they are applicable,” favor a sentence
reduction. 18 U.S.C. § 3582(c)(1)(A).
We review a district court’s denial of a compassionate release motion for abuse of
discretion. United States v. Malone, 57 F.4th 167, 172 (4th Cir. 2023). “[A] district court
abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially
2 USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 3 of 5
recognized factors constraining its exercise of discretion, relies on erroneous factual or
legal premises, or commits an error of law.” United States v. Hargrove, 30 F.4th 189, 195
(4th Cir. 2022) (internal quotation marks omitted).
A district court is not required to explicitly address each one of a movant’s
arguments in support of compassionate release. High, 997 F.3d at 187-88. Still, the district
court must “set forth enough to satisfy our court that it has considered the parties’
arguments and has a reasoned basis for exercising its own legal decision making authority,
so as to allow for meaningful appellate review.” Id. at 190 (cleaned up); see Chavez-Meza
v. United States, 585 U.S. 109, 116 (2018) (“Just how much of an explanation [is]
require[d] . . . depends . . . upon the circumstances of the particular case.”).
In his motion, Fox stated that he contracted COVID-19 in June 2020. Because Fox
had shortness of breath, a persistent cough, and a fever, among other symptoms, the Bureau
of Prisons (BOP) transferred him to an outside hospital, where he stayed for five days. In
April and May of 2021, Fox received two doses of the COVID-19 vaccine. However, Fox
argued that vaccination might not be sufficient to protect him because he had several health
issues, vaccine effectiveness waned over time, and newer COVID-19 variants might resist
the vaccine.
The Government opposed Fox’s motion, arguing that his vaccination status meant
that he could not demonstrate extraordinary and compelling reasons for relief. The
Government also asserted that Fox was not entitled to relief considering the § 3553(a)
factors.
3 USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 4 of 5
In his reply brief, Fox argued that his two vaccine doses did not entirely immunize
him from the risk of serious harm from COVID-19. Fox also stated that—following his
compassionate release motion but before the district court decided the motion—the BOP
transferred him, for a second time, to an outside hospital. Fox’s medical records confirm
that he remained at the hospital between December 29, 2021, and January 3, 2022, where
doctors diagnosed Fox with pneumonia due to COVID-19. On January 11, 2022, after Fox
returned to his BOP facility, he again tested positive for COVID-19.
The district court acknowledged that Fox suffered from medical conditions that
increased his risk of serious harm from COVID-19 and noted that Fox had been diagnosed
with COVID-19 in June 2020. The court determined, however, that Fox could no longer
demonstrate a particularized susceptibility to COVID-19, or that he faced a risk of serious
illness from COVID-19, because he had received two doses of the vaccine following his
June 2020 illness. The court also found that Fox had recovered from a confirmed case of
COVID-19 and that, at the time of the court’s order, Fox’s facility reported only two active
COVID-19 cases. The court did not consider whether Fox was entitled to relief considering
the § 3553(a) factors.
On appeal, Fox contends that the district court abused its discretion by applying a
categorical rule that compassionate release based on COVID-19 is not warranted for
inmates who have received two doses of the vaccine. The extraordinary and compelling
reasons “inquiry is multifaceted and must take into account the totality of the relevant
circumstances.” Hargrove, 30 F.4th at 198. A district court does not abuse its discretion
when it relies on a defendant’s vaccination status “as a relevant factor” in its decision to
4 USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 5 of 5
deny relief, rather than the only factor. United States v. Bethea, 54 F.4th 826, 832 (4th Cir.
2022); see id. at 833 (concluding that “[n]o fair reading of the record support[ed
defendant’s] argument that the district court viewed vaccinations as a per se bar to
§ 3582(c)(1)(A) relief”).
Free access — add to your briefcase to read the full text and ask questions with AI
USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-6718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE FOX,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Chief District Judge. (7:16-cr-00059-MFU-1)
Submitted: March 29, 2024 Decided: April 23, 2024
Before WYNN and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion. Judge Richardson dissents.
David Lee Fox, Appellant Pro Se. S. Cagle Juhan, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 2 of 5
PER CURIAM:
David Lee Fox appeals the district court’s order denying his 18 U.S.C.
§ 3582(c)(1)(A) motion for compassionate release. The district court denied Fox’s motion,
finding that he failed to demonstrate extraordinary and compelling reasons for a sentence
reduction. We vacate the district court’s order and remand for further proceedings.
When deciding whether to reduce a defendant’s sentence based on “extraordinary
and compelling” circumstances under § 3582(c)(1)(A)(i), a district court generally
proceeds in three steps. United States v. High, 997 F.3d 181, 185-86 (4th Cir. 2021). First,
the district court decides whether “extraordinary and compelling” circumstances support a
sentence reduction. 18 U.S.C. § 3582(c)(1)(A)(i). Second, the district court considers
whether granting a sentence reduction is “consistent with applicable policy statements
issued by the [United States] Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).
Because the Sentencing Commission’s policy statement applicable to defendant-filed
motions for compassionate release had not been enacted when Fox filed his compassionate
release motion, the district court was “empowered to consider any extraordinary and
compelling reason for release that a defendant might raise.” United States v. McCoy, 981
F.3d 271, 284 (4th Cir. 2020) (cleaned up). Third, the district court considers whether the
18 U.S.C. § 3553(a) factors, “to the extent that they are applicable,” favor a sentence
reduction. 18 U.S.C. § 3582(c)(1)(A).
We review a district court’s denial of a compassionate release motion for abuse of
discretion. United States v. Malone, 57 F.4th 167, 172 (4th Cir. 2023). “[A] district court
abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially
2 USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 3 of 5
recognized factors constraining its exercise of discretion, relies on erroneous factual or
legal premises, or commits an error of law.” United States v. Hargrove, 30 F.4th 189, 195
(4th Cir. 2022) (internal quotation marks omitted).
A district court is not required to explicitly address each one of a movant’s
arguments in support of compassionate release. High, 997 F.3d at 187-88. Still, the district
court must “set forth enough to satisfy our court that it has considered the parties’
arguments and has a reasoned basis for exercising its own legal decision making authority,
so as to allow for meaningful appellate review.” Id. at 190 (cleaned up); see Chavez-Meza
v. United States, 585 U.S. 109, 116 (2018) (“Just how much of an explanation [is]
require[d] . . . depends . . . upon the circumstances of the particular case.”).
In his motion, Fox stated that he contracted COVID-19 in June 2020. Because Fox
had shortness of breath, a persistent cough, and a fever, among other symptoms, the Bureau
of Prisons (BOP) transferred him to an outside hospital, where he stayed for five days. In
April and May of 2021, Fox received two doses of the COVID-19 vaccine. However, Fox
argued that vaccination might not be sufficient to protect him because he had several health
issues, vaccine effectiveness waned over time, and newer COVID-19 variants might resist
the vaccine.
The Government opposed Fox’s motion, arguing that his vaccination status meant
that he could not demonstrate extraordinary and compelling reasons for relief. The
Government also asserted that Fox was not entitled to relief considering the § 3553(a)
factors.
3 USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 4 of 5
In his reply brief, Fox argued that his two vaccine doses did not entirely immunize
him from the risk of serious harm from COVID-19. Fox also stated that—following his
compassionate release motion but before the district court decided the motion—the BOP
transferred him, for a second time, to an outside hospital. Fox’s medical records confirm
that he remained at the hospital between December 29, 2021, and January 3, 2022, where
doctors diagnosed Fox with pneumonia due to COVID-19. On January 11, 2022, after Fox
returned to his BOP facility, he again tested positive for COVID-19.
The district court acknowledged that Fox suffered from medical conditions that
increased his risk of serious harm from COVID-19 and noted that Fox had been diagnosed
with COVID-19 in June 2020. The court determined, however, that Fox could no longer
demonstrate a particularized susceptibility to COVID-19, or that he faced a risk of serious
illness from COVID-19, because he had received two doses of the vaccine following his
June 2020 illness. The court also found that Fox had recovered from a confirmed case of
COVID-19 and that, at the time of the court’s order, Fox’s facility reported only two active
COVID-19 cases. The court did not consider whether Fox was entitled to relief considering
the § 3553(a) factors.
On appeal, Fox contends that the district court abused its discretion by applying a
categorical rule that compassionate release based on COVID-19 is not warranted for
inmates who have received two doses of the vaccine. The extraordinary and compelling
reasons “inquiry is multifaceted and must take into account the totality of the relevant
circumstances.” Hargrove, 30 F.4th at 198. A district court does not abuse its discretion
when it relies on a defendant’s vaccination status “as a relevant factor” in its decision to
4 USCA4 Appeal: 22-6718 Doc: 9 Filed: 04/23/2024 Pg: 5 of 5
deny relief, rather than the only factor. United States v. Bethea, 54 F.4th 826, 832 (4th Cir.
2022); see id. at 833 (concluding that “[n]o fair reading of the record support[ed
defendant’s] argument that the district court viewed vaccinations as a per se bar to
§ 3582(c)(1)(A) relief”).
We conclude that the district court abused its discretion in denying Fox’s
compassionate release motion. The court appeared to rely almost exclusively on Fox’s
vaccination status in determining that he failed to demonstrate extraordinary and
compelling reasons for relief. However, Fox had argued that he faced a serious risk of
harm from COVID-19, despite having received two doses of the vaccine. Also,
significantly, Fox supported this argument by demonstrating that he was hospitalized a
second time—following both doses of the vaccine—for reasons related to COVID-19
illness. The court did not indicate whether it had considered Fox’s second hospitalization
or explain why Fox was not entitled to relief despite his postvaccination health issues. We
are therefore unable to determine whether the district court adequately considered Fox’s
arguments.
Accordingly, we vacate the district court’s order and remand for further
proceedings. We express no opinion as to the merits of Fox’s compassionate release
motion. We dispense with oral argument because the facts and legal contentions are
adequately presented the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED