United States v. Lukner Rene

• Court: Court of Appeals for the Third Circuit
• Decided: June 2, 2022
• Docket: 22-1642
• Status: Unpublished

Opinion

CLD-161 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1642 ___________

UNITED STATES OF AMERICA

v.

LUKNER RENE, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2:09-cr-00060-001) District Judge: Honorable Berle M. Schiller ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 26, 2022

Before: AMBRO, SHWARTZ and BIBAS, Circuit Judges

(Opinion filed June 2, 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. Appellant Lukner Rene, proceeding pro se, appeals the denial of his motion for

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

filed a motion for summary affirmance and to be excused from filing a brief. For the

reasons discussed below, we grant the Government’s motion and will summarily affirm

the District Court’s judgment.

I.

In 2009, Rene pleaded guilty to one count of conspiracy, six counts of Hobbs Act

robbery and aiding and abetting, see 18 U.S.C. §§ 2, 1951, and two counts of carrying

and using a firearm during and in relation to a crime of violence and aiding and abetting,

see 18 U.S.C. §§ 2, 924(c). He was sentenced to 240 months’ imprisonment, and his

minimum release date is in 2027. Rene unsuccessfully directly appealed. See United

States v. Rene, C.A. No. 11-2065 (3d Cir. Feb. 29, 2012) (granting motion to enforce

appellate waiver).

In January 2022, Rene filed a motion for compassionate release pursuant to 18

U.S.C. § 3582(c)(1)(A). The District Court denied Rene’s motion, concluding that he

failed to demonstrate extraordinary and compelling reasons justifying release. This

timely appeal followed.

II.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s

decision to deny a motion for compassionate release for abuse of discretion. See United

States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). Thus, “we will not disturb the

District Court’s decision unless there is a definite and firm conviction that it committed a

2 clear error of judgment in the conclusion it reached upon a weighing of the relevant

factors.” Id. (quotation marks, alteration, and citation omitted). We may take summary

action if the appeal presents no substantial question. 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.

III.

A district court “may reduce [a federal inmate’s] 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).1 Rene

argued that changes in sentencing law for § 924(c) offenses that would have reduced his

mandatory minimum sentence, the risk of serious illness from COVID-19, his young age

at the time of his offenses, and the need to avoid disparate sentences with his co-

conspirators constituted extraordinary and compelling reasons justifying release. The

District Court rejected each of these arguments and concluded that release was not

warranted. We discern no abuse of discretion in this decision.

With respect to his first argument, Rene was not sentenced to the mandatory

minimum term of imprisonment set forth in the previous version of § 924(c), as the

District Court granted the Government’s motion for a departure from the statutory

1 Before granting compassionate release, a district court must also consider the factors set forth in 18 U.S.C. § 3553(a) “to the extent that they are applicable.” See 18 U.S.C. § 3582(c)(1)(A). Here, having concluded that Rene did not demonstrate extraordinary and compelling reasons justifying release, the District Court did not reach the § 3553(a) factors.

3 minimum.2 And, regardless, we have held that “Congress’s nonretroactive sentencing

reductions [to § 924(c)] are not extraordinary and compelling reasons for purposes

of § 3582(c)(1)(A).” See United States v. Andrews, 12 F.4th 255, 262 (3d Cir. 2021).

Further, as for Rene’s concerns regarding COVID-19, the record demonstrates that he

refused the COVID-19 vaccine, which undermines any claim that his risk of contracting

the virus justified relief. See United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021)

(reasoning that “a prisoner who remains at elevated risk because he has declined to be

vaccinated cannot plausibly characterize that risk as an ‘extraordinary and compelling’

justification for release”).3 Finally, the District Court reasonably concluded that Rene’s

age and the sentences of his co-conspirators, most of which were known when Rene was

originally sentenced, also did not rise to the level of extraordinary and compelling

reasons justifying relief. See United States v. Hunter, 12 F.4th 555, 571 (6th Cir. 2021)

(“The extraordinary-and-compelling-reasons requirement in § 3582(c)(1)(A) cannot be

met based on a mere difference of opinion regarding the significance of the facts that

existed at sentencing.”).4

Accordingly, we will affirm the District Court’s judgment.

2 Rene was sentenced to 50 months’ incarceration on one of the § 924(c) charges and 60 months on the other. 3 We note, further, that although Rene argued that he suffered from unspecified pulmonary issues, the record indicates that he was 31 years old at the time he filed his motion and in generally good health. 4 The District Court also did not err in denying Rene’s motion for appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).