United States v. Markwann Gordon

• Court: Court of Appeals for the Third Circuit
• Decided: July 8, 2022
• Docket: 22-1311
• Status: Unpublished

Opinion

CLD-185 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1311 ___________

UNITED STATES OF AMERICA

v.

MARKWANN LEMEL GORDON, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2:99-cr-00348-002) District Judge: Honorable Harvey Bartle III ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 30, 2022 Before: AMBRO, SHWARTZ and BIBAS, Circuit Judges

(Opinion filed: July 8, 2022) ____________________________________ ___________

OPINION* ___________

PER CURIAM

In December 1999, following a jury trial in the United States District Court for the

Eastern District of Pennsylvania, Markwann Lemel Gordon was convicted of seven

counts each of: conspiracy to commit bank robbery, see 18 U.S.C. § 371; armed bank rob-

bery, see id. § 2113(d); and using and carrying a firearm during and in relation to a crime

of violence, see id. § 924(c). The District Court sentenced Gordon to 1500 months in

prison for the seven armed robberies, followed by 188 months’ imprisonment on the re-

maining counts. We affirmed. United States v. Gordon, 290 F.3d 539 (3d Cir. 2002).

In January 2021, while he was incarcerated at FCI-Coleman in Florida, Gordon

filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).1 Gordon ar-

gued that the following factors constituted “extraordinary and compelling reasons” war-

ranting a reduction in his sentence: changes in the § 924(c) sentencing scheme since the

time of his sentencing; the draconian length of his sentence; his young age when he com-

mitted the crimes; the disparity between his sentence and those of his co-conspirators; the

steps he has taken toward rehabilitation; and the risk of serious illness posed by COVID-

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 It is undisputed that Gordon complied with § 3582(c)(1)(A)’s thirty-day lapse provision by filing a request for compassionate release with his warden before turning to the Dis- trict Court. See 18 U.S.C. § 3582(c)(1)(A).

2 19. The District Court rejected his arguments and denied relief.2 Gordon appealed. The

Government now moves for summary affirmance.

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

ing on a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) for an abuse

of discretion. See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020).

We grant the motion and will summarily affirm the District Court’s judgment be-

cause “no substantial question is presented” by the appeal.3 3d Cir. L.A.R. 27.4. First,

although Gordon correctly notes that he would have received a lesser sentence had he

been sentenced today, we have made clear that “Congress’s nonretroactive sentencing re-

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

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

soning also undermines Gordon’s argument that the duration of his sentence alone is a

basis for his release. See id. Next, the District Court correctly concluded that Gordon’s

rehabilitative efforts, while laudable, likewise did not meet the § 3582 criteria. See 28

U.S.C. § 994(t) (providing that “rehabilitation . . . alone shall not be considered an ex-

traordinary and compelling reason” for a sentence reduction). Finally, we see no clear er-

ror of judgment in the District Court’s determinations that Gordon’s age when he com-

mitted the crimes, the disparity between his sentence and those of his co-conspirators

2 Because the District Court concluded that Gordon did not demonstrate “extraordinary and compelling reasons” justifying his release, it did not consider the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A). 3 We also grant the Government’s request for leave to file its motion for summary affir- mance out of time. 3 (who pleaded guilty), and his concerns regarding COVID-19 did not amount to “extraor-

dinary and compelling reasons” under § 3582(c)(1)(A)(i). We have considered Gordon’s

objections to the District Court’s exercise of its discretion and conclude that they are mer-

itless.

Accordingly, we grant the Government’s motion and will summarily affirm the Dis-

trict Court’s judgment. The Government’s motion to be relieved from filing a brief is

granted.