United States v. Nayeem Gordon

• Court: Court of Appeals for the Third Circuit
• Decided: October 25, 2022
• Docket: 22-1853
• Status: Unpublished

Opinion

DLD-008 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1853 ___________

UNITED STATES OF AMERICA

v.

NAYEEM GORDON, also known as OBAMA, also known as NAY, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2-15-cr-00496-001) District Judge: Honorable Wendy Beetlestone ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 13, 2022 Before: JORDAN, SHWARTZ, and SCIRICA, Circuit Judges

(Opinion filed: October 25, 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. Nayeem Gordon appeals pro se from the District Court’s order denying his motion

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

filed a motion for summary affirmance. We grant the Government’s motion and will

summarily affirm the District Court’s judgment.

In 2016, Gordon was charged with crimes related to possession and distribution of

phencyclidine (PCP). A jury in the Eastern District of Pennsylvania found Gordon guilty

of those offenses. Thereafter, a grand jury issued a superseding indictment, further

charging Gordon with conspiracy to distribute PCP and firearm offenses. Gordon

pleaded guilty to those charges. For both convictions, Gordon was sentenced as a career

offender to a total 204 months’ imprisonment followed by ten years of supervised release.

He is scheduled for release in March 2030.

In March 2022, Gordon filed his second motion for compassionate release. In that

motion, he argued that his health conditions (obesity and asthma) rendered him

susceptible to harm if he contracted COVID-19, and that this Court’s ruling in United

States v. Nasir, 17 F.4th 459 (3d Cir. 2021), invalidated the career offender sentencing

enhancement. The District Court denied the motion, noting that even if Gordon’s

medical conditions presented “extraordinary and compelling” circumstances for relief,

the sentencing factors in 18 U.S.C. § 3553(a) militated against granting such relief.

See ECF No. 1123 at pp. 5-6. Gordon’s invocation of Nasir, the court explained,

amounted to an attack on his conviction and could be raised on direct appeal or in a 28

2 U.S.C. § 2255 motion, not in a motion for compassionate release. Id. at p. 4. Gordon’s

appeal from the denial of his motion for compassionate release presents the basis for this

appeal.1

We have jurisdiction under 28 U.S.C. § 1291. We review the denial of a motion

for compassionate release for abuse of discretion. See United States v. Pawlowski, 967

F.3d 327, 329-30 (3d Cir. 2020). We may affirm on any basis supported by the record,

see Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam), and may

summarily affirm if an appeal presents no substantial question, id.; 3d Cir. LAR 27.4; 3d

Cir. I.O.P. 10.6.

Gordon presses one argument on appeal: that the District Court did not consider

whether our ruling in Nasir presented an “extraordinary and compelling” circumstance

for release. His argument is meritless. In Nasir, we held that inchoate crimes no longer

qualify as predicate drug offenses to trigger an armed career criminal sentencing

enhancement. 17 F.4th at 472. Gordon maintains that he would not qualify as a career

criminal offender under Nasir’s sentencing scheme. Even if that were true, our ruling in

Nasir does not provide Gordon with an extraordinary and compelling circumstance for

early release. See United States v. Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021)

1 Gordon filed his notice of appeal more than 14 days after entry of the order denying his motion. See Fed. R. App. P. 4(b)(1)(A). Because the Government has affirmatively waived any objection to timeliness, we decline to dismiss the appeal as untimely. See United States v. Muhammud, 701 F.3d 109, 111 (3d Cir. 2012). 3 (holding that neither the length of a lawfully imposed sentence nor the non-retroactive

changes in statutory sentencing law establish extraordinary and compelling circumstances

for release), cert. denied, 142 S. Ct. 1446 (2022). Gordon contends that Concepcion v.

United States, 142 S. Ct. 2389 (2022), abrogated our decision in Andrews. It did not. In

Concepcion, the Supreme Court clarified that courts may consider intervening changes in

law when a defendant is resentenced under the First Step Act. 142 S. Ct. at 2396. But

Concepcion did not address the “threshold question” at issue here: “whether [Gordon] has

established an ‘extraordinary and compelling’ reason for release.” See United States v.

King, 40 F.4th 594, 596 (7th Cir. 2022).

In any event, the District Court noted that even if Gordon’s medical conditions

presented an “extraordinary and compelling” circumstance for release, the § 3553(a)

factors counseled against granting the motion. On appeal, Gordon has not contested the

District Court’s ruling denying his motion based on its assessment of those factors. See

Geness v. Cox, 902 F.3d 344, 355 (3d Cir. 2018). 2

2 Had he advanced an argument challenging the sentencing factors, he faced a high bar to demonstrate error. A District Court’s determination of § 3553(a) factors will not be disturbed unless we have a “definite and firm conviction that [the District Court] committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Pawlowski, 967 F.3d at 330 (quotation omitted). In denying relief, the District Court emphasized that releasing Gordon after “serving so little of his 204-month sentence would not reflect” the seriousness of his offenses, nor would it deter future conduct. ECF No. 1123 at p. 7. 4 For these reasons, the District Court properly exercised its discretion in denying

Gordon’s motion for compassionate release. Gordon’s appeal presents no substantial

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