United States v. Russell Johnson

• Court: Court of Appeals for the Third Circuit
• Decided: February 10, 2022
• Docket: 21-1137
• Status: Unpublished

Opinion

BLD-049 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1137 ___________

UNITED STATES OF AMERICA

v.

RUSSELL JOHNSON, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-16-cr-00107-003) District Judge: Honorable Paul S. Diamond ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 22, 2021

Before: MCKEE, GREENAWAY, JR., and PORTER, Circuit Judges

(Opinion filed: February 10, 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. Pro se appellant Russell Johnson appeals the District Court’s order denying his

motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). The Government has

filed a motion for summary affirmance. Because the District Court did not err in

determining that the § 3553(a) factors do not support release, we grant the Government’s

motion and will summarily affirm the District Court’s judgment.

Johnson requested compassionate release as to a 12-year sentence that the District

Court imposed on him for convictions for conspiracy to commit Hobbs Act robbery, three

counts of Hobbs Act robbery, and using and carrying a firearm during and in relation to a

crime of violence. He argued that the District Court should release him because he

suffers from malignant prostate cancer, hypertension, anxiety, and high cholesterol,

which place him at an increased danger from the COVID-19 pandemic.

The District Court denied the motion. See ECF No. 304. The Court first

determined that, while Johnson did have prostate cancer, it did not constitute an

extraordinary and compelling reason necessitating his release because Johnson had this

condition at the time of his crimes and the BOP had managed the condition more

effectively than Johnson had when he was not incarcerated. See id. at 2. The Court went

on to determine that Johnson’s “health problems, however serious, are more than

outweighed by the § 3553(a) factors.” Id. at 3. The Court explained that Johnson’s

crimes were violent and serious, he had served only about 40% of his sentence, and he

remained a danger to the community. See id. Johnson appealed, and the Government has

filed a motion for summary affirmance.

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

order for abuse of discretion. See United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir.

2020). We may take summary action if “no substantial question is presented” by the

appeal. 3d Cir. L.A.R. 27.4.

The District Court did not err here. 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 [18 U.S.C. §] 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).

The District Court did not abuse its discretion in ruling that the § 3553(a) factors

weighed against granting compassionate release. 1 It was reasonable for the Court to

conclude that the substantial time remaining to be served on Johnson’s sentence, see

Pawlowski, 967 F.3d at 331, the seriousness of his offenses of conviction, and his

1 Based on this conclusion, we need not address whether Johnson asserted “extraordinary and compelling reasons” under the statute. 18 U.S.C. § 3582(c)(1)(A)(i).

3 extensive criminal history (including prior convictions for armed robbery, theft, and

fraud) militated against release. We therefore do not 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.” Id. at 330 (alteration omitted) (quoting Oddi v.

Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)).

Accordingly, because Johnson’s appeal presents no substantial question, we grant

the Government’s motion for summary action and will summarily affirm the District

Court’s judgment. 2

2 We also grant the Government’s requests to file the motion for summary action at the time it did and to be relieved of its obligation to file a brief. 4