United States v. Shawn Brown

• Court: Court of Appeals for the Third Circuit
• Decided: September 26, 2022
• Docket: 22-2046
• Status: Unpublished

Opinion

NOT PRECEDENTIAL CLD-242 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2046 ___________

UNITED STATES OF AMERICA

v.

SHAWN BROWN, a/k/a Kenneth Jenkins, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:04-cr-00532-001) District Judge: Honorable Harvey Bartle, III ____________________________________

Submitted on Appellee’s motion for summary action pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 on September 15, 2022

Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges

(Opinion filed: September 26, 2022) ____________________________________ ___________

OPINION* ___________

PER CURIAM

Shawn Brown appeals pro se from the District Court’s denial of his motion for com-

passionate release. The Government has filed a motion for summary action. For the rea-

sons that follow, we grant the Government’s motion and will summarily affirm the District

Court’s judgment.

In 2005, after a jury trial in the District Court for the Eastern District of Pennsylva-

nia, Brown was convicted of a narcotics offense and two related firearms offenses. On

direct appeal, Brown succeeded in vacating his sentence but was ultimately resentenced to

35 years’ imprisonment. We affirmed that sentence when Brown appealed for a second

time. See United States v. Brown, 385 F. App’x 147, 148 (3d Cir. 2010).

In February 2022, Brown filed a motion for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A)(i) based on his fear of contracting COVID-19 in prison. He argued that

the District Court should resentence and release him because he suffers from hypothyroid-

ism and Graves’ disease, which place him at a higher risk of severe illness if he contracted

COVID-19. He indicated that he had been fully vaccinated against COVID-19 and had

received a booster shot of the vaccine.

In May 2022, the District Court denied his motion. It concluded that Brown had not

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 established any extraordinary and compelling reason for release. Brown timely appealed,

and the Government has moved for summary affirmance.

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

sion for abuse of discretion and “will not disturb [that] decision unless there is a definite

and firm conviction that [the District Court] committed a clear error of judgment.” See

United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020) (internal quotation marks

and citation omitted). We may summarily affirm a district court’s decision if the appeal

fails to present a substantial question. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011)

(per curiam).

We grant the Government’s motion for summary action. 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 “extraordinary and compelling reasons warrant

such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i).

We discern no abuse of discretion in the District Court’s conclusion that Brown did

not present extraordinary and compelling reasons to warrant compassionate release. 1 The

District Court appropriately noted that the Centers for Disease Control and Prevention have

not identified either hypothyroidism or Graves’ disease as possibly placing individuals at

an increased risk of severe complications related to a COVID-19 infection. Further, as the

District Court indicated, because Brown has been fully vaccinated against COVID-19 and

has received a booster, his overall risk of developing serious complications from the virus

1 Based on this conclusion, we need not address whether Brown met any “factors [for re- lease] set forth in [18 U.S.C. §] 3553(a).” See 18 U.S.C. § 3582(c)(1)(A). 3 has significantly decreased. See United States v. Broadfield, 5 F.4th 801, 803 (7th Cir.

2021) (“[F]or the vast majority of prisoners, the availability of a vaccine makes it impos-

sible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason

for immediate release.”). Under these circumstances, we cannot conclude that the District

Court committed a clear error of judgment in denying Brown’s motion.2 See Pawlowski,

967 F.3d at 330.

For these reasons, we will summarily affirm the District Court’s judgment.3

2 In his appellate brief, Brown argues that the District Court erred in failing to consider the § 3553(a) sentencing factors in determining whether he was eligible for compassion- ate release. However, because the District Court did not reach that question, there was no need to address those factors. Brown also argues that the District Court did not consider whether the autoimmune nature of his conditions makes him immunocompromised, but he submitted no support, either in the District Court or in this Court, to show that either condition renders him immunocompromised for purposes of COVID-19 susceptibility or his risk of severe illness from contracting COVID-19. 3 The Government’s request to be excused from filing a brief is granted. Although the Government also seeks leave to file its summary-affirmance motion out of time, that re- quest is denied as unnecessary because the motion was timely filed. See 3d Cir. L.A.R. 27.4(b). Brown’s motion for remand is denied. To the extent that Brown asks us to con- sider a recently-diagnosed medical condition in evaluating the District Court’s decision, he cannot raise issues for the first time on appeal. See Jenkins v. Superintendent of Lau- rel Highlands, 705 F.3d 80, 88 n.12 (3d Cir. 2013). He is free to raise this issue in a fu- ture motion for compassionate release before the District Court. We express no opinion on the merits of such a motion. 4