NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2845 __________

UNITED STATES OF AMERICA

v.

JUAN LUGO, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-11-cr-00068-001) District Judge: Honorable Matthew W. Brann ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) January 4, 2021 Before: JORDAN, MATEY and NYGAARD, Circuit Judges

(Opinion filed: January 11, 2021) ___________

OPINION* ___________

PER CURIAM

Appellant Juan Lugo appeals from the order of the District Court denying his

motion for compassionate release under

(c)(1)(A). We will affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. In 2011, Lugo pleaded guilty to distribution and possession with intent to distribute

cocaine in violation of

(a)(1). The District Court sentenced him to 120

months in prison, to be served consecutively to the 51-month sentence imposed for

violating the conditions of supervised release in a prior criminal case. Lugo did not file a

direct appeal.

After exhausting his administrative remedies within the Bureau of Prisons, in July

2020, Lugo filed his motion seeking compassionate release based on “extraordinary and

compelling reasons” under

(c)(1)(A)(i). Lugo stated that he has

numerous health conditions that increase his risk of serious complications or death if he

contracts COVID-19. Specifically, he alleged that he has “moderate-severe” asthma,

hyperlipidemia, prehypertension, obesity, and prediabetes. He also listed his medication

regimen and provided some details of his medical history. After considering the parties’

briefs, the District Court agreed that Lugo’s moderate asthma diagnosis demonstrates an

elevated risk from COVID-19 and establishes extraordinary and compelling reasons for

compassionate release. However, the District Court denied Lugo’s motion, concluding

that Lugo’s release was not warranted, stating that “those extraordinary and compelling

reasons are outweighed by the relevant

(a) sentencing factors and the

danger that Lugo poses ‘to the safety of any other person or to the community.’” (Dist.

Ct. Sep. 2, 2020 Order at 4 (citing

(c)(1)(A); U.S. Sentencing

Guidelines Manual § 1B1.13(2)).) Lugo filed a timely notice of appeal.

2 We have jurisdiction under

. We review the District Court’s

ruling on a § 3582(c)(1)(A)(i) motion for compassionate release for abuse of discretion.

See United States v. Pawlowski,

, 330 (3d Cir. 2020).

Because the District Court found that Lugo’s asthma is sufficient to establish

extraordinary and compelling reasons for compassionate release,1 Lugo’s arguments on

appeal concern the District Court’s weighing of other factors to deny his motion. For

example, Lugo protests that the District Court relied on criminal history, including

marijuana charges from when he was a teenager and contempt of court convictions

relating to child support that since has been paid. He also notes that marijuana is now

legal in many states. In sum, Lugo argues that the District Court should not have

concluded that he is a danger to the community on his record, and that compassionate

release is warranted.

We discern no abuse of discretion here. Consideration of relevant § 3553(a)

factors is an explicit part of the analysis of a motion under § 3582(c)(1)(A); those factors

include “history and characteristics of the defendant,” “the need for the sentence imposed

. . . to promote respect for the law,” and “deterrence to criminal conduct.” See

Pawlowski, 967 F.3d at 330 (quoting

(a)(1) and (2)(A)-(B)). Moreover,

as the District Court noted, consideration of whether Lugo is a danger to the community

is relevant to evaluating whether granting compassionate release under § 3582(c)(1)(A) is

1 The Government does not concede this point. See Appellee’s Br. at 10-11. We need not address the issue in light of our disposition of this appeal. 3 consistent with Sentencing Commission policy. See

(g); U.S.S.G.

§ 1B1.13; see also Pawlowski, 967 F.3d at 329 n.6 (noting that, under § 3582(c)(1)(A),

a sentence reduction must be “consistent with applicable policy statements issued

by the Sentencing Commission”). In Lugo’s case, the District Court considered the

serious nature of Lugo’s current cocaine distribution conviction, along with his

significant criminal history, which also includes reckless endangerment and possession of

firearms in furtherance of drug trafficking. In addition, the government pointed out that,

while in custody, Lugo has been disciplined for fighting and for possessing and using

narcotics amongst other infractions. Addressing deterrence of further criminal activity

and promoting respect for the law, the District Court also noted the importance of the fact

that Lugo committed his current offense while on supervised release. Upon consideration

of the record and Lugo’s arguments, we find no “clear error of judgment” in the District

Court’s decision made after weighing permissible factors. See Pawlowski, 967 F.3d at

330.

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

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