ALD-087 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2748 ___________

UNITED STATES OF AMERICA

v.

RICHARD PERNELL BURTON, JR., Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 5-15-cr-00474-003) District Judge: Honorable Jeffrey L. Schmehl ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 February 4, 2021 Before: MCKEE, GREENAWAY, Jr., and BIBAS, Circuit Judges

(Opinion filed March 2, 2021) _________

OPINION* _________ PER CURIAM

Pro se appellant Richard Pernell Burton, Jr. appeals from the District Court’s order

denying his motion for compassionate release under

(c)(1). Burton

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not pleaded guilty in the Eastern District of Pennsylvania to eight counts of an indictment

concerning a conspiracy to distribute more than five kilograms of cocaine. At his March

4, 2019 sentencing hearing, the District Court determined that Burton’s offense level

under the advisory Sentencing Guidelines was 27 with a criminal history category of IV.

Because of the applicable 120-month mandatory minimum term, the resulting advisory

sentencing range was 120-125 months. The District Court imposed a prison term of 120

months. His anticipated release date is October 24, 2027.

Starting in May 2020, Burton filed several motions and other documents

requesting compassionate release based on “extraordinary and compelling reasons” under

(c)(1)(A)(i). Burton argued that the COVID-19 pandemic presents an

extraordinary circumstance justifying a sentence reduction when considering his medical

conditions. He listed the following conditions: Type 2 diabetes, sleep apnea and use of a

C-Pap machine for breathing, multiple lung nodules, a bad back with two herniated discs,

three repaired hernia, hearing loss in the left ear, high cholesterol, high blood pressure,

and post-traumatic stress disorder from his military service in the Libyan War and from

his years of incarceration.1 The Government opposed Burton’s motion.

The District Court denied Burton’s motion for compassionate release. While

acknowledging that Burton’s diabetes and hypertension may place him at increased risk

of an adverse outcome from COVID-19, the District Court found that Burton has been

constitute binding precedent. 2 managing his medical conditions well while incarcerated, and that those conditions were

not sufficiently serious to justify compassionate release. Further, considering Burton’s

motion assuming that his medical conditions were sufficiently severe, the District Court

concluded that compassionate release still was not warranted, noting Burton’s six prior

federal and state criminal convictions between 1988 through 2015 and finding that

Burton may be a danger to the community if released, citing U.S.S.G.§ 1B1.13.

Moreover, even assuming that Burton were not a danger to the community, the District

Court analyzed the

(a) sentencing factors and still concluded that

compassionate release was not warranted. Specifically, the District Court noted that

granting release at that time meant that Burton would have served about 16 months of his

120-month sentence, and that “releasing Burton after having served less than 15% of his

sentence would hardly reflect the seriousness of his offense nor provide just punishment

for same. In addition, a sentence this insignificant for such a serious drug crime would

not afford adequate deterrence to the potential criminal conduct of Burton in the future,

or to others who may be considering similar crimes.” (Dist. Ct. Jul. 23, 2020 Mem. Op.

at 8.)

Burton filed a timely notice of appeal, as well as his opening brief. The

Government filed a motion for summary affirmance, see 3d Cir. L.A.R. 27.4; 3d Cir.

1 Burton states that he is 54 years old. See Appellant’s Opp’n, App. A. 3 I.O.P. 10.6, and to be relieved of filing a brief, see 3d Cir. L.A.R. 31.2. Burton filed a

response in opposition to summary action, as supplemented.

We have jurisdiction under

. We review the District Court’s

order for abuse of decision and thus “will not disturb the District Court’s decision ‘unless

there is a definite and firm conviction that it committed a clear error of judgment in the

conclusion it reached upon a weighing of the relevant factors.’” United States v.

Pawlowski,

, 330 (3d Cir. 2020) (alteration omitted) (quoting Oddi v. Ford

Motor Co.,

(3d Cir. 2000)). We will take summary action if “no

substantial question is presented.” 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

Burton argues that the District Court improperly considered § 1B1.13 as part of its

analysis. See Appellant’s Opp’n (citing, inter alia, United States v. Jones, 980 F.3d1098,

1109 (6th Cir. 2020)). In Jones, the Sixth Circuit held that the First Step Act rendered

§ 1B1.13 inapplicable to § 3582(c)(1)(A) motions for compassionate release, noting that

until the Sentencing Commission updates § 1B1.13, the district courts have “full

discretion” to determine whether “extraordinary and compelling” reasons exist for

granting release. We have not directly addressed the applicability of § 1B1.13 in this

context, though we have noted that, under § 3582(c)(1)(A), a sentence reduction must be

“consistent with applicable policy statements issued by the Sentencing Commission.”

Pawlowski, 967 F.3d at 329 n.6.

4 In any event, the District Court here did not constrain its assessment of Burton’s

motion under § 1B1.13. Notwithstanding its consideration of § 1B1.13, the District

Court proceeded to consider the relevant § 3553(a) factors, which 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)). The District Court’s decision

clearly reflects as much.

Burton presents information and argument concerning his medical conditions and

risk of severe illness from COVID-19, but the District Court considered Burton’s motion

even assuming that his medical conditions were sufficiently severe to warrant

compassionate release. Burton also states, “I have done my time and paid my debt to

society” for his past crimes, and he contends that his involvement in the drug conspiracy

was less serious than the indictment suggests. Appellant’s Opp’n, App. A. To the extent

that Burton argues that the District Court should have placed more weight on his medical

conditions, and less weight on his offense conduct, we cannot conclude that the Court

abused its discretion in weighing the factors in the way it did. See Pawlowski, 967 F.3d

at 331. We discern no clear error in the District Court’s conclusion after analyzing the

§ 3553(a) sentencing factors, including the substantial proportion of Burton’s sentence

5 yet to be served, indicating the need for the sentence to reflect the seriousness of the

offense and to afford adequate deterrence to future offenses.

For these reasons, we grant the Government’s motion and will summarily affirm

the District Court’s order. The Government’s motion to be relieved of filing a brief is

granted.

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