DLD-161 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1574 ___________

UNITED STATES OF AMERICA

v.

EDWIN VAQUIZ, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Criminal No. 4-16-cr-00310-001) District Judge: Honorable Matthew W. Brann ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 April 22, 2021 Before: JORDAN, KRAUSE, and PHIPPS, Circuit Judges

(Opinion filed: May 4, 2021) _________

OPINION * _________ PER CURIAM

Edwin Vaquiz, proceeding pro se, appeals an order of the United States District

Court for the Middle District of Pennsylvania denying his motion for compassionate

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. release pursuant to

(c)(1)(A)(i). For the reasons discussed below, we

grant the Government’s motion to summarily affirm the District Court’s order.

Vaquiz was convicted after a jury trial in the District Court of possession with

intent to distribute heroin. On April 2, 2019, he was sentenced to 180 months in prison,

below the applicable advisory sentencing range of 210 to 240 months. We affirmed on

direct appeal. United States v. Vaquiz,

, 152 (3d Cir. 2020). Vaquiz’s

anticipated release date is February 2, 2029.

In January 2021, Vaquiz filed a motion for compassionate release. He asserted

that he was at risk of serious illness if he contracted COVID-19 because he was obese

and suffered from hypertension, chest pains, and an intestinal bacterial infection. Vaquiz

also argued that federal prisons were unable to comply with recommended precautions to

control COVID-19, that there was limited testing for the virus, and that there were high

positive rates where testing was administered. He noted that he had taken classes and

stayed drug-free while in prison and that he could stay with his parents and return to a

factory job if released. The Government opposed the motion.

The District Court denied relief. The District Court ruled, contrary to the

Government’s contention, that Vaquiz had shown the requisite extraordinary and

compelling reasons for compassionate release. It explained that Vaquiz’s medical

records confirmed that he is 65 inches tall and weighs approximately 245 pounds, which

meant that he has a Body Mass Index of 42, and showed that he is at an elevated risk of

serious illness or death should he contract COVID-19. 2 The District Court, however, concluded that these reasons were outweighed by the

relevant

(a) sentencing factors and the danger that Vaquiz posed to

others and the community. It noted that Vaquiz had not yet served half of his sentence,

that his offense distributing heroin and fentanyl was serious and placed lives at risk, that

he had a lengthy criminal history, and that he had committed his offense while on parole,

which indicated that incarceration was needed to prevent his criminal activity. The

District Court stated that releasing Vaquiz would not serve the goals of affording

adequate deterrence, promoting respect for the law, achieving just punishment, or

protecting the public.

Vaquiz appealed and filed his opening brief, and the Government now moves for

summary affirmance of the District Court’s decision. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6. We have jurisdiction under

. We review the District

Court’s order for abuse of discretion. See United States v. Pawlowski,

, 330

(3d Cir. 2020).

A district court “may reduce [a federal inmate’s] term of imprisonment and

impose a term of probation or supervised release . . . if it finds that . . . extraordinary and

compelling reasons warrant such a reduction.”

at 329 (quoting

(c)(1)(A)(i)) (internal quotations omitted). Before granting release, a district court

must consider the factors in

(a) to the extent they are applicable.

These factors include the history and characteristics of the defendant, and the need for the

sentence imposed (1) to reflect the seriousness of the offense, to promote respect for the 3 law, and to provide just punishment for the offense; (2) to afford adequate deterrence to

criminal conduct; and (3) to protect the public. See

(a)(1), (2)(A)-(C).

The District Court gave several reasons, which comport with its consideration of

the sentencing factors at Vaquiz’s sentencing hearing in 2019, why continued

incarceration was needed to afford adequate deterrence, promote respect for the law,

provide just punishment, and protect the public. The District Court also properly

considered the fact that Vaquiz had served less than half his sentence, which is consistent

with § 3582(c)(1)(A). Pawlowski, 967 F.3d at 331. The District Court thus did not

commit a clear error of judgment in the conclusion it reached based on the relevant

sentencing factors. See id. at 330. 1

Accordingly, because this appeal does not present a substantial question, we grant

the Government’s motion and will summarily affirm the District Court’s order. See 3d

Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

1 The District Court also cited U.S.S.G. § 1B1.13(2) in finding that Vaquiz posed a danger if released. To the extent § 1B1.13(2) may be inapplicable to Vaquiz’s motion, a question we have not yet decided in a precedential opinion, we find no abuse of discretion in light of the District Court’s consideration of the sentencing factors. See United States v. Kibble, -- F.3d --, No. 20-7009,

, at *4 (4th Cir. Apr. 1, 2021) (per curiam). It is unnecessary to consider the Government’s contention that Vaquiz’s risk of harm from COVID-19 is speculative in light of this conclusion. 4