BLD-221 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1749 ___________

UNITED STATES OF AMERICA

v.

JAMES BERNARD ARMSTRONG, JR., Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-11-cr-00089-001) District Judge: Honorable Christopher C. Conner ____________________________________

Submitted for Possible Dismissal Due to Lack of Timely Filing and on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 15, 2021

Before: AMBRO, SHWARTZ and PORTER, Circuit Judges

(Opinion filed: July 27, 2021) _________

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. Federal prisoner James Armstrong, Jr. appeals from an order of the District Court

denying his motion for a reduction of sentence pursuant to

(c)(1)(A).

The Government has filed a motion for summary affirmance. For the following reasons,

we will affirm.

In 2011, Armstrong was convicted of three counts of drug and firearm offenses

related to his leadership of an extensive drug-trafficking operation. He was sentenced to

the aggregate mandatory minimum of 180 months in prison.

In May 2020, Armstrong filed a pro se motion for compassionate release. See

generally

(c)(1)(A)(i) (providing that a sentence may be reduced if

“extraordinary and compelling reasons warrant such a reduction”). He argued, among

other things, that his medical conditions (including Graves’ disease and pre-diabetes)

rendered him especially vulnerable to COVID-19 at FCI Schuylkill, where he is presently

incarcerated. After appointing Armstrong counsel, the District Court denied his motion,

determining (1) that his medical conditions, even in the context of the pandemic, did not

constitute extraordinary and compelling circumstances; (2) that there was not a strong

likelihood that he would be exposed to COVID-19 at the prison; and (3) that the

(a) factors weighed against his release.

In September 2020, Armstrong filed a second pro se compassionate-release

motion reiterating his concerns after a prison staff member tested positive for COVID-19.

The District Court again denied his motion, noting that FCI Schuylkill had tested

extensively for COVID-19 and that there were no positive cases among the facility’s

prisoners, and that, even if there were, the decision would not change because of the

2 Court’s earlier finding that the Section 3553(a) factors did not warrant a sentence

reduction. Armstrong appealed the denial of the second motion, but the appeal was

dismissed on April 27, 2021, for failure to file an appellate brief.

In December 2020, Armstrong filed a third pro se motion for compassionate

release, stating that his health had deteriorated since his previous motion and that the

pandemic had grown “out of control” at FCI Schuylkill. The District Court denied the

motion, incorporating its previous findings concerning the Section 3553(a) factors and

concluding that compassionate release was not warranted based on those findings.

Armstrong appealed, and the Government seeks summary affirmance.

We have jurisdiction pursuant to

. 1 We review for abuse of

discretion the District Court’s determination that the sentencing factors under Section

3553(a) do not weigh in favor of granting compassionate release. United States v.

Pawlowski,

, 330 (3d Cir. 2020). “[W]e will not disturb the District Court’s

1 Appellant’s notice of appeal was untimely as it was filed outside the 14-day period provided by Fed. R. App. P. 4(b)(1)(A). See United States v. Espinosa-Talamantes,

(10th Cir. 2003) (holding that a § 3582(c)(2) motion is considered a continuation of the criminal proceedings); see also United States v. Payton,

(6th Cir. 2020) (precedential per curiam order). Nonetheless, we will review the merits of this appeal because the 14-day period for filing a notice of appeal in a criminal case is non-jurisdictional, and the Government forfeited the issue by failing to raise it. See Gov’t of the Virgin Islands v. Martinez,

(3d Cir. 2010); see also United States v. Muhammud,

(3d Cir. 2012). We note also that Appellant has asserted that he never received the District Court’s order in prison and that he found out about the order from a relative days before he filed the notice of appeal. Cf. United States v. Grana,

(3d Cir. 1989) (“[I]n computing the timeliness of pro se prisoners’ appeals, any prison delay in transmitting to the prisoner notice of the district court’s final order or judgment shall be excluded from the computation of an appellant’s time for taking an appeal.”). 3 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.”

(quotation marks and citation omitted).

A district court may reduce a defendant’s term of imprisonment “after considering

the factors set forth in § 3553(a) . . . if it finds that . . . extraordinary and compelling

reasons warrant such a reduction . . . and that such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.”

(c)(1)(A). Those sentencing factors require the courts to consider, inter alia, the

nature and circumstances of the offense, the history and characteristics of the defendant,

the need for the sentence to reflect the seriousness of the offense, promote respect for the

law, provide just punishment, afford adequate deterrence, protect the public from future

crimes by the defendant, and the need to avoid unwarranted sentencing disparities.

(a). Compassionate release is discretionary, not mandatory; therefore, even

if a defendant is eligible for it, a district court may deny compassionate release upon

determining that a sentence reduction would be inconsistent with the § 3553(a) factors.

See Pawlowski, 967 F.3d at 330; United States v. Jones,

(6th Cir.

2020) (finding no abuse of discretion where “the district court found for the sake of

argument that an extraordinary and compelling circumstance existed . . . but that the

§ 3553(a) factors counseled against granting compassionate release”).

The Government argues that the District Court did not abuse its discretion in

determining that compassionate release was inconsistent with the Section 3553(a) factors.

We agree.

4 The District Court properly emphasized the serious nature and circumstances of

Armstrong’s offenses, his leadership role in a “lengthy and protracted” pattern of drug

distribution, the “considerable downward variance” reflected in his sentence, and the fact

that Armstrong still had nearly six years remaining on his 15-year sentence. We cannot

say that the District Court committed a clear error of judgment in its assessment of the

Section 3553(a) factors.

Based on the foregoing, Armstrong’s challenge to the District Court’s order does

not present a substantial question. We therefore grant the Government’s motion and we

will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.

5