NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1120 ___________

UNITED STATES OF AMERICA,

v.

WESLEY THOMAS, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:15-cr-00121-003) District Judge: Honorable Gerald J. Pappert ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 on June 17, 2021

Before: McKEE, GREENAWAY, JR., and BIBAS, Circuit Judges

(Opinion filed: August 2, 2021) ____________________________________ ___________

OPINION* ___________

PER CURIAM

Pro se appellant Wesley Thomas appeals the District Court’s order denying his motion

for compassionate release. The Government has filed a motion for summary affirmance.

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

the District Court’s judgment.

In 2015, Thomas pleaded guilty to four counts of Hobbs Act robbery and two counts of

brandishing a firearm during and in relation to a crime of violence in violation of

(c). He was sentenced to 180 months’ imprisonment. See E.D. Pa. Cr. No. 2-15-cr-

00121-003, ECF 66 at 2. In October 2020, Thomas filed a motion for compassionate release

under

(c)(1)(A). He argued that he was entitled to a reduced sentence

because the District Court imposed consecutive sentences for his convictions under

§ 924(c), which was, according to Thomas, not permitted by the First Step Act since the

convictions were charged in the same indictment. He also stated that he was at a heightened

risk of contracting COVID-19 in prison, that his medical conditions increase the risk of

severe illness or death from COVID-19, and that his father was sick and needed his care.

The District Court denied the motion, concluding that the

(a) factors

did not support the request and that Thomas did not present “extraordinary and compelling

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 reasons for release.”

(c)(1)(A). The Court noted that Thomas is serving a

sentence far below the mandatory minimum for the crimes he committed, that he has served

less than half of that sentence, and that Thomas’s health conditions were managed by the

prison such that his few risk factors did not warrant release. Thomas filed a notice of ap-

peal, and the Government has moved for summary affirmance.

We have jurisdiction under

. We review the District Court’s order for

abuse of discretion. See United States v. Pawlowski,

, 330 (3d Cir. 2020). We

may summarily affirm if “no substantial question is presented” by the appeal. 3d Cir.

L.A.R. 27.4.

We will grant the Government’s motion. The compassionate-release provision states

that a district court “may reduce the term of imprisonment” and “impose a term of proba-

tion or supervised release” if it finds that “extraordinary and compelling reasons warrant

such a reduction.”

(c)(1)(A)(i). Before granting compassionate release, a

district court must consider “the factors set forth in § 3553(a) to the extent that they are

applicable.” § 3582(c)(1)(A). Those factors include, among other things, “the nature and

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

§ 3553(a)(1), and the need for the sentence “to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense”; “to afford

adequate deterrence to criminal conduct”; and “to protect the public from further crimes of

the defendant,” § 3553(a)(2)(A)–(C).

3 We discern no abuse of discretion in the District Court’s conclusion that the § 3553(a)

factors weighed against granting compassionate release here.1 As the District Court ex-

plained, Thomas’s crimes were “violent robberies” and “he earned his sentence by know-

ingly and voluntarily facilitating [them].” ECF No. 139 at 8. It was also reasonable for the

District Court to conclude that the fact that Thomas had served less than half of his lengthy

sentence worked against him. See, e.g., Pawlowski, 967 F.3d at 330-31.2 We therefore do

not have “a definite and firm conviction that [the District Court] committed a clear error of

judgment in the conclusion it reached upon a weighing of the relevant factors.” Id. at 330

(alteration omitted) (quoting Oddi v. Ford Motor Co.,

(3d Cir. 2000)).

Accordingly, we grant the Government’s motion and will summarily affirm the District

Court’s judgment.

1 Based on this conclusion, we need not address Thomas’s described “extraordinary and compelling reasons.”

(c)(1)(A)(i). For Thomas’s benefit, we note that, contrary to the argument he presented in the District Court, the First Step Act did not eliminate the subsection of § 924(c) that requires sentences under that section to run con- secutively. See § 924(c)(1)(D)(ii); United States v. Hodge,

, 161 n.2 (3d Cir. 2020). 2 We need not decide here whether, as Thomas argues for the first time on appeal, the First Step Act’s change to § 924(c)’s sentencing provisions is relevant to the § 3553(a) factors. Even if that change is relevant, there is no plain error based on any claimed fail- ure to consider it. See Fed. R. Crim. P. 52(b); United States v. Long,

, 353 (D.C. Cir. 2021). The District Court recognized that the change in law would decrease the mandatory minimum sentence for someone like Thomas with two convictions for bran- dishing a firearm from 32 years’ imprisonment to 14, but that, through his plea agree- ment, Thomas received only a ten-year sentence, lighter than even the present law pre- scribes. 4