NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1728 ___________

UNITED STATES OF AMERICA

v.

JEROME MARIO BRITTON, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. Action No. 1:13-cr-00014-001) District Judge: Honorable Yvette Kane ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 on August 26, 2021

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

(Opinion filed: September 28, 2021) ____________________________________ ___________

OPINION* ___________

PER CURIAM

Jerome Mario Britton appeals pro se from an order of the United States District Court

for the Middle District of Pennsylvania denying his motion for reconsideration of an or-

der that rejected his motion for compassionate release pursuant to

(c)(1)(A). The Government has filed a motion for summary affirmance. For the

following reasons, we grant the Government’s motion and will summarily affirm the Dis-

trict Court’s judgment.

In 2013, a jury found Britton guilty of possession of a firearm by a convicted felon.

See

(g)(1). He was sentenced to 100 months of imprisonment. We af-

firmed. See United States v. Britton,

(3d Cir. 2015) (not precedential).

In September 2020, Britton filed a pro se motion for compassionate release pursuant

to § 3582(c)(1)(A). (ECF 134.) He argued that various health conditions put him at in-

creased risk from COVID-19. The Government opposed the motion. (ECF 141.) The

District Court denied relief. (ECF 151.) It concluded that Britton arguably had estab-

lished extraordinary and compelling reasons warranting relief. The District Court held,

however, that the relevant factors under

(a) weighed against any reduc-

tion in his sentence. Those factors included the seriousness of Britton’s offense, his

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 lengthy criminal history, his propensity to recidivate, and the fact that he had served only

approximately 30 months of his federal sentence.

Britton filed a motion for reconsideration. (ECF 152.) The Government filed a

brief in opposition (ECF 155), to which Britton replied. (ECF 159.) The District Court

denied relief, holding that he presented no new evidence that would affect the decision to

deny the § 3582(c)(1)(A) motion and that he failed to establish that reconsideration was

necessary to correct any clear error of law or to prevent manifest injustice. (ECF 160.)

Britton appeals from the denial of the motion for reconsideration. (ECF 161.) The Gov-

ernment has filed a motion for summary affirmance. (Doc. 7.)

We have jurisdiction under

, and we review the denial of Brit-

ton’s motion for reconsideration for abuse of discretion.1 Cf. United States v. Kalb,

(3d Cir. 2018) (reviewing denial of motion for reconsideration in criminal

appeal for an abuse of discretion). “[A] judgment may be altered or amended if the party

seeking reconsideration shows at least one of the following grounds: (1) an intervening

change in the controlling law; (2) the availability of new evidence that was not available

when the court granted the motion for summary judgment; or (3) the need to correct a

clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel.

Lou-Ann, Inc. v. Quinteros,

, 677 (3d Cir. 1999).

1 Britton’s notice of appeal did not mention the order denying his § 3582(c)(1)(A) mo- tion. See Fed. R. App. P. 3(c)(1)(B). To the extent that Britton also seeks review of that order, we conclude that the District Court did not abuse its discretion because, for the rea- sons it provided, the applicable § 3553(a) factors did not support Britton’s release. See United States v. Pawlowski,

, 330 (3d Cir. 2020). 3 In his motion for reconsideration, Britton alleged that the District Court failed to

account for his rehabilitation, his strong family and community support, the total amount

of time he had spent in prison, and his commitment to relocate and adhere to the condi-

tions of supervised release. The District Court explained, however, that it had considered

those factors in its initial decision. Moreover, although the District Court did not have

the benefit of prison records detailing the rehabilitation programs that he had completed

(which Britton attached to his reconsideration motion), that information would not have

changed the result. According to the District Court, Britton’s criminal history and history

of recidivism still counseled against relief. We discern no abuse of discretion in the Dis-

trict Court’s decision.

Britton also contended that the District Court abused its discretion by relying on

“acquitted conduct” in evaluating the § 3553(a) factors. The order denying the

§ 3582(c)(1)(A) motion stated that Britton “stands convicted of serious offenses involv-

ing the recovery of two loaded guns, cocaine, and drug paraphernalia from his residence.”

As noted above, however, Britton was convicted only of one count of possession of a

firearm by a convicted felon. He was found not guilty of another felon-in-possession

count, a possession of a stolen firearm count, and a possession with intent to distribute

cocaine base count. In denying the motion for reconsideration, the District Court ex-

plained that its “inadvertent reference to ‘offenses’ (rather than ‘offense’) should not be

construed as any indication that the Court considered acquitted conduct in deciding Brit-

ton’s motion for compassionate release.” The District Court further clarified that it “care-

fully considered the nature of the offense for which Britton stands convicted … as well as

4 the circumstances surrounding that offense.” Under these circumstances, the District

Court did not abuse its discretion in denying the motion for reconsideration.

Finally, Britton raised arguments concerning the establishment of extraordinary

and compelling reasons warranting relief. In particular, he cited the “significant COVID-

19 outbreaks” at the facility where he is incarcerated. But the District Court had already

assumed that Britton had established extraordinary and compelling reasons for release

based in part on the rise of COVID-19 infections at his facility. Therefore, because the

assessment of extraordinary and compelling reasons did not affect the determination to

deny relief, the District Court’s denial of the motion for reconsideration was not an abuse

of discretion.

For the foregoing reasons, we grant the Government’s motion and will summarily af-

firm the District Court’s judgment.

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