NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1313 ___________

UNITED STATES OF AMERICA

v.

PATRICIA FOUNTAIN, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2:12-cr-00155-001) District Judge: Honorable Joel H. Slomsky ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 12, 2021

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

(Opinion filed: October 13, 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 Patricia Fountain appeals from an order of the District Court denying

her motion for a reduction of sentence pursuant to

(c)(1)(A). The Gov-

ernment has filed a motion for summary affirmance. For the following reasons, we will

affirm.1

In 2013, Fountain was convicted of conspiracy to defraud the United States, filing

false claims, and Hobbs Act extortion for her role in a scheme with her co-defendant hus-

band in which she used her knowledge as an employee of the Internal Revenue Service to

recruit individuals to file fraudulent tax returns in order to wrongfully claim refunds,

which were divided between Fountain and the recruited individuals. Additionally, she

extorted recruited individuals who refused to pay her a portion of their tax refunds. For

these crimes, she was sentenced to 228 months in prison.

In August 2020, Fountain filed a pro se motion for compassionate release. See

generally

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

traordinary and compelling reasons warrant such a reduction”). She argued that her med-

ical conditions rendered her especially vulnerable to COVID-19. These conditions in-

cluded obesity, concerning blood work levels, high serotonin levels, migraines resulting

from adrenoleukodystrophy, cognitive decline, anxiety, depression, panic attacks, and

post-traumatic stress disorder. She also alleged that the COVID-19 precautions taken by

Alderson Federal Prison Camp were inadequate in that inmates were unable to social

1 Although we have entertained the Government’s motion, we remind the Government that such a motion should typically be filed before the appellant’s opening brief is due. See 3d Cir. LAR 27.4(b). 2 distance and were not tested for COVID-19, some staff members did not wear masks, and

the prison did not have adequate sanitation supplies or ventilation.

The District Court denied her motion, determining that (1) her medical conditions,

even in the context of the pandemic, did not constitute extraordinary and compelling cir-

cumstances, and (2) the

(a) factors weighed against her release. Foun-

tain appealed and has filed a brief. The Government seeks summary affirmance.

We have jurisdiction pursuant to

. We review for abuse of discre-

tion 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 decision un-

less 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 rea-

sons 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 circum-

stances 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. 18 U.S.C.

3 § 3553(a). Compassionate release is discretionary, not mandatory; therefore, even if a de-

fendant is eligible for it, a district court may deny compassionate release upon determin-

ing that a sentence reduction would be inconsistent with the § 3553(a) factors. See Paw-

lowski, 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) fac-

tors counseled against granting compassionate release”).

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

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

We agree.

The District Court considered Fountain’s assertion that she was a “non-violent,

first time, white-collar offender,” (Mot. at 2), but properly emphasized the serious nature

and circumstances of her offenses, and her commission of several disciplinary infractions

while incarcerated, including fighting another inmate. The Court also concluded that

Fountain’s release would neither reflect the seriousness of her offenses, promote respect

for the law, provide just punishment, afford adequate deterrence, nor protect the public

from further crimes she may commit, and noted that she had served less than half of her

228-month sentence. The Court concluded also that reducing Fountain’s sentence would

frustrate the goal of avoiding unwarranted sentencing disparities. We cannot say that the

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

3553(a) factors.

4 Based on the foregoing, Fountain’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