BLD-024 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-2749 ___________

UNITED STATES OF AMERICA

v.

DANIEL GATSON a/k/a Tokyo Gatson, a/k/a Craig, a/k/a Big Country, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 2-13-cr-00705-001) District Judge: Honorable William J. Martini ____________________________________

Submitted on the Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 November 4, 2021 Before: MCKEE, GREENAWAY, JR., and PORTER, Circuit Judges

(Opinion filed: December 1, 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. Daniel Gatson appeals from the District Court’s order denying his motion for

compassionate release pursuant to

(c)(1)(A)(i). The Government has

filed a motion for summary affirmance. For the reasons that follow, we will summarily

affirm the District Court’s order.

In 2015, Gatson was convicted of numerous counts of transporting stolen property

across state lines. The property, valued at $3.6 million, had been stolen from multiple

residences. The District Court imposed a sentence of 300 months’ imprisonment. In

April 2021, after refusing to be vaccinated, Gatson filed a motion for compassionate

release, arguing, inter alia, that his severe obesity and hypertension made him vulnerable

to serious health issues if infected with COVID-19. The District Court denied the

motion, concluding that Gatson’s medical issues did not constitute extraordinary and

compelling reasons. The District Court also determined that consideration of the factors

set forth in

(a) did not support the reduction of Gatson’s sentence.

Gatson filed a timely notice of appeal, and the Government filed its motion for summary

affirmance. Gatson opposes the Government’s motion.

We have jurisdiction under

. Pursuant to

(c)(1)(A), a

District Court may reduce a sentence if extraordinary and compelling reasons warrant

such a reduction. Before granting compassionate release, however, a district court must

consider “the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are

applicable.” Id. § 3582(c)(1)(A). We review the District Court’s order denying the

motion for compassionate release for an abuse of discretion and will not disturb that 2 decision unless the District Court committed a clear error of judgment after weighing the

relevant factors. See United States v. Pawlowski,

, 330 (3d Cir. 2020). We

may summarily affirm a district court’s decision “on any basis supported by the record” if

the appeal fails to present a substantial question. See Murray v. Bledsoe,

(3d Cir. 2011) (per curiam).

Here, we need not address whether Gatson has shown that extraordinary and compelling

reasons support a sentence reduction,1 because the District Court also based its denial of

the motion on its consideration of the § 3553(a) factors. Referring to its comments at

sentencing, the District Court noted the need for both the protection of the public and

deterrence of Gatson. See

(a)(2)(B) & (C) (including protection of the

public and deterrence as sentencing factors). 2 This was not unreasonable, given the

number of burglaries underlying Gatson’s convictions as well as his having served less

than one-third of his sentence at the time he requested compassionate release.

1 See United States v. Broadfield,

(7th Cir. 2021) (“. . . for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.”); see also Garrett v. Murphy, No. 20-2719, --- F.4th ---,

, at *10 (3d Cir. Oct. 29, 2021) (taking judicial notice that COVID-19 vaccines are widely available and rejecting claim that prisoner was under imminent danger of physical injury from COVID). 2 At sentencing, the District Court noted Gatson’s criminal history as the reason a lengthy sentence was needed to protect the public. In explaining its decision to vary upwards from the Guidelines in sentencing Gatson, the District Court also opined that a Guideline sentence would not deter Gatson, whom it described as showing no remorse. 3 Summary action is appropriate if there is no substantial question presented in the appeal.

See Third Circuit LAR 27.4. As the District Court clearly did not abuse its discretion in

denying Gatson’s motion for a sentence reduction based on its weighing of the § 3353

factors, the appeal does not present a substantial question. Accordingly, we grant the

Government’s motion for summary action and will summarily affirm the District Court’s

judgment. See Third Circuit I.O.P. 10.6. The Government’s motion to file its appendix

under seal is granted.

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