CLD-043 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-2301 ___________

UNITED STATES OF AMERICA

v.

CLIFTON MCLEAN,

Appellant

____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2:13-cr-00487-001) District Judge: Honorable Gerald A. McHugh ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 9, 2021

Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges

(Opinion filed December 14, 2021) _________

OPINION* _________ PER CURIAM

Pro se appellant Clifton McLean appeals from the District Court’s orders denying

compassionate release under

(c)(1)(A) and his motion for

reconsideration. The Government has filed a motion to summarily affirm. We grant the

Government’s motion and will affirm the District Court’s ruling.

McLean is serving a 19-year prison sentence imposed in 2016 for attempting and

conspiring to commit Hobbs Act robbery, attempting and conspiring to possess with

intent to distribute cocaine, carrying a firearm during and in relation to a crime of

violence, and being a felon in possession of a firearm. The United States District Court

for the Eastern District of Pennsylvania imposed a significantly lower sentence than the

recommended Sentencing Guidelines range of 30 years to life in prison. This Court

affirmed McLean’s conviction and sentence on appeal. See United States v. McLean,

(3d Cir. 2017). According to the Bureau of Prisons, McLean’s

anticipated release date is December 1, 2029.

In early 2021, McLean filed a pro se motion for compassionate release under

(c)(1)(A), pursuant to the First Step Act, asserting that he had

“extraordinary and compelling” reasons for a reduction of sentence or release.1 McLean

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 McLean first sought compassionate release from the warden of his prison. The warden denied that request in October 2020. 2 claimed that he is overweight and carries the sickle cell trait, and that these health

conditions put him at a greater risk of complications should he contract the COVID-19

virus. He also asserted that he should be released early to care for his grandmother

because McLean’s mother, who regularly cares for her, had been injured in a car

accident. In a supplemental motion, McLean asked the District Court to reduce his

sentence because he had suffered particularly harsh prison conditions during the

preceding 13 months that he had been incarcerated, and he had made great strides at

being rehabilitated. The Government opposed Jefferson’s motion.

The District Court denied relief in May 2021. The District Court ruled that

McLean failed to show “extraordinary and compelling reasons” for a sentence reduction,

and further, that the applicable factors under

(a) did not weigh in favor

of release. McLean moved for reconsideration, and the District Court denied his motion.

In rejecting reconsideration, the District Court determined that McLean’s allegedly being

subjected to “onerous prison conditions” did not qualify as an “extraordinary and

compelling” reason. Dist. Ct. Order entered June 22, 2021.

McLean filed this appeal and a pro se informal brief.2 The Government filed a

motion for summary affirmance. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.3

2 After McLean filed his notice of appeal, the District Court denied McLean’s remaining reconsideration filings on August 24, 2021. He has not appealed that order. 3 Although there is some question whether McLean’s motion to reconsider the District Court’s May 11 order was timely filed, see United States v. Gomez-Gomez,

(6th Cir. 2011) (explaining that a motion to reconsider filed more than 14 days after entry of an order was untimely), because the untimeliness is minor and the 3 We have jurisdiction under

. We review the District Court’s

orders for an abuse of decision, and we “will not disturb the District Court’s 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.’” United States v.

Pawlowski,

, 330 (3d Cir. 2020) (alteration omitted) (quoting Oddi v. Ford

Motor Co.,

(3d Cir. 2000)); see also United States v. Andrews,

(3d Cir. 2021). We will take summary action if “no substantial question is

presented.” 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

In his informal brief, McLean primarily raises arguments that appear to challenge

the validity of his conviction and sentence on legal grounds. McLean is not entitled to

relief on these arguments because they were not presented in his motion below, see

Steagald v. United States,

(1981); have been previously rejected on

direct appeal and in

proceedings; and should be asserted via § 2255, see

generally Okereke v. United States,

(3d Cir. 2002) (stating that

“[m]otions pursuant to

are the presumptive means by which federal

prisoners can challenge their convictions or sentences”); United States v. Fine,

(8th Cir. 2020).

McLean has not otherwise demonstrated that the District Court abused its

discretion in denying his compassionate release motion. The District Court determined

Government has not objected to our review of the underlying denial of compassionate release, we decline to partially dismiss the appeal on timeliness grounds. See United States v. Muhammud,

(3d Cir. 2012) (noting that the time limit for filing a criminal appeal is rigid but may be forfeited if not invoked by the Government). 4 that McLean’s medical conditions do not constitute an “extraordinary and compelling”

reason, especially in view of the fact that he has received a COVID vaccine (the one-dose

Johnson & Johnson vaccine). Additionally, the District Court explained that McLean’s

claim that he needs to care for his elderly grandmother does not justify a grant of

compassionate release because she continues to be cared for by McLean’s mother. The

District Court’s conclusions here did not constitute a clear error of judgment.

Further, the District Court did not err in deciding that the applicable § 3553(a)

factors counseled against a grant of compassionate release. As the District Court said,

McLean’s offenses were “serious,”4 and he has served less than half of a sentence that

“was already subject to a steep downward variance from the Guidelines.” Dist. Ct. Mem.

entered May 11, 2021, at 3-4; see Pawlowski, 967 F.3d at 331 (indicating that the time

remaining on the prisoner’s sentence is a relevant consideration in determining whether

the § 3553(a) factors support a grant of compassionate release).

Finally, we discern no abuse of discretion in the District Court’s denial of

reconsideration. In its order, the District Court reasonably explained that, while it

“appreciates the challenge posed by COVID-19 and Defendant’s difficult conditions of

confinement,” it could not find that the prison conditions presented an extraordinary and

compelling reason in light of “the seriousness of Mr. McLean’s offenses and the need to

4 The District Court summarized McLean’s offenses as follows: “McLean conspired to rob more than five kilograms of cocaine from a drug stash house, secured two weapons for that purpose, and while en route to the purported stash house was captured on video professing his willingness to commit murder if that became necessary during the course of the robbery.” (Dist. Ct. Mem. entered May 11, 2021, at 3.) 5 impose appropriate punishment.” Dist. Ct. Order entered June 22, 2021. McLean did not

otherwise present newly discovered evidence or seek to correct a manifest error of law or

fact, and the District Court therefore committed no error of judgment in rejecting the

motion. See Max’s Seafood Café v. Quinteros,

, 673, 677 (3d Cir. 1999).

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

the District Court’s judgment.

6