CLD-027 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2476 ___________

UNITED STATES OF AMERICA

v.

FRANCO BADINI, Appellant ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 2-09-cr-00325-014) District Judge: Honorable Mark R. Hornak ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 November 10, 2022 Before: GREENAWAY, JR., MATEY, and MCKEE, Circuit Judges

(Opinion filed January 5, 2023) _________

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. Pro se appellant Franco Badini appeals the District Court’s order denying his third

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

affirmance. For the reasons discussed below, we grant the Government’s motion and will

summarily affirm the District Court’s judgment.

In 2012, Badini was convicted of conspiracy to distribute and possess with intent

to distribute five kilograms or more of cocaine. Because he had previously been

convicted of a felony drug offense, the District Court sentenced him to a mandatory 20-

year minimum sentence. Badini appealed, and we affirmed. See United States v. Badini,

(3d Cir. 2013) (non-precedential).

In his first two motions for compassionate release, Badini argued, among other

things, that he was entitled to release because his prior drug felony would no longer

subject him to a 20-year minimum under 21 U.S.C. § 841’s amended recidivist provision.

See First Step Act of 2018,

,

(Dec. 21, 2018).

The District Court determined that that change in law did not amount to an “extraordinary

and compelling reason[]” warranting a sentence reduction. § 3582(c)(1)(A)(i); see also

United States v. Andrews,

(3d Cir. 2021).1

Badini then filed his third motion for compassionate release, which is at issue in

this appeal. He claimed that the Supreme Court’s recent decision in Concepcion v.

1 We affirmed the denial of Badini’s first motion. See United States v. Badini,

(3d Cir. 2021) (per curiam). Badini did not appeal the order denying his second motion. 2 United States,

(2022), supports his argument that the change in

sentencing law entitles him to compassionate release. The District Court denied the

motion, see ECF No. 1211, and Badini appealed. The Government has moved for

summary affirmance, and Badini has not responded.

We will grant the Government’s motion.2 Badini’s prior requests for

compassionate release failed because nonretroactive changes to mandatory minimums—

like the change in law Badini relies upon—do not present extraordinary or compelling

reasons for release. See Andrews,

(reasoning that “the imposition of a

sentence that was not only permissible but statutorily required at the time is neither an

extraordinary nor a compelling reason to now reduce that same sentence” (quoting

United States v. Maumau,

(10th Cir. 2021) (Tymkovich, C.J.,

concurring))). Badini claims that Concepcion changed this law, but we disagree. The

Court in Concepcion did not address what qualifies as an “extraordinary and compelling”

reason under the compassionate release statute. See United States v. King,

(7th Cir. 2022) (“Concepcion is irrelevant to the threshold question whether any

given prisoner has established an ‘extraordinary and compelling’ reason for release.”).

2 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.

3 Andrews thus continues to foreclose Badini’s argument that he should be granted

compassionate release based on the change in the sentencing law.3

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

District Court’s judgment.

3 In his motion, Badini also mentions his age, his good conduct in prison, and his desire to be a good father to his children. However, the District Court twice previously determined that those grounds did not justify compassionate release. See ECF Nos. 1129 at 5–11 & 1197 at 4–6. Badini provided no argument for why the District Court should address those issues once again, and we conclude that the Court did not err in declining to do so. See generally Pub. Int. Rsch. Grp. of N.J., Inc. v. Magnesium Elektron, Inc.,

, 116 (3d Cir. 1997) (discussing law-of-the-case doctrine). Further, while Badini also cited Rule 60(b), “the Federal Rules of Civil Procedure (including Rule 60(b)) do not apply to criminal cases.” United States v. Arrington,

(D.C. Cir. 2014). 4