ALD-138 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1121 ___________

UNITED STATES OF AMERICA

v.

KEITH E. REDMAN, a/k/a DINGER, Appellant ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 2:10-cr-00233-016) District Judge: Honorable Robert J. Colville ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 4, 2023 Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: May 30, 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. Federal inmate Keith E. Redman, proceeding pro se, appeals from an order of the

United States District Court for the Western District of Pennsylvania denying his motion

for compassionate release under

(c)(1). For the reasons that follow, we

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

ruling.

Redman pleaded guilty to conspiracy to possess with intent to distribute at least

500 grams but less than 2 kilograms of cocaine. In March 2012, the District Court

imposed a sentence of 268 months in prison, to run concurrently with a 150-month

sentence imposed the day before in a separate case (D.C. Crim. No. 2:09-cr-00318-01).

Redman appealed, but we granted the Government’s motion to enforce his waiver of

appeal rights. See United States v. Redman, C.A. No. 12-1877. Redman’s two motions

under

were denied. Redman is slated for release in April 2030.

Redman filed his first motion for compassionate release in 2020, claiming that his

pre-diabetes, hypertension, and chronic kidney disease leave him more susceptible to

serious complications or death from the COVD-19 virus, and that prison conditions

frustrate the ability for self-care. See ECF Nos. 1079, 1082, and 1122. The Government

opposed the motion, and, after it showed that Redman had refused to be vaccinated when

he had the chance, the District Court entered an order in May 2021 denying the motion

for that reason. See ECF No. 1125.

Redman filed a new motion for compassionate release in 2022, which was

augmented by his counsel’s memorandum in support. See ECF Nos. 1140, 1160. He 2 once again highlighted the COVID-19 risks to his health, while noting that he has now

been vaccinated and boosted. Further, he urged the District Court to consider recent

changes in the law, including a 2014 retroactive amendment to the Advisory Guidelines

and decisions issued by this Court and the Supreme Court, as constituting “extraordinary

and compelling” reasons for release, see § 3582(c)(1)(A)(i).1 He argued that the §

3553(a) sentencing factors weighed in favor of reducing his sentence. The Government

opposed the motion.

In December 2022, the District Court denied Redman’s motion. It reviewed

Redman’s medical conditions and his medical expert’s report, but declined to find an

extraordinary or compelling reason for release because Redman had been fully

vaccinated, is well under sixty-five years of age, the prison had a current infection rate of

nil and a high rate of vaccinations, and COVID-19 mitigation protocols continue to be in

place. See Dist. Ct. Mem. Ord. 8-11. The District Court also rejected Redman’s

argument for relief based on the “drugs minus two” amendment to the Advisory

Guidelines, because Redman was sentenced as a career offender, not based on the drug

1 Amendment 782 to the Guidelines, otherwise known as “drugs minus two,” “retroactively reduced by two levels the base offense levels assigned to many drug quantities.” United States v. Thompson,

(3d Cir. 2016). Redman also claimed that he no longer qualified as a career offender according to our decision in United States v. Nasir,

(3d Cir. 2021) (en banc) (holding that inchoate crimes cannot constitute predicate drug offenses to trigger an armed career criminal enhancement), and that the District Court could consider the Nasir change when contemplating his sentence reduction under the First Step Act, according to United States v. Concepcion,

(2022). 3 quantity level, and thus is not eligible for that change.

. Further, the District

Court found that our decision in United States v. Nasir did not assist Redman in his

motion because we ruled in United States v. Andrews,

(3d Cir. 2021), that

such non-retroactive changes in sentencing laws do not constitute extraordinary and

compelling reasons for granting release under § 3582(c)(1). D. Ct. Mem. Or. at 12-13. It

decided that the Supreme Court’s holding in Concepcion did not alter that conclusion. Id.

Finally, the District Court concluded that even if Redman’s cited reasons had been

extraordinary and compelling, it would deny the motion because the sentencing factors

under

(a) weighed against release.

.

Redman filed this timely appeal. The Government has now filed a motion for

summary affirmance. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. Redman filed a

response in opposition.

We have jurisdiction under

and review the District Court’s order

for an abuse of discretion. See Andrews,

. Here, we agree with the

Government that the District Court did not abuse its discretion by denying his

compassionate release motion, and accordingly, that the appeal presents no substantial

question, see 3d Cir. L.A.R. 27.4. See United States v. Pawlowski,

, 330

(3d Cir. 2020) (explaining that we will not vacate a 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”) (cleaned up). We cannot

say that the District Court committed a grave error of judgment in its determination that 4 the balance of § 3553(a) factors weighed against Redman, where those factors included

the need to avoid unwanted sentencing disparities, his record of disciplinary infractions in

prison, Redman’s prior instances of recklessly fleeing law enforcement, and his 11 adult

convictions of drug trafficking and non-drug offenses including assault. Id.2

Moreover, we also discern no abuse of discretion in the District Court’s analysis of

extraordinary and compelling circumstances. As the District Court pointed out, the rate

of infections at FCI McDowell is negligible: at this writing, it has 0 confirmed inmate

COVID-19 cases and 1 confirmed staff case. See BOP: COVID-19 Update The

institution is presently operating at Level 1 of the BOP’s COVID-19 Modified Operations

Matrix, requiring the lowest level of modifications in the system. See BOP: COVID-19

Modified Operations Plan & Matrix (explaining that one of two indicators assessed for

achieving Level 1 is “[n]ew community positive cases, 100 per 100,000 over the last 7

days”). Redman expressed concern about the level of community transmission in West

Virginia, but we note that the matrix level is determined in part by the community risk of

the county where the facility is located, which indicates that the BOP and the institution

itself should be continually assessing that issue in its operations. These considerations,

coupled with the fact that Redman is now vaccinated, lead us to conclude that the District

Court did not abuse its discretion here. Finally, we agree with the District Court that

2 Contrary to what was stated in the analysis of § 3553(a) factors in the Memorandum Order at 14, Redman was sentenced in March 2012 (not convicted in March 2018) to 150 months’ imprisonment for possession with intent to distribute crack cocaine in D.C. Crim. No. 2:09-cr-00318-01. D. Ct. Mem. Ord. at 14. 5 Redman’s argument that Nasir altered his career offender status is not one that may be

considered an extraordinary and compelling reason for release. See Andrews,

; cf. United States v. King,

(7th Cir. 2022) (concluding that

Concepcion is irrelevant to the question of whether a movant has established

extraordinary and compelling reasons for release under § 3582(c)(1)(A)(i)).

Accordingly, we will affirm the District Court’s judgment.3

3 Redman’s outstanding motions are denied.

6