NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 22-2406 __________

UNITED STATES OF AMERICA

v.

DAMIEN HAMMONDS, also known as “Hondo”, Appellant __________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:11-cr-00166-001) District Judge: Honorable Christopher C. Conner __________

Submitted Under Third Circuit L.A.R. 34.1(a) on June 5, 2023

Before: HARDIMAN, AMBRO, and FUENTES, Circuit Judges

(Filed: June 27, 2023) __________

OPINION * __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Damien Hammonds, proceeding pro se, appeals the District Court’s order denying

his motion to reconsider the denial of his motion for compassionate release under

(c)(1)(A)(i). We will affirm.

I

In 2013, a jury convicted Hammonds of distribution and possession with intent to

distribute cocaine in violation

(a)(1), and conspiracy to distribute and

possess with intent to distribute cocaine in violation of

. At sentencing,

Hammonds was subject to a 20-year mandatory minimum because of his prior conviction

for a felony drug offense. See

(b)(1)(A) (2010). Hammonds also qualified

as a career offender under the Sentencing Guidelines. The District Court sentenced

Hammonds to 20 years’ imprisonment.

In 2020, Hammonds sought compassionate release, citing his increased risk of

serious illness if he contracted COVID-19. The District Court denied that motion.

Hammonds then moved the Court to reconsider, repeating his COVID-19 arguments and

also arguing that intervening changes in the law constituted “extraordinary and

compelling reasons” justifying compassionate release.

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

District Court again denied his motion. Hammonds timely appealed.

2 II1

Hammonds claims his term of imprisonment should be reduced for two

“extraordinary and compelling reasons.” See

(c)(1)(A)(i).

First, Hammonds cites intervening changes in the law. He contends that, if

sentenced today, he would not be subject to the 20-year mandatory minimum following

the First Step Act,

Stat. 5194, 5220 (2018). Nor, he says, would

he be a career offender under our opinion in United States v. Nasir,

(3d Cir.

2021) (en banc).

Hammonds is right that Nasir and the First Step Act have changed the sentencing

landscape. But neither is a basis for his compassionate release. For starters, though

Section 401 of First Step Act reduced the mandatory minimum sentence under

§ 841(b)(1)(A) from 20 years to 15 years, that section applies only to sentences then “not

[yet] imposed.” 132 Stat. at 5221. Hammonds was sentenced before the First Step Act

became law. So Section 401 does not apply to him, and nonretroactive changes in

statutory sentencing law “cannot be a basis for compassionate release.” United States v.

Andrews,

(3d Cir. 2021). 2 And though we held in Nasir that an

inchoate offense like conspiracy isn’t a “controlled substance offense” that triggers

1 The District Court had jurisdiction under

. We have jurisdiction under

. 2 Hammonds’s other arguments about Alleyne v. United States,

(2013), and intervening changes in the law related to his Pennsylvania cocaine-trafficking conviction— a career-offender predicate when he was sentenced—fail for the same reason. See Andrews, 12 F.4th at 260–61.

3 career-offender eligibility,

, Hammonds was convicted of both conspiracy

and a controlled substance offense. See U.S.S.G. § 4B1.2(b). So he still would qualify as

a career offender. 3

Hammonds asserts that Concepcion v. United States,

(2022),

makes intervening changes in the law relevant to the compassionate release calculus. But

Concepcion held that courts may consider intervening changes in law when resentencing

a defendant under Section 404 of the First Step Act. 142 S. Ct. at 2404; see also United

States v. King,

(7th Cir. 2022). This is not a Section 404 resentencing

case. So the District Court did not abuse its discretion in finding that the First Step Act

and Nasir are not extraordinary or compelling reasons.

Second, Hammonds argues that his medical conditions, which increase his risk of

severe illness from COVID-19, are “extraordinary and compelling” reasons for his

release. The District Court did not abuse its discretion in rejecting this argument either. It

permissibly considered the “robust vaccination rate” and low number of COVID-19 cases

in Hammonds’s prison. Dist. Ct. Dkt. No. 713, at 2; cf. Garrett v. Murphy,

,

433 (3d Cir. 2021) (holding that prisoner did not show imminent danger of serious injury

because he already had COVID-19 and vaccines were available). And the Court noted

that Hammonds had contracted COVID-19 before and did not say he suffered severe

complications. See

We see no “clear error of judgment” in the Court’s denial based on

3 Though Hammonds’s classification as a career offender increased his Guidelines range, the District Court varied downward and imposed the mandatory minimum term of imprisonment. So Hammonds’ career-offender status did not affect his sentence.

4 Hammonds’s risk of contracting COVID-19. United States v. Pawlowski,

,

330 (3d Cir. 2020).

Even if Hammonds showed extraordinary and compelling reasons, the District

Court did not abuse its discretion in finding that the

(a) factors weighed

against a sentence reduction. Hammonds committed serious drug offenses, had a criminal

record, was subject to disciplinary action while incarcerated, and had more than five

years remaining on his sentence. See

at 330–31 (holding that courts can consider a

prisoner’s time left to serve).

We will affirm the District Court’s order.

5