BLD-169 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1811 ___________

UNITED STATES OF AMERICA

v.

RANDY TAPIA, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2:12-cr-00261-001) Chief District Judge: Honorable Juan R. Sanchez ____________________________________

Submitted for Possible Dismissal Due to an Untimely Filed Notice of Appeal and on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 29, 2023 Before: KRAUSE, PORTER, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: July 18, 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. Randy Tapia, currently serving a sentence at Coleman USP in Florida, appeals pro

se from the District Court’s order denying his motion for compassionate release filed

pursuant to

(c)(1)(A)(i). The Government has filed a motion for

summary affirmance. For the reasons that follow, we grant the Government’s motion and

will summarily affirm.

In 2015, Tapia pleaded guilty to one count of conspiracy to distribute

methamphetamine, cocaine, and marijuana, in violation of

, and one

count of distributing methamphetamine in a school zone, in violation of

(a). He was sentenced to 240 months of imprisonment, ten years of supervised

release, and a $3,000 fine. Tapia filed a pro se notice of appeal to challenge his sentence

but, after we appointed counsel to represent him, he voluntarily withdrew the appeal. See

United States v. Tapia, C.A. No. 15-2519 (3d Cir. Jan. 7, 2016) (order granting voluntary

dismissal pursuant to Fed. R. App. P. 42(b)).

Tapia filed a pro se motion for a reduction of sentence and compassionate release

pursuant to

(c) in April 2022, arguing that: he has a serious medical

condition; he has served over ten years of his sentence; his sentence would be lower if it

had been imposed after passage of the First Step Act; and he has conducted himself well

in prison and would not be a danger to the community if released. See ECF No. 195 at

15–25. After the Government filed a response in opposition, the District Court denied the

motion, holding that Tapia had not made the requisite showing of extraordinary and

compelling reasons qualifying him for compassionate release and that the sentencing

2 factors in

(a) counseled against such relief. Tapia appeals. The

Government has moved for summary affirmance of the District Court’s order.1

We have jurisdiction under

. We review the District Court’s

order denying the motion under § 3582 for an abuse of discretion and will not disturb that

decision unless the District Court committed a clear error of judgment. See United States

v. Pawlowski,

, 330 (3d Cir. 2020). We may summarily affirm a district

court’s order if the appeal fails to present a substantial question. See Murray v. Bledsoe,

(3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.

A district court “may reduce the term of imprisonment” and “impose a term of

probation or supervised release” if it finds that “extraordinary and compelling reasons

warrant such a reduction.”

(c)(1)(A)(i). Before granting such relief, a

district court must consider the sentencing factors in § 3553(a).2 See § 3582(c)(1)(A); see

1 A motion for compassionate release is considered a continuation of the criminal proceedings, so the denial of such a motion must be appealed within 14 days. See Fed. R. App. P. 4(b)(1)(A); United States v. Payton,

, 389–90 (6th Cir. 2020). The time limit in Rule 4(b) is “not jurisdictional, and may be waived if not invoked by the government.” United States v. Muhammud,

(3d Cir. 2012). Here, although Tapia filed his notice of appeal more than 14 days after entry of the order denying his motion, the Government has affirmatively waived any objection to timeliness in its motion for summary affirmance, “recognizing that mail is occasionally delayed at the present time.” CA3 ECF No. 4 at 1–2 n.1. Accordingly, we decline to dismiss this appeal as untimely. 2 Those factors include, among other things, “the nature and circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(1), and the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; and “to protect the public from further crimes of the defendant,” § 3553(a)(2)(A)-(C). 3 also Pawlowski, 967 F.3d at 330; United States v. Jones,

, 1102 (6th Cir.

2020) (finding no abuse of discretion where “the district court found for the sake of

argument that an extraordinary and compelling circumstance existed . . . but that the

§ 3553(a) factors counseled against granting compassionate release”).

Here, Tapia has not filed any documents in support of his appeal or in opposition

to the Government’s motion for summary affirmance. While his motion in the District

Court focused on presenting qualifying “extraordinary and compelling reasons” for

release, he has not presented any argument on the independently dispositive question of

whether the District Court abused its discretion in weighing the sentencing factors.

Moreover, Tapia has not challenged the District Court’s conclusions about his

disciplinary record while incarcerated. See Dist. Ct. Mem. 6–7, ECF No. 200; see also

Gov’t Mot. Summ. Affirmance 3–5 (describing Tapia’s nine disciplinary infractions).

Tapia did argue that the First Step Act’s changes to the mandatory minimum

penalties for violations of § 841(b) would make his sentence lower if imposed today. The

District Court correctly found that such an argument could not support a finding of

“extraordinary and compelling reasons” at the first step of the analysis. See United States

v. Andrews,

, 260–61 (3d Cir. 2021) (holding that “[t]he duration of a

lawfully imposed sentence does not create an extraordinary and compelling

circumstance,” and “[t]he nonretroactive changes to the § 924(c) mandatory minimums []

cannot be a basis for compassionate release”). And, though Andrews recognized that “the

current sentencing landscape may be a legitimate consideration for courts at the next step

of the analysis when they weigh the § 3553(a) factors,” id. at 262 (emphasis added), our

4 review is not de novo, and Tapia has not presented any argument to prompt “a definite

and firm conviction” that the District Court clearly erred in weighing the § 3553(a)

factors. Pawlowski, 967 F.3d at 330. Indeed, the District Court considered the new

mandatory minimums and agreed with the Government that Tapia’s guidelines range

would still be the same if sentenced today, so there is no reason to believe that his

sentence would be different, accounting for his criminal history score and the § 3553(a)

factors. See Dist. Ct. Mem. 4–5 & n.3 (citing ECF No. 196 at 21).

Accordingly, Tapia’s appeal does not present a substantial question, and we will

summarily affirm the District Court’s order.

5