BLD-168 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1636 ___________

UNITED STATES OF AMERICA

v.

KEVIN HILLER, also known as KEV, also known as KEVEN HILLER, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2:06-cr-00096-004) District Judge: Honorable Eduardo C. Robreno ____________________________________

Submitted for Possible Dismissal as Untimely 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 19, 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 Kevin Hiller appeals from the District Court’s order denying his

motion for compassionate release under

(c)(1). The Government has

filed a motion for summary affirmance. For the reasons that follow, we will summarily

affirm the District Court’s judgment.

In 2007, a federal jury found Hiller guilty of a firearm count and two Hobbs Act

counts stemming from his role in an attempted robbery of an armored car. The District

Court sentenced him to 216 months’ imprisonment and five years’ supervised release.

Hiller unsuccessfully sought relief on direct appeal, see United States v. Hiller,

(3d Cir. 2011), and via

, see C.A. No. 14-1366. He has

since filed multiple applications to file second or successive § 2255 motions, all of which

have been unsuccessful.

In 2021, Hiller filed a motion for compassionate release pursuant to

(c)(1), citing his age, health issues and vulnerability to COVID-19, entitlement to

additional credit, rehabilitation efforts, and improper classification as a career offender.

The Government opposed the motion. The District Court denied the motion, concluding

that Hiller had not presented extraordinary and compelling reasons justifying release and

that release was not warranted upon consideration of the

(a) factors.

A year later, Hiller filed another motion, arguing that he was entitled to release

because his health conditions (hypertension and chronic obstructive pulmonary disease or

asthma) made him more vulnerable to COVID-19 complications and because he was

2 entitled to additional credit for time served. 1 The District Court denied it, concluding that

Hiller failed to assert “extraordinary and compelling” reasons for release. Hiller now

appeals. The Government filed a motion for summary affirmance. Hiller did not respond

to the motion, and the response time has passed. 2

We have jurisdiction under

. Pursuant to § 3582(c)(1)(A), a

District Court may reduce a sentence if extraordinary and compelling reasons warrant

such a reduction. We review a District Court’s order denying a motion for

compassionate release 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 decision

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; 3d Cir. I.O.P. 10.6.

We discern no abuse of discretion in the District Court’s conclusion that Hiller did

not present extraordinary and compelling reasons for release. First, while Hiller claimed

that his health conditions made him more susceptible to complications related to COVID-

19, “the mere existence of COVID-19 in society and the possibility that it may spread to

1 While Hiller styled this filing as a “reconsideration request,” the District Court treated it as a new motion for compassionate release, and we will do the same. 2 While Hiller filed his notice of appeal more than 14 days after the District Court entered its order, see Fed. R. App. P. 4(b), the Government has not objected to the timeliness of the appeal, and we thus decline to dismiss it, see United States v. Muhammud,

(3d Cir. 2012) (explaining that Rule 4(b) is not jurisdictional). Hiller’s motion to withdraw the appeal is denied.

3 a particular prison alone cannot independently justify compassionate release.” United

States v. Raia,

, 597 (3rd Cir. 2020). Hiller did not demonstrate that any

additional risks posed by his health conditions warranted compassionate release. See

United States v. Andrews,

, 260–62 (3d Cir. 2021) (finding no clear error in

the determination that defendant’s age, rehabilitation, and general susceptibility to

COVID-19 were not compelling reasons warranting compassionate release). We also

agree with the District Court that Hiller’s arguments that he was entitled to additional

credit for time served and that counsel performed deficiently at sentencing are not ones

that may be considered extraordinary and compelling reasons for release. See

at 260–

61 (stating that the “duration of a lawfully imposed sentence does not create an

extraordinary or compelling circumstance”); United States v. Escajeda,

,

187–88 (5th Cir. 2023).

Accordingly, we grant the Government’s motion for summary action and will

affirm the District Court’s judgment.

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