NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1660 ___________

UNITED STATES OF AMERICA

v.

DANIEL GATSON, also known as TOKYO GATSON, also known as CRAIG, also known as BIG COUNTRY, Appellant ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:13-cr-00705-001) District Judge: Honorable William J. Martini ____________________________________

Submitted on Appellee’s Motion for Summary Affirmance Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 on August 10, 2023

Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: September 20, 2023) ____________________________________ ___________

OPINION * ___________

PER CURIAM

Daniel Gatson is serving a 300-month federal sentence for transporting the proceeds of

his many burglaries. He appeals the denial of his third motion for modification of his

sentence (sometimes called compassionate release) under

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

On the Government’s motions, we summarily affirmed the denial of his first two mo-

tions. See United States v. Gatson, No. 22-2443,

(3d Cir. Oct. 14,

2022); United States v. Gatson, No. 21-2749,

(3d Cir. Dec. 1, 2021).

The Government has filed a motion for summary affirmance in this appeal too. The Gov-

ernment acknowledges that its motion is untimely under 3d Cir. L.A.R. 27.4(b), but it

asks us to consider its motion and summarily affirm because this appeal is frivolous. We

agree.

Gatson’s first two motions were based primarily on his arguments that his health con-

ditions (obesity and hypertension) make him susceptible to complications from COVID-

19 and that he has been rehabilitated in prison. Gatson repeated the same arguments in

his third motion, and the District Court denied them for reasons that we already have af-

firmed. We will not address them again except to refer Gatson to our prior decisions.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 See, e.g., Gatson,

, at *1 (explaining the governing legal framework

and our abuse-of-discretion standard of review).

The only thing new about Gatson’s third motion is his reliance on United States v.

Banks,

(3d Cir. 2022). In that case, we held that the victim-loss enhance-

ment of U.S.S.G. § 2B1.1 applies only to actual loss, not intended loss. See id. at 255-58.

Gatson argues that Banks invalidates the § 2B1.1 loss enhancement applied in his case.

He further argues that Banks constitutes an “extraordinary and compelling reason[]” for

modifying his sentence under § 3582(c)(1)(A)(i). 1

The District Court properly ruled that it does not. We do not appear to have ad-

dressed in a precedential opinion whether decisional law relating to an advisory Guide-

lines range can factor into whether a prisoner has shown “extraordinary and compelling

reasons” for a sentence modification. Cf. United States v. Andrews,

(3d Cir. 2021) (holding that a non-retroactive change in statutory sentencing law is not

“extraordinary and compelling” but might be relevant in weighing the

(a) factors), cert. denied,

(2022). Other Court of Appeals are split

on that question. See, e.g., United States v. Roper,

(9th Cir. 2023)

(collecting cases).

1 The caption of Gatson’s motion also referenced

(c)(2), but neither his motion nor his brief on appeal contains any argument under that provision. That provi- sion does not apply here because Gatson does not claim to have been sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commis- sion[.]”

(c)(2). 3 We need not address the issue in this case because Banks plainly does not apply to

Gatson. Banks holds that intended loss is not a basis for an enhancement under U.S.S.G.

§ 2B1.1. But as the District Court explained, Gatson’s sentence was based on actual loss,

not intended loss. Gatson’s Presentence Investigation Report explained that the victims

of his many burglaries sustained actual losses of approximately $3.6 million in the form

of theft and property damage. (PSR at 16-19, 21 ¶¶ 64-66, 74.) See also Gatson,

, at *1 (noting that “[t]he property [involved in Gatson’s crimes], valued at

$3.6 million, had been stolen from multiple residences”); United States v. Gatson,

, 102 (3d Cir. 2018) (explaining, in affirming Gatson’s sentence, that it was

based on “a number of factors, including the total value of the losses from the burgla-

ries”). There was no mention of intended loss in Gatson’s PSR, in the parties’ sentencing

memoranda, or at Gatson’s sentencing. Nor is Banks otherwise relevant to the § 2B1.1

loss calculation in Gatson’s case. 2 Thus, Gatson’s reliance on Banks is frivolous.

For these reasons, we grant the Government’s motion for summary affirmance and

will affirm the judgment of the District Court. The Government’s motion to be relieved

from filing a brief is denied as moot.

2 Gatson argues that the District Court, instead of relying at sentencing on the approxi- mately $3.6 million in actual loss calculated in his PSR, should have relied only on the loss of approximately $244,000 reported by “named insurance companies.” But Banks does not address how to calculate actual loss, and Gatson’s unsupported argument in this regard does not otherwise state any basis for relief. 4