CLD-206 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2063 ___________

UNITED STATES OF AMERICA

v.

HARVEY HOLLAND, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1:01-cr-00195-006) District Judge: Honorable Robert D. Mariani ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 31, 2023

Before: SHWARTZ, MATEY, and FREEMAN, Circuit Judges

(Opinion filed: October 10, 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. PER CURIAM

Pro se appellant Harvey Holland appeals from the District Court’s order denying

his motion for compassionate release pursuant to

(c)(1)(A). The

Government has filed a motion for summary affirmance. For the following reasons, we

will affirm.

Because we write primarily for the benefit of the parties, we recite only the facts

and procedural history relevant to our disposition. In 2002, Harvey Holland was

convicted in the United States District Court for the Middle District of Pennsylvania in a

joint trial with his brother, Jeffrey Holland, of distribution of, and possession with intent

to distribute, 50 grams or more of crack cocaine, in violation of

(a)(1),

and conspiracy, in violation of § 846. Holland was sentenced to two concurrent terms of

life imprisonment. Holland’s convictions and sentences were affirmed on appeal, see

United States v. Holland,

(3d Cir. 2003), and his petition for certiorari

was denied by the United States Supreme Court. Holland then, unsuccessfully, pursued

various forms of post-conviction relief, including under

, Federal Rule

of Civil Procedure 60(b),

, and

, as well as filed two

motions for a sentence reduction.1

The present appeal concerns Holland’s September 23, 2020 motion for

compassionate release. Dkt No. 526. In that motion, Holland alleged that several

1 We are also aware of two pending appeals, see C.A. Nos. 22-2764 and 23-2157, but neither has any impact on the current record.

2 medical conditions placed him at a higher risk of serious illness from COVID-19 and that

his institution of confinement was incapable of managing the COVID-19 pandemic,

evidenced by, inter alia, the increasing number of infections. On August 2, 2021,

Holland moved for appointment of counsel related to his compassionate release motion

and informed the District Court that he had contracted COVID-19 and continued to

experience side effects. Dkt No. 556.

On May 24, 2023, the District Court denied both Holland’s compassionate release

motion and his request for counsel. Dkt No. 587 & 588. Specifically, the District Court

concluded that Holland had failed to demonstrate an extraordinary and compelling reason

for release, and in any event, the

(a) factors weighed against

compassionate release. Holland filed a timely notice of appeal from the Court’s May 24,

2023 order, and later filed a second notice of appeal from the same order. Dkt Nos. 594

& 596. On appeal, the Government seeks summary affirmance and Holland has moved

for appointment of counsel.

We have jurisdiction pursuant to

. We review for abuse of

discretion a district court’s order denying a motion for compassionate release. United

States v. Pawlowski,

, 330 (3d Cir. 2020). “[W]e will not disturb the 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.”

(quotation marks and citation omitted). We may take summary action if the appeal

presents no substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. We agree

3 with the Government that the appeal does not present a substantial question because the

District Court did not abuse its discretion in denying Holland’s § 3582 motion.

Under § 3582(c)(1)(A)(i), a district court may reduce a prison term if

“extraordinary and compelling reasons warrant such a reduction.” Before it may grant

release or modification, however, the court must consider the sentencing factors under

(a) “to the extent that they are applicable.”

There is no indication that the District Court “committed a clear error of

judgment” when it concluded that the circumstances presented by Holland did not

amount to extraordinary and compelling reasons that justify release. As the District

Court noted, Holland failed to present any current and/or active medical issues that

increase his risk of serious complications related to COVID-19. Moreover, his

generalized concerns regarding the institution’s alleged failure to combat the pandemic

are insufficient to constitute extraordinary and compelling reasons. See United States v.

Raia,

, 597 (3d Cir. 2020) (explaining that “the mere existence of COVID-

19 in society and the possibility that it may spread to a particular prison alone cannot

independently justify compassionate release”).2

2 In his brief on appeal, Holland appears to argue that he can demonstrate extraordinary and compelling reasons for release based on judicial misconduct and insufficient evidence to sustain his conviction and sentence. That argument was the subject of his September 16, 2022 motion for compassionate release, which was denied by the District Court on June 6, 2023 and is the subject of his appeal at C.A. No. 23- 2157. Holland did not raise that argument in his September 23, 2020 motion for compassionate release, which is the subject of this appeal, so we will not consider it.

4 In any event, even if Holland had shown an extraordinary and compelling reason,

we discern no abuse of discretion in the District Court’s analysis of the sentencing factors

under § 3553(a). See United States v. Tinker,

, 1238–39 (11th Cir. 2021)

(per curiam) (holding that courts may assume extraordinary and compelling reasons and

deny release based on the § 3553(a) factors alone). In concluding that the § 3553(a)

factors weighed against relief, the District Court relied on its analysis in its September 7,

2022 order. There, the Court held that Holland was entitled to a sentence reduction from

life imprisonment to a sentence of 40 years imprisonment on two counts pursuant to

section 404 of the First Step Act but was not entitled to a further reduction based on an

analysis of the § 3553(a) factors. See Dkt No. 575. In concluding that the § 3553(a)

factors weighed against a further reduction, the District Court considered Holland’s

history and characteristics, including his “sustained history of drug distribution” and the

fact that he “employed violence as an integral part of his drug distribution activities”; the

seriousness of the offenses; the need to promote respect for the law and provide just

punishment for the offenses; and Holland’s rehabilitation efforts. Id. at 24–35. We

cannot say that the District Court “committed a clear error of judgment” with respect to

this analysis.3

3 We also discern no abuse of discretion in the District Court’s decision to deny Holland’s motion for the appointment of counsel. See United States v. Webb,

, 795 n.4 (11th Cir. 2009) (per curiam) (recognizing that a district court may appoint counsel as a matter of discretion).

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

summarily affirm the District Court’s judgment. Appellant’s motion for appointment of

counsel on appeal is denied.

6