United States of America v. Marcal Fraction, also known as Monk

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2867
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UNITED STATES OF AMERICA
v.
MARCAL FRACTION, also known as Monk,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:14-cr-00305-003)
District Judge: Hon. Malachy E. Mannion
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Submitted Under Third Circuit LAR 34.1(a)
September 8, 2022
Before: JORDAN, HARDIMAN, and SMITH, Circuit Judges.
(Filed: September 12, 2022)
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OPINION *
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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2
HARDIMAN, Circuit Judge.
Marcal Fraction appeals the District Court’s order denying his compassionate
release motion. Fraction has not shown “extraordinary and compelling reasons” for
compassionate release, so we will affirm.
I
In 2017, Fraction pleaded guilty to conspiracy to distribute and possess with intent
to distribute cocaine. Because he was a career offender, Fraction’s advisory Sentencing
Guidelines range was 151 to 188 months’ imprisonment. The District Court varied
downward, imposing a sentence of 120 months. Fraction moved the District Court for
compassionate release based on his increased risk of complications from COVID-19, but
the District Court denied that motion, and we summarily affirmed. See United States v.
Fraction, 855 F. App’x 72, 72 (3d Cir. 2021) (per curiam).
Fraction filed a second motion for compassionate release, arguing that if he were
sentenced today, he would no longer be considered a career offender and would receive a
shorter sentence. The District Court denied that motion too. The sole issue before us is
whether Fraction’s second motion demonstrated “extraordinary and compelling reasons”
to warrant compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i).1
1 We decline Fraction’s invitation to reconsider all the issues he raised in his first motion
for compassionate release because, by his own admission, he “did not re-raise all of these
arguments in his most recent motion.” Fraction Br. 10 n.1.

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II2
In United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc), we overruled
prior precedent and held that inchoate offenses—including conspiracy, id. at 469 n.10—
“are not included in the definition of ‘controlled substance offenses’ given in section
4B1.2(b) of the sentencing guidelines,” id. at 472. As the Government concedes, if
Fraction were sentenced today, he would not be considered a career offender under Nasir
and would receive a shorter sentence. But he was sentenced before Nasir, and he does not
argue that his sentence was unlawful at the time it was imposed.
In United States v. Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021), we held that
“[t]he duration of a lawfully imposed sentence does not create an extraordinary or
compelling circumstance.” We also held that “nonretroactive changes” in statutory
sentencing law “cannot be a basis for compassionate release.” Id. at 261. So Andrews
precludes Fraction’s argument that his lawfully imposed sentence should have been
modified based on Nasir’s nonretroactive change in the law. See id.; see also Harper v.
Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993) (holding that a new interpretation of federal
law applies to “cases still open on direct review”). We will affirm the District Court’s
order denying Fraction’s motion for compassionate release.
2 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291. We review the District Court’s order denying compassionate
release for abuse of discretion. United States v. Andrews, 12 F.4th 255, 259 (3d Cir.
2021).

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