United States of America v. Michael Lynn Cash

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LYNN CASH,
Defendant - Appellant.
No. 21-7027
(D.C. No. 6:11-CR-00057-RAW-1)
(E.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Michael Lynn Cash, 1 proceeding pro se, appeals the district court’s denial of
his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), as amended
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
1 Because Mr. Cash is pro se, we construe his filings liberally, but we do not act as
his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). He is subject to
the same procedural rules governing other litigants. See United States v. Green, 886 F.3d
1300, 1307 (10th Cir. 2018).
FILED
United States Court of Appeals
Tenth Circuit
October 21, 2021
Christopher M. Wolpert
Clerk of Court
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by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
In 2012, Mr. Cash was convicted of (1) possession with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);
(2) possession of a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A); and (3) being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 360 months of
imprisonment.
In May 2020, Mr. Cash filed a motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A). After the government opposed his motion because he
failed to exhaust his administrative remedies, Mr. Cash voluntarily withdrew it.
In October 2020, Mr. Cash filed a second motion for compassionate release
after having exhausted his administrative remedies. He cited his (1) medical
conditions, including diabetes, hypertension, hepatitis C, high cholesterol, and
obesity; (2) allegedly illegally enhanced sentence; (3) status as a non-violent and
non-sex offender; (4) sobriety; and (5) quarantine and reentry plan should he be
released.
The district court denied his motion. It first held that Mr. Cash did not present
“extraordinary and compelling circumstances” under 18 U.S.C. § 3582(c)(1)(A)(i).
Although the court recognized that Mr. Cash’s medical conditions placed him at
greater risk of severe illness from COVID-19, it determined the detention facility
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could likely provide appropriate medical treatment. The court noted that the
detention facility was administering COVID-19 vaccines to staff and inmates.
The court also held that even if Mr. Cash had established extraordinary and
compelling circumstances, the § 3553(a) factors did not justify his release. It
considered “his history and characteristics, the offense conduct, the need for just
punishment, deterrence, and protection of the public,” and concluded these factors
did not justify compassionate release. ROA, Vol. I at 191.
Mr. Cash timely appealed.
II. DISCUSSION
A. Standard of Review
We review a district court’s ruling on a First Step Act motion for abuse of
discretion. See United States v. Mannie, 971 F.3d 1145, 1147-48, 1154-55 (10th Cir.
2020). “A district court abuses its discretion when it relies on an incorrect
conclusion of law or a clearly erroneous finding of fact.” United States v. Piper, 839
F.3d 1261, 1265 (10th Cir. 2016) (quotations omitted).
B. Legal Background
Title 18 U.S.C. § 3582(c)(1)(A), as amended by Section 603(b) of the First
Step Act, allows defendants to move for compassionate release in the district court
after exhausting BOP administrative remedies. See United States v. Maumau, 993
F.3d 821, 830-31 (10th Cir. 2021). The motion may be granted only when “(1) the
district court finds that extraordinary and compelling reasons warrant such a
reduction; (2) the district court finds that such a reduction is consistent with
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applicable policy statements issued by the Sentencing Commission; and (3) the
district court considers the factors set forth in § 3553(a), to the extent that they are
applicable.” Id. at 831; see also 18 U.S.C. § 3582(c)(1)(A).
The § 3553(a) factors are: (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant,” (2) “the need for the sentence
imposed to reflect the seriousness of the offense,” (3) “the kinds of sentences
available,” (4) “the kinds of sentences available and sentencing range established for”
the offense at the time of sentencing, (5) “any pertinent policy statement” in effect at
the time of the defendant’s sentencing, (6) “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct,” and (7) “the need to provide restitution to any victims of the
offense.” Id. § 3553(a)(1)-(7).
“[D]istrict courts may deny compassionate-release motions when any of the
three prerequisites listed in § 3582(c)(1)(A) is lacking.” Maumau, 993 F.3d at 831
n.4 (quotations omitted); see also United States v. McGee, 992 F.3d 1035, 1043 (10th
Cir. 2021).
C. Analysis
Mr. Cash argues the district court abused its discretion when it (1) determined
no extraordinary and compelling circumstances existed warranting his release and (2)
held the § 3553(a) factors did not weigh in favor of release. We disagree.
First, the district court did not abuse its discretion in determining that Mr.
Cash did not establish extraordinary and compelling circumstances.
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Mr. Cash faults the district court for not adequately weighing his health
conditions. But the court considered Mr. Cash’s medical conditions as part of its
individualized assessment. It noted that Mr. Cash “suffers from various medical
conditions, including type 2 diabetes mellitus, hypertension, hepatitis C, high
cholesterol, and obesity.” ROA, Vol. I at 189. It acknowledged these conditions
placed Mr. Cash “at greater risk of severe illness from COVID-19.” Id. at 189-90.
But it concluded that the detention facility was capable of providing Mr. Cash with
the requisite care. “[T]he district court’s decision indicates that its finding . . . was
based on its individualized review of all the circumstances of” Mr. Cash’s case, so it
did not abuse its discretion. Maumau, 993 F.3d at 837.
Mr. Cash argues for the first time on appeal that the district court failed to
consider that (1) he could not be fully vaccinated and (2) the COVID-19 vaccines’
reduced effectiveness against the Delta variant. “An issue is waived if it was not
raised below in the district court.” Wilburn v. Mid-South Health Dev., Inc., 343 F.3d
1274, 1280 (10th Cir. 2003). Mr. Cash waived these arguments by failing to present
them to the district court.
Second, the district court did not abuse its discretion when weighing the
§ 3553(a) factors. It considered that Mr. Cash (1) had a “criminal history [that]
began at age 18,” (2) “was arrested and convicted of numerous crimes in Oklahoma
and Texas (more than 20) prior to being convicted for the instant offenses,” (3) has a
high criminal history category, (4) “committed the instant offenses while under a
criminal justice sentence for manufacture of [a] controlled substance,” and (5) “has
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served roughly one-third of his sentence.” ROA, Vol. I at 191. The court concluded
that reducing Mr. Cash’s “sentence to time served would produce a sentence that no
longer reflects the seriousness of [his] criminal conduct” and would undermine the
court’s “duty to protect the public.” Id.
In reviewing the district court’s consideration of the relevant § 3553(a) factors,
“[w]e are not left with a definite and firm conviction that the district court made a
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” United States v. Hald, 8 F.4th 932, 950 (10th Cir. 2021) (quotations
and alterations omitted).
III. CONCLUSION
We affirm.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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