United States of America v. Terrance Wills

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE WILLS,
Defendant - Appellant.
No. 21-3060
(D.C. No. 5:19-CR-40019-DDC-3)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
Terrance Wills, proceeding pro se,1 appeals the district court’s dismissal of his
motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Exercising jurisdiction
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
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 This order and judgment is not binding precedent,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. Wills 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
September 16, 2021
Christopher M. Wolpert
Clerk of Court
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under 28 U.S.C. § 1291, we vacate the court’s dismissal and remand with instructions to
deny the motion.
I. BACKGROUND
In 2019, Mr. Wills pled guilty to possession with intent to distribute heroin. The
presentence investigation report calculated a guidelines range of 100 to 125 months of
imprisonment. The district court sentenced Mr. Wills to 72 months of imprisonment and
60 months of supervised release. His earliest release date is March 27, 2024.
In December 2020, Mr. Wills submitted a compassionate-release request to the
Bureau of Prisons (the “BOP”) under 18 U.S.C. § 3582(c)(1)(A). He cited (1) his
medical conditions, including asthma, hypertension, and bronchitis; (2) his race; and (3)
the spread of COVID-19. After the BOP failed to respond within 30 days, Mr. Wills
filed his motion in the district court. Two months later, he filed a motion to expedite.
The district court determined that Mr. Wills satisfied the exhaustion requirements
set forth in § 3582(c)(1)(A). It agreed with Mr. Wills that his asthma constituted an
extraordinary and compelling circumstance under § 3582(c)(1)(A)(i). It then weighed the
§ 3553(a) factors and concluded that modifying Mr. Wills’s sentence was not warranted.
The court noted that the government did not argue that Mr. Wills was a danger to society.
It also recognized that Mr. Wills’s limited access to rehabilitative programs due to the
COVID-19 pandemic somewhat favored a reduction in his sentence.
The court nonetheless concluded that the § 3553(a) factors had not shifted enough
since Mr. Wills’s sentencing to justify reducing his sentence by 50 percent. It noted that
Mr. Wills was initially sentenced in the midst of the pandemic, so the continuing
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pandemic did not constitute a change in conditions. It also placed significant weight on
the seriousness of Mr. Wills’s offense. The court thus dismissed Mr. Wills’s motion for
compassionate release for lack of subject-matter jurisdiction and dismissed his motion to
expedite as moot.
Mr. Wills timely appealed. He initially failed to prosecute his appeal, so we
dismissed it. But we granted his motion to submit a late-filed brief and reinstated the
appeal.
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 court may grant the motion 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 applicable policy statements
issued by the Sentencing Commission; and (3) the district court considers the factors set
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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. Wills argues the district court abused its discretion by holding that the
§ 3553(a) factors weighed against his release.2 He contends that (1) the circumstances
have changed due to the spread of the Delta variant of COVID-19 and the detention
facility’s inadequate response to the new variant, (2) the court insufficiently weighed the
2 Mr. Wills also argues that the government erred in relying on U.S.S.G. § 1B1.13.
But the district court did not rely on that policy statement when it dismissed his motion.
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government’s concession that Mr. Wills was not a danger to the community, and (3) the
court failed to adequately consider Mr. Wills’s good behavior and participation in
rehabilitative programs in prison.
The district court did not abuse its discretion. The court first concluded that Mr.
Wills had established that extraordinary and compelling circumstances existed due to his
asthma. Turning to the § 3553(a) factors, it weighed his lack of access to rehabilitative
programs against the seriousness of his offense. The court also found that since Mr.
Wills had originally been sentenced during the pandemic, the ongoing health crisis did
not constitute a change in conditions. It also noted that the government did not argue that
Mr. Wills was a danger to the community. In reviewing the district court’s consideration
of both the facts establishing the extraordinary and compelling circumstances and the
relevant § 3553(a) factors, we cannot say the court abused its discretion. See United
States v. Hald, 8 F.4th 932, 947 (10th Cir. 2021).3
Although we uphold the ruling on the merits, a recent decision of this court shows
that the district court should have denied Mr. Wills’s motion rather than dismiss it for
lack of jurisdiction. We previously have suggested in nonprecedential opinions that a
failure to meet the requirements in § 3582(c)(1)(A) would deprive the court of
jurisdiction. See, e.g., United States v. Saldana, 807 F. App’x 816, 820 (10th Cir. 2020)
3 Mr. Wills also requests that we reduce his sentence to match his completion of a
drug program. But he failed to make this request before the district court, so we will not
consider it for the first time on appeal. See McDonald v. Kinder-Morgan, 287 F.3d 992,
999 (10th Cir. 2002).
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(unpublished). But we recently clarified in a published opinion that § 3582(c)(1)(A)’s
requirements are not jurisdictional. Hald, 8 F.4th at 942 n.7.
III. CONCLUSION
We vacate the district court’s order and remand with instructions to deny the
motion.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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