United States v. Damien Hammonds ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2406
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UNITED STATES OF AMERICA
v.
DAMIEN HAMMONDS,
also known as “Hondo”,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:11-cr-00166-001)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit L.A.R. 34.1(a)
on June 5, 2023
Before: HARDIMAN, AMBRO, and FUENTES, Circuit Judges
(Filed: June 27, 2023)
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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.
HARDIMAN, Circuit Judge.
Damien Hammonds, proceeding pro se, appeals the District Court’s order denying
his motion to reconsider the denial of his motion for compassionate release under 18
U.S.C. § 3582(c)(1)(A)(i). We will affirm.
I
In 2013, a jury convicted Hammonds of distribution and possession with intent to
distribute cocaine in violation 21 U.S.C. § 841(a)(1), and conspiracy to distribute and
possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. At sentencing,
Hammonds was subject to a 20-year mandatory minimum because of his prior conviction
for a felony drug offense. See 21 U.S.C. § 841(b)(1)(A) (2010). Hammonds also qualified
as a career offender under the Sentencing Guidelines. The District Court sentenced
Hammonds to 20 years’ imprisonment.
In 2020, Hammonds sought compassionate release, citing his increased risk of
serious illness if he contracted COVID-19. The District Court denied that motion.
Hammonds then moved the Court to reconsider, repeating his COVID-19 arguments and
also arguing that intervening changes in the law constituted “extraordinary and
compelling reasons” justifying compassionate release. 18 U.S.C. § 3582(c)(1)(A)(i). The
District Court again denied his motion. Hammonds timely appealed.
2
II1
Hammonds claims his term of imprisonment should be reduced for two
“extraordinary and compelling reasons.” See 18 U.S.C. § 3582(c)(1)(A)(i).
First, Hammonds cites intervening changes in the law. He contends that, if
sentenced today, he would not be subject to the 20-year mandatory minimum following
the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, 5220 (2018). Nor, he says, would
he be a career offender under our opinion in United States v. Nasir, 17 F.4th 459 (3d Cir.
2021) (en banc).
Hammonds is right that Nasir and the First Step Act have changed the sentencing
landscape. But neither is a basis for his compassionate release. For starters, though
Section 401 of First Step Act reduced the mandatory minimum sentence under
§ 841(b)(1)(A) from 20 years to 15 years, that section applies only to sentences then “not
[yet] imposed.” 132 Stat. at 5221. Hammonds was sentenced before the First Step Act
became law. So Section 401 does not apply to him, and nonretroactive changes in
statutory sentencing law “cannot be a basis for compassionate release.” United States v.
Andrews, 12 F.4th 255, 261 (3d Cir. 2021). 2 And though we held in Nasir that an
inchoate offense like conspiracy isn’t a “controlled substance offense” that triggers
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
2
Hammonds’s other arguments about Alleyne v. United States, 570 U.S. 99 (2013), and
intervening changes in the law related to his Pennsylvania cocaine-trafficking
conviction— a career-offender predicate when he was sentenced—fail for the same
reason. See Andrews, 12 F.4th at 260–61.
3
career-offender eligibility, 17 F.4th at 472, Hammonds was convicted of both conspiracy
and a controlled substance offense. See U.S.S.G. § 4B1.2(b). So he still would qualify as
a career offender. 3
Hammonds asserts that Concepcion v. United States, 142 S. Ct. 2389 (2022),
makes intervening changes in the law relevant to the compassionate release calculus. But
Concepcion held that courts may consider intervening changes in law when resentencing
a defendant under Section 404 of the First Step Act. 142 S. Ct. at 2404; see also United
States v. King, 40 F.4th 594, 596 (7th Cir. 2022). This is not a Section 404 resentencing
case. So the District Court did not abuse its discretion in finding that the First Step Act
and Nasir are not extraordinary or compelling reasons.
Second, Hammonds argues that his medical conditions, which increase his risk of
severe illness from COVID-19, are “extraordinary and compelling” reasons for his
release. The District Court did not abuse its discretion in rejecting this argument either. It
permissibly considered the “robust vaccination rate” and low number of COVID-19 cases
in Hammonds’s prison. Dist. Ct. Dkt. No. 713, at 2; cf. Garrett v. Murphy, 17 F.4th 419,
433 (3d Cir. 2021) (holding that prisoner did not show imminent danger of serious injury
because he already had COVID-19 and vaccines were available). And the Court noted
that Hammonds had contracted COVID-19 before and did not say he suffered severe
complications. See id. We see no “clear error of judgment” in the Court’s denial based on
3
Though Hammonds’s classification as a career offender increased his Guidelines range,
the District Court varied downward and imposed the mandatory minimum term of
imprisonment. So Hammonds’ career-offender status did not affect his sentence.
4
Hammonds’s risk of contracting COVID-19. United States v. Pawlowski, 967 F.3d 327,
330 (3d Cir. 2020).
Even if Hammonds showed extraordinary and compelling reasons, the District
Court did not abuse its discretion in finding that the 18 U.S.C. § 3553(a) factors weighed
against a sentence reduction. Hammonds committed serious drug offenses, had a criminal
record, was subject to disciplinary action while incarcerated, and had more than five
years remaining on his sentence. See id. at 330–31 (holding that courts can consider a
prisoner’s time left to serve).
We will affirm the District Court’s order.
5