United States v. Christopher Hurd ( 2022 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 22-1084
    __________
    UNITED STATES OF AMERICA
    v.
    CHRISTOPHER HURD,
    Appellant
    __________
    On Appeal from the United States District Court
    for the District of Delaware
    (District Court No. 1-18-cr-00029-001)
    Honorable Leonard P. Stark, U.S. District Judge
    __________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    on November 15, 2022
    Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
    (Filed: December 1, 2022)
    __________
    OPINION*
    __________
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
    not constitute binding precedent.
    KRAUSE, Circuit Judge.
    Appellant Christopher Hurd appeals the denial of his most recent motion for
    compassionate release pursuant to the First Step Act, 
    18 U.S.C. § 3582
    (c)(1)(A). He
    argues the District Court erred by failing to apply the new test for such motions that we
    established in United States v. Andrews, 
    12 F.4th 255
     (3d Cir. 2021), and, thus, the case
    should be remanded for consideration under the appropriate standard. For the reasons set
    forth below, we will affirm the District Court’s order.
    I.     FACTUAL AND PROCEDURAL BACKGROUND
    Hurd pleaded guilty to conspiracy to possess with intent to distribute furanyl
    fentanyl, in violation of 
    21 U.S.C. § 841
    (a)(1) and 
    21 U.S.C. § 846
    . The District Court
    sentenced him to 120 months in prison, plus 36 months’ supervised release. After
    Congress passed the First Step Act, Hurd filed two motions to reduce his sentence.
    Hurd’s first motion was denied using the four-step test set forth in United States v.
    Vurgich, under which Hurd had “(1) to exhaust administrative remedies, . . . (2) to show
    extraordinary and compelling circumstances, (3) to show an absence of dangerousness,
    and (4) to show that the section 3553(a) factors support a reduced sentence.” United
    States v. Vurgich, No. 18-34-RGA, 
    2020 WL 4335783
    , at *3 (D. Del. July 28, 2020).
    The third step, requiring the absence of dangerousness, was drawn from the policy
    statement on compassionate-release motions at Section 1B1.13 of the United States
    Sentencing Guidelines. See U.S.S.G. § 1B1.13(2) & cmt. n.1 (U.S. Sent’g Comm’n
    2018). The District Court found at that step that Hurd failed to establish that “his release
    would not pose a danger” to society. App. II 73. As a result, the Court did not conduct
    2
    an analysis of the sentencing factors under 
    18 U.S.C. § 3553
    (a) to see if they supported
    reducing Hurd’s sentence as required at step four. Hurd filed a second, substantially
    similar motion for compassionate release, which the District Court again denied, largely
    referring back to its analysis of Hurd’s first motion.
    Between when Hurd filed the first and second motions, we decided Andrews,
    which changed the focus of the analysis, directing district courts to grant sentence
    reductions to eligible applicants if they “find[] that the sentence reduction is
    (1) warranted by extraordinary and compelling reasons; (2) consistent with applicable
    policy statements issued by the Sentencing Commission; and (3) supported by the
    traditional sentencing factors under 
    18 U.S.C. § 3553
    (a), to the extent they are
    applicable.” 12 F.4th at 258 (citations and internal quotation marks omitted). This made
    clear that the policy statement requiring the absence of dangerousness was nonbinding.
    See id. at 259. Nevertheless, the District Court rejected Hurd’s second compassionate-
    release motion without expressly referencing Andrews or § 3553(a) and stated it was
    unconvinced “that Hurd would not pose a danger to society upon release.” App. II 81.
    This timely appeal followed.
    3
    II.    DISCUSSION1
    Hurd contends that the District Court abused its discretion2 by applying Vurgich
    and U.S.S.G. § 1B1.13 instead of Andrews and the § 3553(a) factors. We are skeptical
    that the District Court erred in that regard, as its second opinion did not cite to Vurgich
    and, on the whole, appears to give adequate consideration to the § 3553(a) factors.3 See
    United States v. Kibble, 
    992 F.3d 326
    , 331–32 (4th Cir. 2021) (finding no abuse of
    1
    The District Court had jurisdiction under 
    18 U.S.C. § 3231
    , and we have
    jurisdiction under 
    28 U.S.C. § 1291
    .
    2
    We review the District Court’s denial of compassionate release for abuse of
    discretion. United States v. Shields, 
    48 F.4th 183
    , 189 (3d Cir. 2022). Relying on United
    States v. Easter, 
    975 F.3d 318
    , 322 (3d Cir. 2020), abrogated in part on other grounds by
    Concepcion v. United States, 
    142 S. Ct. 2389
     (2022), Hurd argues that the appropriate
    standard of review is de novo. Easter, however, is inapplicable here, because we are not
    called upon to review a sentencing-related question of “statutory interpretation (i.e., the
    scope of the district court’s legal authority).” 
    Id.
     Rather, in a case like this, “[w]here a
    district court finds a defendant eligible for a sentence modification . . . but [] declines to
    reduce the sentence,” abuse of discretion is the appropriate standard of review. Shields,
    48 F.4th at 189. Even applying de novo review, however, we would still affirm for the
    reasons set forth below.
    3
    The other purported errors that Hurd attributes to the District Court to support his
    argument also fall flat. First, under Andrews, courts are not precluded from considering
    dangerousness, either by looking to § 1B1.13’s policy statements for guidance or as part
    of the § 3553(a) sentencing factors. See Andrews, 12 F.4th at 260. Second, there was no
    need for the District Court to consult every factor Congress set out in § 3553(a), as it
    needed to do so only “to the extent they are applicable.” Id. at 258; see also United
    States v. Cooper, 
    437 F.3d 324
    , 329 (3d Cir. 2006) (requiring district courts only to give
    “meaningful consideration” to the factors and disclaiming any requirement that they
    “discuss and make findings as to each of the[m]”), abrogated on other grounds by Rita v.
    United States, 
    551 U.S. 338
     (2007). Finally, the alignment between the District Court’s
    analysis and the § 3553(a) factors confirms that it did not improperly treat § 1B1.13 as a
    binding part of the analysis, even if it considered dangerousness as a component of those
    factors.
    4
    discretion where the district court erroneously relied on § 1B1.13 but “considered the
    relevant § 3553(a) factors” nonetheless). But even if the Court mistakenly relied on
    Vurgich, any error was harmless on this record because the § 3553(a) factors
    overwhelmingly weigh against Hurd’s release. See United States v. Murphy, 
    998 F.3d 549
    , 560 (3d Cir. 2021) (applying harmless-error analysis to a motion for a reduced
    sentence under the First Step Act), as amended (Aug. 4, 2021), abrogated in part on
    other grounds by Concepcion, 142 S. Ct. at 2389; see also United States v. Wright, 
    46 F.4th 938
    , 946–48 (9th Cir. 2022) (same); United States v. Russell, 
    994 F.3d 1230
    , 1240
    (11th Cir. 2021) (declining to do the same but assuming that harmless error would be the
    proper standard).
    Section 3553(a) requires a district court to “impose a sentence sufficient, but not
    greater than necessary” to accord with the factors that Congress listed in the statute.
    These include “the history and characteristics of the defendant” and “the need for the
    sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the
    law, [] to provide just punishment,” and “to protect the public from further crimes of the
    defendant.” 
    18 U.S.C. § 3553
    (a)(1), (2)(A), (C).
    Here, Hurd has an extensive criminal history going back almost two decades, and
    his drug dealing has led to at least one person’s death. In addition, as the District Court
    noted, “Hurd [] failed to show his early release would not pose a danger to the
    community” and had a “record of ‘hostility towards probation officers and repeated
    violations of court-ordered supervision.’” App. II 80–81. Thus, Hurd’s history,
    § 3553(a)(1), the nature of the offense, id., its seriousness, § 3553(a)(2)(A), deterrence,
    5
    § 3553(a)(2)(B), and public safety, § 3553(a)(2)(C), all weigh against granting Hurd’s
    motion. Any error that the District Court may have committed was therefore harmless.
    III.   CONCLUSION
    For the foregoing reasons, we will affirm the judgment of the District Court.
    6
    

Document Info

Docket Number: 22-1084

Filed Date: 12/1/2022

Precedential Status: Non-Precedential

Modified Date: 12/1/2022