# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 40381

United States of America,
Plaintiff

— Appellee ,

versus
Chadwick Marvin Thompson,
Defendant

— Appellant

.

Appeal from the United States District Court for the Eastern District of Texas No. 6:13

- CR

- 23

- 1

Before Jones, Smith, and Elrod, Circuit Judges

. Jerry E. Smith, Circuit Judge : Chadwick Thompson pleaded guilty of conspiracy to distribute and to possess with intent to distribute methamphetamine

. The district court de

nied his request for compassionate release from prison on account of his underlying health issues and the COVID

- 19 pandemic (“COVID”)

. We affirm the denial.

I. Thompson was indicted on fourteen counts arising from a drug traf

ficking conspiracy. He reached an agreement with the g overnment and United States Court of Appeals

Fifth Circuit 

### FILED January 5, 2021 Lyle W. Cayce Clerk Case: 20-40381 Document: 00515695170 Page: 1 Date Filed: 01/05/2021No. 20

- 40381

2 pleaded guilty to Count One: c onspiracy to distribute and to possess with intent to distribute methamphetamine. Because that was Thompson’s third felony conviction , the court deemed him a career offender and sentenced him to 240 months’ imprisonment. He is a n inmate at the Federal Co r rectional Institution (“F CI ”) in Texarkana, Texas, where he has served less than eight of his twenty years. Thompson is forty

- three years old, suffers from hypertension and high cholesterol, and had a stroke over ten years ago , from which he suffers no lin gering effects

. 1 On April 13, 2020 , he submitted a request to F CI ’s war

den, seeking compassionate release based on his underlying health conditions and the resulting heightened risk of severe symptoms from COVID . Al

though the warden acknowledged Thompson’s “legitimate concerns and fears about the spread and effects” of COVID, those con cerns did not “war

rant an early release from [his] sentence.” Accordingly, the warden denied the request on May 5. On May 15, Thompson filed a moti on for com pas
sionate release in the district court under 18 U.S.C. § 3582 ; the court denied it about a week later. He appeals that denial.

II. The general rule is that “court[s] may not modify a term of impris

onment once it has been imposed .

. . .” 18 U.S.C. § 3582(c). But that is subject to a few exceptions. R elevant here, if “extraordinary and compelling reasons” justify a reduction , courts appropriately may reduce the sentence

1 Thompson also asserts, for the first time on appeal, that he is obese. Although it would not alter our view of the case, because he raises that fact for the first time on appeal, we do not address it. Theriot v. Par. of Jefferson , 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider new evidence furnished for the first time on appeal and may not consider facts which were not before the district court at the time of the challenged ruling.”). Case: 20-40381 Document: 00515695170 Page: 2 Date Filed: 01/05/2021No. 20

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3 “after considering the fact ors set forth in section 3553(a) .

. . . ” § 3582(c)(1)(A) , (c)(1)(A) (i)

. The district court did not find any “extraor

din ary and compelling reasons” warranting compassionate release and there

fore did not consider the § 3553(a) factors. 2 We review that determination for abuse of discretion. 3 Although not dispositive, the commentary to the U nited S tates Sen

tencing Guidelines (“U.S.S.G.”) § 1B1.13 informs our analysis as to what reasons may be sufficiently “extraordinary and compelling” to merit com
pas sionate release. Rivas , 2020 WL 6437288, at *2. The comments to the U.S.S.G. provide four “extraordinary and compelling reasons” that may jus

tify reduc ing a prison term: (1) medical condition s , (2) age, (3) family circum

stances, and (4 ) “ [ o ] ther [ r ] easons.” U. S.S.G. § 1B1.13 cmt. n.1(A)

– (D) (2018)

. 4 As r elevant here, the comments describe the circumstances in which a “ [ m ] ed i cal [ c ] ondition” might be sufficiently serious to warrant release. Id. § 1B1.13 cmt. n.1(A). That is limited to two circumstances : whe re the defen dant has either a terminal illness or a condition “that substantially diminishes the ability of the defendant to provide self

- care .

. . .” Id.

2 The government contends that, even if Thompson’s health issues present “ an extraordinary or compelling reason for release ,” the district court still properly denied release , because “he remains a danger to the community.” But because we affirm the dis

trict court ’s dispos ition on the ques tion precedent, we need not address that issue.

3 See, e.g. , United States v. Rivas , No. 20

- 10360, 2020 WL 6437288, at *2 (5th Cir. Nov. 2, 2020) (per curiam) (unpublished) (citing United States v. Hernandez , 645 F.3d 709, 712 (5th Cir. 2011) (per curiam))

.

4 We recognize and opt not to weigh in on the split of authority as to whether this catch

- all provision delegates only to the Bureau of Prisons

— and not the courts

— the task of identifying “other reasons” justifying early release. See United States v. Ruf fin , 978 F.3d 1000, 1006

– 08 (6th Cir. 2020) (describing the circuit split). Even if courts properly can invoke the catch

- all provision, Thompson’s case does not present sufficiently compelling “other reasons” for release, for the reasons explained below. Case: 20-40381 Document: 00515695170 Page: 3 Date Filed: 01/05/2021No. 20

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4 Th ompson does not assert that his ability to care for himself has dimin ished , m uch less “substantially” so. Id. To the contrary, his hyper

tension and high cholesterol are managed effectively by medication

. More

over, Thompson previously has reported that he suffers no lingering effects from his 2009 stroke.

We acknowledge that Thompson’s chronic illnesses place him at a higher risk of severe symptoms , should he contract COVID , is true for a person without these illnesses

. 5 Nonetheless, as the district court noted , it is uncertain that he i s at a significantly higher risk than is the general inmate population. In fact, n early half of the adult pop u lation in the United States suffer s from hypertension. 6 And roughly 12% o f Americans suffer from high cholesterol. 7 Thus, we can not say that either of those conditions makes Thomp son’s case “extraordinary.” 8 Unfortunately, both are commonplace. And w e cannot conclude that his increased risk makes either “terminal

. ” See

5 See People with Certain Medical Conditions , C TRS

. FOR D ISEASE C ONTROL AND P REVENTION , https://www.cdc.gov/coronavirus/2019

- ncov/need

- extra

precautions/people

- with

- medical

conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2 019

- ncov% 2Fneed

- extra

- precautions%2Fgroups

- at

- higher

- risk.html (Dec. 1, 2020) (listing underlying medical conditions that pose a higher risk of severe illness from COVID)

.

6 Dep’t of Health and Hum. Servs., Ctrs. for Disease Control and Prevention, Nat’l Ctr. for Health Stats., NCHS Data Brief No. 364, Hypertension Prevalence Among Adults Aged 18 and Over: United States, 2017

– 2018, at 1 (Apr. 2020), https://www.cdc.gov/nchs/data/databriefs/db364

- h.pdf

.

7 Dep’t of Health and Hum. Servs., Ctrs. for Disease Contr ol and Prevention, Nat’l Ctr. for Health Stats., NCHS Data Brief No. 363, Total and High

- Density Lipoprotein Cholesterol in Adults: United States 2015

– 2018, at 1 (Apr. 2020), https://www.cdc.gov/nchs/data/databriefs/db363

- h.pdf

.
8 See Extraordinary , Black ’s Law Dictionary (11th ed. 2019) (“[b]eyond what is usual, customary, regular, or common”). Case: 20-40381 Document: 00515695170 Page: 4 Date Filed: 01/05/2021No. 20

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5 U.S.S.G. § 1B1.13 cmt. n.1(A) (i)

. To the extent that courts may grant compassionate release for “other reasons,” see supra note 4, we agree with the district court that none here is

s ufficient. To be sure , courts around the country , in some exceptional cases, have granted compassionate release where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID

. E.g. , United States v. Zukerman , 451 F. Supp. 3d 329, 336 (S.D.N.Y. 2020). E ven where they have denied release, some courts have assumed that the pan
demic , combined with underlying conditions , might be an extraordinary and compelling reason for compassionate release. E.g. , United States v. Paw low

ski , 967 F.3d 327, 330 (3d Cir. 2020)

. But t hat i s certainly not a unanimous approach to every high

- risk inmate with preexisting conditions seeking com

pass ionate release

. 9 The courts that granted compassionate release on th o se bases largely have done so for defendants who had already served the lion’s share of their sentences and presented multiple , severe , health concerns

. 10 Even where the

9 See, e.g. , United States v. Gipson , 829 F. App ’ x 780, 781 (9th Cir. 2020) (affirming denial of compassionate release for a defendant with preexisting conditions who had already contracted COVID); United States v. Lambert , 829 F. App’x 117, 117

– 18 (6th Cir. 2020) (affirming denial of compassionate release for hydrocephalus); United States v. Ray

mer , No. 4:17

- CR

- 153, 2020 WL 3451855, at *3

– 4 (E.D. Tex. June 23, 202 0) (concluding that a borderline

- obese 43

- year
- old man , suffering from fatty liver disease, bronchitis, and asthma, and who had contracted COVID , did not qualify for early release); United States v. Martinez

- Arias , No. 2:11

- cr
- 00598, 2020 WL 5210938, at *3

– 4 (S.D. Tex. Sept. 1, 2020) (finding no extraordinary circumstances for a 58

- year
- old inmate suffering from diabetes, hypertension, and high cholesterol).

10 See, e.g. , Zukerman , 451 F. Supp. 3d at 335

– 36 (approving home incarceration in ligh t of COVID for an obese 75

- year
- old man with diabetes and hypertension); United States v. Rodriguez , 451 F. Supp. 3d 392, 394 , 405, 407 (E.D. Pa. 2020) (reducing sentence to time served , because of COVID, for an inmate who was 11⁄2 year s from release after s erv
ing 17 years and suffered from diabetes, hypertension, and liver abnormalities); United States v. Muniz , No. 4:09

- CR

- 0199

- 1, 2020 WL 1540325, at *2 (S.D. Tex. Mar. 30, 2020) Case: 20-40381 Document: 00515695170 Page: 5 Date Filed: 01/05/2021No. 20

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6 court denied the motion on grounds other than the lack of “extraordinary and compelling reasons , ” the defendants’ medical condi tions oftentimes were more serious than are Thompson’s. 11 Fear of COVID doesn’t automatically entitle a prisoner to release

. Thompson can point to no case in which a court , on account of the pandemic, has granted compassionate release to a n other

wise healthy defendant with two , well

- controlled , chronic medical conditions and who ha d completed less than half of his sentence.

AFFIRMED.

(granting com passionate release for COVID for a defendant who had served over 80% of his reduced sen tence and suffered from end stage renal disease, diabetes, and hypertension).

11 See, e.g. , Ruffin , 978 F.3d at 1002, 1008 (describing a defendant’s health condi

tions, which included a blood disorder, heart problems, high blood pressure, high choles

terol, and blood clots, before determining that the district court did not abuse its discretion in balancing the § 3553(a) factors); United States v. Jones , No. 20

- 3701, 2020 WL 6817488, at *2 (6th Cir. Nov. 20, 2020) (affirming denia l on § 3553(a) factors after district court assumed that the defendant, who was over 40 , obese , and had had tuberculosis, presented an extraordinary and compelling reason for compas sionate release); Pawlowski , 967 F.3d
at 328

– 29, 331 ( a ffirming denial on § 3553(a) factors after the government conceded that the defendant , who had heart disease, COPD, dyspnea, and only one lung , presented extra

ordinary and compelling reasons for release in light of COVID); United States v. Spencer , No. 20

- 3721, 2020 WL 5498 932, at *1, *3 (6th Cir. Sept. 2, 2020) (unpublished) (affirming

a district court’s denial on § 3553(a) factors after assuming that the defendant, who was obese and suffered from a heart condition, dem onstrated extraordinary and compelling circumstances). Case: 20-40381 Document: 00515695170 Page: 6 Date Filed: 01/05/2021