NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 23

- 1246

________________ UNITED STATES OF AMERICA

v. MICHAEL KRAMER,

Appellant

_____________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. C rim

. No. 2

- 11

- 00 207

- 001 ) District Judge: Honorable David S. Cercone

________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

on November 7, 2023 Before: RESTREPO, BIBAS, and SCIRICA, Circuit Judges

(Filed: January 26, 2024 )

________________ OPINION *

________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

SCIRICA , Circuit Judge

. Michael Kramer, proceeding pro se, appeals t he District Court ’s order denying his motion for compassionate release under 1 8 U.S.C. § 3582(c)(1)(A) . The District Court determined Kramer failed to establish an extraordinary and compelling reason to warrant
g rant ing th e motion

. On appeal, Kramer contends the District C ourt improperly considered his medical issues and the nature of his underlying offenses. We find the District Court did not abuse its discretion and will affirm.
I. 1
In 201 4 , Kramer was sentenced to 240 months’ imprisonment upon pleading guilty to armed bank robbery , possession of a firearm by a convicted felon , and using and carrying a firearm during and in relation to a crime of violence. In 2020, Kramer filed the instant motion for a s entence reduction under 1 8 U.S.C. § 3582(c)(1)(A)

. Kramer contended his medical conditions , along with increased health risks posed by the COVID

- 19 pandemic , constituted “ extraordinary and compelling reasons ” warranting a sentence reduction

. App. 90. Speci fically, Kramer pointed to his hypertension and obesity as factors putting him at an increased risk of health complications were he to contract COVID

- 19

. Moreover, Kramer contended his institutional behavior and plan for reintegration s upported a finding that a sentence reduction was warranted under the sentencing factors laid out in 18 U.S.C. § 3553(a). The District Court denied Kramer’s motion

. It determined Kramer’s medical

1 We write solely for the parties and so only briefly recite the essential facts.3

condition did not constitute an e xtraordinary and compelling reason to warrant a sentence reduction, particularly given the Bureau of Prisons’ (“ BOP ”) ongoing COVID

- 19 response and the availability of vaccines. The District Court also weighed the 18 U.S.C. § 3553(a) sentencing factors and found a sentence reduction was not warranted given the nature of Kramer’s underlying offense s . Upon denial of this motion, Kramer timely appealed

. II. 2 As amended by the First Step Act of 2018 , 18 U.S.C. § 3582(c)(1)(A) permits inmates , as well as the BOP , to initiate motions request ing sentence reduction s . Pub. L. No. 115

- 391, 132 Stat. 5194

. In order to prevail on such a motion , an inmate must demonstrate an extraordinary and compelling reason justifying a sentence reduction

. United Sta tes v. Andrews , 12 F.4th 255, 258 ( 3d Cir. 2021). In determining what constitutes an extraordinary and compelling reason, the D istrict C ourt may consider policy statements generated by the U.S. Sentencing Commission. See id. at 25 9

– 60

. But a court is not bound by the Commission’s policy statements, and the policy statement applicable to Kramer’s case only applies to BOP

- initiated motions for compassionate release. 3 The Commission’s policy statement includes, among others, medical condition s

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. 3 The Sentencing Commission has adopted an amendment to USSG §1B1.13 , with an effective date of November 1, 2023 , to include defendant

- initiated motions for compassionate release. See Sentencing Guidelin es for United States Courts , 88 Fed. Reg. 28254 (May 3, 2023). The amendment also expands extraordinary and compelling reasons to include medical conditions that subject an inmate to increased risk of exposure to an infectious disease (like COVID

- 19). Id. However, t his amendment does not apply4

that “substantially diminish[] the ability of the defendant to provide self

- care” in the list of extraordinary and compelling reasons to grant compassionate release. See USSG §1B1.13. In addition to establishing an extraordinary and compelling reason, t he inmate must show that a reduction i s “supported by the traditional sentencing factors under 18 U.S.C. § 3553(a).” Andrews , 12 F. 4 th at 258

. These factors include, among others, “ the nature and circumstances of the offense and the history and characteris tics of the defendant ,” the need for the sentence “to reflect seriousness of the offense , . . . to afford adequate deterrence to criminal conduct [and] t o protect the public from further crimes of the defendant .” 18 U.S.C. § 3553(a)(1)

– (2). We review the D istrict C ourt’s decision to deny Kramer’s motion for compassionate release for an abuse of discretion. See United States v. Pawlowski , 967 F.3d 327 , 330 ( 3d Cir. 2020)

. Accordingly , w e will uphold the court’s order “unless there is a definite and firm conviction that [it] committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors

. ” Id. (alteration in original) (internal quotation marks omitted) (quoting Oddi v. Ford Motor Co. , 234 F.3d 136, 146 (3d Cir. 2000) )

. To prevail on appeal , Kramer must demonstrate the court abused its discretion both in declining to find an extraordinary and compelling reason as well as in its application of the § 3553(a) factors.

retroactively. See U.S. Sent encin g Comm issio n, Rules o f Practice & Procedure §4. 1A (2016) (“ Generally, promulgated amendments will be given prospective application only .”).5 A

. The Di strict Court did not abuse its discretion in finding no extraordinary and compelling reason to warrant a sentence reduction for Kramer

. The court acknowledged Kramer’s medical conditions and the related risks of potential complications if he were to
contra ct COVID

- 19 but ultimately determined these conditions did not rise to the level of an extraordinary and compelling reason. We have previously noted that the “mere existence of COVID

- 19 in society” does not constitute an extraordinary and compelling

reason , especially when viewed in the light of BOP’s “e xtensive and professional efforts to curtail the virus ’ s spread .” United States v. Raia , 954 F.3d 594, 597 (3d Cir. 2020)

. The court balanced Kramer’s medical needs against BOP’s ongoing COVID

- 19 response and found Kramer did not meet his burden to demonstrate an extraordinary and compelling reason for sentence reduction. Accordingly, given the “considerable discretion in comp assionate

- release cases,” the District Court did not abuse its discretion , having appropriately considered Kramer’s medical conditions alongside BOP’s ongoing
COVID

- 19 response

. See Andrews , 12 F.4 th at 262.
B

. Nor did the District Court abuse its discretion when it determined the § 3553(a) sentencing factors did not weigh in favor of a sentence reduction. Kramer robbed a bank at gunpoint and accordingly, t he District Court described the nature of Kramer’s offense having “a distinct aura o f violence.” App. 29

. The District Court also considered Kramer’s criminal history and noted substance abuse

. It stressed the seriousness of Kramer’s offense and the need to deter others from committing similar crimes , as well as6

a continuing need to protect the public from Kramer. We find no “clear error of judgment” in the District C ourt’s reasonable consideration of the § 3553(a) factors. See Pawlowski , 967 F.3d at 330. Moreover, the District Court observed Kramer’s 240 months’ sentence was already “ meaningfully below the guideline range” of 272 to 319 months. App. 30

. We have previously observed it is not unreasonable for a district court to consider whether granting compassionate release would result in a substantial redu ction in sentence

. Pawlowski , 967 F.3d at 331

. Relying on the Supreme Court’s recent decisions in Borden v. United States , 597 U.S. 481 (2021) , and Concepcion v. United States , 142 S. Ct. 2389 (2022), Kramer contends the District Court erred when it failed to consider intervening changes in law in its analysis of the § 3553(a) factors. But Kramer’s reliance on Borden and Concepcion is misplaced. Kramer contends Borden change s his status as a career offender and argues the District Court should have considered this change in law in weighing the § 3553(a) factors

. But even if Kramer is correct in as serting a change in career offender status under Borden , Concepcion does not comp el courts to consider intervening changes of law but rather allows courts to exercise their discretion to reduce a sentence under the First Step
Act

. See Concepcion , 597 U.S. at 501

– 02

. Moreover, we have recently re affirmed that nonretroactive changes in sentencing laws are not , by themselves, extraordinary and compelling reasons warranting sentence reduction. United States v. Stewart , 86 F.4th 532, 535 (3d Cir. 2023) ( “[O] ur holding in Andrews remains undisturbed .”).
III.7

Courts have “ considerable discretion in compassionate

- release cases

. ” Andrews , 12 F.4 th at 262. For the foregoing reasons, we find the District Court did not abuse its discretion when it determined Kramer was not entitled to a sentence reduction. According ly, we will affirm the judgment of the District Court

.