CLD-043 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 21-2301

___________

UNITED STATES OF AMERICA

v.

CLIFTON MCLEAN, 

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2:13-cr-00487-001)

District Judge: Honorable Gerald A. McHugh

____________________________________

Submitted on Appellee’s Motion for Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 9, 2021

Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges

(Opinion filed December 14, 2021)
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_________

OPINION*

_________

PER CURIAM

Pro se appellant Clifton McLean appeals from the District Court’s orders denying 

compassionate release under 18 U.S.C. § 3582(c)(1)(A) and his motion for 

reconsideration. The Government has filed a motion to summarily affirm. We grant the 

Government’s motion and will affirm the District Court’s ruling.

McLean is serving a 19-year prison sentence imposed in 2016 for attempting and 

conspiring to commit Hobbs Act robbery, attempting and conspiring to possess with 

intent to distribute cocaine, carrying a firearm during and in relation to a crime of 

violence, and being a felon in possession of a firearm. The United States District Court 

for the Eastern District of Pennsylvania imposed a significantly lower sentence than the 

recommended Sentencing Guidelines range of 30 years to life in prison. This Court 

affirmed McLean’s conviction and sentence on appeal. See United States v. McLean, 

702 F. App’x 81 (3d Cir. 2017). According to the Bureau of Prisons, McLean’s 

anticipated release date is December 1, 2029. 

In early 2021, McLean filed a pro se motion for compassionate release under 18 

U.S.C. § 3582(c)(1)(A), pursuant to the First Step Act, asserting that he had 

“extraordinary and compelling” reasons for a reduction of sentence or release.1 McLean 

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

constitute binding precedent.

1 McLean first sought compassionate release from the warden of his prison. The warden 

denied that request in October 2020.
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claimed that he is overweight and carries the sickle cell trait, and that these health 

conditions put him at a greater risk of complications should he contract the COVID-19 

virus. He also asserted that he should be released early to care for his grandmother 

because McLean’s mother, who regularly cares for her, had been injured in a car 

accident. In a supplemental motion, McLean asked the District Court to reduce his 

sentence because he had suffered particularly harsh prison conditions during the 

preceding 13 months that he had been incarcerated, and he had made great strides at 

being rehabilitated. The Government opposed Jefferson’s motion.

The District Court denied relief in May 2021. The District Court ruled that 

McLean failed to show “extraordinary and compelling reasons” for a sentence reduction, 

and further, that the applicable factors under 18 U.S.C. § 3553(a) did not weigh in favor 

of release. McLean moved for reconsideration, and the District Court denied his motion. 

In rejecting reconsideration, the District Court determined that McLean’s allegedly being 

subjected to “onerous prison conditions” did not qualify as an “extraordinary and 

compelling” reason. Dist. Ct. Order entered June 22, 2021. 

McLean filed this appeal and a pro se informal brief.2 The Government filed a 

motion for summary affirmance. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

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2 After McLean filed his notice of appeal, the District Court denied McLean’s remaining 

reconsideration filings on August 24, 2021. He has not appealed that order. 

3 Although there is some question whether McLean’s motion to reconsider the District 

Court’s May 11 order was timely filed, see United States v. Gomez-Gomez, 643 F.3d 

463, 471 (6th Cir. 2011) (explaining that a motion to reconsider filed more than 14 days 

after entry of an order was untimely), because the untimeliness is minor and the 
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We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s 

orders for an abuse of decision, and we “will not disturb the District Court’s decision 

‘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.’” United States v. 

Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020) (alteration omitted) (quoting Oddi v. Ford 

Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)); see also United States v. Andrews, 12 

F.4th 255, 259 (3d Cir. 2021). We will take summary action if “no substantial question is 

presented.” 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

In his informal brief, McLean primarily raises arguments that appear to challenge 

the validity of his conviction and sentence on legal grounds. McLean is not entitled to 

relief on these arguments because they were not presented in his motion below, see

Steagald v. United States, 451 U.S. 204, 209 (1981); have been previously rejected on 

direct appeal and in 28 U.S.C. § 2255 proceedings; and should be asserted via § 2255, see 

generally Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (stating that 

“[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal 

prisoners can challenge their convictions or sentences”); United States v. Fine, 982 F.3d 

1117, 1118-19 (8th Cir. 2020).

McLean has not otherwise demonstrated that the District Court abused its 

discretion in denying his compassionate release motion. The District Court determined 

Government has not objected to our review of the underlying denial of compassionate 

release, we decline to partially dismiss the appeal on timeliness grounds. See United 

States v. Muhammud, 701 F.3d 109, 111 (3d Cir. 2012) (noting that the time limit for 

filing a criminal appeal is rigid but may be forfeited if not invoked by the Government). 
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that McLean’s medical conditions do not constitute an “extraordinary and compelling” 

reason, especially in view of the fact that he has received a COVID vaccine (the one-dose 

Johnson & Johnson vaccine). Additionally, the District Court explained that McLean’s 

claim that he needs to care for his elderly grandmother does not justify a grant of 

compassionate release because she continues to be cared for by McLean’s mother. The 

District Court’s conclusions here did not constitute a clear error of judgment.

Further, the District Court did not err in deciding that the applicable § 3553(a) 

factors counseled against a grant of compassionate release. As the District Court said, 

McLean’s offenses were “serious,”4and he has served less than half of a sentence that 

“was already subject to a steep downward variance from the Guidelines.” Dist. Ct. Mem. 

entered May 11, 2021, at 3-4; see Pawlowski, 967 F.3d at 331 (indicating that the time 

remaining on the prisoner’s sentence is a relevant consideration in determining whether 

the § 3553(a) factors support a grant of compassionate release).

Finally, we discern no abuse of discretion in the District Court’s denial of 

reconsideration. In its order, the District Court reasonably explained that, while it 

“appreciates the challenge posed by COVID-19 and Defendant’s difficult conditions of 

confinement,” it could not find that the prison conditions presented an extraordinary and 

compelling reason in light of “the seriousness of Mr. McLean’s offenses and the need to 

4 The District Court summarized McLean’s offenses as follows: “McLean conspired to 

rob more than five kilograms of cocaine from a drug stash house, secured two weapons 

for that purpose, and while en route to the purported stash house was captured on video 

professing his willingness to commit murder if that became necessary during the course 

of the robbery.” (Dist. Ct. Mem. entered May 11, 2021, at 3.)
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impose appropriate punishment.” Dist. Ct. Order entered June 22, 2021. McLean did not 

otherwise present newly discovered evidence or seek to correct a manifest error of law or 

fact, and the District Court therefore committed no error of judgment in rejecting the 

motion. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673, 677 (3d Cir. 1999). 

For these reasons, we grant the Government’s motion and will summarily affirm 

the District Court’s judgment.