UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JEREMY J. SNYDER, Defendant - Appellant. No. 22-3089 (D.C. No. 6:20-CR -10005-EFM-4) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , TYMKOVICH , and MATHESON , Circuit Judges.

________________ _________________ Jeremy J. Snyder, proceeding pro se, app eals from the district court’s denial of his motion under 18 U.S.C. § 3582(c)(1)(A)( i) for compassionate release. The government elected not to file a res ponse brief. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. In September 2020, Mr. Snyder pleaded guilty to the use of a communication facility to facilitate the commission of a drug crim e in violation of 21 U.S.C.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 24, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3089 Document: 010110802263 Date Filed: 01/24/2023 Page: 12 § 843(b), and to possession of methamphetamine in violation of 21 U.S.C. § 844(a). In April 2021 he was sentenced to 60 months ’ imprisonment. Mr. Snyder is currently incarcerated at the La Tuna Federal Corre ctional Institution (FCI La Tuna). His projected release date is May 1, 2024, but he is eligible for home detention on November 2, 2023. In March 2022, Mr. Snyder filed a moti on for compassionate release, asserting that many courts had granted compassiona te release because of the threat of COVID-19. He alleged that the vaccines lose their effec tiveness after four to six months, with record numbers of COVID-19 in fections resulting in record numbers of COVID-19 hospitalizations and deaths. And he argued th at the “extraordinary and compelling number of COVID cases in prison[ ,]” his “health issues of obesity and a history of smoking[,]” and “the impossibility to social distance as recommended by the [Centers for Disease Control and Pr evention (CDC),] warrant[ed] a sentence reduction.” R., vol. I at 113. In May 2022 the district court denied th e motion. Although the district court recognized that the CDC has found that Mr. Snyder’s medical condition of obesity may increase his risk of severe illness from COVID-19, the cour t concluded he did not show a high risk. The court based this risk assessment on the following evidence: (1) there was no widespread COVID-19 outbreak at FCI La Tuna at the time of its decision (no active inmate ca ses and only three active sta ff cases) and the prison has Appellate Case: 22-3089 Document: 010110802263 Date Filed: 01/24/2023 Page: 23 taken steps to control outbreaks; (2) Mr. Snyder has been fully vaccinated; 1 and (3) he has already contracted COVID-19 w ith no serious medical complications. The court therefore determined that Mr. Snyde r had not met his burden to demonstrate “an extraordinary and compelling circum stance warranting a sentence reduction.” Id.
at 258. We review for abuse of discretion a di strict court’s deni al of a motion for compassionate release under § 3582(c)(1)(A). See United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10t h Cir. 2021). “A di strict court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” Id. (internal quotation marks omitted). Under § 3582(c)(1)(A) a district court engages in a three- step process to determine whether to grant a motion for compassionate rele ase. The court considers whether (1) “extraordinary and compelli ng reasons warrant a sentence reduction”; (2) the “reduction is consis tent with applicable polic y statements issued by the Sentencing Commission” (though there is no applicable policy statement at this time); and (3) the relevant sentencing f actors in 18 U.S.C. § 3553(a) warrant a reduction. United States v. Hald , 8 F.4th 932, 937-38, 938 n.4 (10th Cir. 2021) (internal quotation marks omitted), cert. denied , 142 S. Ct. 2742 (2022). A district

1 As the government noted in its response brief in district c ourt, prison records show that Mr. Snyder initially refused a COVID-19 vaccine on Oc tober 5, 2021, and tested positive for COVID-19 about a month later. Mr. Snyder then agreed to be vaccinated on January 7, 2022. Appellate Case: 22-3089 Document: 010110802263 Date Filed: 01/24/2023 Page: 34 court may properly deny a compassionate-r elease motion if any of these three prerequisites is lacking and need not address the other two. See id. at 942-43. On appeal Mr. Snyder raises the following issues: (1) the distri ct court erred in finding there is no widespread COVID outbr eak at FCI La Tuna; (2) “vaccinations do not stop more contagious variants,” Aplt. Br. at 3; (3) “[he] does have extraordinary/compelling reasons,” id. at 4; (4) “previous COVID infection does not eliminate risk,” id. ; (5) “fully vaccinated inma tes [are] still at risk,” id. at 5; and (6) the district court ignore d case law in support of a se ntence reduction and cited to case law that came out before omicron and other variants. We construe Mr. Snyder’s pro se brief liberally, but we do not act as his advocate. See Hall v. Bellmon , 935 F.2d 1106, 1110 ( 10th Cir. 1991). We see no abuse of discretion in th e district court’s decision to deny Mr. Snyder’s motion for compassionate releas e. The court gave a reasoned basis for its decision and did not rely on any e rroneous factual findings or incorrect conclusions of law. First, the district court’s factua l finding that there was no widespread COVID outbreak at FCI La Tuna at the time of its d ecision is not clearly erroneous. Mr. Snyder has offered no eviden ce that this finding was untrue when the district court entered its order on May 4, 2022, which is the relevant timeframe, see Hemmelgarn , 15 F.4th at 1032. Next, although Mr. Snyder contends that vaccinations do not stop more contagious variants and fully vaccinated inmate s are still at risk, th e district court did not err in finding that Mr. Snyder’s being fully vaccinated decr eases his risk for Appellate Case: 22-3089 Document: 010110802263 Date Filed: 01/24/2023 Page: 45 severe illness from COVID-19 and ther efore “changes the calculus on the extraordinary and compelling reasons inquiry ,” R., vol. I at 258 (internal quotation marks omitted). According to the CDC, vaccination does lessen the potential for severe illness from COVID-19. 2 As for Mr. Snyder’s argument that a previous COVID-19 infection does not eliminate the risk of reinfe ction, the district court found that Mr. Snyder had no serious medical complications when he contracted COVI D-19 in November 2021. Mr. Snyder does not challenge that finding. The district court th erefore did not abuse its discretion in considering his prior infect ion when determining that he was not at high risk of severe illness from COVI D-19 even with his underlying medical conditions. See Hemmelgarn , 15 F.4th at 1032 (“[T]he dist rict court’s statement that [the inmate] recovered from COVID-19 desp ite his medical conditions is simply consistent with the view that those conditions do not place him at high risk of severe illness from COVID-19.”). Mr. Snyder also complains th e district court ignored case law that supported a sentence reduction, but the dist rict court did not ignore or fail to comply with any binding precedent in denying hi s motion. In any event, in considering compassionate release because of COVID-19, the relevant considerati ons may differ from prisoner

2 “COVID-19 vaccination significantly lowe rs your risk of severe illness, hospitalization, and death if you get infected.” CDC, Frequently Asked Questions About COVID-19 Vaccination , https://www.cdc.gov/coronavirus/2019- ncov/vaccines/faq.html (last updated Dec. 22, 2022). Appellate Case: 22-3089 Document: 010110802263 Date Filed: 01/24/2023 Page: 56 to prisoner, from institution to instituti on, and from one month to the next, thereby greatly reducing the persuasive effect of any particular nonprecedential decision. Only one argument from Mr. Snyder merits further mention. When discussing Mr. Snyder’s risks from COVID-19, the district court specifically noted the increase in risk of severe illness because of his obesity, citing a CDC report. Mr. Snyder suggests that the court did not also consider his history of tobacco and drug use. We are not persuaded. In the preceding para graph the court had explicitly referenced Mr. Snyder’s history of tobacco and drug use. The natural inferen ce is that the court discounted the risk from those conditions fo r the same reasons it discounted the risk arising from his obesity—the vaccinations received by Mr. Snyder significantly decreased his risk of severe disease or death and his prior infection did not result in any severe medical complications. We conclude that the dist rict court did not abuse its discretion in determining that Mr. Snyder failed to demonstrate an extraordinary and compelling circumstance warranting a sentence reduction. The dist rict court provided a reasoned basis for denying Mr. Snyder’s motion and did not rely on any incorrect conclusions of law or erroneous factual findings. Accordingly, we affirm the district court’s judgment.

Entered for the Court

Harris L Hartz Circuit Judge Appellate Case: 22-3089 Document: 010110802263 Date Filed: 01/24/2023 Page: 6