UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RICKY GARRISON, Defendant - Appellant. No. 21-1250 (D.C. No. 1:14-CR -00231-WJM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BALDOCK , and EID , Circuit Judges. **

________________ _________________ Ricky Garrison appeals the district cour t’s denial of his motion for sentence reduction and compassionate release under 18 U.S.C. § 35 82(c)(1)(A)(i). Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.
I. Garrison was convicted of twenty drug -related felonies in March 2017 and sentenced to 156 months in prison. In July 2020, Garrison fi led a motion seeking a

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### June 24, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 12 sentence reduction to time serv ed due to high risk of C OVID-19 infection. Garrison asserted that he suffered from high blood pressure, hypertension, pre-diabetes, and obesity, and was at heightened risk fo r COVID-19 because he took a prescription anabolic steroid for low testosterone. Ga rrison was incarcerated at the time of his motion at FCI Pekin, a Bureau of Prisons (“BOP”) facility in Illinois, but was transferred to FCI Victorville, in California, in May 2021, shortly before the district court ruled on his motion, and is now incar cerated at USP Leavenworth in Kansas. Garrison had served approximately eighty-four months at the time the district court ruled on his motion, during which he work ed at the prison library, finished over fifteen classes, and received his GED. The district court denied Garrison’s motion for lack of extraordinary and compelling reasons, and, in th e alternative, its assessment of the 18 U.S.C. § 3553(a) factors. Considering Garri son’s underlying health c onditions and his concerns regarding COVID-19 safety at FCI Pekin, the district court f ound that “[a]lthough Garrison’s medical conditions may be risk factors for severe COVID-19, the BOP website reflect[ed] that zero cases of inmates with the viru s currently exis t[ed] at FCI Pekin,” and “extraordinary and compellin g circumstances generally do not exist where there are no confirmed cases of th e virus at the pris oner’s facility.” Id. at 369– 70. The district court also determined that significant a dvances in COVID-19 vaccine availability weighed against Garr ison’s release. Alternatively, while acknowledging Garrison’s educational acco mplishments were “encouraging,” the district court found that time served would not be cons istent with the § 3553(a) Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 23 factors, as “allowing Garrison to serve little more than ha lf of his original sentence would not reflect the gravity of [the] dr ug-related crimes th at he committed.” Id. at 371. Garrison appeals. Because Garrison pro ceeds pro se, we construe his filings liberally but will not act as his advocate. See Hooks v. Atoki , 983 F.3d 1193, 1196 n.1 (10th Cir. 2020).
II. We review orders denying compas sionate release under 18 U.S.C. § 3582(c)(1)(A) for abuse of discretion. United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021). A district court abuses its discretion when it “makes a clear error of judgment, ex ceeds the bounds of permissi ble choice, or when its decision is arbitrary, caprici ous or whimsical, or results in a manifestly unreasonable judgment.” United States v. Mobley , 971 F.3d 1187, 1195 ( 10th Cir. 2020) (quoting Mathis v. Huff & Puff Trucking, Inc. , 787 F.3d 1297, 1309 (10th Cir. 2015)). The compassionate release statute states, in part: (c) Modification of an impose d term of imprisonment. —The court may not modify a term of imprisonmen t once it has been imposed except that— (1) in any case— (A) the court, upon motion of th e Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all admini strative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the laps e of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may re duce the term of imprisonment Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 34 (and may impose a term of prob ation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set fort h in section 3553(a) to the extent that they are app licable, if it finds that— (i) extraordinary and compelling reasons warrant such a reduction; . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(i). A district court may grant a motion for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A)(i) only if it finds extraordin ary and compelling r easons warrant such a reduction, the reduction is consistent with applicable policy st atements issued by the Sentencing Commission, and it c onsiders the § 3553(a) factors. See United States
v. McGee , 992 F.3d 1035, 1042 (10t h Cir. 2021). A distri ct court “may properly deny a compassionate-release motion when a ny one of these three requirements is lacking.” United States v. Pérez-Hernández , No. 21-2104, 2022 WL 1639308, at *2 (10th Cir. May 24, 2022) (unpublished). 1 On appeal, Garrison argues that the district court abused its discretion in denying his motion for compassionate release by finding neither extraordinary and compelling circumstances nor the § 3553(a) factors supported a sentence reduction.

a.

1 Unpublished cases are not binding preceden t, but we consider them for their persuasive value. See Fed. R. App. P. 32. 1; 10th Cir. R. 32.1. Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 45 Garrison argued below that his health conditions incr eased his COVID-19 risk, which qualified as an extrao rdinary and compelling reason fo r compassionate release. However, at the time of review , FCI Pekin had “zero” infected inmates. R. Vol. I at 369–70. As a result, the di strict court found the circ umstances did not warrant a sentence reduction. Considering district courts’ “authority to determine for themselves what constitute s extraordinary and compe lling reasons,” we find the district court did not abus e its discretion in denying Garrison’s motion because FCI Pekin had no COVID-19 infections. United States v. Maumau, 993 F.3d 821, 834 (10th Cir. 2021) (interna l quotation marks omitted). Garrison contends on appeal th at his subsequent facility transfer and the rise of the COVID-19 Delta variant are extraord inary and compelling reasons for early release. But he brought neither argument in his initial motion nor his counseled brief in support. Because he did not supplement his motion with this new information, and because we do not “address argu ments presented for the first time on appeal,” the issue is solely whether the district court abused its discretion in denyi ng Garrison’s motion for compassionate releas e based upon the facts al leged in the motion. See United States v. Nelson , 868 F.3d 885, 89 1 (10th Cir. 2017) (quoting United States v. Mora , 293 F.3d 1213, 12 16 (10th Cir. 2002)). It did not.
b. Even if a district court finds extraordinary and comp elling reasons to reduce a sentence, it may still deny a compassionate release motion because of how it views the § 3553(a) factors. See United States v. Hald , 8 F.4th 932, 949 (10th Cir. 2021), Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 56 cert. denied , No. 21-6594, 2022 WL 1611819 (U.S. May 23, 2022). Here, consideration of the § 3553(a) factors was an alternative basis for the district court’s denial of Garrison’s motion. On app eal, Garrison argues th at the court below “abused its discretion by not properly review ing [the] sentencing factors.” Aplt. Br. at 4. We disagree. First, Garrison emphasizes that he is a non-violen t drug offender and argues that his “conduct based on institutional reha bilitation is all that should matter.” Id. He suggests that he would be “better suited” to continue hi s education outside prison. Id. But the district court took his persp ective into account wh en it analyzed the sentencing factors under § 3553(a) and explai ned its view that “allowing Garrison to serve little more than half of his original sentence w ould not reflect the gravity” of his convictions. R. Vol. I at 371. Citing se veral of the factors, the court determined that compassionate release would not (1 ) reflect the nature, circumstances, and seriousness of the offense; (2) be consistent with the kinds of sentences the sentencing range established; and (3) afford adequate dete rrence. Even if we would have viewed the factors differently, Garris on does not explain how the district court’s reasoned analysis was an abuse of discretion. Next, Garrison’s arguments about the pr opriety of his original sentence are misplaced. The district court consid ered these arguments but found them unpersuasive in its denial of Garrison’s first motion for compassionate release, which he did not appeal. See id. at 307–08. Because Garrison di d not raise these arguments in the second motion for compassionate release under review here, they are Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 67 improperly pressed on appeal. See Nelson , 868 F.3d at 891. Even if we considered them, however, the district court’s § 3553(a) determination was based on more than just the sentencing factor related to th e guidelines range. Moreover, Garrison’s complaint that the district court failed to seek out mitigating information fails because, as the district cour t recognized, Garrison did not point the district court to the relevant docket entries cont aining this information. Finally, Garrison argues that the district court erred by failing to consider a brief submitted by counsel shortly after his pro se motion. But that is incorrect. The district court construed Ga rrison’s counseled brief in support of compassionate release as a reply brief and cited it several times in the order denying his motion. The district court therefore did not abuse its discretion in denying Garrison’s motion on the alternative basis that the § 3553(a) factors did not support compassionate release.

c. Garrison has moved to proceed in forma pauperis on appeal. The motion is granted due to demonstrable financial need. Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 78 III. We AFFIRM the district court’s denial of Garri son’s motion for sentence reduction and compa ssionate release.

Entered for the Court

Allison H. Eid Circuit Judge Appellate Case: 21-1250 Document: 010110701151 Date Filed: 06/24/2022 Page: 8