UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LONNIE DEAN, Defendant - Appellant. No. 21-2082 (D.C. No. 1:11-CR-01670-JCH-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and ROSSMAN , Circuit Judges.

________________ _________________ Lonnie Dean appeals th e district court’s denial of his motion for compassionate release under 18 U.S.C. § 358 2(c)(1)(A)(i). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel 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. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 17, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 12 I. BACKGROUND
A. Legal Background Title 18 U.S.C. § 3582(c)(1)(A), as am ended by Section 603(b) of the First Step Act, allows federal prisoners to move for compassionate rele ase in the district court after exhausting Bureau of Pris ons (“BOP”) administrative remedies. See United States v. Maumau , 993 F.3d 821, 830-31 (10th Cir. 2021). The court may grant the motion only when th e district court finds that (1) extraordinary and compellin g reasons justify release; (2) release is consistent with applicable policy statements issued by the Sentencing Commission; and (3) release is warranted afte r considering the applicable § 3553(a) factors. Id. at 831; see also 18 U.S.C. § 3582(c)(1)(A). In general, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking.” Maumau , 993 F.3d at 831 n.4 (quotations omitted); see also United States v. McGee , 992 F.3d 1035, 1043 (10th Cir. 2021). But because the Unite d States Sentencing Commission “has been unable to comply with its statutory duty of promulgating a post-Fi rst Step Act policy statement,” “the Sentencing Commission’s exis ting policy statement[ s are] applicable only to motions for sentence reductions file d by the Director of the BOP, and not to motions filed directly by defendants.” Id. at 1050. Thus, current policy statements “cannot constrain district c ourts’ discretion” in deci ding a prisoner’s motion for compassionate release. Id. (quotations omitted). Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 23 In other words, until the Sentenci ng Commission promulgates new policy statements, a district court may consider only the first and third prerequisites for compassionate release under § 3582(c)(1 )(A) because curre ntly there are no applicable policy statements under the second prerequisite.
B. Procedural History In 2013, Mr. Dean pled guilty to (1) c onspiracy to distribute at least 50 grams of methamphetamine; (2) possession of meth amphetamine with intent to distribute; and (3) assaulting, resisting, or impeding a federal officer. He was sentenced to 240 months in prison. 1 In August 2020, Mr. Dean submitted a compassionate-release request to the BOP under 18 U.S.C. § 3582(c)(1)(A). As justification, he cited (1) his medical conditions, including obesity, diabetes, a nd hypertension; and (2) the spread of COVID-19. After the BOP denied his request, Mr. Dean filed a motion for compassionate release in the district court. The district court agreed that Mr. Dean’s medical c onditions constituted extraordinary and compelling circ umstances under § 3582(c)(1)(A)(i). 2 It then

1 A state court also sentenced Mr. Dean to 10 years in prison for vehicular homicide after he killed an innocent bys tander while attempting to escape federal officers. Suppl. ROA at 3, 87, 98. The federal and state senten ces were set to run concurrently.

2 The court disagreed with Mr. D ean’s contention that the COVID-19 pandemic supported a finding of extraordin ary and compelling circumstances, noting the BOP’s adequate response to the pande mic and Mr. Dean’s vaccination status. Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 34 weighed the sentencing factors under 18 U. S.C. § 3553(a) a nd concluded that modifying Mr. Dean’s sentence was not warranted. The court acknowledged Mr. Dean had a clean record in prison. In considering the § 3553(a) fa ctors, the district court (1) described Mr. Dean’s extens ive criminal history, which “included five felony dr ug convictions, carrying a concealed weapon, possession of stolen property, an arrest for battery against a household member and an arrest for burglary”; (2) noted the seriousness of his offenses of conviction, during which “he fled from federal agents by ramming a vehicle, fleeing and then causing a cras h that killed a person”; and (3) found “after review of the section []3553 factors and the facts set forth above, the defenda nt is a danger to the safety of another person or to the community.” ROA at 133. The court determined the § 3553(a) factors weighe d against release and denied Mr. Dean’s motion. Mr. Dean timely appealed.
II. DISCUSSION We review a district c ourt’s ruling on a First Step Act motion for abuse of discretion. See United States v. Mannie , 971 F.3d 1145, 1147-48, 1154-55 (10th Cir. 2020). “A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” United States v. Piper , 839 F.3d 1261, 1265 (10th Cir. 2016) (quotations omitted). Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 45 Mr. Dean argues the district court erred because it relied on a policy statement in the Sentencing Guidelines, § 1B1.13(2), to deny the motion. 3 We disagree. The court said Mr. Dean satisfied the first pr erequisite of § 3582(c)(1)(A)—extraordinary and compelling reasons—but denied the motion based on the third prerequisite— evaluation of the § 3553(a) fa ctors. It did not rely on the second prerequisite. Mr. Dean’s arguments to the contrary lack merit. First, he argues the district court fail ed to acknowledge that no applicable Sentencing Commission policy statements exis t. But Mr. Dean poi nts to no authority providing that the district court was ob ligated to state that no policy statement applied. The Government aler ted the court to our holding in McGee that the Sentencing Commission has not yet promulga ted an applicable policy statement, Suppl. ROA at 7, and the court cited McGee in its order denying compassionate release, ROA at 129.

3 United States Sentencing Gu ideline § 1B1.13(2) states: Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A ), the court may reduce a term of imprisonment (and may impose a term of supervised release with or w ithout conditions that does not exceed the unserved portion of the original term of imprisonment) if, after consid ering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the cour t determines that

. . . (2) [t]he defendant is not a da nger to the safety of any other person or to the commun ity, as provided in 18 U.S.C. § 3142(g). Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 56 Second, he says the district court’ s order summarized the Government’s argument that Mr. Dean cannot satisf y Sentencing Commission Policy Statement § 1B1.13(2). But the court’ s description of the Govern ment’s argument citing to § 1B1.13(2) does not show the court denied relief based on that provision. A court’s restatement of a party’s argument does not mean the court has adopted it. And “it would hardly be an abuse of discretion fo r a district court to look to the present policy statement for guidance” as long as it did not feel bound by the policy

statement. United States v. Hald , 8 F.4th 932, 938 n.4 (10th Cir. 2021). Third, he contends the district court’ s statement that he “is a danger to the safety of another person or to the co mmunity” “tracks” the language found in § 1B1.13(2). Aplt. Br. at 14 (quoting United States v. Carralero-Escobar , 860 F. App’x 143, 146 (10th Cir. 2021) (unpublished )). But the court used this language only after it considered the § 3553(a) factors. This in no way shows it denied the motion based on § 1B1.13(2). The court instead tied the language from the policy statement to its assessment of the § 3553(a) factors. Even assuming the district court relie d on § 1B1.13(2), any error would have been harmless. In its order, the court listed the § 3553(a) factors. It then determined that the defendant’s criminal history a nd the nature and circumstances of the offense—i.e., the facts it previously laid out— militated against sentence modification. Because “district courts may deny compassiona te-release motions when any of the three prerequisites li sted in § 3582(c)(1)(A) is lacking,” Maumau , Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 67 993 F.3d at 831 n.4 (quotations omitted), any e rror by the district court in its treatment of § 1B1.13(2) w ould have been harmless.
III. CONCLUSION We affirm.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 21-2082 Document: 010110646634 Date Filed: 02/17/2022 Page: 7