ALD-168 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 21-1272

___________

UNITED STATES OF AMERICA

v.

JERRY FRUIT,

 Appellant

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 1-16-00341-001)

District Judge: Honorable John E. Jones III

____________________________________

Submitted on a Motion for Summary Action

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

April 29, 2021

Before: MCKEE, GREENAWAY, Jr., and BIBAS, Circuit Judges

(Opinion filed: June 25, 2021)

_________

OPINION*

_________

PER CURIAM

Pro se appellant Jerry Fruit appeals from the District Court’s order denying his 

motion for compassionate release under 18 U.S.C. § 3582(c)(1), and the order denying

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

constitute binding precedent.
2

his motion for reconsideration. Because the appeal raises no substantial question, we will

grant the Government’s motion for summary affirmance.

In 2018, Fruit pleaded guilty to conspiracy to distribute and possess with intent to 

distribute heroin and cocaine, in violation of 21 U.S.C. §846, and possession with intent 

to distribute heroin and cocaine, in violation of 21 U.S.C. §841. The District Court

sentenced Fruit to a mandatory prison term of 120 months for his drug convictions,

imposed consecutive to another federal sentence. We affirmed on appeal. United States

v. Garner, 961 F.3d 264, 275 (3d Cir.), cert. denied sub nom. Fruit v. United States, 141 

S. Ct. 687 (2020).

In October 2020, Fruit filed a motion for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A). He sought release from prison because of an alleged high risk of serious

illness from COVID-19, due to his medical conditions (obesity, high cholesterol/coronary

artery disease, and angina). The District Court denied his motion, noting that Fruit’s

medical conditions were being treated and managed and that as of the date of the order,

risk of infection was minimal, as there were “zero active inmate cases of COVID-19 at

the USP-Lewisburg Prison Camp,” and “four active staff cases.” Order, Dkt. #212 at 4.

The District Court concluded that Fruit had “not demonstrated ‘extraordinary and

compelling circumstances’ warranting compassionate release.” Id. The Court also

determined that the factors of 18 U.S.C. § 3553(a) did not favor release, either, as Fruit

had “a notable criminal history” and had demonstrated “a considered disrespect for the

law and a failure to learn from his prior federal convic[]tion and incarceration.” Id.
3

Fruit timely moved for reconsideration.

1 Dkt. #214. Fruit asked the Court to

reconsider, noting that he had gained nearly ten pounds because of his inability to

exercise under COVID-19 restrictions. Fruit also noted that the number of active staff

cases had increased to seven. He argued that the prison’s report of “zero active inmate

cases” was attributable to a failure to test inmates. Id. at 3. Fruit agreed that his criminal

record suggested that he posed some level of danger to the community, given his

recidivism, but he argued that release was still warranted, given his medical vulnerability.

Id. at 4.

The District Court denied the motion for reconsideration. The Court

acknowledged that the number of active COVID-19 cases at USP-Lewisburg Camp had

increased, but also noted that infected inmates2 had been isolated, and that the prison

1 The District Court’s order denying his motion for compassionate release was entered on 

November 24, 2020. When Fruit appealed, it was not clear whether his motion for 

reconsideration had been timely filed, as it was docketed on December 10, 2020. See

United States v. Gomez-Gomez, 643 F.3d 463, 471 (6th Cir. 2011). But when we 

advised Fruit that we would consider whether his appeal was untimely, he submitted a 

declaration under penalty of perjury that he had deposited his motion for reconsideration 

in the prison’s outgoing mailbox on December 7, 2020. His declaration satisfies the

requirements of Fed. R. App. P. 4(c)(1)(A)(i) and Rule 4(c)(1)(B). Thus, we now 

consider his motion for reconsideration to have been timely filed on December 7, 2020, 

13 days after the District Court’s November 24 order. And his notice of appeal, 

postmarked on February 9, 2021, 13 days after the District Court’s order denying his 

motion for reconsideration, is also timely. See Fed. R. App. P. 4(b)(3)(A); Fed. R. App. 

P. 4(c)(1)(A)(ii).

2 Although Fruit mentioned no inmate cases in his motion for reconsideration, he then 

sent the Court a letter informing it of an “outbreak” at Lewisburg Camp. The

Government informed the Court that “as of December 30, 2020,” there were “a total of 

45 active COVID-19 cases involving inmates associated with the camp,” but that all 
4

reported that “all of the infected inmates were due to clear isolation by January 6, 2021.”

Dkt. #223 at 1. The District Court added that “nothing has altered our previous finding

that the Defendant’s pronounced and recidivist criminal history demonstrates that he is a

danger to the community.” Id. Fruit appealed. The Government then moved for

summary affirmance. Fruit filed his opening brief, which we will consider as a response

in opposition to summary action.

We have jurisdiction under 28 U.S.C. § 1291.

3 We review the District Court’s 

order for abuse of discretion: “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, internal quotation, and citation 

omitted). We will take summary action if the appeal presents “no substantial question.” 

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

We will grant the Government’s motion. The compassionate-release provision 

states that a district court “may reduce the term of imprisonment” and “impose a term of 

probation or supervised release” if it finds that “extraordinary and compelling reasons 

warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Before granting compassionate 

would be cleared from isolation by January 6, 2021, “barring the development of any 

additional signs or symptoms of COVID.” Dkt. #221 at 2-3 (quoting status report from 

the prison). The status report also said that “all of the cases associated with the camp 

have been very mild, with the bulk of them being asymptomatic.” Id. at 3.

3 Fruit’s appeal is timely, as explained in n.1 supra.
5

release, a district court must consider “the factors set forth in [18 U.S.C. §] 3553(a) to the 

extent that they are applicable.” § 3582(c)(1)(A). Those factors include, among other 

things, “the nature and circumstances of the offense and the history and characteristics of 

the defendant,” § 3553(a)(1), and the need for the sentence “to reflect the seriousness of 

the offense, to promote respect for the law, and to provide just punishment for the 

offense”; “to afford adequate deterrence to criminal conduct”; and “to protect the public 

from further crimes of the defendant,” § 3553(a)(2)(A)–(C).

Even assuming that Fruit’s medical conditions were sufficiently severe to warrant 

compassionate release, we discern no abuse of discretion in the District Court’s 

conclusion that the § 3553(a) factors weighed strongly against granting such relief.

Indeed, Fruit appears to concede that his criminal record supports a conclusion that he

remains a danger to the community. Fruit argues that his sentence is unduly harsh, but

his sentence was statutorily mandated.

4 We therefore do not have “a definite and firm 

conviction that [the District Court] committed a clear error of judgment in the conclusion 

it reached upon a weighing of the relevant factors.” Pawlowski, 967 F.3d at 330

(alteration omitted) (quoting Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)). 

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

the District Court’s judgment.

4 Fruit has served about half of his sentence—the District Court notes that his projected 

release date is in May of 2026. Order, Dkt. #212 at 4.