United States Court of Appeals

for the Fifth Circuit

No. 20-40801

United States of America, 

Plaintiff—Appellee,

versus

Christopher Lavell McFadden, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:17-CR-55

Before Wiener, Graves, and Duncan, Circuit Judges.

Per Curiam:*

Federal prisoner Christopher McFadden appeals the denial of his 

motion for compassionate release based on his health problems and his risk 

of contracting COVID-19. He claims the district court erred under United 

States v. Shkambi, 993 F.3d 388 (5th Cir. 2021). Disagreeing, we affirm.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2022

Lyle W. Cayce

Clerk

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I.

In October 2017, McFadden pleaded guilty to one count of being a 

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He 

admitted to purchasing a pistol while knowing he had been convicted of a 

felony. Police recovered the firearm while executing a search warrant at his

residence. The district court sentenced him to seventy-one months’ 

imprisonment, followed by three years’ supervised release. 

McFadden has a history of medical issues. He was diagnosed with 

insulin-dependent diabetes in 1998 and high blood pressure in 2010. In 2015, 

he was diagnosed with prostate cancer and underwent cancer removal 

surgery. He is currently in end-stage renal failure, requiring him to undergo 

dialysis three times a week. The district court knew of these conditions at the 

time of sentencing.

In December 2019, McFadden moved pro se for compassionate release 

under 18 U.S.C. § 3582(c)(1)(A), citing his renal failure, “problems with 

blood pressure,” and inability “to get a donor kidney through the [Bureau of 

Prisons].” McFadden amended his motion in June 2020, claiming his 

“heightened risk” of death from COVID-19 further justified release.

On June 25, 2020, the district court denied McFadden’s motion, 

finding no “extraordinary and compelling reason” warranting a sentence 

reduction. United States v. McFadden (McFadden I), No. 4:17-CR-55, 2020 

WL 6531937, at *3–4 (E.D. Tex. June 25, 2020). The court also concluded 

that McFadden posed a danger to the community if released, considering the 

nature and circumstances of his offense, his lengthy criminal history, and his 

prior noncompliance with probation. Id. at *5.

McFadden moved for reconsideration on July 6, 2020. He explained 

that his brother is willing to donate a kidney, but under Bureau of Prisons 

(BOP) policy, he cannot receive a transplant while in custody. The court 

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denied the motion on November 5, 2020. United States v. McFadden

(McFadden II), No. 4:17-CR-55, 2020 WL 6504462, at *1 (E.D. Tex. Nov. 5, 

2020). McFadden filed a notice of appeal on November 19, 2020.

II.

We review the denial of a compassionate-release motion for abuse of 

discretion. United States v. Cooper, 996 F.3d 283, 286 (5th Cir. 2021) (citation 

omitted).

III.

A.

As a threshold matter, the government argues the appeal should be 

dismissed because McFadden noticed it more than fourteen days after the 

court denied his compassionate-release motion. We disagree.

McFadden timely moved for reconsideration within the fourteen-day 

period to notice an appeal.

1 See Fed. R. App. P. 4(b)(1)(A)(i); United States 

v. Miramontez, 995 F.2d 56, 58 n.2 (5th Cir. 1993) (reconsideration motions 

in criminal cases “are timely filed if made within the period allotted for the 

noticing of an appeal” (citation omitted)). McFadden’s timely motion for 

reconsideration tolled the period to notice an appeal. See United States v. 

Brewer, 60 F.3d 1142, 1143–44 (5th Cir. 1995). The fourteen-day period to 

appeal restarted and “beg[an] to run when the [reconsideration] motion

[wa]s denied.” Id. at 1143 (quoting United States v. Lewis, 921 F.2d 563, 564–

1 Under the prison mailbox rule, McFadden “filed” his submissions when he 

“handed [them] over to prison authorities for mailing.” Spotville v. Cain, 149 F.3d 374, 376 

(5th Cir. 1998); see Fed. R. App. P. 4(c)(1). The mailing envelopes for his motion for 

reconsideration and notice of appeal are postmarked July 6, 2020, and November 19, 2020, 

respectively, so we consider the documents filed on these dates. See, e.g., Fed. R. App. 

P. 4(c)(1)(A)(ii); Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009).

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65 (5th Cir. 1991)). McFadden timely filed his notice of appeal within that 

fourteen-day period.

B.

McFadden argues the district court erred by relying on U.S.S.G. 

§ 1B1.13 and treating as binding its criteria for “extraordinary and 

compelling” reasons warranting a reduction. He also argues the court did not 

consider the section 3553(a) factors, relying solely on section 1B1.13. We 

conclude that the district court determined that compassionate release was 

not warranted under the section 3553(a) factors, so we need not address 

McFadden’s first argument.2

The compassionate-release statute, as amended by the First Step Act, 

permits a district court to reduce a defendant’s term of imprisonment if, after 

considering the applicable section 3553(a) factors,3the court finds that 

(1) “extraordinary and compelling reasons warrant such a reduction” and 

(2) “such a reduction is consistent with applicable policy statements issued 

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A) (West 2018). 

The applicable policy statement is U.S.S.G. § 1B1.13. See United States v. 

2 McFadden’s argument that the district court denied his reconsideration motion 

without addressing whether the BOP’s refusal to provide a kidney transplant is an 

extraordinary and compelling reason warranting relief is without merit. The district court 

adequately addressed this issue. McFadden II, 2020 WL 6504462, at *2. And while 

McFadden’s reply brief discusses deliberate indifference under Estelle v. Gamble, 429 U.S. 

97 (1976), no such claim is properly before us.

3 These factors include, inter alia, “(1) the nature and circumstances of the offense 

and the history and characteristics of the defendant; [and] (2) the need for the sentence 

imposed--(A) to reflect the seriousness of the offense, to promote respect for the law, and 

to provide just punishment for the offense; (B) to afford adequate deterrence to criminal 

conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide 

the defendant with needed educational or vocational training, medical care, or other 

correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(1)–(2).

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Thompson, 984 F.3d 431, 433 (5th Cir. 2021); United States v. Chambliss, 948 

F.3d 691, 693 (5th Cir. 2020).4

After the district court’s ruling, our court held in Shkambi that, by its 

terms, section 1B1.13 applies only to compassionate-release motions filed by 

the BOP, and so a court errs if it treats the policy statement as binding in 

deciding a prisoner’s motion. 993 F.3d at 389, 392–93; see United States v. 

Cooper, 996 F.3d 283, 289 (5th Cir. 2021). The Sentencing Commission has 

not adopted a new policy statement in response to the First Step Act. 

Shkambi, 993 F.3d at 392. So, a prisoner who moves for compassionate 

release need show only an “extraordinary and compelling” reason for a 

sentence reduction and that a reduction is consistent with the section 3553(a) 

factors. Ibid.

Even assuming the district court considered section 1B1.13 binding, as 

McFadden argues, the court’s reliance on the section 3553(a) factors 

provides an alternative basis for denying relief. See Chambliss, 948 F.3d at 

693–94. McFadden argues the court considered only whether he posed a 

danger to the community under section 1B1.13 and not the section 3553(a) 

factors. We disagree.

The district court explained that, if it finds an extraordinary and

compelling reason warrants release, it “must also consider the factors set 

4 Section 1B1.13 provides that “[u]pon motion of the Director of the [BOP] under 

18 U.S.C. § 3582(c)(1)(A),” a court may reduce a term of imprisonment if, after 

considering the applicable section 3553(a) factors, it determines that (1) “[e]xtraordinary 

and compelling reasons warrant the reduction,” (2) “the defendant is not a danger to the 

safety of any other person or to the community,” and (3) “[t]he reduction is consistent 

with this policy statement.” U.S.S.G. § 1B1.13. The application notes in the commentary 

provide criteria to determine whether extraordinary and compelling reasons exist, 

specifying the defendant’s medical condition, age, and family circumstances, as well as 

“other” reasons “[a]s determined by the Director of the [BOP].” Id. § 1B1.13, cmt. n.1.

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forth in 18 U.S.C. § 3553(a), as applicable, and find that the sentence 

modification is consistent with the policy statements issued by the

Commission,” i.e., “the defendant is not a danger to the safety of any other 

person or to the community.” McFadden I, 2020 WL 6531937, at *3 

(emphasis added) (footnote omitted) (first citing 18 U.S.C. § 3582(c)(1)(A); 

then quoting U.S.S.G. § 1B1.13(2)); see also id. at *3 n.1 (listing section 

3553(a) factors). After finding McFadden had not shown an extraordinary

and compelling reason, the court discussed the nature and circumstances of 

his offense, his extensive criminal history, and his prior noncompliance with 

probation. Id. at *5. It reiterated that section 3582(c)(1)(A) “requir[es] courts 

to consider the § 3553(a) factors before granting compassionate release.”

Ibid. (citing 18 U.S.C. § 3582(c)(1)(A)). It concluded: “in view of the 

circumstances of this offense and McFadden’s extensive criminal history, 

the court cannot conclude that he would not pose a danger to any other 

person or to the community, if released.” Ibid.

It is true that, in denying McFadden’s motion for compassionate 

release, the district court couched the conclusion to its discussion of the 

section 3553(a) factors in terms of the policy statement. But, as we read the 

order, the court was merely trying to kill two birds with one stone. That this 

is the correct reading is confirmed by the court’s order denying McFadden’s 

reconsideration motion. The court explained that its prior order “held that 

after considering the factors set forth in 18 U.S.C. § 3553(a), a reduction was 

not warranted and that it could not conclude that McFadden would not pose 

a danger to any other person or to the community, if released from 

confinement.” McFadden II, 2020 WL 6504462, at *1 (citing Chambliss, 948 

F.3d at 693). Therefore, the record as a whole satisfies us that the denial of 

McFadden’s motion was also based on the section 3553(a) factors. Chambliss, 

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948 F.3d at 693–94; see Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 

(2018).

5

AFFIRMED.

5 See also United States v. Shorter, 850 F. App’x 327, 328 (5th Cir. 2021) (per 

curiam) (affirming denial of compassionate release despite brief explanation because “the 

record reflect[ed] that the district court considered the § 3553(a) factors,” given it 

referenced the parties’ submissions, which contained arguments on the factors, and it 

“explicitly stated that it took into account the relevant § 3553(a) factors and the applicable 

policy statements before it found that a sentence reduction was not warranted”); United 

States v. Pleasant, No. 21-50212, 2021 WL 5913090, at *1 (5th Cir. Dec. 14, 2021) (per 

curiam) (finding no abuse of discretion in considering section 1B1.13 “because the denial 

was also based on an assessment of the § 3553(a) factors” (citations omitted)); cf. United 

States v. Hardy, No. 20-60859, 2022 WL 402429, at *3 (5th Cir. Feb. 9, 2022) (vacating 

denial of compassionate release where defendant’s potential danger to the community was 

an “inquiry that treated the policy statement as binding” because “the district court never 

expressly relied on § 3553(a),” even though “it effectively considered several § 3553(a) 

factors due to the inquiries’ overlap”); United States v. Schad, No. 21-40393, 2021 WL 

5119772, at *1 (5th Cir. Nov. 3, 2021) (per curiam) (vacating denial of compassionate 

release because district court “denied [defendant’s] motion without specifically 

considering the § 3553(a) factors” or even “mention[ing] the § 3553(a) factors at any point 

in the proceedings”).

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