NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 21

- 1311

UNITED STATES OF AMERICA

v.
MUMIN MUHAMMAD , Appellant

Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No

. 2

- 14

- cr - 502

- 001 ) District Judge: Honorable Susan D. Wigenton

Submitted Under Third Circuit LAR 34.1(a)
on January 10 , 202 2
Before: AMBR O , BIBAS , and ROTH , Circuit Judges (Opinion Filed : February 1, 2022 )

OPINION *

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent.2 AMBRO, Circuit Judge
Mumin Muhammad appeals the District Court’s denial of his motion for compassionate release. For the reasons stated below, we affirm its decision.
I. Generally, a district court lacks jurisdiction to modify a sentence after it has imposed a final judgment. See United States v. Easter , 975 F.3d 318, 323 (3d Cir. 2020)

. But , in certain circumstances, Congress has grant ed district court s limited authority to modify

sentences. For instance, if either the Director of the Bureau of Prisons or a prisoner files a motion for compassion ate release, a court may grant a sentence reduction if, after considering the applicable sentencing factors under 18 U.S.C. § 3553(a), it determines that release is (1) warranted by “extraordinary and compelling reasons,” and (2) “consistent with applicabl e policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).
The District Court sentenced Mumin Muhammad in 2015 to 144 months’ imprisonment for distributing 100 grams or more of heroin. In June 2020, Muhammad moved to modify his sentence under one of § 3582 (c) ’s compassionate release provisions.
He argued his sentence should be modified under 18 U.S.C. § 3582(c)(A)(i) based on two

“ extraordinary and compelling reasons .” First, his asthma put him at a high risk of COVID

19 complications

. And second, his Guidelines’ range at his 2015 sentencing was higher3 than it would have been if calculated in 2020, based on a new en banc opinion from our Court, United States v. Nasir , 982 F.3d 144 (3d Cir. 2020) (en banc )

. 1
The District Court denied Muhammad’s motion. According to the Court, n either
his asthma nor the Nasir decision was an “extraordinary and compelling reason” for
release. And even if either or both were , the Court was not persuaded the relevant sentencing factors outlined in 18 U.S.C. § 3553(a ) supported early release

. Muhammad now appeals.
II. On appeal, Muhammad first contends the District Court erred by holding that our
Court’s decision in Nasir was not a n “ extraordinary and compelling reason ” for a sentence
reduction. 2 And second, he argues

— for the first time on appeal

— Nasir should apply retroactively to his sentence. We review legal questions de novo , including the District Court’s interpretation of stat utes. United States v. Andrews , 12 F.4th 255, 259 (3d Cir. 2021) . But we review its ultimate decision to den y a compassionate release motion only
for abuse of discretion. Id.

1 The Supreme Court vacated and remanded Nasir on grounds not relevant to this appeal. United States v. Nasir , 142 S. Ct. 56 (2021) . O ur Court has reissued its Nasir opinion, leaving the issues and analysis that Muhammad relies on unchanged. See United States v. Nasir , 17 F.4th 459 (3d Cir. 2021) (en banc). 2 Though Muhammad contended before the District Court there were two “extraordinary and compelling ” reasons for his release (his asthma and the Nasir decision), his opening brief on appeal does not challenge the Court’s rejection of his asthma argument. He has therefore forfeited that arg ument

. See Geness v. Cox , 902 F.3d 344, 355 (3d Cir. 2018). Even had he challenged this holding, he has not shown , as we discuss below, the Court abused its discretion in determining the § 3553(a) factors weigh against his early release

.4 A. We begin with Muhammad ’s contention that the change of law in Nasir was a compelling reason for early release. At his initial sentencing, the District Court applied the

career - offender enhancement, U.S.S.G. § 4B1.1, to Muhammad’s sentencing range because he had two prior felony convictions of a controlled substance offense: a 1999
federal conviction for conspiring to distribute heroin and a 2008 New Jersey conviction for
distrib uting and conspiring to distribute heroin. Years later, our Court held in Nasir that “inchoate crimes are not included in the definition of ‘controlled substance offenses’ given in section 4B1.2(b) of the sentencing guidelines.” 17 F.4th at 472 . And con spiracy, like
Muhammad’s 1999 conviction , is considered an inchoate offense. See United States v.
Salahuddin , 765 F.3d 329, 341 (3d Cir. 2014) (internal citation omitted)

. So , he explains,
had Nasir been decided when he was initially sentenced, he would not have qualified as a
career offender , as then he had only one prior felony conviction of a controlled

- substance
offense

. Without the career

- offender enhancement, Muhammad asserts he would have
received a 60

- month sentence.
On appeal, Muhammad insists it would “ be simply unfair not to reduce his sentence
to time served

. ” Appellant’s Br. at 5. But he makes no effort to explain why the change
of law in Nasir qualifies as an “extraordinary and compelling” circumstance under § 3582(c)(1)(A) or how the District Court erred in ruling it was not

. Yet even assuming Muhammad p resented an “extraordinary and compelling” reason for release, he has failed to challenge the Court’s independent ground for denying
his motion . Recall that compassionate release requires both that “extraordinary and5 compelling reasons” support release and that the § 3553(a) factors do so as well

. See 18 U.S.C. § 3582(c) (1) (A)(i)

. Here, the Court explained t hat even if there were a compelling reason for release, “it would still deny [Muhammad’s] motion because the ap plicable sentencing factors under 18 U.S.C. § 3553(a) weigh against his early release.” Appx. at 5. Specifically, the Court’s memorandum noted early release would not “‘reflect the seriousness of the offense,’ ‘promote respect for the law,’ ‘provide just punishment for the offense,’ or deter [Muhammad] or others from similar conduct.” Id. at 5

– 6 (quoting 18 U.S.C. § 3553(a)(2)(A))

. The C ourt also cited its § 3553(a) discussion from Muhammad’s initial sentencing and, in a footnote, added the “ [s] ection 3553(a) factors that [it] considered at sentencing and must consider now have not changed.” Id. at 6 & n.4.
Muhammad does not claim on appeal that the Court abused its discretion in evaluating the § 3553(a) factors , so he has abandoned this argument. 3 See Nagle v. Alspach , 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not set forth in the statement of issues presented or not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal.”). We thus affirm the District Court’s judgment on this independent ground.

3 Had he advanced it , he faced a high bar to show error. We will not disturb the District Court’s determination that the § 3553(a) factors do not support compassionate release unless we have a “definite and firm conviction that it committed a clear error of judgme nt in the conclusion it reached upon a weighing of the relevant factors.” United States v. Pawlowski , 967 F.3d 327, 330 (3d Cir. 2020) ( quoting Oddi v. Ford Motor Co. , 234 F.3d 136, 146 (3d Cir. 2000) ) (alterations adopted).6 B. Finally, Muhammad asserts for the first time that Nasir should be applied retroactively. Because we review argument s that were not made before the District Court only for plain error, he must show (1) there was an error , (2) it was plain ( i.e. , clear unde r current law) , and (3) it affected his substantial rights. United States v. Fattah , 914 F.3d 112, 172 (3d Cir. 2019)

. Even then, we will only address the error if we conclude that (4) it “seriously affected the fairness, integrity, or public reputation of the judicial proceeding.”
Id. We have never held Nasir applies retroactively on collateral review. Thus, even if the
Court erred by failing to apply Nasir retroactively (an issue we need not reach in this case) , that error is not plain.
* * * * * For these reasons, we affirm the judgment of the District Court.