# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 10406 Summary Calendar

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Mark Linnear Hays,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:2 1

- CV

- 380 USDC No. 3:95

- CR

- 141

- 2

Before **Higginbotham, Higginson,** and **Duncan,** Circuit Judges

. **Per Curiam :**  * Mark Linnear Hays, federal prisoner # 46431

- 019, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release. He argues that he was entitled to release because (1) the 18 U.S.C.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 5, 2022 Lyle W. Cayce C lerk Case: 21-10406 Document: 00516308546 Page: 1 Date Filed: 05/05/2022No. 21

- 10406

2 § 3553(a) factors, including his family ties and post

- sentencing rehabilitation, support release and (2) given his medical conditions, the COVID

- 19 pandemic is an extraordinary and compelling reason . He additionally argues , for the first time on appeal, that the district court erred at hi s initial sentencing proceeding when it originally imposed consecutive life sentences

.

“ A court, on a motion by the [Bureau of Prisons] or by the defendant after exhausting all [Bureau of Prison] remedies, may reduce or modify a term of imprisonment, proba tion, or supervised release after considering the factors of 18 U.S.C. § 3553(a), if ‘ extraordinary and compelling reasons warrant such a reduction. ’” United States v. Chambliss , 948 F.3d 691, 692 (5th Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) ). We review the denial of a § 3582(c)(1)(A)(i) motion for abuse of discretion. See id. at 693. Here, the district court did not abuse its discretion by denying relief based upon a balancing of the § 3553(a) sentencing factors

. Cf. id. at 694 (“[A] lthough Chamb liss may disagree with how the district court balanced the § 3553(a) factors, that is not a sufficient ground for reversal. ”). Accordingly, we do not consider Hays’s contention that extraordinary and compelling reasons justify relief. See Ward v. United States , 11 F.4th 354, 360 (5th Cir. 2021 ) (“ The district court has discretion to deny compassionate release if the Section 3553(a) factors counsel against a reduction. ”); see also United States v. Jackson , 27 F.4th 1088, 109 4 n.8 (5th Cir. 2022)

. Additionally, to the extent Hays challenge s his initial sentencing proceeding , the argument is not properly before this court, as it was not raised in the district court. See O livarez v. T

- Mobile USA, Inc. , 997 F.3d 595, 602 n.1 (5th Cir. 2021)

. Moreover, a challenge to an initial sentencing proceeding is not appropriately raised in a § 3582(c) motion. See United States v. Hernandez , 645 F.3d 709, 712 (5th Cir. 2011) (explaining , in a § 3582(c)(2) Case: 21-10406 Document: 00516308546 Page: 2 Date Filed: 05/05/2022No. 21

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3 case, that “[a] modification proceeding is not the forum for a collateral attack on a sentence long since imposed and affirmed on direct appeal ”).

**AFFIRMED**

. Case: 21-10406 Document: 00516308546 Page: 3 Date Filed: 05/05/2022