Paul Kelly, Jr. United States Circuit Judge

ORDER DENYING MOTION TO REDUCE SENTENCE

Paul Kelly, Jr. United States Circuit Judge

THIS MATTER comes before the court on remand from the Tenth Circuit. United States v. Vann, No. 22-2111, 2023 WL 2360495 (10th Cir. Mar. 6, 2023) (unpublished). As directed, the court now reconsiders Defendant Rayvell Vann's pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). ECF No. 358. Mr. Vann argues that his age, rehabilitation, amount of time served, health concerns, and an intervening change in law constitute extraordinary and compelling reasons that warrant compassionate release. The court finds that the motion is not well taken and should be denied.

Background

Mr. Vann was convicted by a jury in 2013 of possessing PCP and codeine with intent to distribute. While the PCP charge normally carried a five-year mandatory minimum sentence, Mr. Vann had a prior conviction for possessing a controlled substance that raised the mandatory minimum to ten years. See 21 U.S.C. § 841(b)(1)(B) (2012). Notwithstanding the mandatory minimum, this court sentenced Mr. Vann to fifteen years as to the PCP conviction, a twelve-month concurrent sentence as to the codeine conviction, and eight years' supervised release.See ECF No. 227.

On August 16, 2022, Mr. Vann filed a pro se motion seeking compassionate release. ECF No. 358. Mr. Vann argued that, if sentenced today, he would not have received an enhanced sentence under 21 U.S.C. § 851, which increased the mandatory minimum sentence he faced from five to ten years. The court denied the requested relief in part because it construed Mr. Vann's argument concerning a change in law as sounding in 28 U.S.C. § 2255 and thus would not be considered. See ECF No. 359.

On appeal, the Tenth Circuit reversed because changes in law, even those not made retroactive, can properly be considered as supporting a motion for compassionate release. Vann, 2023 WL 2360495, at *1 (citing United States v. McGee, 992 F.3d 1035, 1047-48 (10th Cir. 2021)). Given what appeared to be a ten-year disparity in the mandatory minimum sentences - in reality, five years - and the fact that this court sentenced pursuant to the mandatory minimum - it did not - the panel reasoned that this could affect this court's wide discretion in granting compassionate release. Id.

Discussion

Under 18 U.S.C. § 3582(c)(1), as amended by the First Step Act, a district court may grant a motion for compassionate release “only if three requirements are met: (1) the district court finds that extraordinary and compelling reasons warrant such a reduction; (2) the district court finds that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (3) the district court considers the factors set forth in § 3553(a), to the extent that they are applicable.” McGee, 992 F.3d at 1042.

As to the first step, district courts have the authority to determine themselves what constitutes extraordinary and compelling reasons. Id. at 1045. As to the second step, in the absence of a revised policy statement, no policy statement is currently applicable to Mr. Vann's directly filed motion. Id. at 1050. Thus, a district court's discretion at step one remains unconstrained.Id. As to the third step, district courts must consider any relevant § 3553(a) factors and “determine whether, in its discretion, the reduction authorized by [steps one and two] is warranted in whole or in part under the particular circumstances of the case.” Id. at 1042 (brackets in original) (quoting United States v. Jones, 980 F.3d 1098, 1108 (6th Cir. 2020)).

Applying this framework, Mr. Vann has failed to establish compelling and extraordinary reasons at step one. As for the intervening change in law, the court recognizes that had Mr. Vann been sentenced today he would face only a five-year mandatory minimum as opposed to the ten-year minimum he faced when sentenced. However, the court did not sentence Mr. Vann according to the ten-year minimum; it sentenced him to fifteen years, which was a below-Guidelines sentence given Mr. Vann's total offense level of 34 and criminal history category V (235-293 months).Thus, a five-year difference in mandatory minimums in this case does not constitute extraordinary and compelling reasons as it is irrelevant in any material respect. Having had the opportunity to impose a ten-year sentence, the court declined and instead imposed a fifteen-year sentence after considering the relevant factors in 18 U.S.C. § 3553(a).

The court also notes that in his reply brief, Mr. Vann raises a new argument - that there was an insufficient basis for his offense level of 34 because the drug quantity was based in part on the uncorroborated testimony of Agent Small. Reply Br. at 2-6 (ECF No. 377); see also United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). According to Mr. Vann, his correct offense level today, taking into account the two-level reduction the government so concedes, should therefore be 24 with a corresponding guidelines range of 92-115 months. Reply Br. at 2-6. This argument, which was raised for the first time in his reply is waived. United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). Moreover, a compassionate release motion is not the right vehicle for this claim which appears to be procedurally barred, not having been raised on direct appeal nor in an authorized 28 U.S.C. § 2255 motion. See United States v. Wesley, 60 F.4th 1277, 1280-86 (10th Cir. 2023). Regardless, assuming this claim is appropriately considered in the compassionate release context, the court nonetheless stands by its original finding (after an evidentiary hearing where Agent Small and Mr. Vann both testified) that the government met its burden with respect to the quantity supporting the offense level employed. See ECF No. 260, at 27-30; see also ECF No. 174; ECF No. 265, at 159-162 (Trial Transcript). Thus, it does not change the court's calculus in its determination of extraordinary and compelling reasons.

As for his health concerns, Mr. Vann suffers from high blood pressure, high cholesterol, and obesity, which also puts him at risk of severe illness should he contract COVID-19. While Mr. Vann is right that his medical conditions place him at heightened risk of severe illness from COVID-19, his claim is undermined by the fact that (1) he has already contracted and recovered from COVID-19 and provides no evidence of any severe medical complications he suffered; and (2) he has refused to be vaccinated against COVID-19 or otherwise take medication to manage at least one of his underlying conditions that places him at heightened risk.See United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021); see also United States v. Hemmelgarn, 15 F.4th 1027, 1032 (10th Cir. 2021); United States v. Snyder, No. 22-3089, 2023 WL 370901, at *2 (10^th Cir. Jan. 24, 2023) (unpublished). Thus, while his health concerns are legitimate, vaccination can effectively manage his risk and he fails to demonstrate extraordinary and compelling reasons based on his health.

As for his rehabilitation,rehabilitation cannot by itself constitute extraordinary and compelling reasons. See 28 U.S.C. § 994(t). His final arguments concerning his age and time served do not tip the scale either. As the government correctly points out, Mr. Vann has failed to show what is extraordinary about the fact he is fifty-five and has already served over ten years of his fifteen-year sentence. Moreover, the court was aware of his age when sentencing him. Thus, even considering Mr. Vann's circumstances in their totality - a change in mandatory minimums when the original higher minimum had little to no impact on the court's sentence; serious but manageable health issues; some indicia of rehabilitation; and being fifty-five after having served over ten years- the court finds Mr. Vann has failed to establish extraordinary and compelling reasons that warrant a sentence reduction.

Even if such reasons do exist, the court nonetheless finds that the factors set forth in § 3553(a) are inconsistent with and do not support a sentence reduction. Early release for Mr. Vann will not “promote respect for the law” or “provide just punishment.” See 18 U.S.C. § 3553(a)(2)(A). In 2013, the court determined a fifteen-year sentence was necessary to meet these sentencing goals among others given the nature of his offense and his extensive criminal history. The court's conclusion in that respect has not changed.

NOW, THEREFORE, IT IS ORDERED that Mr. Vann's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (ECF No. 358) is DENIED.