Opinion
21-2867
09-12-2022
UNITED STATES OF AMERICA v. MARCAL FRACTION, also known as Monk, Appellant
NOT PRECEDENTIAL
Submitted Under Third Circuit LAR 34.1(a) September 8, 2022
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:14-cr-00305-003) District Judge: Hon. Malachy E. Mannion
Before: JORDAN, HARDIMAN, and SMITH, Circuit Judges.
OPINION [*]
HARDIMAN, CIRCUIT JUDGE
Marcal Fraction appeals the District Court's order denying his compassionate release motion. Fraction has not shown "extraordinary and compelling reasons" for compassionate release, so we will affirm.
I
In 2017, Fraction pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine. Because he was a career offender, Fraction's advisory Sentencing Guidelines range was 151 to 188 months' imprisonment. The District Court varied downward, imposing a sentence of 120 months. Fraction moved the District Court for compassionate release based on his increased risk of complications from COVID-19, but the District Court denied that motion, and we summarily affirmed. See United States v. Fraction, 855 Fed.Appx. 72, 72 (3d Cir. 2021) (per curiam).
Fraction filed a second motion for compassionate release, arguing that if he were sentenced today, he would no longer be considered a career offender and would receive a shorter sentence. The District Court denied that motion too. The sole issue before us is whether Fraction's second motion demonstrated "extraordinary and compelling reasons" to warrant compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i).
We decline Fraction's invitation to reconsider all the issues he raised in his first motion for compassionate release because, by his own admission, he "did not re-raise all of these arguments in his most recent motion." Fraction Br. 10 n.1.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court's order denying compassionate release for abuse of discretion. United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021).
In United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc), we overruled prior precedent and held that inchoate offenses-including conspiracy, id. at 469 n.10- "are not included in the definition of 'controlled substance offenses' given in section 4B1.2(b) of the sentencing guidelines," id. at 472. As the Government concedes, if Fraction were sentenced today, he would not be considered a career offender under Nasir and would receive a shorter sentence. But he was sentenced before Nasir, and he does not argue that his sentence was unlawful at the time it was imposed.
In United States v. Andrews, 12 F.4th 255, 260-61 (3d Cir. 2021), we held that "[t]he duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance." We also held that "nonretroactive changes" in statutory sentencing law "cannot be a basis for compassionate release." Id. at 261. So Andrews precludes Fraction's argument that his lawfully imposed sentence should have been modified based on Nasir's nonretroactive change in the law. See id.; see also Harper v. Va. Dep't of Tax'n, 509 U.S. 86, 97 (1993) (holding that a new interpretation of federal law applies to "cases still open on direct review"). We will affirm the District Court's order denying Fraction's motion for compassionate release.
[*] This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.