NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0253n.06
No. 20-1990
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) May 25, 2021
UNITED STATES OF AMERICA,
) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
ERIK E. THOMPSON,
) DISTRICT OF MICHIGAN
)
Defendant-Appellant.
)
)
Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.
PER CURIAM. Erik E. Thompson appeals the district court’s denial of his motion for
compassionate release. We reject his arguments and affirm.
In 2013, Thompson pled guilty to distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). The district court sentenced him to 180 months’ imprisonment. In June 2020, he
moved for compassionate release under the First Step Act, alleging that he suffers from asthma
that, during the current pandemic, amounts to an “extraordinary and compelling reason” for a
sentence reduction. See 18 U.S.C. § 3582(c)(1)(A). Thompson also asserted that he had
rehabilitated himself while in custody and would no longer pose a danger to the community if
released.
In response, the government submitted 351 pages of medical records, asserting that
Thompson suffered from only mild asthma that would not increase his risk of complications from
COVID-19. The government also recited the steps that the Bureau of Prisons had taken to protect
No. 20-1990, United States v. Thompson
inmates from the pandemic. And the government argued that relief would be inappropriate for an
otherwise healthy 34-year-old like Thompson, whose sole underlying medical condition was
well-controlled and whose lengthy history of violent offenses made him a danger to the
community.
The district court agreed with the government and denied Thompson’s motion for
compassionate release, finding an absence of extraordinary and compelling reasons for release and
that the 18 U.S.C. § 3553(a) factors weighed against it. The district court did not hold a hearing.
It used a one-page form order to deny Thompson’s motion.1
Thompson timely filed a notice of appeal on October 8, 2020. Twelve days later (and
nearly a month after its form order), on October 20, 2020, the district court filed a five-page
document titled “OPINION SETTING FORTH THE REASONS FOR DENYING DEFENDANT
ERIK E. THOMPSON[’S] MOTION FOR COMPASSIONATE RELEASE.” The document
stated that “[t]he Court is entering this Opinion to set forth its findings and analysis in support of”
the form order. The district court assumed that its discretion to consider extraordinary and
compelling reasons justifying release was circumscribed by the listing in USSG § 1B1.13, deciding
that “[a] reduction in sentence would not have been consistent with the policy statements issued
by the Sentencing Commission.” The district court then discussed Thompson and the
government’s arguments about whether the § 3553(a) factors weighed in favor of release,
concluding that they did not.
1
The form stated “[u]pon motion of Defendant (Dkts. 71, 72) for a reduction in sentence under 18 U.S.C.
§ 3582(c)(1)(A), and after considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy
statements issued by the Sentencing Commission, IT IS ORDERED THAT the motion is . . . .” It then listed four
check boxes labeled: (1) “GRANTED,” (2) “DEFERRED pending supplemental briefing . . . . ,” (3) “DENIED after
complete review of the motion on the merits,” and (4) “DENIED WITHOUT PREJUDICE because Defendant has
not exhausted all administrative remedies as required in 18 U.S.C. § 3582(c)(1)(A), nor have 30 days lapsed since
receipt of Defendant’s request by the warden of Defendant’s facility.” The district court checked box (3).
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No. 20-1990, United States v. Thompson
As a threshold matter, we first address the district court’s post-appeal opinion. As we
recently held, when considering a very similar procedural posture, district courts are without
jurisdiction to file this sort of opinion after a party files a notice of appeal. United States v. Harvey,
No. 20-1944, --- F.3d ----, 2021 WL 1661503, at *2 (6th Cir. Apr. 28, 2021). Thus, we do not
consider the opinion here. The fact that the parties do not explicitly take issue with the district
court’s jurisdiction to enter the post-appeal opinion is of little import. See generally Dann v.
Studebaker-Packard Corp., 288 F.2d 201, 205 (6th Cir. 1961) (“[I]t is axiomatic that an appellate
court [is] not designed to perform the functions of a trial court having original jurisdiction and it
must, of necessity, limit its consideration of the questions involved to the record on appeal.”).
So, on the record properly before us, we review the district court’s denial of Thompson’s
motion for compassionate release for an abuse of discretion. See United States v. Jones, 980 F.3d
1098, 1112 (6th Cir. 2020). A court abuses its discretion when, among other things, it relies on
clearly erroneous findings of fact or engages in a substantively unreasonable balancing of the
§ 3553(a) factors. See id. at 1112–14. And a district court may deny a motion for compassionate
release if it reasonably determines that the § 3553(a) factors weigh against relief. See United States
v. Elias, 984 F.3d 516, 519 (6th Cir. 2021).
In United States v. Kimball, 988 F.3d 945 (6th Cir. 2021) (per curiam), we discussed an
order denying compassionate release of nearly identical wording and brevity. We identified
certain facts from our decision on Kimball’s direct appeal and statements the district court made
at his resentencing, such as that “he was the ‘undisputed kingpin and mastermind’ of a ‘massive
cocaine-trafficking conspiracy’” who had “attempt[ed] to kill witnesses.” Id. at 947. “Based on
this record,” we stated, “the district court could reasonably have determined that releasing Kimball
now would not serve the statutory sentencing goals.” Id.
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No. 20-1990, United States v. Thompson
This case is similar in certain meaningful ways to Kimball. The form order at issue here
resembles the order analyzed in Kimball. And like in Kimball, there exist some facts in the record
that could have provided a reasonable basis for the district court’s ultimate decision to deny
Thompson’s motion. Thompson completed over 550 hours of vocational culinary training and
worked as a GED tutor to help other incarcerated people—genuinely commendable rehabilitation
efforts. But Thompson had prior convictions for home invasion and for assault with intent to
commit great bodily harm, committed his crack-distribution offense while on probation for the
home-invasion one, and a state prosecutor had asserted that he had participated in a fatal shootout
shortly before his current sentence. Like in Kimball, “[b]ased on this record, the district court
could reasonably have determined that [granting Thompson relief] would not serve the statutory
sentencing goals.” Id. In other words, we cannot confidently say on this record that the district
court “relie[d] on clearly erroneous findings of fact, applie[d] the law improperly, or use[d] an
erroneous legal standard” when weighing the § 3553(a) factors. Jones, 980 F.3d at 1112 (quoting
United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010)).
The district court’s order is affirmed.
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