Case: 20-60247 Document: 00515978284 Page: 1 Date Filed: 08/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 13, 2021
No. 20-60247
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Donnell Durant Cogdell,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:12-CR-106-4
Before Southwick, Oldham, and Wilson.
Per Curiam:*
Donnell Durant Cogdell, federal prisoner # 16880-043, is serving a
138-month sentence for attempted possession with intent to distribute 500
grams or more of cocaine hydrochloride. He now appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(1)(A) motion for compassionate release.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-60247
Cogdell contends that the district court had the power to reduce his sentence
under the “catch-all” provision in the commentary to U.S.S.G. § 1B1.1 and
that his presentence report (“PSR”) improperly classified him as a career
offender pursuant to U.S.S.G. § 4B1.1(a). Cogdell also asserts that the
district court improperly classified his motion as arising under § 3582(c)(2)
and may have relied on the incorrect standard in denying the motion.
As part of the First Step Act of 2018, § 3582(c)(1)(A)(i) allows a
district court to modify a defendant’s sentence if, after considering any
relevant § 3553(a) factors, it finds that “extraordinary and compelling
reasons warrant such a reduction” and “a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(1)(A)(i). We review the district court’s denial of such a
motion for abuse of discretion, giving deference to the district court’s
application of the 18 U.S.C. § 3553(a) sentencing factors. United States v.
Chambliss, 948 F.3d 691, 693 (5th Cir. 2020). Even if extraordinary and
compelling reasons exist, “the decision whether to reduce a sentence is
firmly committed to the district court’s discretion.” United States v.
Robinson, 980 F.3d 454, 466 (5th Cir. 2020).
To the extent Cogdell argues that the district court erroneously
considered his motion as a § 3582(c)(2) motion, his argument fails. The
district court chose to use a template order applicable to § 3582(c)(2)
motions and to analyze Cogdell’s motion pursuant to that subsection. The
district court explicitly stated, however, that it “t[ook] into account the
policy statement set forth at USSG § 1B1.10 and the sentencing factors set
forth in 18 U.S.C. § 3553(a),” as required by § 3582(c)(1)(A). The district
court concluded that “[n]o provisions of the First Step Act would result in a
change of the defendant’s guideline range” and that Cogdell “did not cite
any ‘extraordinary or compelling’ reasons for a reduction in his sentence.”
Cogdell’s conclusory assertions that the court should have granted his
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No. 20-60247
motion and that he should not have been sentenced as a career offender do
not show that the court based its decision on a legal error or an erroneous
assessment of the evidence. See Chambliss, 948 F.3d at 694. Therefore,
Cogdell cannot show the district court abused its discretion by denying his
motion for a sentence reduction. See id. at 693.
Cogdell raises a new argument in his reply brief, contending that the
COVID-19 pandemic constitutes an extraordinary and compelling reason for
his release. We do not consider claims raised for the first time in reply briefs.
See Conway v. United States, 647 F.3d 229, 237 n.8 (5th Cir. 2011). And
regardless, mere “[f]ear of COVID doesn’t automatically entitle a prisoner
to release.” United States v. Thompson, 984 F.3d 431, 435 (5th Cir. 2021), cert.
denied, 2021 WL 2044647 (U.S. May 24, 2021) (No. 20-7832).
AFFIRMED.
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