Case: 21-50913 Document: 00516401495 Page: 1 Date Filed: 07/20/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 20, 2022
No. 21-50913 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Mark Weldon Miller,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7-12-CR-230-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Mark Weldon Miller, federal prisoner # 01992-380, was convicted of
child pornography offenses in violation of 18 U.S.C. § 2252(a) and sentenced
to a total of 204 months in prison and to a supervised release term of life. His
first motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50913 Document: 00516401495 Page: 2 Date Filed: 07/20/2022
No. 21-50913
was denied with reasons. First, the district court found that Miller’s desire
to care for his ageing parents did not “rise to the level of extraordinary and
compelling reasons” warranting a reduction to his sentence. Second, with
reference to the policy statement in U.S.S.G. § 1B1.13(2), the district court
found that Miller failed to establish that he was not a danger to the
community under 18 U.S.C. § 3142(g).
In his second motion for compassionate release, Miller argued that his
hypertension put him at greater risk for complications from COVID-19 and
that the prison could not keep him safe from COVID-19. The district court
denied that motion in a text only order “for the same reasons stated in [its
earlier order].”
Miller appeals the denial of the second motion, arguing that, because
he offered different reasons for his second motion, because we have ruled
§ 1B1.13 is inapplicable to motions for compassionate release, and because
the Government was not ordered to respond to his second motion, the
district court’s text only order referencing its earlier denial was inadequate.
He also argues that, to the extent the district court relied on its earlier denial,
those reasons were erroneous because § 1B1.13 is inapplicable to motions for
compassionate release and because the district court failed to consider the 18
U.S.C. § 3553(a) factors. Our review is for abuse of discretion. See United
States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
We agree that the district court abused its discretion in denying
Miller’s second motion for compassionate release, and we VACATE the
district court’s order and REMAND for reconsideration in light of our
decisions in United States v. Sauseda, No. 21-50210, 2022 WL 989371, 1-3
2
Case: 21-50913 Document: 00516401495 Page: 3 Date Filed: 07/20/2022
No. 21-50913
(5th Cir. Apr. 1, 2022), 1 and United States v. Shkambi, 993 F.3d 388, 393 (5th
Cir. 2021).
1
Although Sauseda is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R.
47.5.4).
3