Appellate Case: 22-6044 Document: 010110730065 Date Filed: 08/25/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 25, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-6044
(D.C. No. 5:04-CR-00172-F-1)
BRITT JARRIEL HAMMONS, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
Britt Hammons appeals the district court’s denial in part and dismissal in part
of his motion for sentence reduction and compassionate release under 18 U.S.C.
§ 3582(c)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
In 2004, Hammons pleaded guilty to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because he qualified as an armed
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially help determine this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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career criminal under 18 U.S.C. § 924(e), he was given a fifteen-year mandatory
minimum sentence to be served consecutively to sentences he was serving for
unrelated state convictions. He began serving his federal sentence in 2013.
In February 2022, Hammons moved for a sentence reduction equal to the rest
of his sentence. As extraordinary and compelling reasons for release, Hammons cited
the COVID-19 pandemic, his medical conditions, his housing conditions, and the
need to care for his ailing mother.
The district court dismissed Hammons’s motion for lack of exhaustion as to
his request for a sentence reduction based on his mother’s health.1 But finding that he
had otherwise exhausted his claim, the district court moved to the merits of the
motion. The court recognized Hammons’s “medical conditions in combination with
the ongoing pandemic (including the transmission of the omicron variant) and his
participation in rehabilitative programs.” Prelim. R. at 18. But it still concluded that
the 18 U.S.C. § 3553(a) factors weighed against reducing his sentence given (1) the
seriousness of Hammons’s offense, (2) his lengthy criminal history, (3) his attempt to
escape from imprisonment, and (4) his many infractions while incarcerated. So the
court denied his motion for sentence reduction. Hammons timely appealed.
DISCUSSION
We review a district court’s order denying a § 3582(c)(1)(A) motion for abuse
of discretion. United States v. Hemmelgarn, 15 F.4th 1027, 1031 (10th Cir. 2021).
1
Hammons does not challenge this ruling on appeal.
2
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Relevant here, the weighing of the § 3553(a) factors is committed to the discretion of
the district court. United States v. Hald, 8 F.4th 932, 949 (10th Cir. 2021). So we will
not reverse absent “a definite and firm conviction that the lower court made a clear
error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Id. (citation omitted).
In reviewing a motion under 18 U.S.C. § 3582(c)(1)(A), a district court must
(1) “find whether extraordinary and compelling reasons warrant a sentence
reduction,” (2) find whether a sentence “reduction is consistent with applicable
policy statements issued by the Sentencing Commission,” and (3) “consider any
applicable § 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.” United States v. Maumau, 993 F.3d 821, 831 (10th Cir.
2021) (brackets and internal quotations omitted).2 If a defendant’s motion fails any of
these steps, the district court may deny the motion without addressing the others. See
United States v. McGee, 992 F.3d 1035, 1043 (10th Cir. 2021).
2
The § 3553(a) factors are: (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant”; (2) “the need for the sentence
imposed to reflect the seriousness of the offense”; (3) “the kinds of sentences
available”; (4) “the kind[] of sentence and the sentencing range established for” the
offense at the time of sentencing; (5) “any pertinent policy statement” in effect at the
time of the defendant’s sentencing; (6) “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct”; and (7) “the need to provide restitution to any victims of the
offense.” 18 U.S.C. § 3553(a)(1)–(7).
3
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Liberally construing Hammons’s Opening Brief,3 he seems to argue that the
district court disregarded that he “has completed countless evidence-based recidivism
reduction programs” and that he “has indeed changed for the good.” Op. Br. at 4
(cleaned up). We interpret this as a challenge to the district court’s § 3553(a)
analysis.
The problem for Hammons is that the district court did acknowledge
Hammons’s participation in rehabilitative programs. See Prelim. R. at 18
(“[Hammons’s] participation in rehabilitative programs [is] acknowledged[.]”).
Moreover, our review of the court’s § 3553(a) analysis does not leave us with a firm
conviction that the court clearly erred in judgment or exceeded the bounds of
permissible choice given the circumstances. Hald, 8 F.4th at 949. So we find no
abuse of discretion in the court’s § 3553(a) analysis. As a result, we need not address
Hammons’s argument that the district court erred by not following “the facts and
statements made by the [Centers for Disease Control and Prevention].” Op. Br. at 3.
Hammons also argues that the district court failed to address an argument in
his reply brief because the court erroneously denied his compassionate-release
motion before he filed his reply brief. Even assuming that the brief was timely filed4
3
Because Hammons is proceeding pro se, “we liberally construe his filings,
but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
4
His reply brief was post-marked approximately three weeks after the
government filed its response to his motion, and one week after the district court
issued its order denying his motion.
4
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and that Hammons had a right to file a reply brief—both of which we greatly doubt
after reviewing the Western District of Oklahoma’s Local Rules—and even if the
district court issued its order prematurely, this argument is meritless.
Hammons’s supposedly missed argument pertains to the Supreme Court’s
decision in Wooden v. United States, 142 S. Ct. 1063 (2022).5 Hammons contends
that if he were sentenced post-Wooden he “wouldn’t have received 180 months.” Op.
Br. at 3. So in his view, it is only fair that his sentence be reduced to the sentence he
would allegedly receive today: 120 months’ imprisonment. Id. at 4. Putting aside the
dubious validity of Hammons’s Wooden argument, Hammons did not cite or discuss
Wooden in his reply brief or at any time prior to appeal. And we need not consider
arguments raised for the first time on appeal. See Valdez v. Squier, 676 F.3d 935, 950
(10th Cir. 2012).
CONCLUSION
For these reasons, we conclude that the district court did not abuse its
discretion in denying Hammons’s motion for sentence reduction and compassionate
5
In Wooden, the Supreme Court provided guidance on how to determine
whether offenses occurred on separate occasions for purposes of the Armed Career
Criminal Act. 142 S. Ct. at 1070–71.
5
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release. Thus, we affirm. We grant Hammons’s motion to proceed in forma pauperis
on appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
6