FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 21-3003
v. (D.C. No. 6:17-CR-10109-EFM-3)
(D. Kan.)
CHARLES PEPPER,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
Pro se Petitioner Charles Pepper, a federal inmate, moved for compassionate
release under 18 U.S.C. § 3582(c), as amended by the First Step Act. The district
court denied Petitioner’s motion finding that he lacked extraordinary and compelling
reasons. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
I.
The district court sentenced Petitioner to 72 months’ imprisonment after he
pleaded guilty to two counts of the use of a communication facility to facilitate the
distribution of methamphetamine, in violation of 21 U.S.C. §§ 843(b) and (d).
Roughly two years later, Petitioner filed a motion arguing that extraordinary and
compelling reasons warranted his compassionate release.1
Petitioner argued before the district court that he needed compassionate release
to care for his aging parents and their family farm. The district court concluded that
Petitioner’s desire to care for his aging parents and their farm did not constitute an
extraordinary and compelling reason. It explained that family circumstances may
present an extraordinary and compelling reason when: (1) a defendant has to care for
his minor children because the children’s caregiver died or became incapacitated, or
(2) a defendant has to care for his spouse because the spouse became incapacitated.
U.S. Sent’g Guidelines Manual § 1B1.13 cmt. n.1(c) (U.S. Sent’g Comm’n 2021).
But neither of those circumstances existed in Petitioner’s case. The district court
alternatively concluded that even if caring for an aging parent did present an
extraordinary and compelling reason for release, Petitioner was not the only available
1
Petitioner argued before the district court that he had medical conditions—
asthma, allergies, and hereditary neuropathy—which put him at a greater risk of
severe health complications should he contract COVID-19. The district court found
Petitioner’s argument uncompelling because he offered no evidence that he had
asthma or hereditary neuropathy and failed to show that allergies placed him at
increased risk of health complications should he contract COVID-19. Petitioner
abandons this argument on appeal.
2
caregiver because Petitioner’s sister lived in Kansas and could also care for their
parents. For these reasons, the district court denied Petitioner’s motion for
compassionate release. Petitioner appeals.
II.
We review the district court’s decision for an abuse of discretion. United
States v. Piper, 839 F.3d 1261, 1265 (10th Cir. 2016). Under this standard, we will
uphold the district court’s ruling unless it relied on an “incorrect conclusion of law or
clearly erroneous finding of fact.” Id.
A district court may grant a motion for compassionate release if a defendant
meets three requirements: (1) extraordinary and compelling reasons warrant a
sentence reduction; (2) such a reduction is consistent with the applicable policy
statements issued by the Sentencing Commission; and (3) the factors set forth in 18
U.S.C. § 3553(a) support early release. 18 U.S.C. § 3582(c)(1)(A); United States v.
McGee, 992 F.3d 1035, 1042 (10th Cir. 2021). If any of the requirements are
lacking, the district court may deny the motion without addressing other factors. Id.
at 1043.
III.
On appeal, Petitioner continues to maintain that caring for his parents
establishes an extraordinary and compelling reason warranting his compassionate
release. But in any circumstance, caring for aging parents is not grounds for release.2
2
Petitioner notes that his sister recently relocated to another state and,
therefore, he is the only available caregiver for his aging parents. But even assuming
3
U.S.S.G. § 1B1.13 cmt. n.1(c); See also United States v. Lopez, 846 F. App’x 733,
735 (10th Cir. 2021) (unpublished).
Petitioner next argues that his BOP Pattern score presents an extraordinary and
compelling reason warranting release. But Petitioner failed to raise this argument
before the district court and does not argue for plain error. Consequently, we do not
address it on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31
(10th Cir. 2011).
For these reasons, the district court did not abuse its discretion in denying
Petitioner’s motion for compassionate release under § 3582(c).
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
he is the only available caregiver, caring for aging parents does not constitute an
extraordinary and compelling reason.
4