Case: 21-10406 Document: 00516308546 Page: 1 Date Filed: 05/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 5, 2022
No. 21-10406 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Mark Linnear Hays,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-380
USDC No. 3:95-CR-141-2
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Mark Linnear Hays, federal prisoner # 46431-019, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate
release. He argues that he was entitled to release because (1) the 18 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 21-10406 Document: 00516308546 Page: 2 Date Filed: 05/05/2022
No. 21-10406
§ 3553(a) factors, including his family ties and post-sentencing rehabilitation,
support release and (2) given his medical conditions, the COVID-19
pandemic is an extraordinary and compelling reason. He additionally argues,
for the first time on appeal, that the district court erred at his initial
sentencing proceeding when it originally imposed consecutive life sentences.
“A court, on a motion by the [Bureau of Prisons] or by the defendant
after exhausting all [Bureau of Prison] remedies, may reduce or modify a term
of imprisonment, probation, or supervised release after considering the
factors of 18 U.S.C. § 3553(a), if ‘extraordinary and compelling reasons
warrant such a reduction.’” United States v. Chambliss, 948 F.3d 691, 692
(5th Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). We review the denial
of a § 3582(c)(1)(A)(i) motion for abuse of discretion. See id. at 693.
Here, the district court did not abuse its discretion by denying relief
based upon a balancing of the § 3553(a) sentencing factors. Cf. id. at 694
(“[A]lthough Chambliss may disagree with how the district court balanced
the § 3553(a) factors, that is not a sufficient ground for reversal.”).
Accordingly, we do not consider Hays’s contention that extraordinary and
compelling reasons justify relief. See Ward v. United States, 11 F.4th 354, 360
(5th Cir. 2021) (“The district court has discretion to deny compassionate
release if the Section 3553(a) factors counsel against a reduction.”); see also
United States v. Jackson, 27 F.4th 1088, 1094 n.8 (5th Cir. 2022).
Additionally, to the extent Hays challenges his initial sentencing
proceeding, the argument is not properly before this court, as it was not raised
in the district court. See Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 602 n.1
(5th Cir. 2021). Moreover, a challenge to an initial sentencing proceeding is
not appropriately raised in a § 3582(c) motion. See United States v.
Hernandez, 645 F.3d 709, 712 (5th Cir. 2011) (explaining, in a § 3582(c)(2)
2
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No. 21-10406
case, that “[a] modification proceeding is not the forum for a collateral attack
on a sentence long since imposed and affirmed on direct appeal”).
AFFIRMED.
3