PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 20-2033



         UNITED STATES OF AMERICA

                          v.

              EDWIN PAWLOWSKI,

                               Appellant


     Appeal from the United States District Court
       for the Eastern District of Pennsylvania
    (D.C. Criminal Action No. 5-17-cr-00390-001)
      District Judge: Honorable Juan R. Sanchez


    Submitted Under Third Circuit L.A.R. 34.1(a)
                  June 19, 2020


Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges

            (Opinion filed: June 26, 2020)
Jack J. McMahon, Jr.
139 North Croskey Street
Philadelphia, PA 19103

      Counsel for Appellant

William M. McSwain
  United States Attorney
Robert A. Zauzmer
Anthony J. Wzorek
Michelle L. Morgan
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

      Counsel for Appellee


               OPINION OF THE COURT

AMBRO, Circuit Judge

       Appellant Edwin Pawlowski, a federal inmate who has
served less than two years of his 15-year sentence but whose
medical conditions place him at increased risk should he
contract COVID-19, appeals the District Court’s denial of his
motion for compassionate release under 18 U.S.C.
§ 3582(c)(1). We affirm.

                              I.

       A jury convicted Pawlowski of federal program bribery,
Travel Act bribery, attempted Hobbs Act extortion, wire and




                              2
mail fraud, honest services fraud, making false statements to
the FBI, and conspiracy. The charges stemmed from a scheme
in which he—then the mayor of Allentown, Pennsylvania—
steered city contracts and provided other favors in exchange
for campaign contributions. The District Court imposed a 180-
month sentence, which was within the applicable Sentencing
Guidelines range of 151 to 188 months.
       Pawlowski appealed his conviction and sentence (the
“merits appeal”), arguing, among other things, that the District
Court’s sentence was procedurally and substantively
unreasonable. The merits appeal remains before us, as we
stayed it pending briefing by Pawlowski’s co-defendant.

       Meanwhile, on May 4, 2020, Pawlowski asked the
District Court to grant him compassionate release under 18
U.S.C. § 3582(c)(1).1 He noted that he suffers from several
health conditions, including hypertensive heart disease,
chronic obstructive pulmonary disease (COPD), dyspnea
(shortness of breath), sleep apnea, and has only one lung as a
result of a pulmonectomy. He argued that these conditions
place him at a higher risk of serious illness and death from
COVID-19 should he contract that disease. He further
explained that the facility at which he is currently incarcerated,
the Federal Correctional Institution at Danbury, Connecticut
(“FCI Danbury”), has been particularly affected by COVID-
19. Indeed, as of June 19, 2020, 98 inmates had tested positive
for the virus, one of whom had died and 91 of whom had
recovered. See COVID-19 Cases, Federal Bureau of Prisons

       1
         Before seeking compassionate release, Pawlowski
asked us to release him, pending his merits appeal, under a
provision of the Bail Reform Act, 18 U.S.C. § 3143(b). We
denied release under this provision, as he had not shown that
his merits appeal raised a substantial question of law or fact.




                                3
(last        accessed        June       19,        2020),
https://www.bop.gov/coronavirus/. Additionally, 61 staff
members at FCI Danbury had tested positive, of whom none
had died and 60 had recovered. See id.2
       The District Court denied the motion. It explained that
while Pawlowski’s conditions placed him at increased risk
should he contract COVID-19, the sentencing factors set out at
18 U.S.C. § 3553(a)—particularly, the need to reflect the
seriousness of the offense, promote respect for the law, provide
just punishment, and afford adequate deterrence 3—did not
weigh in favor of release, as he had served just 19 months of a
180-month sentence. United States v. Pawlowski, No. 17-cr-
390, 

, at *7–8 (E.D. Pa. May 18, 2020).
Pawlowski appeals. 4



       2
       Presumably, the remaining six inmates and one staff
member were suffering from the virus.
       3
        Although the District Court referenced the need to
avoid unwarranted sentence disparities, it considered only one
of Pawlowski’s co-conspirators, see Pawlowski, 

, at *7, as the issue of disparities between Pawlowski
and other similarly situated inmates was not briefed.
       4
         The District Court had jurisdiction over this criminal
case under 18 U.S.C. § 3231. Because Pawlowski’s merits
appeal was (and remains) pending before us, the District
Court’s jurisdiction to decide the compassionate release
motion was confined to denying it, indicating that it presents a
substantial issue, or indicating that it would be granted if we
were to remand the case to the District Court for that purpose.
See Griggs v. Provident Consumer Disc. Co., 

, 58




                               4
                                II.

        The compassionate-release provision states that a
district court “may reduce [a federal inmate’s] term of
imprisonment” and “impose a term of probation or supervised
release . . . if it finds that . . . extraordinary and compelling
reasons warrant such a reduction.”                    18 U.S.C.
§ 3582(c)(1)(A)(i). 5      But before granting compassionate
release, a district court must “consider[] the factors set forth in
[18 U.S.C. §] 3553(a) to the extent that they are applicable.”




(1982) (explaining that “[t]he filing of a notice of appeal . . .
confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case
involved in the appeal”); Fed. R. Crim. P. 37(a) (providing that,
where a district court lacks authority to grant a motion because
an appeal is pending, the court may “defer considering the
motion,” “deny the motion,” or “state either that it would grant
the motion if the court of appeals remands for that purpose or
that the motion raises a substantial issue”).

       We have jurisdiction under 28 U.S.C. § 1291 to review
the District Court’s denial of the motion.
       5
         Before the District Court, Pawlowski argued that this
provision permits a court to release an inmate temporarily. The
District Court rejected that argument, explaining that the
provision permits a court to reduce a sentence, not to grant a
temporary release. Pawlowski does not challenge this
conclusion on appeal, thus arguing only that the District Court
erred in declining to reduce his sentence.




                                5

6 Those factors include, among other
things, “the history and characteristics of the defendant,” 18
U.S.C. § 3553(a)(1), and “the need for the sentence imposed .
. . to reflect the seriousness of the offense, to promote respect
for the law, . . . to provide just punishment for the offense[,
and] . . . to afford adequate deterrence to criminal conduct,”

       The Government does not dispute for purposes of this
appeal that Pawlowski’s health conditions, and the risks they
present in light of the COVID-19 outbreak, constitute
“extraordinary and compelling reasons” that may allow a court
to grant compassionate release. But it maintains that the
District Court acted within its discretion in denying Pawlowski
compassionate release based on its weighing of the applicable
§ 3553(a) factors. For the reasons set out below, we cannot
disagree.

                               III.

        We start with the standard of review. We have not
before squarely considered what standard of review applies to
a district court’s determination that the § 3553(a) factors do not
weigh in favor of granting compassionate release. But at least
one of our sister circuits has reviewed such a determination
under the deferential abuse-of-discretion standard. See United
States v. Chambliss, 

, 693 (5th Cir. 2020). And
we have held that this standard applies in the analogous case of
an inmate seeking a sentencing reduction under 18 U.S.C.
§ 3582(c)(2), an adjacent provision that permits a district court
to reduce a sentence based on a change to the Sentencing
Guidelines. See United States v. Mateo, 

, 154 (3d

       6
        The sentencing reduction must also be “consistent
with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(1)(A).




                                6
Cir. 2009). As we explained in Mateo, the abuse-of-discretion
standard “comports with the language of the statute,” which,
like the compassionate-release provision at issue here, states
that, “under appropriate circumstances, ‘the court may [not
shall] reduce the term of imprisonment.’”

n.2
(emphasis in original). Accordingly, we hold that the abuse-
of-discretion standard applies, and thus we will not disturb the
District Court’s decision “unless there is a definite and firm
conviction that [it] committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors,”
Oddi v. Ford Motor Co., 

, 146 (3d Cir. 2000)
(citation and quotation marks omitted).

        We discern no clear error of judgment here. Rather, the
District Court reasonably concluded that several of the
§ 3553(a) factors—including, as noted above, the need to
reflect the seriousness of the offense, promote respect for the
law, and afford adequate deterrence—counsel against
compassionate release, as that relief would effectively reduce
Pawlowski’s sentence from 15 years to less than two years’
imprisonment. We have not previously considered whether a
district court abuses its discretion by denying a motion for
compassionate release based on the amount of time remaining
to be served in the inmate’s sentence. But numerous district
courts have taken this into account in considering whether to
grant compassionate release. See, e.g., United States v.
Bogdanoff, No. 12-cr-190-1, –– F. Supp. 3d ––, 

, at *6 (E.D. Pa. May 8, 2020) (denying
compassionate release where the inmate had served only seven
years of an 18-year sentence, and noting that the case was
“much different than others where defendants [sought
compassionate release] at the end of their sentence”); United
States v. Moskop, No. 11-cr-30077, 

, at *1–
2 (S.D. Ill. Apr. 14, 2020) (denying compassionate release
where the inmate had served less than 10 years of a 20-year
sentence and explaining that the “sentencing objectives of




                               7
specific deterrence and protecting the public [would] not [be]
fully served by less than 10 years of incarceration”). 7 And at
least one of our sister circuits has approved that consideration.
See 

(holding that a district court
did not abuse its discretion in denying compassionate release
based, in part, on the defendant’s having served only 14 years
of a 30-year sentence). We agree, as this consideration is
consistent with the text of 18 U.S.C. § 3582(c)(1)(A), which,
again, requires a court reviewing a motion for compassionate
release to “consider[] the factors set forth in [§] 3553(a) to the
extent that they are applicable.” Because a defendant’s
sentence reflects the sentencing judge’s view of the § 3553(a)
factors at the time of sentencing, the time remaining in that
sentence may—along with the circumstances underlying the
motion for compassionate release and the need to avoid
unwarranted disparities among similarly situated inmates—
inform whether immediate release would be consistent with
those factors. Hence we cannot conclude that the District
Court acted unreasonably in determining that the substantial
sentencing reduction required for granting compassionate
release here—a reduction from 15 years to less than two
years—would be inconsistent with the § 3553(a) factors.
       Pawlowski argues that his lengthy sentence “was
completely out of the heartland . . . and inconsistent with a true
analysis of the § 3553(a) factors” in the first place, and thus the
denial of compassionate release based on the length of his

       7
         Pawlowski cites cases in which courts have granted
compassionate release even where the inmate had only served
a small portion of his sentence. But the sentences in these cases
were much shorter. See, e.g., United States v. Foreman, No.
19-cr-362, 

, at *1 (D. Conn. May 11, 2020)
(granting compassionate release where the defendant was
sentenced to only a year of imprisonment).




                                8
unserved sentence is “doubly cruel.” Pawlowski Br. 11. But
his sentence was within the applicable Sentencing Guidelines
range and thus is presumptively reasonable. See Rita v. United
States, 

, 350–51 (2007).
        Pawlowski also argues that his medical condition is
more serious, and his offense less serious, than those for whom
other courts have rejected compassionate release. The District
Court acknowledged that his health conditions, and the risks
they present should he contract COVID-19, are very serious.
As it noted, “several of [Pawlowski’s] conditions are among
[those] the Centers for Disease Control and Prevention (CDC)
has identified as risk factors for severe illness from COVID-
19.” Pawlowski, 

, at *2. But it also
reasonably concluded that “Pawlowski’s crimes were
extraordinarily serious, involving abuse of a position of public
trust,” and that these crimes required “a significant period of
incarceration.”

And, as the District Court further
explained, “reducing Pawlowski’s sentence to time served
would result in his serving less time than . . . his former
campaign manager and coconspirator, who pleaded guilty and
was sentenced to 60 months.”

  *   *   *
      In sum, we cannot conclude that the District Court
abused its discretion by holding that the § 3553(a) factors
weigh against granting Pawlowski compassionate release.
Hence we affirm. 8


       8
           We do not decide here whether Pawlowski may be
eligible for any other form of relief, such as habeas relief, based
on his medical conditions and the risks they present should he
contract COVID-19, or based on the situation at FCI Danbury.
As the District Court noted, a class action seeking habeas relief




                                 9
for inmates at FCI Danbury, and challenging the prison’s
response to the COVID-19 outbreak on various grounds, is
ongoing in the District of Connecticut. See Martinez-Brooks
v. Easter, No. 20-cv-569, –– F. Supp. 3d ––, 

, at *32 (D. Conn. May 12, 2020) (granting in part the
inmates’ motion for a temporary restraining order).




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