United States v. Maxton

• Decision Date: 14 April 2022
• Docket Number: 20-1428
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THERON MAXTON, Defendant -Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THERON MAXTON, Defendant -Appellant.

No. 20-1428

United States Court of Appeals, Tenth Circuit

April 14, 2022

D.C.No. 1:13-CR-00411-PAB-1, (D. Colo.)

Before HOLMES, KELLY, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT^[*]

Jerome A. Holmes, Circuit Judge

Defendant-AppellantTheron Johnny Maxton, proceeding pro se, ^[1] appeals from the District of Colorado's denial of his motion for a sentence reduction under 18 U.S.C. § 3852(c)(1)(A), otherwise known as a motion for compassionate release.Mr. Maxton also requests leave to proceed in forma pauperis in this appeal.In denying Mr. Maxton's requested relief, the district court held that he failed to demonstrate extraordinary and compelling reasons for a sentence reduction and failed to establish that a reduction in his sentence would be appropriate in light of the sentencing factors set out in 18 U.S.C. § 3553(a).Exercising jurisdiction under 28 U.S.C. § 1291, weaffirmthe district court's order and grant Mr. Maxton's motion to proceed in forma pauperis.

I

Mr Maxton is a 67-year-old who, at the time of his motion for compassionate release, was incarcerated at the United States Penitentiary in Victorville, California ("USP Victorville").In 2015, Mr. Maxton was sentenced by the district court in the District of Colorado to 100 months' imprisonment plus three years of supervised release for four counts related to threatening federal prison officials and their family members in violation of 18 U.S.C. §§ 115(a)(1)(A), (a)(1)(B), and (b)(4).This sentence was imposed consecutively to two federal sentences Mr. Maxton had received in the District of South Carolina, the first of which Mr. Maxton had been serving when he made the threats at issue in his 2015 conviction.

In 2020, while Mr. Maxton was still serving his prior sentence imposed by the District of South Carolina, he filed a Pro Se Motion for Compassionate Release.^[2]He was later appointed counsel, who filed a supplement to his pro se motion.In his motion and supplement, Mr. Maxton asserted that his sentence should be reduced because of his serious medical issues-including chronic obstructive pulmonary disease ("COPD")"asthma, severe headaches, chronic sinusitis, recurrent eye infections, hypertension, chronic constipation, poor dentition, degenerative cervical spine changes, and . . . a sizeable cyst on his kidney"; these conditions allegedly put him at increased risk of harm from contracting COVID-19 in prison.R., Vol. VI, at 109-110(Supp. to Pro Se Motion for Compassionate Release, filed Oct. 1, 2020);seeid. at 33(Request for Compassionate Release, filed July 2, 2020).

Mr. Maxton further asserted that the prison's failure to properly treat his health conditions constituted an extraordinary and compelling reason for relief under U.S. Sentencing Commission Guidelines Manual("U.S.S.G." or "Guidelines")§ 1B1.13(1)(A), ^[3] and that the sentence Mr. Maxton had already served was sufficient to satisfy the purpose of sentencing in light of his age and decreased likelihood of recidivism.Seeid. at 110-13.The district court, however, denied Mr. Maxton's request.

The court noted that the government did not dispute Mr. Maxton's medical conditions nor his risk of severe illness from COVID-19, but instead contended Mr. Maxton could not show extraordinary and compelling circumstances falling within the categories provided in U.S.S.G. § 1B1.13.Seeid. at 169.Agreeing with the government, the court found Mr. Maxton failed to demonstrate that his medical condition "substantially diminishes [his] ability . . . to provide self-care within the environment of a correctional facility," as required under § 1B1.13(1)(A).Id. at 170-71(quotingU.S.S.G. § 1B1.13 cmt. n.1(A)(ii)).Additionally, the court found unpersuasive "Mr. Maxton's arguments that the Bureau of Prisons is frustrating his attempts at self-care by withholding medical treatment or by failing to adequately control the spread of COVID-19"; it noted that Mr. Maxton had been receiving medical treatment-despite his refusal of certain treatments-and that there were few active COVID-19cases at USP Victorville, where Mr. Maxton was incarcerated.Id. at 171-72.Finally, the court found that, because Mr. Maxton had not yet started the 2015 sentence, he had not shown that he had served "at least 10 years or 75 percent" of his term of imprisonment as provided in U.S.S.G. § 1B1.13 cmt. n.1(B).Id. at 172.Accordingly, the court determined that Mr. Maxton had failed to demonstrate extraordinary or compelling reasons for compassionate release.

Further, the district court held that, even if Mr. Maxton had demonstrated extraordinary or compelling reasons for his release under 18 U.S.C. § 3582(c)(1)(A)(i), reducing his sentence still would have been inappropriate in light of the sentencing factors outlined in 18 U.S.C. § 3553(a).Specifically, the court reasoned that "the crimes Mr. Maxton committed in this case"-which included soliciting a former inmate to rape and kill federal officials and their families-"occurred only eight years ago."Id. at 175.Because Mr. Maxton's medical conditions had not prevented him from committing the underlying offenses for which he had been sentenced, and because he had not yet served any of the sentence at issue, the court found a reduction in sentence was unwarranted.

Following the district court's decision on November 9, 2020, Mr. Maxton filed a pro se notice of appeal.Significantly, his notice of appeal was dated November 20, 2020, but it was postmarked on November 30 and filed on December 8, 2020, after the fourteen-day deadline for his appeal had passed.

II

A

Before we rule on the merits of Mr. Maxton's appeal, we must determine whether his appeal is timely.In bringing this appeal from the district court's denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1), Mr Maxton was subject to the fourteen-day deadline for filing criminal appeals.SeeUnited States v. Lara, No 20-6133, 2020 WL 8729680, at *1(10th Cir.Oct. 1, 2020)(unpublished)(in the context of an appeal from a denial of a motion for compassionate release, stating that "[i]n a criminal case-including a proceeding under 18 U.S.C. § 3582-adefendant must file a notice of appeal within 14 days after the district court enters the judgment or order he intends to appeal");cf.United States v. Randall, 666 F.3d 1238, 1240(10th Cir.2011)("We construe Defendant's motion for modification of his sentence as a motion brought under 18 U.S.C. § 3582(c)(2).The motion therefore addresses a criminal matter, the appeal of which is governed by Fed. R. App. P. 4(b).");United States v. Espinosa-Talmantes, 319 F.3d 1245, 1246(10th Cir.2003)(reversingthe district court to conclude, based on persuasive authority from our sister circuits, that a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) is a continuation of a prior criminal proceeding and thus Fed. R. App. P. 4(b) applies);cf. alsoUnited States v. McCalister, 601 F.3d 1086, 1087(10th Cir.2010)(holding that a "18 U.S.C. § 3582 motion is a criminal proceeding" and thus is "entirely unlike other forms of post-convictions proceedings, namely habeas corpus proceedings, which are for many purposes considered civil in nature").

The criminal appellate filing deadlines established by the Federal Rules of Appellate Procedure represent "inflexible claim-processing rule[s]" that "assure relief to a party properly raising them."United States v. Garduno, 506 F.3d 1287, 1291(10th Cir.2007)(alteration in original)(first quoting Kontrick v. Ryan, 540 U.S. 443, 456(2004); and then quoting Eberhart v. United States, 546 U.S. 12, 19(2005)(per curiam)).As referenced supra, Mr. Maxton's notice of appeal was not filed until December 8, 2020, after the fourteen-day deadline.The government asserts that this rendered his appeal untimely.See Aplee.'s Resp.Br. at ix.

Because the government did not raise the timeliness issue until its response brief, we ordered Mr. Maxton to reply to the government's argument on this issue.SeeStarr v. Kober, 642 Fed.Appx. 914, 919(10th Cir.2016)(unpublished)("[B]efore dismissing, courts typically give prisoners notice of the timeliness issue and an opportunity to provide the necessary showing.").In his supplemental filing, Mr. Maxton acknowledges that his notice of appeal was postmarked and received outside of the fourteen-day deadline, but asserts that a prison lockdown resulting from the COVID-19 pandemic rendered him unable to access the prison's legal mail system and required him to submit his mail through staff correctional officers-a process which often delayed the sending of mail.SeeAplt.'s Supp. Br. on Timelinessat 2-3.Mr. Maxton declares under penalty of perjury that he mailed his notice of appeal, "using first class postage" through "the mail system available," on November 20, 2020.Id. at 3.

Relying on Mr. Maxton's sworn declaration, we hold his appeal is timely under the prison mailbox rule codified by Federal Rule of Appellate Procedure 4(c)(1).Rule 4(c)(1) provides that an inmate's notice of appeal "is timely if it is deposited in the [penal] institution's internal mail system on or before the last day for filing."Fed. R App. P. 4(c)(1).Where a "system designed for legal mail" at a prison exists, inmates must use this system "to receive the benefit of this [r]ule."Id.;seePrice v. Philpot, 420 F.3d 1158, 1165(10th Cir.2005)("[I]f the prison has a legal mail system, then the prisoner must use it as the means of proving compliance with the mailbox rule."(quotingUnited States v. Ceballos-Martinez, 387 F.3d 1140, 1144(10th Cir.2004))).When an "inmate does not have...