Court Opinion: 10th Circuit Court of Appeals Opinion for July 17

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

United States v. Ledom

Tamara Ledom appealed a district court’s order denying her motion for a reduction of sentence. Exercising jurisdiction, a 10th Circuit Court of Appeals panel out of Kansas City, Kansas, affirmed.

In 2013, Ledom pleaded guilty to conspiracy to possess with intent to distribute mixtures and substances containing oxycodone, hydrocodone, methadone, morphine and methamphetamine, with death and serious bodily injury resulting from the use of those substances. The district court sentenced her to 216 months. In 2022, she filed a motion to reduce her sentence, citing medical conditions and the heightened risk of an adverse outcome from catching COVID-19 while in custody. The government opposed the motion.

Section 3582(c)(1)(A) allows a district court to reduce a sentence only if it “finds that extraordinary and compelling reasons warrant such a reduction”; “finds that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission”; and “considers the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they are applicable,” the opinion noted, citing the 10th Circuit Court of Appeals decision in United States v. McGee. The district court doesn’t need to address all three requirements if it finds that one is not met, the opinion continued. 

The district court’s analysis began and ended with the first factor because it determined that Ledom had not established extraordinary and compelling reasons to reduce her sentence. The district court recognized that she sought “compassionate release based on what she describes as a deterioration in her mental and physical health, in addition to her increased risk for severe illness or death if she contracts COVID-19 again while incarcerated.” It found that although the record showed she suffers from several chronic physical conditions, “the record also reflects that the Bureau of Prisons is closely monitoring the defendant’s health and that, contrary to her assertion that her health is deteriorating, she has made significant progress in all areas of her health in recent months.” 

As for the risk from COVID-19, the court found that in June 2020, Ledom contracted COVID-19 and was intubated. After that, she received two doses of the Moderna vaccine before contracting COVID-19 again in December 2021. She then received a Moderna booster. The court found that the second infection was much less severe because “the vaccine worked as intended—unlike her first infection with COVID-19, the defendant was not intubated or hospitalized.” It further found that in February 2022, her “reported post-covid breathing issues were deemed ‘well controlled with albuterol.’ On this record, then, there is no reason to believe that a subsequent infection with COVID-19 will result in an increased risk of harm to the defendant if she remains incarcerated.” The court, therefore, held that the risk posed by COVID-19 didn’t establish an extraordinary and compelling reason to reduce Ledom’s sentence. Ledom appealed.

The 10th Circuit reviewed the motion for abuse of discretion. “A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact,” the opinion noted citing the 10th Circuit Court of Appeals decision in United States v. Hemmelgarn. “[F]indings of fact are clearly erroneous when they are unsupported in the record, or if after our review of the record we have the definite and firm conviction that a mistake has been made,” the opinion added citing the 10th Circuit Court of Appeals decision in Holdeman v. Devine.

The district court gave several reasons for finding that Ledom and BOP were managing her health. But Ledom asserted the court “made a clear error of judgment” in these findings “by relying on unsubstantiated statements.” Ledom submitted only one medical record from 2022, which was a Bureau of Prisons historical summary of her medical conditions. In discussing the 2022 medical evidence, the district court therefore apparently relied on statements the prison warden made in denying Ledom’s administrative motion to reduce the sentence, as well as excerpts from medical records the government inserted into its response brief.

Because Ledom didn’t show she argued in the district court that it would be improper to rely on the summary of the medical evidence or the excerpts included in the government’s brief, the 10th Circuit reviewed her argument only for plain error, citing the 10th Circuit Court of Appeals decision in United States v. Leffler. On appeal, Ledom didn’t argue for plain error review, and “[w]hen an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived…and decline to review the issue at all—for plain error or otherwise.” “Under such circumstances, the failure to argue for plain error and its application on appeal surely marks the end of the road for an argument not first presented to the district court,” the opinion added. 

Ledom also challenged the district court’s ruling regarding the risk from COVID-19. But she didn’t contest that she received at least three vaccine shots, or that, as the district court observed, her second bout with COVID-19 was less severe than her first infection. Other circuits held that “a defendant’s incarceration during the COVID-19 pandemic—when the defendant has access to the COVID-19 vaccine—does not present an ‘extraordinary and compelling reason’ warranting a sentence reduction,” the opinion noted, citing the 6th Circuit Court of Appeals decision in United States v. Lemons and the 7th Circuit Court of Appeals decision in United States v. Broadfield.

The 10th Circuit has expressed doubt that vaccinated defendants can establish that the COVID-19 pandemic is an extraordinary and compelling reason to reduce their sentence, the opinion noted, citing the 10th Circuit Court of Appeals decision in United States v. Hald. Ledom asserted that immunity from her January 2022 booster “[had] likely waned or completely worn off,” so she “is still in danger of serious illness or death from Covid-19.” 

The 10th Circuit wasn’t persuaded that the district court’s findings were clearly erroneous or that it abused its discretion in denying relief based on the risk of COVID-19.

The 10th Circuit affirmed the district court’s judgment.

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