United States v. Diaz ( 2023 )

Case: 22-40044 Document: 00516641468 Page: 1 Date Filed: 02/10/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 10, 2023
No. 22-40044 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Hugo Alfredo Diaz,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-143-1
Before Stewart, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Hugo Alfredo Diaz was sentenced to 30 years’ imprisonment after a
jury convicted him of various drug and money laundering crimes that took
place within a larger criminal conspiracy. Several years later, Diaz moved for
and received a sentence reduction. He subsequently moved for a second
sentence reduction, compassionate release, and appointment of counsel. The
district court denied all three motions and this appeal ensued. Because Diaz
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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is ineligible for a second sentence reduction and the district court did not
abuse its discretion in denying his motions for compassionate release and
appointment of counsel, we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
In 2009, Diaz was sentenced to 360 months’ imprisonment, following
his jury trial convictions for conspiracy to possess with intent to distribute
more than five kilograms of cocaine, two counts of possession with intent to
distribute more than five kilograms of cocaine, and conspiracy to engage in
money laundering. This court affirmed his convictions and sentence on
appeal. United States v. Diaz, 420 F. App’x 456, 458 (5th Cir. 2011) (per
curiam) (unpublished). The district court later reduced his term of
imprisonment to 292 months pursuant to Amendment 782 to the Sentencing
Guidelines.
In July 2019, pursuant to § 404 of the First Step Act (“FSA”) of 2018,
Diaz moved for a second sentence reduction. Then in January 2021, he
moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i),
due to the COVID-19 pandemic, his underlying health conditions, and his
“unusually long sentence.” In August 2021, he moved for an appointment of
counsel to assist with his motions.
The district court denied all three motions on January 6, 2022. With
respect to Diaz’s motion for a sentence reduction pursuant to the FSA, the
district court stated that it had already reduced his sentence in 2017 from 360
months to 292 months and he had therefore already received the maximum
reduction that he was permitted. As to his motion for compassionate release,
the district court denied it on grounds that the COVID-19 pandemic did not
warrant release from confinement in light of the development of vaccines and
treatment options that had become available. In issuing its ruling, the district
court noted that it had considered the 18 U.S.C. § 3553(a) factors and that all
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of Diaz’s other grounds for release were meritless. It also denied his motion
for appointment of counsel. Diaz appealed.
II. STANDARD OF REVIEW
We review the denial of a sentence reduction pursuant to the FSA for
abuse of discretion. United States v. Robinson, 980 F.3d 454, 458 (5th Cir.
2020). Likewise, we review denials of § 3582(c)(1)(A)(i) compassionate
release motions and motions to appoint counsel for abuse of discretion. See
United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020) (§ 3582 motion);
United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (appointment of
counsel).
III. DISCUSSION
A. Second Motion for Sentence Reduction
On appeal, Diaz first argues that the district court abused its discretion
in denying his motion for a second sentence reduction. His argument,
however, is without merit. Under § 404 of the FSA, a defendant who was
“convicted and sentenced for certain offenses involving cocaine base
(‘crack’),” before the effective date of the Fair Sentencing Act of 2010, may
be “resentenced as if the reduced statutory minimum penalties implemented
by the Fair Sentencing Act were in place at the time the offenses were
committed.” Robinson, 980 F.3d at 456. Because Diaz was convicted of a
cocaine offense, however, and not an offense involving cocaine base or crack,
he is ineligible for resentencing under the FSA. Id.; see also United States v.
Urbina, 809 F. App’x 247, 247–48 (5th Cir. 2020) (per curiam)
(unpublished) (holding that a defendant convicted of a cocaine offense is
ineligible for relief under the FSA). Although the record reflects that the
district court’s order mistakenly states that Diaz’s sentence was previously
reduced once pursuant to § 404 of the FSA (as opposed to Amendment 782),
Diaz is nevertheless ineligible for relief under the FSA. Id. Consequently, he
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cannot make the required showing that the district court abused its discretion
in denying him relief for which he is statutorily ineligible. See Robinson, 980
F.3d at 459 (“It is the defendant’s burden to ‘show that the trial judge’s
action amounted to an . . . abuse of discretion.’”). Accordingly, we hold that
the district court did not abuse its discretion in denying Diaz’s motion for a
sentence reduction under the FSA. Id.
B. Motion for Compassionate Release
Diaz next argues that he has shown extraordinary and compelling
reasons for compassionate release because he is 68 years old, has several
medical conditions that put him at high risk of dying if he contracts COVID-
19, has a minimum risk of recidivism, has served more than 60 percent of his
sentence, has exhibited excellent conduct in prison, and does not have a
history of violence. Diaz further avers that the district court did not provide
an adequate explanation for denying his motion on the merits. We disagree.
Section 3582(c)(1)(A)(i) allows a district court to reduce a
defendant’s sentence if, after considering any relevant § 3553(a) factors, it
determines that “extraordinary and compelling reasons warrant such a
reduction” and “a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” See 18 U.S.C. § 3582(c)(1)(A)(i).
The policy statement applicable to § 3582(c)(1)(A)(i), U.S.S.G. § 1B1.13,
does not apply where, as here, the motion for compassionate release is filed
by a prisoner. United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021). As
a result, when addressing a prisoner-filed motion, a district court need only
consider the extraordinary circumstances requirement of § 3582(c)(1)(A)(i),
and the § 3553(a) sentencing factors. Id. at 393.
The record reflects that Diaz asserted before the district court that he
has hypertension, high cholesterol, kidney failure, “prostate complications,”
and poor blood circulation. While the district court did not directly address
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Diaz’s medical conditions, it reasoned that the COVID-19 pandemic did not
warrant his release from confinement because of the availability of vaccines
and treatment options. It also observed that the Bureau of Prisons had
administered approximately 279,000 doses of the COVID-19 vaccine and
was continuing to vaccinate federal inmates at the time of its denial order. Id.
As we have recently explained, even where an inmate has chronic
illnesses that place him at a higher risk of severe symptoms, “[f]ear of
COVID doesn’t automatically entitle a prisoner to release.” United States v.
Thompson, 984 F.3d 431, 435 (5th Cir.), cert. denied, 141 S. Ct. 2688 (2021).
Moreover, prisoners that are successful in obtaining early release based on
the COVID-19 pandemic have generally “already served the lion’s share of
their sentences and presented multiple, severe, health concerns.” Id. at 434-
35. Here, Diaz’s original 30-year sentence has already been reduced by more
than 5 years and he has served only 14 years of his 24-year reduced sentence.
Had Diaz not received that 5-year reduction, he would have served less than
half of his sentence at the time he moved for a second sentence reduction.
Even with the reduction, Diaz still has a decade left and thus, has not served
the “lion’s share” of his reduced sentence. Id. at 434. Additionally, although
he alleges that he suffers from kidney failure, 1 we agree with the district court
that the availability of COVID-19 vaccines and treatment options decreases
the risks associated with his condition.
We are also unpersuaded by Diaz’s argument that the district court
failed to adequately consider the § 3553(a) factors or explain why they
weighed against granting his compassionate release motion. The district
court judge that denied Diaz’s motion is the same judge who presided over
his trial and sentencing. At sentencing, the court stated that it had considered
1
Diaz’s medical records are not included in the record on appeal.
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the § 3553(a) factors but did not otherwise discuss them. The court did,
however, adopt the PSR which states that Diaz was held accountable for
approximately 290 kilograms of cocaine, assisted in money laundering nearly
a million dollars, had a managerial or supervisory role in the underlying
conspiracy offense, and had a prior state conviction for money laundering.
Based on these details in the PSR, we can infer that the district court
determined that the seriousness of Diaz’s offense weighed against granting
compassionate release. See United States v. Perales, No. 21-10611, 2022 WL
1978700, at *2 (5th Cir. June 6, 2022) (per curiam) (unpublished)
(“[A]lthough the district court’s order does not detail the factual reasons for
denying [the defendant’s] motion for compassionate release, the rationale for
the court’s decision is adequately inferable when the order is considered
together with the record from [the defendant’s] original sentencing record,
particularly including the PSR and the sentencing hearing transcript.”); see
also United States v. Gallegos, No. 21-50814, 2022 WL 2752601, at *1 (5th Cir.
July 14, 2022) (per curiam) (unpublished) (holding district court did not
abuse its discretion in denying a compassionate release motion when it
“stated that it took into account the relevant § 3553(a) factors and the
applicable policy statements before finding that a sentence reduction was not
warranted”).
For these reasons, we hold that the district court did not abuse its
discretion in denying Diaz’s compassionate release motion. See Chambliss,
948 F.3d at 693.
C. Motion for Appointment of Counsel
Finally, Diaz argues that the district court erred in denying his motion
for the appointment of counsel. Again, we disagree. In United States v.
Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008), this court concluded that even
if a § 3582(c)(2) proceeding was collateral to the original criminal case, the
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decision to appoint counsel is discretionary “in the interest of justice.” Id.
We have since applied the interest-of-justice standard to deny pro se motions
for the appointment of counsel on appeal from the denial of a § 3582(c)(1)(A)
motion for compassionate release. See United States v. Chehab, No. 20-10855,
2021 WL 5313619, at *2 (5th Cir. Nov. 15, 2021) (per curiam) (unpublished)
(“[T]he interest of justice does not require the appointment of counsel
here.”); United States v. Okpalobi, 831 F. App’x 715, 716-17 (5th Cir. 2020)
(per curiam) (unpblished) (“[Defendant]’s motion to appoint counsel is
denied because the interest of justice does not require the appointment of
counsel here.” (citation omitted)). The compassionate release arguments at
issue here are not factually complicated and Diaz has adequately presented
them to the district court. In other words, the “interest of justice” does not
require the appointment of counsel in this case. Accordingly, we conclude
that the district court did not abuse its discretion in denying Diaz’s motion
for appointment of counsel. See Nichols, 30 F.3d at 36.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order
denying Diaz’s motions for a reduced sentence, compassionate release, and
appointment of counsel.
AFFIRMED.
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