United States v. Herrera ( 2021 )

Case: 20-10720 Document: 00515947940 Page: 1 Date Filed: 07/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10720 July 22, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Miriam Crystal Herrera,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-6-9
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Miriam Crystal Herrera, federal prisoner # 56791-177, appeals the
district court’s denial of her motion for release to home confinement or for a
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended
by the First Step Act. Herrera’s motion was largely based on the presence of
*
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opinion should not be published and is not precedent except under the limited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: 20-10720 Document: 00515947940 Page: 2 Date Filed: 07/22/2021
No. 20-10720
the COVID-19 virus in her prison unit and her assertion that she has medical
conditions that increase the risk the virus poses to her health. The district
court determined that it had no authority to release Herrera to home
confinement, and it denied the request for a compassionate-release sentence
reduction on the merits.
We review the denial of a motion for compassionate release for an
abuse of discretion. United States v. Thompson, 984 F.3d 431, 433 (5th Cir.
2021), cert. denied, 2021 WL 2044647 (U.S. May 24, 2021) (No. 20-7832).
“[A] court abuses its discretion if it bases its decision on an error of law or a
clearly erroneous assessment of the evidence.” United States v. Chambliss,
948 F.3d 691, 693 (5th Cir. 2020) (internal quotation marks and citation
omitted).
Herrera’s brief focuses mainly on arguments challenging the district
court’s calculation of her guidelines sentencing range and her 480-month
sentence. She fails to brief any challenge to the district court’s determination
that she failed to show extraordinary and compelling circumstances, as
required for § 3582(c)(1)(A)(i) relief. While the filings of pro se litigants like
Herrera are afforded liberal construction, even pro se litigants must brief
arguments to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). Herrera has failed to show an abuse of discretion by the district
court, and the order denying her motion for release is AFFIRMED. Her
motion for the appointment of counsel is DENIED because the interest of
justice does not require the appointment of counsel here. See Schwander v.
Blackburn, 750 F.2d 494, 502-03 (5th Cir. 1985); Fifth Circuit Plan
Under the Criminal Justice Act § 3(B).
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