United States v. John Montero ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0076n.06
Case No. 20-3666
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 05, 2021
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
JOHN MONTERO,
)
Defendant-Appellee. ) OPINION
)
BEFORE: BATCHELDER, CLAY, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. John Montero, a federal prisoner proceeding with counsel,
appeals the district court’s order denying his motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A). Because the district court did not abuse its discretion in denying
Montero’s motion, we affirm.
I.
On July 19, 2017, Montero and eleven others were named in a multi-count drug-conspiracy
indictment. Montero pleaded guilty to Count 1. In his plea, he admitted to selling substantial
quantities of crack cocaine and possessing both cocaine and a firearm as part of the conspiracy, in
violation of 21 U.S.C. § 846. The district court sentenced him to imprisonment for 77 months.
On April 20, 2020, Montero submitted a request for compassionate release to the Warden
of FCI Elkton. The Warden denied the request on May 1, 2020. Three days later, Montero filed
Case No. 20-3666, United States v. Montero
his motion for compassionate release in federal court.1 He claimed that his release was justified
because he was a non-violent drug offender with certain medical conditions—asthma and blood
clotting—that rendered him more susceptible to COVID-19. He later claimed that he tested
positive for COVID-19.
The district court denied Montero’s motion on the merits after finding that he failed to
demonstrate extraordinary and compelling reasons to justify compassionate release, and
alternatively that he remained a danger to the community. Montero appeals.
II.
We review a district court’s decision denying compassionate release for an abuse of
discretion. United States v. Kincaid, 802 F. App’x 187, 188 (6th Cir. 2020) (order). An abuse of
discretion occurs when the district court “relies on clearly erroneous findings of fact, uses an
erroneous legal standard, or improperly applies the law.” United States v. Flowers, 963 F.3d 492,
497 (6th Cir. 2020) (quoting United States v. White, 492 F.3d 380, 408 (6th Cir. 2007)).
Generally, a district court “may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). But that prohibition has exceptions, including one known as
“compassionate release.” Id. at § 3582(c)(1)(A)(i). We have recently issued a series of opinions
articulating how district courts should analyze defendant-filed motions seeking compassionate
release. See United States v. Ruffin, 978 F.3d 1000, 1006–07 (6th Cir. 2020); United States v.
Jones, 980 F.3d 1098, 1106 (6th Cir. 2020); United States v. Elias, 984 F.3d 516, 519 (6th Cir.
2021); United States v. Hampton, --- F.3d ---, No. 20-3649, 2021 WL 164831, at *1–2 (6th Cir.
Jan. 19, 2021). “In resolving those motions, district courts now face two questions: (1) whether
1
On May 6, 2020, two days after filing his motion for compassionate release in federal court, Montero is said to have
appealed the Warden’s denial of his request for compassionate release. Evidence of that appeal is not in the record.
But the Government does not contend that Montero failed to appeal.
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extraordinary and compelling circumstances merit a sentence reduction; and (2) whether the
applicable § 3553(a) factors warrant such a reduction. A third consideration, the § 1B1.13 policy
statement, is no longer a requirement courts must address in ruling on defendant-filed motions.”
Hampton, 2021 WL 164831, at *1. To that end, district courts need not confine themselves to
evaluating “extraordinary and compelling reasons” as defined by the Sentencing Commission in
the § 1B1.13 policy statement. Elias, 984 F.3d at 519.
On appeal, Montero first argues that the district court abused its discretion by finding that
no extraordinary and compelling reasons justified his release. He contends that the court
impermissibly failed to consider his asthma and mischaracterized his blood clotting issues. We
disagree.2
A district court has “full discretion” in determining whether an extraordinary and
compelling reason justifies compassionate release where, as here, a defendant files a motion for
compassionate release. See Jones, 980 F.3d at 1109. In finding that Montero did not demonstrate
an extraordinary and compelling reason justifying his release, the district court recognized the
dangers of the COVID-19 pandemic and expressed its sympathy to the increased risk of exposure
and illness that prisoners face. It also found that Montero failed to show that he was at a
substantially higher risk compared to others similarly situated and that although he tested positive
2
In his reply brief, Montero also argues that, generally, district courts should not defer to the Sentencing Commission’s
limited definition of “extraordinary and compelling reasons.” We agree. As our recent decisions have clarified,
district courts need not defer to that definition for defendant-filed compassionate release motions. See, e.g., Elias, 984
F.3d at 519. However, the district court’s denial of Montero’s motion in this case was justified entirely by its finding
that Montero failed to demonstrate “extraordinary and compelling reasons” as required under the statute, without any
reference to the Sentencing Commission’s additional application notes. See United States v. Robinson, No. 20-5929,
2021 WL 71545, at *2 (6th Cir. Jan. 6, 2021) (order) (affirming denial of compassionate release motion when district
court did not rely on commentary to USSG § 1B1.13). That remains a “permissible ground[]” for a district court to
refuse to reduce a sentence. Hampton, 2021 WL 164831, at *1.
We also note that there may be questions about whether Montero exhausted his administrative remedies and whether
he waited the requisite thirty days after the Warden’s receipt of his request before filing his motion for compassionate
release. However, we do not decide those questions because they are not jurisdictional, and the Government does not
raise them on appeal. See Ruffin, 978 F.3d at 1004.
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for the virus, his alleged symptoms were not life-threatening. Moreover, the court found that he
provided no evidence demonstrating that he suffered from one of the risk factors identified by the
Centers for Disease Control and Prevention (CDC) that would place him at a higher risk of a severe
outcome. In doing so, the district court did not specifically mention Montero’s asthma. Failing to
do so was not an abuse of discretion. See Elias, 984 F.3d at 521 (“Relying on official guidelines
from the CDC is common practice in assessing compassionate-release motions.”).
To be sure, the CDC has identified moderate to severe asthma as a risk factor for more
severe illness from COVID-19. See Clinical Care Guidance for Healthcare Professionals About
Coronavirus (COVID-19): People with Certain Medical Conditions, Centers for Disease Control,
https://tinyurl.com/y3ewlf2p (last visited Jan. 25, 2021). And the Government concedes that in
light of the COVID-19 pandemic, Montero’s asthma—if it were moderate to severe—could
constitute an extraordinary and compelling reason justifying his release. But Montero did not
contend at the district court level that he had moderate to severe asthma, nor does he do so on
appeal. Moreover, as the district court noted, although Montero tested positive for COVID-19, he
only complained of losing his sense of taste and smell. He did not allege that he experienced
trouble breathing or provide medical records evidencing such trouble. Instead, he noted that his
asthma was under control, thanks to an albuterol inhaler provided by FCI Elkton. At bottom, the
district court did not abuse its discretion by failing to mention Montero’s asthma, which was not
alleged to be moderate to severe, but was reportedly under control, and was not exacerbating his
COVID-19 infection.
Nor did the court abuse its discretion in finding that Montero’s blood clotting issue was not
an extraordinary and compelling reason justifying compassionate release. The district court
specifically considered Montero’s blood clotting and highlighted that he was already taking blood
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thinners as treatment. Its further suggestion that Montero’s pre-existing course of treatment might
serve as an additional layer of protection against blood clotting caused by his COVID-19 infection
was supported by a medical study Montero cited in his own motion seeking release. Contrary to
Montero’s contention, that suggestion does not render the court’s ultimate finding an abuse of
discretion. See United States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010) (noting that a clearly
erroneous factual finding must strike the court “as more than just maybe or probably wrong; it
must strike us as wrong with the force a five-week-old, unrefrigerated dead fish” (quoting United
States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990))).
Montero also argues that the district court abused its discretion by finding that he was a
danger to the community under USSG § 1B1.13. Because the district court did not abuse its
discretion in denying Montero compassionate release based on its primary finding that no
extraordinary or compelling reasons justified a reduction in his sentence, we need not address the
district court’s alternative finding under § 1B1.13.
We affirm.
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