United States v. Carralero-Escobar ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-2093
(D.C. No. 1:19-CR-00404-JCH-1)
NELSON CARRALERO-ESCOBAR, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
After COVID-19 spread across the country, defendant, Nelson Carralero-
Escobar, moved to reduce his prison sentence under 18 U.S.C. § 3582(c)(1)(A),
colloquially called the compassionate-release provision. The district court denied the
motion, relying in part on the policy statement at United States Sentencing
Guidelines Manual § 1B1.13 (U.S. Sent’g Comm’n 2018). Everyone now agrees that
the policy statement did not control the court’s decision. But the court’s error in
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
relying on the policy statement does not warrant reversal under plain-error review
because the court gave a separate, valid reason for its ruling. And the court did not
otherwise abuse its discretion when it denied defendant’s motion. So we affirm.
I. Background
Over the past twenty-five years, defendant has been convicted of several
crimes arising out of ten prior cases. His prosecution in this case began when police
officers, investigating a property crime, found a pistol in defendant’s pocket. Based
on those events, he pleaded guilty to being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). He asked the court to release him until sentencing, citing
serious health problems. The court denied release. At the March 2020 sentencing
hearing, defense counsel again highlighted defendant’s deteriorating health. Noting
defendant’s criminal history, the court considered a sentence at the high end of the
advisory Sentencing Guidelines range of fifty-seven to seventy-one months. But
after mentioning defendant’s health (including his appearance at sentencing in a
wheelchair), it ultimately imposed fifty-seven months.
Just over two months later, in May 2020, defendant moved to reduce his
sentence under § 3582(c)(1)(A)(i). The motion focused on his age (at the time,
sixty-five years old) and poor health, including his severe chronic obstructive
pulmonary disease. He concluded that these factors made him unlikely to survive if
he contracted COVID-19. His failing health, he argued, also prevented him from
posing any risk to the community.
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A three-step analysis governs motions under § 3582(c)(1)(A)(i). United States
v. McGee, 992 F.3d 1035, 1042–43 (10th Cir. 2021). The first step requires the court
to decide whether extraordinary and compelling reasons warrant a reduced sentence.
Id. at 1042. The second step requires the court to decide whether a reduction is
consistent with any applicable Sentencing Commission policy statements. Id. And
the third step requires the court, after considering any applicable sentencing factors
in 18 U.S.C. § 3553(a), to determine in its discretion whether a reduction authorized
under the first two steps is warranted under the circumstances of the case. Id.Although the court agreed that defendant identified extraordinary and
compelling reasons for his request, it denied his motion after finding that he “still
poses a significant danger to the safety of the community and the § 3553(a) factors
do not support his requested reduction in sentence.” R. vol. 1 at 63.
II. Discussion
Defendant raises two arguments on appeal. First, he contends that the district
court erred when it applied the policy statement at § 1B1.13 to his motion. Second,
he argues that the court abused its discretion when it found that he remained a danger
to the community and that a reduced sentence was not warranted.
A. Standards of Review
We review de novo the scope of the district court’s authority under
§ 3582(c)(1)(A). McGee, 992 F.3d at 1041. And we review its decision to deny a
motion under that section for an abuse of discretion. See United States v. Battle,
706 F.3d 1313, 1317 (10th Cir. 2013) (reviewing a decision under § 3582(c)(2)).
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“A district court abuses its discretion when it relies on an incorrect conclusion of law
or a clearly erroneous finding of fact.” Id.
B. The Policy Statement at § 1B1.13
Congress has directed the Sentencing Commission to promulgate general
policy statements about the appropriate use of sentence-modification provisions,
including § 3582(c). 28 U.S.C. § 994(a)(2)(C). The Commission’s policy statement
addressing sentence reductions under § 3582(c)(1)(A) is § 1B1.13. That policy
statement’s most recent amendment took effect November 1, 2018. Reflecting the
November 2018 version of § 3582(c)(1)(A), the current policy statement purports to
apply only to motions made by “the Director of the Bureau of Prisons.” USSG
§ 1B1.13. A mismatch emerged between § 1B1.13 and § 3582(c)(1)(A) when, in
December 2018, Congress amended § 3582(c)(1)(A) to allow courts to act on
motions not only from the Director of the Bureau of Prisons but also from
defendants. See First Step Act of 2018, Pub. L. No. 115-391, § 603, 132 Stat. 5194,
5239. This mismatch, in turn, raised a question: Does § 1B1.13, in its current form,
apply to a defendant’s motion under § 3582(c)(1)(A)? We recently held that it does
not. McGee, 992 F.3d at 1050.
The district-court proceedings in this case occurred before we issued our
opinion in McGee. The parties and the district court seem to have at least assumed
that § 1B1.13 applied to defendant’s compassionate-release motion. Defendant’s
motion argued that his release would be consistent with § 1B1.13. And the
government affirmatively argued that § 1B1.13 applied to the motion. Although the
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district court did not explicitly cite § 1B1.13 in denying defendant’s motion, its
finding that defendant “still poses a significant danger to the safety of the
community,” R. vol. 1 at 63, tracks a provision in the policy statement allowing relief
only if the court finds that the “defendant is not a danger to the safety of any other
person or to the community,” USSG § 1B1.13(2).
The parties disagree about how defendant’s position in the district court should
affect our review. Defendant argues that he preserved his appellate argument—that
the policy statement does not apply to his motion—by moving for a reduced
sentence. Not so. To preserve an issue for appeal, a party must alert the district
court to that issue and seek a ruling. United States v. Ansberry, 976 F.3d 1108, 1124
(10th Cir. 2020). By merely requesting compassionate release—in a motion that
itself applied § 1B1.13—defendant did not alert the district court to the issue he now
raises. And so we agree with the government that he is entitled at most to plain-error
review on this issue.1
Under the plain-error standard, we will reverse if “(1) there is error; (2) that is
plain; (3) that affects substantial rights, or in other words, affects the outcome of the
proceeding; and (4) substantially affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir.
2013).
1
Because we conclude that reversal is not warranted under plain-error review,
we need not address the government’s argument that defendant invited the district
court’s error and therefore waived all review of this issue.
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Defendant has met the first two plain-error requirements. We recognize, as the
government points out, that the district court did not expressly cite the policy
statement at § 1B1.13 to deny defendant’s motion. But given the parties’ positions in
the district court and the language in the court’s order, we conclude that defendant
has sufficiently shown that the court understood the policy statement to govern its
ruling. And under McGee, the error in that understanding is plain.2 992 F.3d
at 1050.
But defendant cannot meet the third plain-error requirement, because the
district court’s error did not affect the outcome of his motion. That is so because the
district court expressly found that the § 3553(a) factors did not support defendant’s
request, a finding that warranted denying the motion independent of any policy
statement. See id. at 1042–43.
Contrary to defendant’s argument, the error in this case is not analogous to a
district court’s miscalculating the Sentencing Guidelines range before imposing a
sentence. When a court miscalculates a Guidelines range to be higher than it should
be, that error “most often will” suffice to show a reasonable probability that the
outcome would have been different without the error. Molina-Martinez v. United
States, 136 S. Ct. 1338, 1345 (2016). But that is because “the Guidelines are not
only the starting point for most federal sentencing proceedings but also the lodestar.”
2
Although the district court ruled before we issued our opinion in McGee, we
determine if its error is plain by examining the law at the time of the appeal,
Henderson v. United States, 568 U.S. 266, 279 (2013).
6
Id. at 1346. “In the usual case, then, the systemic function of the selected Guidelines
range will affect the sentence.” Id. In this case, by contrast, the district court’s error
did not taint its ultimate ruling. Apart from its erroneous reliance on the policy
statement, the court articulated a proper, independent reason to deny defendant’s
motion—the § 3553(a) factors did not support a reduced sentence. So the court’s
error in relying on the policy statement did not affect defendant’s substantial rights,
and the error does not warrant reversal.
B. The District Court’s Exercise of its Discretion
Before reducing a sentence under § 3582(c)(1)(A), a court must consider any
applicable § 3553(a) factors and determine in its discretion whether the
circumstances warrant a reduction. McGee, 992 F.3d at 1042–43. Although
§ 3582(c)(1)(A) requires a court to consider any applicable § 3553(a) factors, it does
not incorporate § 3553(c)’s requirement that a court state “the reasons for its
imposition of the particular sentence.” “This omission is significant because we have
previously interpreted the meaning of both subsections, holding that § 3553(a)
requires consideration of its factors, while § 3553(c) requires an explanation of the
sentence.” United States v. Piper, 839 F.3d 1261, 1267 (10th Cir. 2016) (brackets
and internal quotation marks omitted). And so we have “no basis” to require a
district court “to address every nonfrivolous, material argument” a defendant presents
in a § 3582(c)(1)(A) proceeding. Id. (internal quotation marks omitted) (discussing
an identical consideration requirement in § 3582(c)(2)).
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Defendant argues that the district court abused its discretion when it found that
he still posed a danger to the community with his failing health. In his view, the
court gave too much weight to his criminal history and “failed to appreciate how [his]
physical and medical limitations lessened the risk of recidivism and mitigated any
danger he might pose to the community.” Aplt. Opening Br. at 15.
The record refutes defendant’s argument. Before denying defendant’s motion,
the district court “looked at” the § 3553(a) factors, and one stood out—defendant’s
history and characteristics. R. vol. 4 at 44. The court recognized defendant’s health
problems, recalling that they existed at the original sentencing hearing. Noting that
he had pleaded guilty to possessing a firearm, however, the court found that he
“continues to pose a high risk of danger to the community.” Id. Although defendant
insists that he “is far too old and far too sick to be a threat,” Aplt. Opening Br. at 9,
the district court’s finding is sound: even a sick and feeble person can pose a serious
risk with a firearm. The court did not abuse its discretion.
III. Conclusion
We affirm the district court’s order.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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