United States v. Wirichaga-Landavazo ( 2022 )


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  • Appellate Case: 21-4070     Document: 010110647217        Date Filed: 02/18/2022       Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                          February 18, 2022
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                          No. 21-4070
    (D.C. No. 2:14-CR-00517-TS-1)
    JESUS EDUARDO WIRICHAGA-
    LANDAVAZO,
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before HOLMES, KELLY, and ROSSMAN, Circuit Judges.
    _________________________________
    Jesus Eduardo Wirichaga-Landavazo appeals the district court’s denial of his
    motion to reduce his sentence under 
    18 U.S.C. § 3582
    (c)(1)(A), commonly known as
    compassionate release. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    I. Background
    In 2015, Mr. Wirichaga-Landavazo pled guilty to conspiracy to distribute
    methamphetamine in violation of 
    21 U.S.C. § 846
     and illegal reentry in violation of
    *
    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 This order and judgment is not binding precedent,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.
    Appellate Case: 21-4070      Document: 010110647217           Date Filed: 02/18/2022      Page: 2
    
    8 U.S.C. § 1326
    . The district court sentenced him to 180 months of imprisonment and
    5 years of supervised release. Mr. Wirichaga-Landavazo’s projected release date is
    October 15, 2027.
    In March 2021, Mr. Wirichaga-Landavazo filed a pro se motion for compassionate
    release under § 3582(c)(1)(A). He argued that extraordinary and compelling reasons
    warranted a sentence reduction because, during the COVID-19 pandemic, he was
    “particularly at risk due to his pre-existing latent tuberculosis.” R. vol. 1 at 37. In support,
    Mr. Wirichaga-Landavazo cited several cases where district courts purportedly granted
    compassionate release based on COVID-19 and tuberculosis. He also cited the CDC’s
    general COVID-19 webpage with a parenthetical explaining that “people of all ages with
    pre-existing health condition[s] identified by C.D.C., have a higher risk of severe illness
    from affected COVID-19 individuals.” Id. (citing CDC, COVID-19 (March 2021),
    www.cdc.gov/coronavirus/2019-ncov).
    The government filed a form opposition, checking a box to indicate the defendant
    had failed to present extraordinary and compelling reasons warranting a reduced
    sentence. The government also specified that Mr. Wirichaga-Landavazo did “not have a
    condition that places him at greater risk of serious illness from COVID-19.” R. vol. 1
    at 54. It explained “the CDC identifies certain types of individuals who are potentially at
    higher risk for severe illness from COVID-19,” citing the CDC’s webpage for “People
    with Certain Medical Conditions.” Id. (citing CDC, People with Certain Medical
    Conditions (March 29, 2021), www.cdc.gov/coronavirus/2019-ncov/need-extra-
    2
    Appellate Case: 21-4070     Document: 010110647217         Date Filed: 02/18/2022       Page: 3
    precautions/people-with-medical-conditions.html). “Tuberculosis,” according to the
    government, was “not a listed condition that elevates COVID-19 risk.” Id.1
    The district court entered a form order, checking the box for “DENIED after
    complete review of the motion on the merits.” Id. at 105. In the “[o]ptional” section for
    “factors considered,” the district court’s explanation echoed the government: “Defendant
    has failed to present ‘extraordinary and compelling reasons’ warranting his release.
    Defendant argues that his history of tuberculosis places him at a greater risk of severe
    illness from COVID-19. However, the Centers for Disease Control and Prevention does
    not identify tuberculosis as a condition that elevates COVID-19 risk.” Id. (all caps
    removed).
    Mr. Wirichaga-Landavazo, now represented by counsel, timely appealed.
    II. Discussion
    Under 
    18 U.S.C. § 3582
    (c)(1)(A), a district court may grant a motion for
    reduction of sentence if three requirements are met: “(1) the district court finds that
    1
    Elsewhere, the government’s form response suggested that if tuberculosis
    were on the CDC’s list, the government would have conceded the “extraordinary and
    compelling” requirement. See R. vol. 1 at 55 (including option to check box
    indicating “Defendant has satisfied the requirement of ‘extraordinary and compelling
    reasons’ warranting a sentence reduction due to a diagnosis of the following
    conditions which CDC determined puts an individual at elevated risk of serious
    illness from COVID-19”). The government has historically taken this position, hence
    the parties’—and the court’s—focus on the CDC’s list of medical conditions. See,
    e.g., United States v. Avalos, 856 F. App’x 199, 201 (10th Cir. 2021) (“The district
    court noted that the Department of Justice had ‘recently adopted the position that an
    inmate who presents with one of the risk factors identified by the [CDC] should be
    considered as having an “extraordinary and compelling reason” warranting a sentence
    reduction.’”) (citation omitted).
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    extraordinary and compelling reasons warrant such a reduction; (2) the district court
    finds that such a reduction is consistent with applicable policy statements issued by
    the Sentencing Commission; and (3) the district court considers the factors set forth
    in § 3553(a), to the extent that they are applicable.” United States v. McGee, 
    992 F.3d 1035
    , 1042 (10th Cir. 2021). Only the first requirement—extraordinary and
    compelling reasons—is at issue here. District courts “have the authority to determine
    for themselves what constitutes ‘extraordinary and compelling reasons.’” 
    Id. at 1045
    .
    “We review the denial of a sentence reduction under § 3582(c) for abuse of
    discretion.” United States v. Avalos, 856 F. App’x 199, 202 (10th Cir. 2021) (citing
    United States v. Mannie, 
    971 F.3d 1145
    , 1154 (10th Cir. 2020)). “A district court
    abuses its discretion when it relies on an incorrect conclusion of law or a clearly
    erroneous finding of fact.” United States v. Piper, 
    839 F.3d 1261
    , 1265 (10th Cir.
    2016) (quoting United States v. Battle, 
    706 F.3d 1313
    , 1317 (10th Cir. 2013)). “A
    finding of fact is clearly erroneous if it is without factual support in the record or if,
    after reviewing all of the evidence, we are left with the definite and firm conviction
    that a mistake has been made.” Hamric v. Wilderness Expeditions, Inc., 
    6 F.4th 1108
    ,
    1119 (10th Cir. 2021) (quoting Ellis v. J.R.’s Country Stores, Inc., 
    779 F.3d 1184
    ,
    1192 (10th Cir. 2015)).
    Mr. Wirichaga-Landavazo argues that the district court abused its discretion by
    relying on a clearly erroneous fact—that the CDC “does not identify tuberculosis as a
    condition that elevates COVID-19 risk.” R. vol. 1 at 105. In his opening brief, Mr.
    Wirichaga-Landavazo points out that, at least at the time of appeal, the “CDC
    4
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    webpage on ‘People with Certain Medical Conditions’ does, in fact, include
    tuberculosis: ‘Having tuberculosis can make you more likely to get severely ill from
    COVID-19.’” Appellant’s Opening Br. 12 (quoting www.cdc.gov/coronavirus/2019-
    ncov/need-extra-precautions/people-with-medical-conditions.html). Thus, he
    concludes, the district relied on a clearly erroneous fact.
    However, in his reply, Mr. Wirichaga-Landavazo concedes the webpage did
    not list tuberculosis at the time the district court issued its order, and he does not
    contend we can find clear error based on such a change in the factual record.2
    Nevertheless, he argues the district court’s finding was clearly erroneous because
    another then-existing CDC webpage indicated that tuberculosis could, under certain
    circumstances, increase the risk of severe illness from COVID-19. In support, Mr.
    Wirichaga-Landavazo points to an unpublished district court order discussing the
    CDC’s tuberculosis-specific webpage, which warned, “TB patients who are at least
    65 years old; have respiratory compromise from their TB; or other medical
    conditions, including HIV and other immunocompromising conditions, are at greater
    2
    The government asks this Court to take judicial notice of an archived version
    of the CDC webpage from the Wayback Machine, an “online digital archive of web
    pages[] . . . run by the Internet Archive, a nonprofit library in San Francisco,” to
    prove that tuberculosis was not, in fact, listed at the time the district court rendered
    its decision. Appellee’s Br. 8, n.3 (quoting Valve Corp. v. Ironburg Inventions Ltd.,
    
    8 F.4th 1364
    , 1374 (Fed. Cir. 2021)). We accept Mr. Wirichaga-Landavazo’s
    concession and need not decide whether the Wayback Machine is judicially
    noticeable. See generally Weinhoffer v. Davie Shoring, Inc., 
    23 F.4th 579
    , 583-84
    (5th Cir. 2022) (holding, as a matter of first impression among the circuits, the
    district court abused its discretion in taking judicial notice of facts based on an
    archived webpage from the Wayback Machine).
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    risk for severe COVID-19 infection.” United States v. Carter, No. 11-CR-131-F-1,
    
    2020 WL 7768422
    , at *5 (D. Wyo. Dec. 30, 2020) (quoting CDC, Tuberculosis and
    Public Health Emergencies, www.cdc.gov/tb/education/public-health-
    emergencies.htm (accessed on December 29, 2020)). Thus, Mr. Wirichaga-
    Landavazo argues, the district court’s blanket statement that the CDC “does not
    identify tuberculosis as a condition that elevates COVID-19 risk” is clearly
    erroneous.
    We disagree. The district court’s factual finding, viewed in the context of the
    arguments and evidence before it, was not clearly erroneous. Mr. Wirichaga-
    Landavazo argued that his latent tuberculosis in itself put him at an increased risk of
    severe illness from COVID-19. Both parties referred the district court to the CDC’s
    COVID-19 webpage identifying medical conditions that increase the likelihood of
    severe illness. Implicit in Mr. Wirichaga-Landavazo’s argument was tuberculosis
    would be on that list, and the government pointed out that it was not. The district
    court’s finding that the CDC “does not identify tuberculosis as a condition that
    elevates COVID-19 risk” accurately described that tuberculosis was not on the list.
    R. vol. 1 at 105. As such, it was not a clearly erroneous factual finding. That a
    different CDC webpage, also available at the time of the order, indicated tuberculosis
    could, under some circumstances, increase the risk of serious illness does not
    sufficiently undermine that conclusion—Mr. Wirichaga-Landavazo did not cite this
    webpage in the district court, nor did he allege that any of the circumstances
    identified by the CDC applied to him. Accordingly, the district court’s order denying
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    Appellate Case: 21-4070    Document: 010110647217        Date Filed: 02/18/2022    Page: 7
    the motion for compassionate release was not based on a clearly erroneous factual
    finding.
    Although we conclude the district court did not commit reversible error, we
    agree with Mr. Wirichaga-Landavazo that the district court’s only stated basis for
    denying his motion depends on a fact that is no longer true. Thus, as the government
    expressly acknowledges, Mr. Wirichaga-Landavazo may file a new compassionate
    release motion in the district court based on the CDC’s recent recognition that
    tuberculosis is one of the medical conditions increasing the risk of severe illness from
    COVID-19.
    III. Conclusion
    The district court’s denial of Mr. Wirichaga-Landavazo’s motion to reduce
    sentence is affirmed.
    Entered for the Court
    Veronica S. Rossman
    Circuit Judge
    7
    

Document Info

Docket Number: 21-4070

Filed Date: 2/18/2022

Precedential Status: Non-Precedential

Modified Date: 2/18/2022