1:91-cr-00141
S.D. Tex.Aug 18, 2021Background
- Miguel Botello was convicted of murder in furtherance of a continuing criminal enterprise and money laundering; sentenced in 1992 to life imprisonment (murder) and 20 years (money laundering).
- Botello is incarcerated at FCI Three Rivers, Texas, and has served ~30 years of his life sentence at the time of the motion.
- Botello filed a motion under 18 U.S.C. § 3582(c)(1)(A) (First Step Act) seeking compassionate release; he asked the facility Warden to move on his behalf and the Warden denied the request. More than 30 days elapsed after the Warden received his request.
- Botello’s stated bases for release: long record of good behavior; changes in sentencing law (from mandatory to discretionary sentencing) that he says would yield a lesser sentence today; age (63) and COVID-19 infection risk.
- The court found no applicable Sentencing Commission policy statement controlling after Shkambi and therefore evaluated the motion under 18 U.S.C. § 3582(c)(1)(A) and the § 3553(a) factors.
- The court denied the compassionate-release motion and denied appointment of counsel, finding Botello failed to show extraordinary and compelling reasons and that appointment of counsel was not required or would be futile. The court noted BOP data showing active COVID cases at the facility but no deaths.
Issues
| Issue | Botello's Argument | Government's Argument | Held |
|---|---|---|---|
| Exhaustion under § 3582(c)(1)(A) | He asked the Warden to file and 30 days have lapsed after the Warden received the request | Argued exhaustion may be incomplete | Court: 30-day lapse satisfied threshold; jurisdiction to consider the motion |
| Extraordinary and compelling reasons for release | Good prison record; changed sentencing law; age (63) and COVID-19 risk | These factors are speculative or insufficient; BOP can provide care; sentencing-law change is hypothetical | Denied; Botello did not demonstrate extraordinary and compelling reasons |
| Applicability of Sentencing Commission policy statements | Implicitly argued court should consider current sentencing norms | Section 1B1.13 does not apply when BOP does not move | Court followed Shkambi: no applicable policy statement; court may consider §3553(a) factors directly |
| Appointment of counsel for § 3582 motion | Requested appointed counsel to pursue the motion | No statutory or constitutional right to counsel; appointment unnecessary | Denied; no right to counsel and appointment would be futile |
Key Cases Cited
- United States v. Botello, 991 F.2d 189 (5th Cir. 1993) (conviction and appellate history for murder in furtherance of a continuing criminal enterprise)
- United States v. Botello, 190 F.3d 537 (5th Cir. 1999) (post-sentencing appellate decision related to Botello)
- United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021) (Section 1B1.13 applies only when the BOP moves; Sentencing Commission statement not controlling for inmate-filed motions)
- Pennsylvania v. Finley, 481 U.S. 551 (1987) (no constitutional right to counsel for discretionary post-conviction appeals)
- United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995) (post-conviction § 3582 relief is not an ancillary proceeding that requires appointment of counsel)