UNITED STATES OF AMERICA, Appellee, v. JORGE MARCELO CANALES-RAMOS, Defendant, Appellant.
No. 21-1141
United States Court of Appeals For the First Circuit
December 9, 2021
Before Lynch and Selya, Circuit Judges, and McCafferty, District Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Hector Sueiro-Alvarez, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Perez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Research and Writing Specialist, were on brief, for appellant.
David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
* Of the District of New Hampshire, sitting by designation.
I
We briefly rehearse the relevant facts and travel of the case. In September of 2011, the defendant was arrested aboard a vessel in waters off the coast of the U.S. Virgin Islands and found to be in possession of 48.2 kilograms of cocaine. At the time, the defendant was serving a five-year term of supervised release imposed after his guilty plea to drug-related charges in the District of Puerto Rico (D.P.R.).
In the wake of the defendant‘s 2011 arrest, the D.P.R. court convened a revocation hearing. The defendant admitted that he had violated the conditions of his supervised release by leaving Puerto Rico without permission and by engaging in renewed criminal activity. On February 22, 2012, the district court imposed a thirty-month revocation sentence and ordered that sentence “to be served consecutively to any other term of imprisonment currently being served or to be imposed upon” the defendant.
By the time the revocation sentence was imposed, the defendant had pleaded guilty in the District of the Virgin Islands (D.V.I.) to drug-conspiracy and drug-possession charges. See
After unsuccessfully pursuing an administrative grievance with the BOP, the defendant filed a pro se motion in the D.P.R. case. That motion (filed in November of 2019) sought the appointment of counsel to bring a post-conviction challenge concerning the consecutive nature of his revocation sentence. The defendant predicated this initiative on our decision in United States v. Almonte-Reyes, 814 F.3d 24 (1st Cir. 2016) a decision
that we discuss below. See infra Part III(B). Following the appointment of counsel, the defendant filed the instant motion for compassionate release, alleging extraordinary and compelling reasons, in November of 2020. See
In both his D.V.I. and D.P.R. compassionate-release motions, the defendant alleged, among other things, that his pre-existing medical infirmities, along with the conditions of his confinement, posed a substantial risk of severe illness should he contract the COVID-19 virus. This risk, he alleged, constituted an “extraordinary and compelling” reason for a sentence reduction.
While these motions were pending, the defendant contracted COVID-19 in January of 2021. He advised the D.P.R. court of this fact, and the court extended the government‘s deadline to file a sur-reply. The government filed a sur-reply about a week later. On the same day, the D.P.R. court denied the
defendant‘s compassionate-release motion. In its order, the court noted that it had reviewed certain pertinent materials, including the parties’ briefs and the defendant‘s medical records. It concluded in relevant part that the defendant “ha[d] not identified any extraordinary or compelling reason for reduction of his sentence.” It also reiterated that no error had been committed in the imposition of the defendant‘s “sentences to run concurrently but consecutively to his sentence on revocation.”
This timely appeal ensued. The defendant‘s counterpart D.V.I. motion for compassionate release remains pending.
II
Our review of a district court‘s denial of a sentence-reduction motion pursuant to
At the outset, the defendant draws our attention to a growing consensus among the courts of appeals. This consensus holds that even though the compassionate-release statute requires a district court to ensure that any sentence reduction is “consistent” with “applicable” policy
policy statement is not “applicable” to prisoner-initiated motions for compassionate release (as contrasted with motions brought by the BOP). See Saccoccia, 10 F.4th at 7-8 (collecting cases). We previously have explained the circumstances giving rise to the doubts about whether the current policy statement is “applicable” to prisoner-initiated motions, see id., and it would serve no useful purpose to repastinate that ground. As we explain below, the issue is not one that we must decide today.
On the “policy statement” front, the defendant‘s argument rests on unbridled speculation that the district court regarded the current policy statement as applicable and constrained its analysis accordingly. But the district court made it sufficiently clear that regardless of whether the Sentencing Commission‘s current policy statement was applicable the defendant had failed to demonstrate an extraordinary and compelling reason.
We need not tarry. The court below plainly concluded without any reference to the policy statement that the defendant “ha[d] not identified any extraordinary or compelling reason for reduction of his sentence.” This explicit statement shows with conspicuous clarity that the court considered and rejected all of the defendant‘s proffered reasons. Nothing in the court‘s order suggests that this blanket rejection was either based on or constrained by the current policy statement.
To be sure, the parties advanced below differing views as to whether the current policy statement has any bearing upon prisoner-initiated compassionate-release motions. The defendant argued that the current policy statement should be disregarded, and the government countered that it should be seen as a constraint. Viewed against this backdrop, the most sensible understanding of the district court‘s decision not to address this dispute is that it did not regard the dispute as outcome-determinative. Such an understanding is buttressed by what the district court said in its order. After determining that no extraordinary and compelling reasons had been identified, the district court acknowledged that “even if an inmate‘s health [were] at risk (which is not the case here), or even if the inmate me[t] one or more of the parameters” in the policy statement, compassionate release may be denied. Had the district court treated the policy statement‘s categories of extraordinary and compelling reasons as binding, it would have referred only to those categories. Here, however, the district court identified an alternative to those categories (extraordinary and compelling reasons based on other health risks). The necessary implication is that the court‘s analysis was not constrained by the policy statement.
The defendant‘s most loudly bruited counter-argument is that we can infer that the district court thought itself
constrained by the current policy statement because some of the order‘s reasoning parallels points made in the government‘s briefing. This is a bridge too far and, in any event, the defendant‘s observation cuts the other way: despite buying into several of the government‘s arguments, the district court felt free to bypass the “policy statement” contretemps.1 The most cogent explanation
The defendant argues, in the alternative, that the district court‘s order is ambiguous as to whether it considered the current policy statement binding. He also argues more broadly relying on the Supreme Court‘s seminal sentencing decisions in Gall v. United States, 552 U.S. 38, 51 (2007), and Rita v. United States, 551 U.S. 338, 356 (2007) that the district court failed adequately to explain its reasons for denying relief. Assuming, without deciding, that those standards apply on review of a denial of a compassionate-release motion, the district court‘s explanation passes muster. The order is admittedly brief, but in
sentencing matters, “brevity is not to be confused with inattention.” United States v. Davila-Gonzalez, 595 F.3d 42, 48 (1st Cir. 2010) (quotations omitted). Rather, the key consideration is whether the appellate court can discern that the lower court had “a reasoned basis” for its decision. Rita, 551 U.S. at 356; see Davila-Gonzalez, 595 F.3d at 48. As explained above, we can deduce from the order despite its brevity that the district court concluded that whether the policy statement was binding made no difference to its determination that the defendant‘s asserted reasons were not enough to justify compassionate release.
The defendant‘s broader remonstrance fares no better. He claims that the district court merely adopted the arguments from the government‘s briefing but turned a blind eye to the defendant‘s arguments regarding his specific medical conditions. At bottom, though, this is not a complaint that the decision reflects inadequate reasoning but, rather, a complaint that the district court‘s completely adequate reasoning did not mirror the defendant‘s views. And as is evident by our ensuing analysis the district court‘s choice not to embrace the defendant‘s medical-related arguments was a reasoned one. Consequently, we proceed to the defendant‘s remaining claims of error.
III
This brings us to the meat of the appeal: the district court‘s conclusion that the defendant‘s proffered reasons were insufficient to warrant compassionate release. The pivotal question is whether the district court abused its discretion in holding that the particular circumstances identified by the defendant failed to justify compassionate release.
Compassionate release under
The plain meaning of “extraordinary” suggests that a qualifying reason must be a reason that is beyond the mine-run either in fact or in degree. See Webster‘s
or customary“); see also United States v. Hunter, 12 F.4th 555, 562 (6th Cir. 2021) (suggesting that such reason must be “most unusual,” “far from common,” or “hav[e] little or no precedent“). By the same token, the plain meaning of “compelling” suggests that a qualifying reason must be a reason that is both powerful and convincing. See Webster‘s Third, supra at 462 (defining “compelling” as “forcing, impelling, [or] driving [circumstance]” and as “tending to convince or convert by or as if by forcefulness of evidence“); see also Hunter, 12 F.4th at 562. Benchmarked against those definitions, the district court acted within the ambit of its discretion in concluding that the defendant‘s proffered reasons for compassionate release fell short.
A
To begin, we consider the defendant‘s proffered medical reasons and risk of illness from COVID-19. The district court did not say whether or not the defendant‘s proffered medical reasons exhibited an exceptional medical need. Rather, the court made a factual determination that although the defendant had pre-existing medical infirmities and eventually contracted COVID-19, he was “being closely monitored” and his health was in “stable” condition.
The defendant does not make any concerted effort to challenge those findings. Nor would such an effort be fruitful: the defendant‘s medical records unequivocally show that after contracting COVID-19, he remained “[a]symptomatic,” that BOP
medical staff confirmed that he exhibited no untoward symptoms, and that his oxygen levels and temperature were well within normal ranges.
The defendant urges us not to take the medical records at face value. Despite what they show, he strives to persuade us that the possibility of severe illness from COVID-19 considering factors like his comorbidities and the conditions of his confinement remain extraordinary and compelling reasons for compassionate release.2 We are not persuaded.
The district court made a reasonable risk assessment and determined that the current state of the defendant‘s health and the care that he was receiving weighed against a finding that an extraordinary and compelling reason existed for compassionate release. This amounted to a judgment call a judgment call that falls within the wide compass of the district court‘s discretion. As we have said, “not every complex of health concerns is sufficient to warrant compassionate release . . . even in the midst of the COVID-19 pandemic.” Saccoccia, 10 F.4th at 5. Consequently, we leave intact the district court‘s reasonable determination that the defendant failed to proffer an
extraordinary and compelling medical reason for compassionate release.
B
We turn next to the defendant‘s claim that a putative sentencing error should tip the balance toward finding an extraordinary and compelling reason for compassionate release. This claim of error has its genesis in United States v. Almonte-Reyes, which was decided several years after the defendant‘s revocation sentence was imposed. There, we interpreted
The defendant posits that if the D.P.R. court had the benefit of Almonte-Reyes, it would not have run (and could not lawfully have run) the revocation sentence consecutive to the not-yet-imposed D.V.I. sentence. Building on this foundation, the defendant further posits that if the D.V.I. court had been writing on a clean slate unconstrained by the D.P.R. court‘s declaration that the revocation sentence was to run consecutively it would have imposed its sentence to run concurrently with the D.P.R. sentence. In that event, the defendant asserts, he already would have served both sentences in full.
It was comfortably within the district court‘s discretion to conclude that the putative sentencing error was
insufficient to warrant compassionate release. Though perhaps extraordinary, that putative sentencing error did not in the circumstances of this case afford a compelling reason to reduce the defendant‘s sentence.3
A close look at the defendant‘s situation leaves no doubt that his proffered reason cannot be classified as “compelling.” He has provided no evidence of any disparity between his aggregate sentence and the aggregate sentence that would have resulted had both sentences been imposed after Almonte-Reyes. He does no more than suggest that had his revocation sentence not been imposed in contravention of the rule later announced in Almonte-Reyes, he “may” have been eligible for release at an earlier date.
The defendant‘s suggestion is woven entirely from gossamer strands of speculation and surmise. He gave the court below no basis for concluding that, had the D.P.R. court not run the revocation sentence consecutive to the not-yet-imposed D.V.I.
sentence, the D.V.I. court would have proceeded to impose a fully concurrent sentence. The D.V.I. judgment did not mention the revocation sentence, and the default rule is that those sentences would run consecutively. See
So, too, the defendant failed to present any idiosyncratic circumstances sufficient to buttress his claim. The district court‘s appraisal of the sentencing factors suggests that it believed the sentence to be
sentencing considerations militating against compassionate release was unconvinced.4
The defendant counters that the putative Almonte-Reyes error is both extraordinary and compelling, asserting that it was a non-retroactive decision that could not have been the basis for any timely post-conviction challenge. In mounting this assertion, he draws on a handful of decisions in which courts have acknowledged that claims involving non-retroactive changes in law affecting sentencing exposure may constitute an extraordinary and compelling reason sufficient to justify compassionate release. See, e.g., United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1047-48 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271, 285-87 (4th Cir. 2020). Even if we accept, for argument‘s sake, the logic of the decisions that he embraces, those cases do not go so far as to hold that such a change in the law, without more, may comprise an extraordinary and compelling reason sufficient to warrant compassionate release. Rather, they suggest that the changed legal
landscape must be considered in view of a defendant‘s particular circumstances. See, e.g., Maumau, 993 F.3d at 838 (Tymkovich, J., concurring) (“[A] district court may consider the legislative change to the stacking provision only in the context of an individualized review of a movant‘s circumstances.“); McGee, 992 F.3d at 1048 (reasoning that the First Step Act‘s non-retroactive amendments might rise to the level of “extraordinary and compelling reasons” when considered in combination with “a defendant‘s unique circumstances“); McCoy, 981 F.3d at 285-87 (holding that the First Step Act‘s changes to section 924(c), in combination with the resulting “disparity,” may amount to “extraordinary and compelling” reasons). As we previously have stated, the circumstances the defendant presented were insufficient to make his claim compelling.
That ends this aspect of the matter. We hold that the district court did not abuse its discretion in rejecting the defendant‘s plea that the putative Almonte-Reyes error warranted a reduction of his sentence.
IV
We need go no further. The short of it is that our examination of the record reveals that the court below did not trespass or even closely approach the margins of its broad discretion in denying the defendant‘s compassionate-release
motion. For the reasons elucidated above, the judgment of the district court is
Affirmed.