United States of America v. Jose Manuel Avalos Banderas, also known as Jose Avalos, also known as Gallo
No. 21-1591
United States Court of Appeals For the Eighth Circuit
July 13, 2022
Submitted: January 10, 2022
Appeal from United States District Court for the District of Nebraska - Lincoln
Before COLLOTON, KELLY, and KOBES, Circuit Judges.
Jose Avalos Banderas appeals an order of the district court* denying his motion for a reduction in sentence under
In his motion for this so-called “compassionate release,” Avalos Banderas alleged that the COVID-19 pandemic constituted an extraordinary circumstance justifying a reduction in his sentence. The court initially directed the probation office to obtain Avalos Banderas‘s medical records and to prepare a recommendation on his motion. The probation office instead filed a letter recommending that the inmate‘s motion be denied because he will be deported when he is released from federal custody. Avalos Banderas objected to the suggested reliance on his expected deportation, and asked the court to follow up on its original direction to the probation office. He also stated that his plan if released was to live in Michoacán, Mexico, with a doctor who is also his medical provider. The court then
Avalos Banderas argues on appeal that the court improperly relied on the fact that he was subject to removal to Mexico. We reject this contention because it mischaracterizes the district court‘s order. Although the probation office cited the removal order as a reason to deny the motion, the court did not adopt that reasoning. Rather, the court explained that (1) Avalos Banderas “is no more safe in Mexico than he would be if he continued to be held” in the custody of the Bureau of Prisons, and (2) Avalos Banderas “is potentially a very dangerous person.”
These are permissible considerations under the statute. Avalos Banderas asserted that the COVID-19 pandemic was an extraordinary and compelling circumstance warranting a reduction in his sentence. In evaluating his claim, the court properly considered the relative health risks to the inmate if he remained in federal custody and if he were released. An inmate‘s reference to the pandemic calls for “an individualized inquiry, not a widespread release of inmates,” United States v. Marcussen, 15 F.4th 855, 858 (8th Cir. 2021), and the court did not abuse its discretion by considering whether compassionate release would reduce Avalos Banderas‘s risk of contracting COVID-19 or developing complications. That the inmate presented a potential danger to the public if released is also a permissible consideration. See
Avalos Banderas also contends that the district court abused its discretion by failing to consider relevant information. He argues that the court should have ordered the probation office to investigate
Avalos Banderas asserts that the district court mistakenly relied on concern that he would present a danger to the public if released, without considering evidence of his more recent good behavior. Avalos Banderas presented no prison records in support of his motion, although he did assert that he participated in recidivism reduction programming and “maintained excellent conduct” at his current facility. We presume that the court considered these asserted mitigating factors. United States v. Rodd, 966 F.3d 740, 748 (8th Cir. 2020). But it was also appropriate for the court to consider that Avalos Banderas had threatened three trial witnesses in his most recent prosecution, and that he was convicted earlier for offenses that involved “threatening to kill his girlfriend, holding her captive, and physically assaulting and strangling her.” United States v. Avalos Banderas, 858 F.3d 1147, 1150 (8th Cir. 2017). The court permissibly concluded that Avalos Banderas‘s previous violent conduct weighed against a reduction in sentence despite his assertion of good behavior while incarcerated.
The judgment of the district court is affirmed.
KELLY, Circuit Judge, dissenting.
Though the court recognizes that motions for compassionate release based on risks posed by the COVID-19 pandemic require an individualized inquiry, Marcussen, 15 F.4th at 858, it ignores the fact that no such inquiry was conducted below. The district court denied Avalos Banderas‘s motion for compassionate release because Avalos Banderas “is no more safe in Mexico than he would be if he continued to be held” by the Bureau of Prisons. But the district court considered no medical records, no information about how the prison was handling the pandemic, and no information about the pandemic risks Avalos Banderas would face in Mexico if he were released. And at least as to the medical records, it could not have done so because the probation office declined to provide Avalos Banderas‘s records as ordered by the district court.
The district court also stated in a footnote, “I previously found Mr. Banderas ‘is potentially a very dangerous person.’ I continue to have that same concern,” referencing a post-sentencing decision from 2016. But the court engaged in no analysis and offered no explanation as to why it continued to have this concern. And again, no such inquiry could have been conducted below because neither the court nor the parties had any information from the prison about Avalos Banderas‘s rehabilitation in the five years since the district court reduced his sentence pursuant to a retroactive change to the Guidelines.
A district court may not be required to develop the record in support of a motion for compassionate release, but it cannot draw unsupported conclusions in the absence of an adequate record. Unlike United States v. Rodd—where this court was
Moreover, the plain text of
On appeal, the government asserts the “district court properly weighed the risk of harm presented to the public by releasing Avalos Banderas against the risk of harm to Avalos Banderas if he contracted COVID-19 while incarcerated.” But that is not what the district court‘s order says. The order does not weigh any of the
I respectfully dissent.