United States v. Rivera-RodriguezUnited States v. Rivera-Rodriguez
Before Gelpi, Howard, and Thompson, Circuit Judges.
David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, were on brief for appellant.
Samuel Carrion, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Perez-Redondo, Assistant Federal Public Defender, and Kevin E. Lerman, Research & Writing Attorney, were on brief for appellee.
July 20, 2023
THOMPSON, Circuit Judge. Today‘s appeal confronts both the extraordinary and the, arguably, mundane. The government seeks reversal of two district court rulings, one granting appellee, Mario Rivera-Rodriguez (“Rivera“), compassionate release from incarceration, the other denying the government‘s subsequent request for reconsideration. We face the extraordinary as we contemplate whether the district court below was obligated to rescind the compassionate release it had granted to Rivera premised upon his heightened health risks associated with the COVID-19 virus (COVID) (in and of itself, an extraordinary remedy). And we face the mundane as we consider whether it was reasonable for the court to conclude, in the exercise of its considerable discretion, that although Rivera had in fact been vaccinated before his release, reconsideration of its initial judgment was not warranted here.
For reasons we get into below, we affirm. We begin by describing the events leading up to, and following, the district court‘s release grant before zooming out to provide broader context on compassionate release and the government‘s authority to
I. Background
A. Rivera‘s Crime & Sentencing
On August 6, 2009, Saro Diaz-Rosa lost his life at the hands of Rivera and another person (an unidentified “John Doe“). Rivera and an accomplice, arriving at a gas station in Rio Grande, Puerto Rico, spotted Diaz-Rosa standing at an air pump. After sizing him up and making the decision to steal his Ford Club Wagon, they proceeded to shoot at Diaz-Rosa multiple times, ultimately killing him. Hightailing the vehicle away from the station, Rivera and his compadre wound up abandoning it later in the day on Calle Yunquecito in Carolina.
While to this day his accomplice remains unidentified, Rivera surrendered and was arrested by authorities the following month. In October 2009, he was indicted for carjacking resulting in death in violation of
Eventually, Rivera accepted a plea agreement, under which he pled guilty to the carjacking count in exchange for the government‘s agreement to drop the firearms charge and recommend he serve a 240-month prison sentence.1 The agreement was reviewed by the court during Rivera‘s November 2011 sentencing hearing.2
Pursuant to its sentencing tasks, the court, after determining the applicable guideline sentencing range to be from 210 to 262 months, accepted the government‘s recommendation under the agreement -- imposing a term of 240 months of incarceration, followed by five years of supervised release.
B. COVID & Compassionate Release
Nearly nine years later, along comes COVID. On January 31, 2020, federal authorities declared the highly transmissible virus to be a public health emergency. See Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020). As the pandemic presented health risks to vulnerable communities throughout the globe, our public health authorities concluded that the risk of infection was particularly acute among those housed in densely occupied congregate settings such as prisons. See Centers for Disease Control and Prevention, Guidance on Management of COVID-19 in Homeless Service Sites and in Correctional and Detention Facilities (Mar. 23, 2020),
That October, represented by the public defender, Rivera, who his prison FCI Butner I (“Butner“) had classified as a chronic care inmate, identified himself as uniquely at risk of death or severe illness were he to contract COVID, due to his obesity, chronic hypertension, and pre-diabetes. Accordingly, he motioned the court for compassionate release under the First Step Act,
The government emphatically objected. In a written submission, it highlighted the measures taken by the BOP to minimize the risk of COVID transmission into and throughout its facilities. It further insisted that Rivera‘s medical conditions did not rise to the level of extraordinary and compelling circumstances required for release, and, even if they did, releasing him after only eleven years would be inappropriate given the severity of both his offense and his prior criminal history.4 Responding to the government‘s filing, Rivera presented a point-by-point rebuttal to the merits of each objection, and further urged that, against the backdrop of the serious risks presented by COVID in Butner (and given his significant steps towards rehabilitation),
Neither side requested a hearing, and on January 8, 2021, the court issued a ruling on the papers. In it, the court described Rivera as “a 48-year-old man suffering from obesity, hypertension, and potentially undiagnosed Type II Diabetes, conditions that increase his risk of severe illness from COVID-19.” The court also observed that nine individuals incarcerated at Butner had died due to COVID.5 It concluded that this number of deaths, alongside Rivera‘s medical conditions, qualified as extraordinary and compelling reasons justifying early release. The court further noted his impressive disciplinary record and rehabilitative efforts while incarcerated, as well as the fact that Rivera had “already served more than 11 years of his sentence, 57% of his statutory term (and 66% if you take into account his expected release date for good conduct . . .).”
In the order granting Rivera‘s motion, the court reduced Rivera‘s sentence to time served and modified his release conditions to impose home detention and electronic monitoring for the first three years of his five-year supervised release term. In so doing the court made clear that a modified sentence “would still reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.”
C. The Government‘s Appeal & Rivera‘s Release
Before the ink could dry on the district court‘s order, the government filed an immediate appeal, along with an emergency motion asking the district court to stay Rivera‘s release in the meantime. In its motion, the government emphasized the fact that doses of a COVID vaccine had already been delivered to Butner, and that Rivera would likely receive one relatively soon. The motion reiterated the severity of Rivera‘s crime and his risk of re-offending, and it urged the district court to stay Rivera‘s release until the First Circuit could have a chance to weigh in. In response, the district court issued a temporary stay of Rivera‘s release until January 12th and directed him to respond to the government‘s motion before that date, which he did on January 11th.
In his reply, Rivera opposed the government‘s stay request stressing the government had failed, for a couple of primary reasons, to meet its burden for obtaining such a stay. First, Rivera predicted the government was unlikely to succeed on the merits. Second, he maintained that given his numerous health infirmities, he would face irreparable harm if incarcerated while the government‘s appeal was pending. Conversely, said Rivera, the government would face no harm if he was kept in home confinement per the modified terms of his supervised release as such a condition provided adequate protection for the public. Continuing, he argued that denying the stay and allowing him to remain outside the prison benefitted the public interest because it maintained the normal course of appellate proceedings,6 which typically do not involve staying a lower court‘s decision
In a surprising turn of events, Rivera submitted two additional filings on January 11, 2021 (which turned out to be a very busy day for court filings). First, he filed an informative motion alerting the court that he had, in fact, already been released from prison as per the court‘s January 8th order and prior to the court temporarily staying that release. Second, he filed a motion requesting the district court lift the stay of his release and instead maintain the status quo, allowing him to remain outside Butner while the lower court contemplated a final ruling on whether to grant a permanent stay during the pendency of the government‘s appeal before this court.
D. The Government‘s Motion to Reconsider
Later, on January 11th, the district court was apprised of yet another twist: In an emergency motion for reconsideration filed by the government, it informed the court that unbeknownst to the court, the government, and even defense counsel, Rivera had already been vaccinated prior to his release. Rivera, the government had just learned, received his first dose of the Pfizer-BioNTech COVID vaccine on December 19, 2020 (some nineteen days prior to the court‘s January 8th order granting his compassionate release) and a second dose on January 5, 2021 (three days before the release order was issued and implemented).
Rivera promptly filed an objection to the reconsideration request. According to defense counsel, although he had not been personally aware of Rivera‘s vaccination status, in his view Rivera‘s numerous health risks still counseled in favor of denying the government‘s motion. Hours after receiving the filings, the court issued a line order denying the reconsideration motion. Given the pendency of the government‘s appeal, the court determined it lacked jurisdiction over the government‘s motion. The next day, rather than proceed with its appeal or seek an indicative ruling on its reconsideration request pursuant to
Two days later, on January 14, 2021, the government filed a renewed motion to reconsider, once again asking the court to vacate its compassionate release order.8 In general, the government cited newly discovered evidence, and presented fresh legal arguments as reasons for the court to
In further support of its arguments, the government submitted additional reasons for the court to change its mind -- describing certain pivotal updates postdating Rivera‘s release from incarceration, all of which, the government submitted, undermined the justifications for his release. According to the motion, given that Rivera had relocated to a housing project in Carolina, a municipality in Puerto Rico that was experiencing higher rates of COVID transmission than Butner at the time, it was evident that Rivera had overstated his concerns about COVID. Based on Carolina‘s transmission rates, the government further suggested that Rivera would, in fact, be safer if returned to Butner. In a similar vein, the government claimed that Rivera‘s health conditions were less significant than the court had determined, describing communications between him and his probation officer wherein Rivera stated that his health conditions, because of the various medications he was taking, were “under control” and that he did not need to rush to get health insurance following his release. Given these turns of events, coupled with Rivera‘s updated vaccination status, the government argued that none of his health risks were sufficiently extraordinary
Rivera fired back. As relevant here, touching briefly upon the court‘s jurisdiction to entertain the government‘s motion, Rivera, in a footnote, stated that he would “assume without conceding” that the government‘s motion was appropriate in this case, even though, in his estimation, “it [might] be argued that the government is seeking reconsideration within the sentencing context” and therefore proceeding inappropriately. See United States v. Tanco-Pizarro, 892 F.3d 472, 477 n.1 (1st Cir. 2018) (“[T]here is simply no such thing as a ‘motion to reconsider’ an otherwise final sentence.” (quoting United States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014))). Also of import, Rivera observed that all of the government‘s arguments, except the one concerning his vaccination status, had already been raised or could have been raised in opposition to his compassionate release motion. In a footnote centering a portion of the government‘s argument (more on this to come), he remarked that “[t]echnically, [he] could argue that . . . [the vaccination] evidence does not qualify as newly discovered evidence because the government could have learned of it in the exercise of due diligence.” However, he characterized that argument as hyper-technical and stated that, assuming his vaccination status would qualify as newly discovered evidence for the purposes of reconsideration, it was still insufficient for altering the court‘s prior decision. As he saw it, based on the available science at the time, the vaccination in and of itself did not sufficiently obviate the risks he confronted while incarcerated. For support, he pointed to the less than 100% efficacy rate of the shots, the possibility of contracting the virus after being inoculated but before full immunity had been developed, and the ambiguity surrounding how long any immunity provided by the vaccine might last.
To distill the bulk of his arguments: Rivera contended his medical conditions were sufficiently severe, his rehabilitation record was sufficiently impressive, and -- given the constantly changing nature of COVID rates at Butner, along with the prison‘s demonstrated inability to keep those in its custody safe -- his circumstances were, in fact, sufficiently extraordinary and compelling for the court to sustain its compassionate release order. Disputing the government‘s argument to the contrary, he insisted that “[i]n prison, living in close quarters with hundreds of other inmates and coming in contact with staff that comes and goes from the prison, is [] not, as the government suggests, a situation where he [would be] better off.”
In response to Rivera‘s objection, the government did not address Rivera‘s legal assertions raising the possibility that the motion to reconsider might be barred because it effectively arose from a “sentence.” Nor did it address Rivera‘s contention that the vaccination evidence might not actually constitute newly discovered evidence for the purposes of reconsideration. Instead, the government drilled down on its insistence that the vaccine had eliminated the primary reason for Rivera‘s early release, thereby necessitating reversal of the compassionate release order. In doing so, it urged the court to reconsider its order given that the vaccination had occurred while his compassionate release motion was pending. The government did not attempt to explain the relevance of the timing of Rivera‘s vaccination relative to the government‘s legal arguments to the court.
About two weeks after this legal sparring ceased, the government, on February 2, 2021, filed a notice with the court seeking a prompt ruling on its reconsideration
In a short order the court chiefly relied on due diligence grounds as its basis for denying relief. Specifically, the court found that “had the parties exercised due diligence, the evidence regarding [Rivera‘s] vaccination could have been presented earlier.” Similarly disposing of the government‘s other arguments on reconsideration, the court noted that arguments “regarding the number and timing of [COVID] deaths at [Butner], the nature and risks posed by [Rivera‘s] medical conditions, the reduced risks posed by [his] medical conditions being under control, and [his] rehabilitation record could have been presented” before the court entered its order granting compassionate release.
Dissatisfied, the government filed a timely notice of appeal challenging the district court‘s orders granting Rivera‘s compassionate release motion and denying the government‘s request for reconsideration. And here we are.
II. Jurisdiction
Before we can reach the merits of the government‘s arguments, we must first tackle the jurisdictional hiccups that Rivera identifies in his brief. After all, “[f]ederal courts, as courts of limited jurisdiction, may not presume the existence of subject matter jurisdiction, but, rather, must appraise their own authority to hear and determine particular cases.” Watchtower Bible & Tract Soc. of New York, Inc. v. Colombani, 712 F.3d 6, 10 (1st Cir. 2013) (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 712 (1st Cir. 1998)).
Rivera mounts a two-pronged jurisdictional attack. He first contends that our court lacks jurisdiction over any district court decision granting compassionate release. Next, he takes aim at the government‘s reconsideration motion, arguing that the district court lacked jurisdiction to take it up in the first instance and that we, in turn, lack any authority to consider it further. We take up Rivera‘s first jurisdictional challenge and then move on to the next.10
A. Government Appeals from Compassionate Release
As our rules require,11 the government, in its opening brief, asserts a jurisdictional hook which it contends authorizes this
Rivera: Notwithstanding what the government claims, it has no right to appeal an adverse ruling granting compassionate release as such appeals may not be brought under either of the limited statutory pathways, cited by the government, that might otherwise authorize a government‘s criminal appeal. It follows, so the argument goes, that if the government has no right to appeal then this court lacks the authority to entertain such an appeal.
From our deep dive into this jurisdictional protestation it appears we are the first circuit court to have to confront this question directly; while, to our knowledge, none of our sister circuits have denied their jurisdiction to entertain a government compassionate release appeal, those that have resolved such appeals have seemingly done so without facing a targeted jurisdictional challenge and consequently, without the need to wax loquaciously about the source of their authority to review such a decision adverse to the government.14
Because Rivera squarely raised this jurisdictional issue, we now consider his challenge. First, some fundamentals: “It is common ground that ‘appeals by the Government in criminal cases are something unusual, exceptional, not favored.‘” United States v. Watson, 386 F.3d 304, 307 (1st Cir. 2004) (quoting Carroll v. United States, 354 U.S. 394, 400 (1957)). Accordingly, “[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right.” United States v. Kane, 646 F.2d 4, 5 (1st Cir. 1981).
With those general principles in the backdrop, Rivera‘s argument goes like this. First, he says his compassionate release order ought to be understood as a sentencing order, and therefore face the same appealability constraints applied to other sentences. Under this paradigm, grounds for the government to appeal a sentencing decision are generally limited to those enumerated in
Continuing, Rivera maintains that with
We begin by observing that in United States v. Trenkler, we considered another government appeal from an order granting compassionate release, thus exercising our jurisdiction over the matter. 47 F.4th 42 (1st Cir. 2022) (vacating and remanding an order granting compassionate release). There, the government, without challenge to the appellate court‘s jurisdictional underpinning, cited
As an initial matter and as the government‘s brief points out, Rivera‘s jurisdictional arguments misinterpret the nature of compassionate release. What they incorrectly take for granted is the notion that his “sentence-reduction order” (as he describes it) should be treated like a traditional sentencing order. Yet quite the opposite is true -- our analogous precedent has repeatedly distinguished the two and instead concluded that a sentence reduction order is in fact “a horse of a different hue.” United States v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993).
In United States v. McAndrews, we considered this question (original sentencing
We disagreed, instead concluding that the attempted analogy was “unpersuasive in connection with appellate jurisdiction,” given that “an order resolving a Rule 35(b) motion . . . is not, properly speaking, a sentence.” Id. at 277-78. First, we observed that “[b]y definition, a sentence must already have been imposed before Rule 35(b) can be invoked and a sentence reduction contemplated.” Id. at 277. From there, we reasoned that “[c]ast in this mold,” appealability “accords with the general principle, taken for granted in both our criminal and civil jurisprudence, that rulings disposing of motions which seek to alter preexisting judgments are appealable.” Id.
Rivera‘s jurisdictional challenge does not raise, nor do we discern, any reason why his compassionate release order breaks this mold. Like sentence reductions requested under Rule 35(b), compassionate release motions, by definition, may only be brought after a sentence has been imposed on the movant. See
Such reasoning satisfies us that Rivera‘s compassionate release order does not amount to a sentence,17 and accordingly, we follow the lead of McAndrews and conclude that compassionate release appealability, “like appealability with respect to the disposition of virtually all other post-judgment motions, is governed by
Concluding that we have jurisdiction over the government‘s compassionate release
B. The District Court‘s Reconsideration Decision
Like Rivera‘s other jurisdictional arguments, his challenge to the district court‘s authority to reconsider its compassionate release decision assumes that the order amounts to a sentence. Following this reasoning, the government‘s motion would likely have been barred because, under this court‘s precedent, “[t]here is simply no such thing as a ‘motion to reconsider’ an otherwise final sentence.” Tanco-Pizarro, 892 F.3d at 477 n.1 (quoting Ortiz, 741 F.3d at 292 n.2). But given our analysis above, which distinguishes compassionate release and other sentence reduction orders from sentencing orders, this is clearly a nonstarter.
We agree with Rivera --
We also reject Rivera‘s suggestion that we lack jurisdiction over the government‘s
With our jurisdiction to review the government‘s appeal under
III. Motions for Compassionate Release
Before assessing the merits of the government‘s contentions, we detour briefly to provide an overview of compassionate release and the statutory framework that governs it.
Successful movants for compassionate release under this section must
If a court determines that a movant meets the statute‘s requirements, it may order their release from prison. In place of the unserved portion of the defendant‘s sentence, the court may also impose a term of supervised release or probation.
Here, the court concluded that Rivera met the conditions for compassionate release and reduced his prison term to time served while imposing additional supervised release conditions (home detention and electronic monitoring for the first three years of his five-year term). On appeal, the government sees multiple problems with these determinations, as well as
IV. Our Take
Given the procedural posture of this case, we deem it prudent to begin our discussion with the government‘s challenges to the court‘s order denying reconsideration because, were we to agree with the government that the district court somehow faltered in denying the government‘s motion (we don‘t), our analysis would likely end there, and we would remand the case back to the district court for further consideration.
A. The Government‘s Reconsideration Denial
To recap for clarity, Rivera‘s compassionate release motion required him to demonstrate that he presented extraordinary and compelling reasons justifying a sentence reduction and that the reduction was warranted even after considering the
We begin by stating an uncontroversial principle: Once a court has issued a ruling based upon the facts and arguments presented by the litigants, it becomes final. See United States v. Metro. Dist. Comm‘n, 847 F.2d 12, 14 (1st Cir. 1988) (“The general rule is that a judgment becomes final . . . when the court enters a decision resolving the contested matter, leaving nothing to be done except execution of the judgment.“). Accordingly, motions for reconsideration are granted sparingly, and we pay high deference to a court‘s refusal to disturb a prior final judgment by granting one. See Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 37 (1st Cir. 2013) (“Finality is an important element in the judicial process, and setting aside a final judgment requires more than the frenzied brandishing of a cardboard sword. Such a motion must satisfy a special set of criteria; it is not enough merely to cast doubt on the soundness of the underlying judgment.“). Therefore, we review the court‘s denial of the government‘s motion for abuse of discretion. Guadalupe-Báez v. Pesquera, 819 F.3d 509, 518 (1st Cir. 2016). Historically, we have found as much “only when ‘the original judgment evidenced a manifest error of law, if there [was] newly discovered evidence, or in certain other narrow situations.‘” Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (quoting Global Naps, Inc. v. Verizon New England, Inc., 489 F.3d 13, 25 (1st Cir. 2007)).
As an asterisk to this list, we have noted that a court may refuse reconsideration requests “based on the ‘new evidence’ exception if that evidence ‘in the exercise of due diligence could have been presented earlier.‘” United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (quoting Emmanuel v. Int‘l Bhd. of Teamsters, Local Union No. 25, 426 F.3d 416, 422 (1st Cir. 2005)). Because arguments stemming from such evidence could have been raised before the court issued its underlying judgment, they may not be raised for the first time on reconsideration. See Morán Vega v. Cruz-Burgos, 537 F.3d 14, 18 n.2 (1st Cir. 2008) (“A district court is entitled to disregard arguments made in a [motion for reconsideration] that ‘could, and should,
On appeal, the thrust of the government‘s reconsideration grievances boils down to two particular types of alleged error: the failure of the district court to consider new evidence and its failure to accept and appreciate new arguments that it characterizes as identifying “manifest errors” in the district court‘s release decision. We take each in turn.
1. Newly Discovered Evidence
Rivera‘s Vaccination Status
On appeal, the government argues that the court abused its discretion when it concluded that, had due diligence been exercised, evidence of Rivera‘s vaccination could have been presented before Rivera‘s compassionate release was granted. The government says this was prejudicial error because Rivera, himself, had declined to make this particular argument. As the government sees it, Rivera took this line of reasoning off the table when, as we previously mentioned, he opted, in his opposition to reconsideration, to “assume for the sake of argument this [vaccination] evidence is newly discovered within the meaning of the standard for motions for reconsideration[.]”25 As the government‘s reasoning goes, the district court, by still finding that the evidence did not fall within this meaning, inappropriately “resurrected” an issue Rivera had otherwise waived. In doing so, the court prejudiced the government -- which had been led to believe there was “little reason” to make its due diligence case.
“[D]ue diligence is a context-specific concept” that requires a movant to “exercise a degree of diligence commensurate with that which a reasonably prudent person would exercise in the conduct of important affairs.” United States v. Maldonado-Rivera, 489 F.3d 60, 69 (1st Cir. 2007). “Where timeliness hinges on the presence or absence of due diligence . . . it raises ‘a normative question of how much diligence should be expected of a reasonable lay person.‘” Meléndez Colón v. Rosado Sánchez, 995 F.3d 262, 267 (1st Cir. 2021) (quoting Villarini-Garcia v. Hosp. Del Maestro, Inc., 8 F.3d 81, 84 (1st Cir. 1993)). Accordingly, we understand due diligence to be a “mixed” question of fact and law, because its resolution “necessitate[s] combining factfinding with an elucidation of the applicable law.” In re Extradition of Howard, 996 F.2d 1320, 1328 (1st Cir. 1993). We review such mixed questions on a “degree-of-deference continuum,” wherein “the more fact-dominated the question, the more likely it is that the trier‘s resolution of it will be accepted unless shown to be clearly erroneous.” Id.
However, we need not pinpoint what precise standard to apply to the district court‘s reasoning here because, after considering the government‘s argument, we conclude it suffers from a fundamental flaw.26 It made no attempt whatsoever to
In order to secure reconsideration, as we noted, a “movant must demonstrate either that newly discovered evidence (not previously available) has come to light or that the rendering court committed a manifest error of law.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). Here, the government‘s burden was to convince the court that Rivera‘s vaccination status, which it contends had just come to light, constituted such evidence. Our precedent has repeatedly clarified the scope of this burden, cautioning that “a party who seeks relief from a judgment based on newly discovered evidence must, at the very least, offer a convincing explanation as to why he could not have proffered the crucial evidence at an earlier stage of the proceedings.” Karak v. Bursaw Oil Corp., 288 F.3d 15, 19-20 (1st Cir. 2002); see also Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir. 1986) (“It is difficult to see how the district court abused its discretion [in denying a motion to reconsider] when [the movant] offered no explanation for the lateness of the [new] affidavits.“). Thus, the government, as the reconsideration movant, bore the burden of demonstrating in its initial reconsideration filing the existence of newly discovered evidence and, as crucial here, why that evidence, if alleged to be newly discovered, could not have been discovered earlier in the exercise of due diligence. Despite this burden, the government‘s reconsideration motion made no effort to explain why Rivera‘s vaccination status could not have been presented earlier. It raised no argument at all that due diligence had been exercised and provided no reason for the delay in discovering this information. Instead, even before Rivera filed an objection making mention of what the government took for granted, the government‘s reconsideration motion disregarded its burden and proceeded on the assumption that the vaccination evidence qualified as newly discovered.
Therefore, we cannot and do not fault the court for concluding, in the absence of a proffer from the government to the contrary in its filings, that the evidence could have been presented earlier. And Rivera‘s failure to provide substantive arguments on this issue when he opposed reconsideration did not waive the government‘s burden of proof, nor foreclose the court‘s ability to scrutinize whether, in its view, it had been met.27 In fact, Rivera‘s opposition directly contended (but declined to fully argue) that the burden had not been met, and that due diligence would have yielded this evidence earlier. Accordingly,
assertions, which lack legal support within our case law, the district court was not required to overlook the government‘s omission and view the government‘s moving papers as still compliant with its dual burdens to first produce and then persuade. Any blame for the government‘s failure to make its case below lies with it, not with Rivera or with the court.
Therefore, we see no error, nor prejudice, in the court‘s due diligence finding. Moreover, we will not consider due diligence arguments the government now raises for the first time on appeal.29
See Carrozza v. CVS Pharmacy, Inc., 992 F.3d 44, 59 (1st Cir. 2021) (“[A]ppellants cannot raise an argument on appeal that was not ‘squarely and timely raised in the trial court.‘“) (quoting Thomas v. Rhode Island, 542 F.3d 944, 949 (1st Cir. 2008)). diligence when it ruled. Broadly, the principle refers to the fact that, in litigation, “we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). The government reasons that the court overstepped its role here, and therefore violated the principle, by ruling on due diligence grounds that Rivera had “deliberately waived.”
However, the court‘s actions below are entirely distinct from those held to be violations of the principle by the Supreme Court. In those cases, unlike here, the offending courts had sua sponte raised, and ruled on, issues that neither party had mentioned. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) (rejecting a court‘s decision to order amicus briefs on, and ultimately rule based on, a constitutional legal theory that was not part of the appellant‘s arguments below nor in the district court); Wood v. Milyard, 566 U.S. 463 (2012) (reversing a court‘s decision to dismiss a habeas petition on statute of limitations grounds after the court sua sponte raised the issue and the government still expressly declined to argue the affirmative defense); Greenlaw, 554 U.S. at 255 (vacating court of appeals decision to sua sponte order a sentence increase in response to a defendant‘s unsuccessful appeal, in the absence of a cross-appeal by the government). We are satisfied that this distinction provides at least one basis for concluding that the principle was not violated here.
Rivera‘s Post-Release Actions
Independent of its first argument, the government also challenges the district court‘s treatment of two additional pieces of “newly discovered evidence” -- gamechangers from the government‘s perspective -- introduced in its reconsideration motion, both of which post-date the district court‘s January 8th order and thus could not have been raised earlier. As noted previously, each evidentiary offering concerned occurrences following Rivera‘s release from Butner. To remind, the first was Rivera‘s conversation with his probation officer during which he shared that he had not had any health issues recently, his
The district court did not expressly address either of these proffers when it denied the government‘s motion. Rather, it cited its broad authority to disregard new evidence that could have been discovered in the exercise of due diligence, and, nodding to Rivera‘s health-related disclosures, held, as crucial here, that the government‘s specific arguments regarding “the reduced risks posed by [Rivera‘s] medical conditions being under control” could have been presented prior to the court‘s compassionate release decision. The government says this was error, as no amount of due diligence could have led it to anticipate Rivera‘s post-release statements and behavior. According to the government, Rivera‘s relocation to Puerto Rico defied his stated plan to reside in the continental U.S. after his release (which the government seems to assume had lower transmission rates, like Butner did at the time), and his prison medical records provided alongside his compassionate release motion made no indication that his health conditions were under control.
In our view, the government‘s grievances misunderstand the district court‘s holding. As we interpret the court‘s decision it is apparent it had concluded that, regardless of Rivera‘s post-release representations and actions, the government, at the time it objected to Rivera‘s compassionate release motion, had ample information at its disposal about Rivera‘s health and conditions at Butner to make an informed and rational argument about why compassionate release was unwarranted. From the court‘s perspective, it did not do so. And while the government makes much of Rivera‘s medical musings to his probation officer to suggest otherwise, this argument ignores the reality that the government was at liberty to independently access and, as importantly, assess Rivera‘s medical records when it opposed Rivera‘s compassionate release in the first instance, particularly when Rivera‘s health status and COVID‘s impact on the same was squarely before the court. Because motions for reconsideration do not “permit a party to advance arguments it should have developed prior to judgment,” Biltcliffe, 772 F.3d at 930, we fail to see how the court, even if it considered this evidence, abused its discretion in discounting the evidence and the arguments that flow from it. As for Rivera‘s post-release relocation to Carolina, we simply infer that even if the court was willing to give some consideration to this new circumstance it was unmoved by it and concluded that it was insufficient to alter its compassionate release calculus. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 35 (1st Cir. 2007) (affirming denial of reconsideration where newly raised evidence, even if considered, “would not have affected the bottom-line result“). We see no abuse of discretion.
2. Newly Raised Arguments
Up next, the government challenges the district court‘s refusal to consider its reconsideration arguments taking aim at what, in its view, were “manifest errors” of law (distinct from errors arising from evidentiary concerns) committed by the court when it granted Rivera compassionate release.
On appeal, the government argues that the court‘s conclusion was an abuse of discretion. In its reconsideration motion, and now on appeal, the government claims that its arguments concerning Butner‘s safety and Rivera‘s health conditions were raised not to shift arguments, but instead to correct manifest errors in the district court‘s compassionate release decision. For instance, the government charges that the district court, in granting Rivera‘s motion for compassionate release, “had misunderstood the significance of the number of inmates in Rivera‘s prison who had died from COVID-19” and had clearly erred when it found that Rivera‘s conditions increased his risk of severe illness from the virus. Pushing back on the court‘s conclusion that its arguments should have been raised before the court had issued its compassionate release order, the government notes that “[a] litigant cannot point out an error until it occurs.”
In its ruling the court, acknowledging its authority to “disregard arguments made in a [motion for reconsideration] that ‘could, and should, have been made before judgment issued,‘” summarily refused to consider what it deemed to be newly raised legal challenges. See Morán Vega, 537 F.3d at 18 n.2 (quoting ACA Fin. Guar. Corp., 512 F.3d at 55). It did so after reasoning that the government‘s arguments -- “regarding the number and timing of COVID-19 deaths at [Rivera‘s] institution, the nature and risks posed by [Rivera‘s] medical conditions, [and] the reduced risks posed by [Rivera‘s] medical conditions being under control” -- could have been presented before Rivera‘s release was ordered.
As we consider the government‘s contentions we note that while it may be true that “a litigant cannot point out an error until it occurs,” the government‘s reconsideration arguments go far beyond pointing out error by the court. Rather, they raise a new set of arguments -- entirely distinct from those made by the government in its opposition to Rivera‘s compassionate release motion -- that present new grounds as to why it believes Rivera‘s release was not warranted. We conclude as much after reviewing the government‘s opposition to Rivera‘s compassionate release request alongside its subsequent motion to reconsider. Between the two filings, the government‘s take on the COVID conditions at Butner and its arguments concerning Rivera‘s health conditions transformed markedly. Even though Rivera‘s compassionate release motion presented reasons why he believed the poor pandemic conditions at Butner, specifically, helped make his case for release, the government‘s opposition was unresponsive to these points. Instead and at most, it emphasized the broader COVID mitigation measures taken throughout the BOP and argued that Rivera had not shown that his facility (which the government, naming a different federal prison, misidentified) was “unequipped to provide appropriate medical treatment if he were to become sick.” And it further argued that Rivera‘s health conditions were insufficient for compassionate release because they failed to meet the definition of “extraordinary and compelling reasons” presented by the U.S. Sentencing Commission in its policy statement associated with U.S. Sentencing Guideline § 1B1.13.30
The government had ample opportunity to speak to the pandemic conditions at Butner, as well as the purportedly minor nature of Rivera‘s health conditions and their relationship to COVID, prior to the court‘s issuance of its release decision. Having opted to eschew these potential arguments in favor of other ones when it opposed Rivera‘s release in the first instance, the government may not deploy them for the first time on reconsideration. See Iverson v. City of Bos., 452 F.3d 94, 104 (1st Cir. 2006) (“The presentation of a previously unpled and undeveloped argument in a motion for reconsideration neither cures the original omission nor preserves the argument as a matter of right for appellate review.“). We cannot conclude that the government was at liberty to raise these substantively new arguments on reconsideration under the banner of correcting “manifest errors” by the court. See Biltcliffe, 772 F.3d at 930 (“A motion for reconsideration is not the venue to undo procedural snafus or permit a party to advance arguments it should have developed prior to judgment.“). Accordingly, we see no abuse of discretion and affirm the district court‘s denial of the government‘s motion for reconsideration.
B. Rivera‘s Compassionate Release
We turn now to the district court‘s compassionate release decision without regarding the government‘s supplemental proffer, and confine our review to the arguments and evidence before the court at the time it granted Rivera‘s compassionate release motion. In its ruling, the court granted compassionate release after concluding that “[t]he number of COVID-19 deaths at [Rivera‘s] facility, along with [his] medical conditions, qualify as extraordinary and compelling reasons justifying a sentence reduction.” Noting Rivera‘s rehabilitation record and the amount of his sentence that
In its appeal, the government challenges the court‘s holdings and urges us to reverse the court‘s grant. Given the discretionary nature of compassionate release, we apply an abuse of discretion standard as we review the court‘s findings as to Rivera‘s extraordinary and compelling reasons for compassionate release and whether the
1. Extraordinary and Compelling Reasons
The government maintains that Rivera has failed to demonstrate extraordinary and compelling reasons sufficient for compassionate release, and claims that the court committed clear error when it concluded otherwise. The burden here is high, as “[o]n clear error review, we will ‘not . . . upset findings of fact or conclusions drawn therefrom unless, on the whole of the record, we form a strong, unyielding belief that a mistake has been made.‘” United States v. Padilla-Galarza, 990 F.3d 60, 73 (1st Cir. 2021) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)).
Before us, the government raises challenges to each aspect of the court‘s reasoning on its compassionate release decision. First, it argues that the court overstated the dangers at Butner -- claiming that it was error to act “upon Rivera‘s rhetoric about his prison‘s COVID-19 infection rate instead of actual evidence of its exceptionally low COVID-19 infection rate.” Next, the government suggests that Rivera‘s health conditions, even assuming he was unvaccinated, did not pose a sufficient risk to warrant release. Specifically, the government contends that Rivera‘s obesity was too recent and too moderate to favor release, and that hypertension and pre-diabetes do not raise health risks associated with COVID to the degree necessary for release. Finally, understanding the court to have overly relied on Rivera‘s rehabilitation as another extraordinary and compelling reason to release him, the government argues that the court overstated his progress when it highlighted the accomplishments in his record.31
While the government might still have requested, at least in the alternative, that we consider these arguments in search of plain error below, it did not. See United States v. Jimenez, 512 F.3d 1, 3 (1st Cir. 2007) (“Because the appellant raises the issue . . . for the first time on appeal, our review is for plain error.“). The government waived any arguments it might have in this regard “by failing to address the governing standard of plain error review in [its] opening brief.” United States v. Espinoza-Roque, 26 F.4th 32, 36 (1st Cir. 2022). See also United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016) (“At most, we review the remainder of [Appellant‘s] challenges for plain error. [Appellant] has waived these challenges because he has not even attempted to meet his four-part burden for forfeited claims . . . .“). In the absence of any additional arguments challenging the court‘s determination that extraordinary and compelling reasons warranted Rivera‘s release, we observe no abuse of discretion on this finding.
2. The Sentencing Factors
Finally, we examine the district court‘s conclusion challenged by the government that Rivera‘s release was appropriate in light of the
But let us pause to rehearse what is axiomatic. “Decisions [that involve weighing the
In arguing that the court abused its discretion here the government points to the seriousness of Rivera‘s offense, and claims that the court failed to justify the disparity between Rivera‘s applicable guideline sentencing range, 210 to 262 months, and the amount of time he actually spent in prison, 135.5 months. In support, the government cites United States v. Crespo-Ríos, where we reasoned that while “[t]here is no dispute that a district court can vary, even dramatically, from a guideline sentencing range based on the factors enumerated in
We do not find the court‘s explanation of its
In our view, the court‘s reasoning here stands in contrast to the insufficient explanation provided by the sentencing court in Crespo-Ríos, which we found deficient because “the district court focused exclusively on the defendant‘s potential for rehabilitation and low risk of recidivism” and “did not explain how it had weighed the other factors laid out in[Rivera] has already served more than 11 years of his sentence, 57% of his statutory term (and 66% if you take into account his expected release date for good conduct in October 2026). As such, a modified sentence would still reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.
Conversely, the district court here made clear its belief that, even when considering the seriousness of Rivera‘s offense, Rivera‘s rehabilitation record and the fact that he had already served a slight majority of his sentence amply justified his functional variance. See United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (noting that an appellate court “must assay the record as a whole to gauge the sentencing judge‘s thought process“). We also credit the fact that the court expressly identified its consideration of the factors the government argues were ignored; “the court below may not have waxed longiloquent but ‘brevity is not to be confused with inattention.‘” United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014) (quoting United States v. Turbides-Leonardo, 468 F.3d 34, 42 (1st Cir. 2006)). All in all, we consider the court‘s explanation for its sentence reduction plausible.
But was the court‘s reduction here likewise defensible -- that is, reasonable? As we have routinely observed, “reasonableness is a protean concept, not an absolute. We think it follows that there is not a single reasonable sentence but, rather, a range of reasonable sentences. Consequently, reversal will result if-and only if-the sentencing court‘s ultimate determination falls outside the expansive boundaries of that universe.” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (internal citation omitted). Accordingly,
The government argues that the court‘s reduction here was unreasonable given the “seriousness of [Rivera‘s] offense,” and therefore failed “to promote respect for the law” and “provide just punishment for [his] offense.” See
In its order the court discussed the amount of time Rivera had already served, and modified his supervised release term to include three years of home confinement and electronic monitoring.33 The court also gave a nod to Rivera‘s rehabilitation record, which his compassionate release motion had argued satisfied the objectives of deterrence and protection of the public, other
As we understand it, the court, after weighing the
V. Conclusion
For the foregoing reasons, we affirm the district court‘s grant of Rivera‘s motion for compassionate release and denial of the government‘s subsequent motion to reconsider.34
Notes
Technically, we could argue that since Mr. Rivera received the second shot three days before the Court‘s release order, this evidence does not qualify as newly discovered evidence because the government could have learned of it in the exercise of due diligence. But we are not going to be hyper-technical because the fact is that even the undersigned attorney was not aware that Mr. Rivera had been vaccinated. Thus, we will assume for the sake of argument that this evidence is newly discovered within the meaning of the standard for motions for reconsideration, but insist that it is insufficient to alter the outcome.
While we read the court‘s order to be presenting this rehabilitation record in support of the requisite[Rivera‘s] record while serving his sentence suggests he has made great progress towards rehabilitation: (1) only one minor disciplinary infraction that occurred almost 10 years ago for being unsanitary and untidy; (2) has devoted a significant amount of time on educational and personal development programming (800 hours of English as a second language, 180-hour vocational program for custodial maintenance, drug abuse education, non-residential drug abuse program, and several other classes[]); and (3) [Rivera] has worked at the UNICOR Optics factory at the FCI Butner complex and as an orderly, and received positive letters of recommendation from his supervisors.