Petition for Writ of Certiorari — Roman Enrique Delgado-Montoya, Petitioner v. United States

Supreme Court briefJan 20, 2022

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Appendix A

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

CR No. 15-125 KG

ROMAN ENRIQUE DELGADO-MONTOYA,

Defendant.

MEMORANDUM OPINON AND ORDER

This matter comes before the Court on Defendant’s Motion for Compassionate Release,

filed May 26, 2020. (Doc. 125). On June 8, 2020, counsel was appointed for Defendant. (Doc.

126). On July 9, 2020, Defendant’s counsel filed a brief in support of Defendant’s Motion for

Compassionate Release. (Doc. 127). Defendant’s counsel explains that Defendant seeks

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) because the COVID-19 pandemic

poses an unreasonable risk of harm in federal prison. Pursuant to the Court’s Order, (Doc. 128),

on August 7, 2020, the Government filed a response to the Motion, (Doc. 132). On August 13,

2020, Defendant’s counsel filed a reply to the Motion. (Doc. 134). Additionally, on August 20,

2020, the Government filed a Motion for Leave to File Surreply, (Doc. 135), and Defendant filed

a response in opposition, (Doc. 136). Having carefully reviewed the record and applicable law,

the Court grants the Motion to File Surreply, (Doc. 135), and denies the Motion for

Compassionate Release, (Doc. 126).

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Background

On May 22, 2015, Defendant pled guilty to Reentry of a Removed Alien, in violation of 8

U.S.C. § 1326(a) and (b). (Doc. 80). On October 27, 2015, the Court sentenced Defendant to

120 months imprisonment, followed by three years of unsupervised release. (Doc. 91).

Defendant received a 16-level enhancement to his offense level based of a prior arson

conviction. (Doc. 90); (Doc. 127) at 16 (arson of Defendant’s ex-wife’s dry cleaning building).

Defendant is incarcerated at Reeves County Detention Center (Reeves) and is eligible for release

on December 6, 2022. See https://www.bop.gov/inmateloc/ (site last visited August 18, 2020).

Defendant now seeks a reduction in his sentence because he is almost 59 years old and

suffers from high cholesterol, so he argues he is at high risk of contracting COVID-19. (Doc.

127) at 1-2. Defendant states he made two requests for compassionate release to his warden in

June, but he has not received a response. (Doc. 127) at 3; (Docs. 127-4, 127-5).1 In support of

his Motion, Defendant states he is physiologically 10 to 15 years older than his chronological

age. Id. at 13; (Doc. 127-1) at 6 (affidavit of Brie William, M.D., stating “[P]risoners’

physiological age averages 10 to 15years older than their chronological age.”) (citations

omitted). Defendant also argues that Reeves “has a notorious history of providing seriously

deficient medical care to inmates” and the living conditions there provide additional risk to his

health. (Doc. 127) at 2, 13-16. In an attached declaration, Defendant states he is unable to

socially distance in the pod where he is housed with 49 other people, the showers are dirty, and

he and the other occupants of the pod received only a single bottle of hand sanitizer months ago.

Defendant explains he is not eligible for release to home confinement because he will be

removed to Mexico at the conclusion of his incarceration. (Doc. 134) at 3.

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 3 of 9

Id. at 15; (Doc. 127-6). He further states he has received only one mask, he receives a single

small bar of soap every other week, there is no testing or checking for fever, and he has only

limited access to fresh air. Id.

Defendant also argues the relevant Section 3553(a) sentencing factors warrant a reduction

in sentence because he was convicted of a nonviolent offense, his previous arson offense has

since been vacated, and he has served more than 75% of his sentence. (Doc. 127) at 16-17.

Defendant has taken classes towards obtaining his G.E.D., improving his parenting skills, and

Bible studies. Id. at 17; (Doc. 127-7) (certificates of completion). When released, Defendant

will be deported to Mexico where he plans to live with his mother-in-law and 10-year-old

daughter. Defendant’s mother-in-law, Aurelia Guevara Zayago, provided a statement that her

daughter (Defendant’s wife and mother of their child), passed away in 2016, and that Ms.

Zayago has high blood pressure and diabetes, and she worries who will care for her

granddaughter if she passes away. (Doc. 127) at 17-18; (Doc. 127-9).

In response, the Government states that Reeves County Detention Center has no record of

receiving a compassionate release request from Defendant, so the Government asks the Court to

deny the motion without prejudice. (Doc. 132) at 6; 8-17. The Government notes that

Defendant’s medical records reflect that he has vision problems and hyperlipidemia (high

cholesterol) and is classified as a Care Level 2 inmate meaning he is a stable outpatient requiring

clinician evaluations every one to six months. Id. at 6; (Docs. 132-3, 132-4). The Government

states Defendant has no history of disciplinary violations during his term of imprisonment. (Doc.

132) at 6. Nevertheless, the Government opposes his early release because he has not

established “extraordinary and compelling reasons” for a sentence reduction and has not shown a

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 4 of 9

reduction is warranted in light of the danger he poses to the community and under the relevant

Section 3553(a) factors. Id. at 17-22.

II. Discussion

Prior to the passage of the First Step Act, only the Director of the Bureau of Prisons

(BOP) could seek compassionate release under 18 U.S.C. § 3582(c). The First Step Act

modified 18 U.S.C. § 3582(c)(1)(A) with the intent of “increasing the use and transparency of

compassionate release.” Pub. L. No. 115-391, 132 Stat. 5194, at 5239. Section 603(b) of the

First Step Act now provides that a sentencing court may modify a sentence either upon a motion

of the Director of the BOP “or upon motion of the defendant after he has exhausted all

administrative rights to appeal a failure of the [BOP] to bring a motion on his behalf or the lapse

of 30 days from the receipt of such a request by the warden of the defendant’s facility … .” 18

U.S.C. § 3582(c)(1)(A).

Aside from allowing prisoners to bring a motion directly, the First Step Act did not

change the standards for compassionate release. Relief is available where the sentence reduction

is supported by: (1) “extraordinary and compelling reasons;” (2) “applicable policy statements

issued by the Sentencing Commission[;]” and (3) “the factors set forth in [18 U.S.C. §] 3553(a).”

18 U.S.C. § 3582(c)(1)(A)(i)-(ii). As to the first requirement, Congress directed the Sentencing

Commission to “describe what should be considered extraordinary and compelling reasons for a

sentence reduction, including … a list of specific examples.” 28 U.S.C. § 994(t). See also

United States v. Saldana, 2020 WL 1486892, at *2 (10th Cir.) (looking to Sentencing

Commission factors to define extraordinary and compelling reasons for release). The Sentencing

Commission has listed four categories of extraordinary and compelling reasons: “(A) Medical

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 5 of 9

Condition of the Defendant,” “(B) Age of the Defendant,” “(C) Family Circumstances,” and “(D)

Other Reasons.” U.S.S.G. § 1B1.13, cmt. n.1.

Some courts have found “extraordinary and compelling reasons” to justify compassionate

release where the defendant’s serious underlying health conditions place him at high risk of

infection and death from COVID-19. See United States v. McCarthy, 2020 WL 1698732, at *5

(D. Conn.) (collecting cases involving asthma, diabetes, and compromised immune systems);

United States v. Jenkins, 2020 WL 2466911, at *6 (D. Colo.) (releasing inmate based on age and

stroke risk); United States v. Lopez, 2020 WL 2489746, at *3 (D.N.M.) (analyzing release based

on age, blood pressure, and diabetes). However, “the mere existence of COVID-19 in society

and the possibility that it may spread to a particular prison alone cannot independently justify

compassionate release.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020); see also United

States v. Nwankwo, 2020 WL 2490044, at *1 (S.D.N.Y.) (collecting cases for the proposition

“that the risks posed by the pandemic alone do not constitute extraordinary and compelling

reasons for release, absent additional [risk] factors”).

A. Exhaustion of Administrative Remedies

Pursuant to 18 U.S.C. § 3582(c)(1)(a), a defendant must first request that the BOP file a

compassionate release motion on his or her behalf. A court may grant a defendant’s motion for

compassionate release only after the defendant has fully exhausted all administrative remedies

from such a request, or after “the lapse of 30 days from the receipt of such a request by the

warden of the defendant’s facility.” Id. Here, Defendant’s counsel submitted a copy of a request

for compassionate release based on COVID-19 that Defendant sent to his warden, but the date is

illegible. (Doc. 127-5). Counsel explains the request was made prior to counsel’s appointment

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 6 of 9

in June 2020 and he obtained a copy of the request from the prison, demonstrating the warden

received the request. (Doc. 127) at 6. Defendant’s counsel made a second request for

compassionate release via an email sent to the BOP and Reeves on June 18, 2020. (Doc. 127-4).

The Government argues in its Motion to File Surreply that Defendant’s counsel’s June

18, 2020, request was sent to the wrong email addresses. (Doc. 135). The Government states the

email contained a typo for one of the BOP email addresses, and explains Reeves is a private

facility, so the BOP division to which the email was sent “does not provide oversight for the

Reeves County Facility.” Id. at 2. Additionally, the Government states a third email address to

which the email was sent was for a case manager at Reeves, and argues “[c]ase managers cannot

handle compassionate release requests” so these requests should be directed to the warden’s

office. Id. Defendant’s counsel opposes the Motion to File Surreply because the motion does

not provide any new information, and because Defendant himself requested compassionate

release from the warden before counsel sent the email on June 18, 2020, and Defendant’s request

has not been responded to in over 30 days. (Doc. 136); (Doc. 136-1).

First, the Court will grant the Government’s Motion to File Surreply because it points out

problems with Defendant’s counsel’s email requesting compassionate release that were not

addressed in the Government’s response brief. Second, the Court finds that Defendant has

sufficiently demonstrated he exhausted his administrative remedies. Even if his counsel’s email

did not reach the proper BOP or Reeves email addresses, Defendant’s pro se request was

received by the warden more than 30 days ago, which is all that is required by § 3582(c)(1)(A).

See § 3582(c)(1)(a) (explaining exhaustion under First Step Act occurs after “the lapse of 30

days from the receipt of such a request by the warden of the defendant’s facility”). Nevertheless,

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 7 of 9

Defendant may continue to pursue administrative relief through the warden and BOP, especially

since it appears his earlier requests were not adequately addressed.

B. Extraordinary and Compelling Circumstances

Next, the Court considers whether Defendant has demonstrated sufficiently

“extraordinary and compelling” circumstances to justify compassionate release. Defendant

argues his medical condition justifies compassionate release because of his age and high

cholesterol. (Doc. 127) at 1-2. However, to find “extraordinary and compelling reasons” for a

sentence reduction based on a defendant’s medical condition, the defendant must be “suffering

from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory),” or a

serious physical or medical condition “that substantially diminishes the ability of the defendant

to provide self-care within the environment of a correctional facility and from which he or she is

not expected to recover.” U.S.S.G. § 1B1.13, cmt. n.1, (A)(i)-(ii). Defendant does not allege or

provide evidence of such serious health conditions or that he is at a significantly higher risk of

infection and death from COVID-19. Indeed, as a Care Level 2 inmate, Defendant is considered

able to manage his conditions through routine, regularly scheduled appointments with clinicians

for monitoring. While Defendant alleges Reeves is failing to take appropriate safety measures,

he does not allege that Reeves has a substantial outbreak of COVID-19. See (Doc. 134) at 4

(stating as of August 11, 2020, Reeves had 2 confirmed COVID-19 cases). Accordingly, the

Court cannot find “extraordinary and compelling reasons” to justify release. See Raia, 954 F.3d

at 597 (“[T]he mere existence of COVID-19 in society and the possibility that it may spread to a

particular prison alone cannot independently justify compassionate release.”); Nwankwo, 2020

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WL 2490044, at *1 (explaining “the risks posed by the pandemic alone do not constitute

extraordinary and compelling reasons for release, absent additional [risk] factors”).

The Court notes Defendant’s progress towards his G.E.D., his completion of additional

programs, and his exemplary prison record. The Court commends Defendant and encourages

him to continue to take steps that will improve his chances of success upon his release.

However, “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and

compelling reason” for purposes of compassionate release. 28 U.S.C. § 994(t); U.S.S.G. §

1B1.13, app. n. 3. In addition, Defendant’s mother-in-law’s request for support for her and

Defendant’s daughter does not qualify Defendant for release based on family circumstances.

The Guidelines provide that a defendant may qualify for a reduction in sentence based on family

circumstances in certain situations where the defendant is needed to care for a spouse, partner, or

child. U.S.S.G. § 1B1.13, cmt. n.1, (C). The Guidelines also provide that a defendant may

qualify for a reduction for “other reasons.” U.S.S.G. § 1B1.13, cmt. n.1, (1)(D). Nevertheless,

while the Sentencing Guidelines are advisory and this Court is sympathetic, Ms. Zayago does not

state that she is unable to care for Defendant’s daughter, and Defendant has failed to establish

additional care is needed or that other reasonable options are unavailable to assist Ms. Zayago

and his daughter. See United States v. Crandle, 2020 WL 2188865, at *3, n.27 (M.D. La.)

(gathering cases finding caring for elderly parents not sufficient to show “extraordinary and

compelling” circumstances for release).

For the foregoing reasons, the Court finds Defendant’s Motion for Compassionate

Release fails to allege extraordinary and compelling reasons justifying a release. The Court will,

Case 2:15-cr-00125-KG-CG Document 138 Filed 08/24/20 Page 9 of 9

therefore, deny the Motion without reaching the factors addressing community safety and

Section 3553(a).

IT IS THEREFORE ORDERED that Defendant’s Motion for Compassionate Release

(Doc. 125) is denied.

______________________________________

UNITED STATES DISTRICT JUDGE

Appendix B

Appellate Case: 20-2125

Document: 010110602222

Date Filed: 11/09/2021

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

November 9, 2021

Christopher M. Wolpert

Clerk of Court

Plaintiff - Appellee,

No. 20-2125

(D.C. No. 2:15-CR-00125-KG-CG-1)

(D. N.M.)

ROMAN ENRIQUE DELGADOMONTOYA,

Defendant - Appellant.

_________________________________

ORDER

_________________________________

Before BACHARACH, EBEL, and EID, Circuit Judges.

_________________________________

Appellee’s unopposed Motion to Amend is GRANTED. The Clerk’s Office shall

replace our October 25, 2021 order and judgment with the attached revised order and

judgment effective nunc pro tunc to the date the original order and judgment was filed.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

Appellate Case: 20-2125

Document: 010110602222

Date Filed: 11/09/2021

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 2

FILED

United States Court of Appeals

Tenth Circuit

October 25, 2021

Christopher M. Wolpert

Clerk of Court

Plaintiff - Appellee,

No. 20-2125

(D.C. No. 2:15-CR-00125-KG-CG-1)

(D. N.M.)

ROMAN ENRIQUE DELGADOMONTOYA,

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BACHARACH, EBEL, and EID, Circuit Judges.

_________________________________

Amid the ongoing COVID-19 pandemic, appellant Roman Enrique DelgadoMontoya was serving a 120-month prison sentence for violating 8 U.S.C. § 1326(a),

(b). He filed pro se, and supplemented through counsel, a motion for a sentence

reduction with the district court.

Delgado-Montoya argued that his medical condition rendered him vulnerable

to COVID-19 and thus qualified as an extraordinary and compelling reason, as

defined by U.S.S.G. § 1B1.13(1)(A), permitting a sentence reduction through 18

U.S.C. § 3582(c)(1)(A).

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.

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The district court denied the motion. Delgado-Montoya now appeals, arguing

that the district court impermissibly bound itself to U.S.S.G. § 1B1.13(1)(A) when it

concluded that he failed to demonstrate extraordinary and compelling reasons to

justify a sentence reduction.

Under 28 U.S.C. § 1291, we affirm the denial of the motion for sentence

reduction because the district court did not limit itself to U.S.S.G. § 1B1.13(1)(A) in

its decision and if any error did occur, it was harmless.

FACTUAL BACKGROUND

In February 2014, the United States deported Delgado-Montoya to Mexico. In

May 2014, Delgado-Montoya unlawfully reentered the United States and eventually

pleaded guilty to one count of reentry by a removed alien in violation of 8 U.S.C.

§ 1326(a), (b).

In the presentence report, Delgado-Montoya’s offense level received a twolevel increase for obstruction of justice after he feigned mental health and cognitive

issues and a sixteen-level increase from a prior conviction for a crime of violence.

The district court sentenced Delgado-Montoya to 120 months’ imprisonment.

Delgado-Montoya appealed and we affirmed the sentence. See United States v.

Delgado-Montoya, 663 F. App’x 719 (10th Cir. 2016).

Early in the COVID-19 pandemic, Delgado-Montoya submitted an undated pro

se request to the Federal Bureau of Prisons for a sentence reduction. In May 2020,

Delgado-Montoya filed a pro se motion with the district court for a sentence

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reduction, which was then supplemented by appointed counsel. And in June 2020,

Delgado-Montoya submitted through counsel a third request for a sentence reduction.

Delgado-Montoya argued that age, high cholesterol, and deteriorating eyesight

rendered him vulnerable to the virus and qualified as extraordinary and compelling

reasons under the commentary to the U.S. Sentencing Commission’s policy

statement, § 1B1.13(1)(A). And, as a result, Delgado-Montoya urged that a sentence

reduction was authorized under 18 U.S.C. § 3582(c)(1)(A)(i). Delgado-Montoya also

asserted that “[e]ven if this [c]ourt were to find that he does not fit within the precise

contours of that scenario, this [c]ourt has the discretion and authority to find that he

falls within the scope of the ‘other reasons’ scenario of the policy statement.” Aplt.

App’x Vol. I at 42. Delgado-Montoya further claimed that considering the § 3553(a)

factors permitted a sentence reduction because the underlying conviction for a crime

of violence, the basis for the sixteen-level enhancement, was dismissed and there was

no presented risk of danger to the community.1

The district court denied the motion, concluding, as relevant, that DelgadoMontoya failed to allege any extraordinary and compelling reasons to justify

compassionate release. After describing the effects of the First Step Act, the court

stated that to find extraordinary and compelling reasons for a sentence reduction

based on a defendant’s medical condition, the defendant “must be” suffering from a

Because Delgado-Montoya did not raise this issue on appeal, he has waived it

and is not entitled to appellate relief. See Dubbs v. Head Start, Inc., 336 F.3d 1194,

1202 n. 2 (10th Cir. 2003) (holding that where a party does not brief an issue on

appeal, the argument is waived).

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medical condition as described in the policy statement. Id. at 275. Later, stating that

“the Sentencing Guidelines are advisory,” the court found Delgado-Montoya: 1) did

not allege or provide evidence of a serious health condition “or that he is at a

significantly higher risk of infection and death from COVID-19”; 2) “is considered

able to manage his conditions through routine, regularly scheduled appointments with

clinicians for monitoring”; 3) did “not allege that [the correctional facility] has a

substantial outbreak of COVID-19; 4) did not state the mother-in-law is unable to

care for Delgado-Montoya’s daughter; and 5) “failed to establish additional care is

needed or that other reasonable options are unavailable to assist the mother-in-law

and daughter.” Id. at 275–77.

The court also noted Delgado-Montoya’s progress towards his G.E.D.,

completion of programs, and model prison record. The district court then declined to

reach the factors addressing community safety and § 3553(a). In all, after examining

the facts before it, the court found Delgado-Montoya failed to allege any

extraordinary and compelling reasons to justify a sentence reduction.

Delgado-Montoya timely appealed.

II.

ANALYSIS

We review de novo the question of whether the district court properly

understood “the scope of . . . [its] authority” under § 3582(c)(1)(A). United States v.

Maumau, 993 F.3d 821, 830 (10th Cir. 2021); see also United States v. Ansberry, 976

F.3d 1108, 1126 (10th Cir. 2020).

As amended by the First Step Act, 18 U.S.C. § 3582(c)(1) states, as relevant:

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imprisonment.—The court may not modify a term of

imprisonment once it has been imposed except that—

(1) in any case—

(A) the court, upon motion of the Director of

the Bureau of Prisons, or upon motion of the

defendant after the defendant has fully

exhausted all administrative rights to appeal a

failure of the Bureau of Prisons to bring a

motion on the defendant’s behalf or the lapse

of 30 days from the receipt of such a request

by the warden of the defendant’s facility,

whichever is earlier, may reduce the term of

imprisonment (and may impose a term of

probation or supervised release with or

without conditions that does not exceed the

unserved portion of the original term of

imprisonment), after considering the factors

set forth in section 3553(a) to the extent that

they are applicable, if it finds that—

(i) extraordinary and compelling

reasons warrant such a reduction; . . .

and that such a reduction is consistent

with applicable policy statements

issued by the Sentencing

Commission . . .

18 U.S.C. § 3582(c)(1)(A)(i).

A district court may thus grant a motion for a sentence reduction if it finds that

extraordinary and compelling reasons warrant a reduction, contemplates the factors in

§ 3553(a) as relevant, and the reduction is consistent with applicable policy

statements issued by the U.S. Sentencing Commission. United States v. McGee, 992

F.3d 1035, 1042 (10th Cir. 2021).

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The existing policy statement by the U.S. Sentencing Commission states that

extraordinary and compelling reasons exist under the following circumstances:

(A) Medical Condition of the Defendant.—

(i) The defendant is suffering from a terminal illness

(i.e., a serious and advanced illness with an end of

life trajectory). A specific prognosis of life

expectancy (i.e., a probability of death within a

specific time period) is not required. Examples

include metastatic solid-tumor cancer, amyotrophic

lateral sclerosis (ALS), end-stage organ disease, and

advanced dementia.

(ii) The defendant is—

(I) suffering from a serious physical or

medical condition,

(II) suffering from a serious functional or

cognitive impairment, or

(III) experiencing deteriorating physical or

mental health because of the aging process,

that substantially diminishes the ability of the

defendant to provide self-care within the

environment of a correctional facility and

from which he or she is not expected to

recover.

(B) Age of the Defendant.—

The defendant (i) is at least 65 years old; (ii) is

experiencing a serious deterioration in physical or

mental health because of the aging process; and (iii)

has served at least 10 years or 75 percent of his or

her term of imprisonment, whichever is less.

(i) The death or incapacitation of the caregiver of

the defendant’s minor child or minor children.

(ii) The incapacitation of the defendant’s spouse or

registered partner when the defendant would be the

only available caregiver for the spouse or registered

partner.

(D) Other Reasons.—

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As determined by the Director of the Bureau of

Prisons, there exists in the defendant’s case an

extraordinary and compelling reason other than, or

in combination with, the reasons described in

subdivisions (A) through (C).

U.S.S.G. § 1B1.13 cmt. 1.

In our circuit, the “Sentencing Commission’s existing policy statement is

applicable only to motions filed by the Director of the [Bureau of Prisons], and not to

motions filed directly by defendants.” Maumau, 993 F.3d at 836–37 (10th Cir. 2021)

(citing United States v. McCoy, 981 F.3d 271, 281 (4th Cir. 2020); United States v.

Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States v. Jones, 980 F.3d 1098,

1109 (6th Cir. 2020); United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020)).

Indeed, “if a compassionate release motion is not brought by the [Bureau of Prisons]

Director, Guideline § 1B1.13” would “not, by its own terms [be considered to] apply

to it.” Id. at 837 (quoting Brooker, 976 F.3d at 236). Because “Guideline § 1B1.13

is not ‘applicable’ to compassionate release motions brought by defendants,

Application Note 1(D) cannot constrain district courts’ discretion to consider whether

any reasons are extraordinary and compelling.” Id.

In this case, Delgado-Montoya “directly filed” a motion for sentence reduction

and therefore, under Maumau, the district court’s discretion to grant a sentence

reduction is not restrained by the commentary to U.S.S.G. § 1B1.13. DelgadoMontoya argues that the district court erred by restraining its discretion to the policy

statement’s commentary in finding that Delgado-Montoya did not demonstrate

extraordinary and compelling reasons for a reduction. Specifically, Delgado7

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Montoya points to the fact that, after describing the effects of the First Step Act, the

court stated that “to find ‘extraordinary and compelling reasons’ for a sentence

reduction based on a defendant’s medical condition, the defendant must be” suffering

from a medical condition as described in the policy statement. Aplt. App’x Vol. I at

275 (emphasis added).

The district court’s statement, however, must be read in context. DelgadoMontoya focused on the commentary to the Sentencing Commission’s policy

statement when he argued that his medical condition and resulting vulnerability to

COVID-19 amounted to an extraordinary and compelling reason under § 1B1.13. For

example, Delgado-Montoya argued that his susceptibility to severe illness or death

because of the “proliferation of COVID-19 in prisons, combined with . . . [his] age”

caused him to “fall[] within the scope of . . . the policy statement.” Aplt. App’x Vol.

I at 42. It is thus entirely logical (and unsurprising) that the court would address

Delgado-Montoya’s argument with the commentary of § 1B1.13. Merely citing a

guideline does not amount to an erroneous restraint of discretion.

Moreover, the court articulated that “the Sentencing Guidelines are advisory”

only. Aplt. App’x Vol. I at 276. In this way, the court recognized that the language

of § 1B1.13 did not restrict its evaluation. This is further evidence that the district

court did not erroneously restrict its discretion to the policy statement’s commentary.

Finally, the most important indication that the court did not erroneously

constrain its discretion is the fact that it considered factors not listed in the

commentary of the Sentencing Guidelines policy statement. For example, instead of

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checking Delgado-Montoya’s health conditions against § 1B1.13(1)(A)’s exhaustive

list of qualifying conditions (terminal illness, a “serious” condition, or age-related

deterioration), the court considered the totality of evidence regarding DelgadoMontoya’s health conditions, risk factors, and living situation. Specifically, the court

indicated it might consider compassionate release for someone whose “underlying

health conditions place him at high risk of infection and death from COVID-19,” a

factor that is not mentioned in § 1B1.13(1)(A). Aplt. App’x Vol. I at 273. It

ultimately concluded that Delgado-Montoya’s health condition is manageable and

under control, that he is not at a significantly high risk of infection and death from

COVID-19, and that the correctional facility had no substantial COVID-19 outbreak.2

Notably, the court found that Delgado-Montoya did not provide evidence of a

health condition rising to the level of seriousness required by § 1B1.13(1)(A) “or that

he is at a significantly higher risk of infection and death from COVID-19.” Id. at

275. This framing indicates that, although the court considered Delgado-Montoya’s

condition in light of § 1B1.13(1)(A), it did not rely exclusively on an inconsistency

with the commentary to reach its conclusion. Rather, the court also based its ruling

on its finding that Delgado-Montoya’s COVID-19 risk, which he failed to show was

unusually high, did not constitute an extraordinary and compelling reason for early

release. The court’s analysis thus demonstrates that it did not “constrain [its]

Importantly, Delgado-Montoya does not contest any of these factual findings

on appeal and has therefore waived any challenge to them. See supra n.1.

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discretion to consider whether any reasons are extraordinary and compelling.”

Maumau, 993 F.3d at 837.

Further, Delgado-Montoya raised rehabilitation, family circumstances, and the

loss of adequate care for his daughter and mother-in-law only in the context of his

argument that he “is not a danger to the safety of any other person or to the

community, as provided in 18 U.S.C. § 3142(g).” He argued that his efforts to enrich

and educate himself and the fact that he has a release plan involving caring for his

family are relevant to the court’s consideration of whether a sentencing reduction is

consistent with the Sentencing Commission’s policies. But Delgado-Montoya did not

argue that these factors constituted extraordinary and compelling reasons.

Nevertheless, the district court independently considered whether those

circumstances called for a sentence reduction. For example, after commending

Delgado-Montoya for his efforts at rehabilitation, the court observed, unprompted,

that Congress does not consider rehabilitation alone to be an extraordinary and

compelling reason for purposes of compassionate release. Id. (referring to 28 U.S.C.

§ 994(t)). Additionally, the court found no evidence that Delgado-Montoya’s

mother-in-law was unable to care for his daughter or that assistance was unavailable,

again findings that Delgado-Montoya does not contest. Acknowledging that the

commentary to the Sentencing Guidelines is “advisory,” the court noted that, even so,

Delgado-Montoya had not provided enough facts for his argument to succeed on a

totality-of-the-circumstances analysis. Delgado-Montoya’s mother-in-law never

indicated “that she is unable to care for . . . [his] daughter, and . . . [Delgado10

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Montoya] has failed to establish additional care is needed or that other reasonable

options are unavailable” to assist his family members. Aplt. App’x Vol. I at 276. In

sum, not only did the court not restrict its discretion to the confines of the Sentencing

Guidelines, it considered potential arguments not raised by Delgado-Montoya in the

context of extraordinary and compelling reasons.

True, the district court’s decision came before this court’s decisions in McGee

and Maumau, both of which held that, as noted above, district courts are not bound

by the examples of extraordinary and compelling reasons enumerated in the § 1B1.13

commentary, and may determine whether such reasons are present based on the

totality of a defendant’s circumstances. However, the district court’s decision, as

demonstrated above, is entirely consistent with those decisions. By not constraining

its discretion to the policy statement’s commentary in this case, the district court

followed the correct analysis as set forth in McGee and Maumau.

In any event, if the court did commit an error, it was a harmless one.3 Even if

the court had improperly constrained its discretion, the error would not have affected

its decision. In other words, assuming the court incorrectly treated the enumerated

categories in the policy statement’s commentary as a limitation, it still would have

denied the motion for sentence reduction, concluding that none of the facts in the

We address the issue of harmless error on our own initiative because it is

clear from the record that any error would be harmless. See United States v. Doe,

572 F.3d 1162, 1175 (10th Cir. 2009).

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record constituted extraordinary and compelling reasons to reduce DelgadoMontoya’s sentence.

For example, the policy statement’s commentary contains a list of categories

under which a defendant’s medical condition could fall. If the court had constrained

itself to the listed conditions, it would not have included Delgado-Montoya’s

condition within them. One such category, as particularly relevant here, is any

“serious physical or medical condition . . . that substantially diminishes the ability of

the defendant to provide self-care within the environment of a correctional facility

and from which he or she is not expected to recover.” U.S.S.G. § 1B1.13(1)(A).

As noted above, Delgado-Montoya provided no evidence that he is at a

particularly high risk of infection and death from COVID-19 and, although he alleged

that the correctional facility failed to take appropriate safety precautions, he did not

argue that it had a substantial outbreak. The district court noted that “the mere

existence of COVID-19 in society and the possibility that it may spread to a

particular prison alone cannot independently justify compassionate release.” Aplt.

App’x Vol. I at 273 (citing United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020)).

Additionally, as noted above, the court took it upon itself to assess DelgadoMontoya’s family circumstances among other factors, even though he did not raise

that argument in the context of “extraordinary and compelling reasons.” The district

court found no evidence to indicate that Delgado-Montoya’s daughter could not be

cared for by his mother-in-law while he served time at the correctional facility.

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Page: 14

In sum, we conclude that, even if the district court improperly constrained its

discretion, it would have reached the same result. Reliance on the policy statement

thus would not have had a “substantial influence” on the outcome or leave us in

“grave doubt” as to whether it had such an effect. United States v. CristernaGonzalez, 962 F.3d 1253,1267 (10th Cir. 2020) (citations omitted).

III.

CONCLUSION

By not confining its discretion to the policy statement to determine whether

the presented facts amounted to extraordinary and compelling reasons to permit a

sentence reduction, the district court properly understood its discretion. Furthermore,

if any error did occur, it was harmless. We accordingly AFFIRM the district court’s

denial of the motion for a sentence reduction. We also deny Delgado-Montoya’s

motion to remand.

Entered for the Court

Allison H. Eid

Circuit Judge

Appendix C

§ 3582. Imposition of a sentence of imprisonment, 18 USCA § 3582

KeyCite Yellow Flag - Negative Treatment

Unconstitutional or Preempted Prior Version's Validity Called into Doubt by U.S. v. Ragland, D.D.C., July 31, 2008

KeyCite Yellow Flag - Negative Treatment

Proposed Legislation

United States Code Annotated

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part II. Criminal Procedure

Chapter 227. Sentences (Refs & Annos)

Subchapter D. Imprisonment (Refs & Annos)

18 U.S.C.A. § 3582

§ 3582. Imposition of a sentence of imprisonment

Effective: December 21, 2018

Currentness

(a) Factors to be considered in imposing a term of imprisonment.--The court, in determining whether to impose a term

of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the

factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate

means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of

prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing

Commission pursuant to 28 U.S.C. 994(a)(2).

(b) Effect of finality of judgment.--Notwithstanding the fact that a sentence to imprisonment can subsequently be-(1) modified pursuant to the provisions of subsection (c);

(2) corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742; or

(3) appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742;

a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.

imposed except that-(1) in any case-(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant

has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's

§ 3582. Imposition of a sentence of imprisonment, 18 USCA § 3582

behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is

earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without

conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors

set forth in section 3553(a) to the extent that they are applicable, if it finds that-(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under

section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has

been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person

or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and

(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal Procedure; and

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or

the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering

the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.

(d) Notification requirements.-(1) Terminal illness defined.--In this subsection, the term “terminal illness” means a disease or condition with an end-oflife trajectory.

(2) Notification.--The Bureau of Prisons shall, subject to any applicable confidentiality requirements-(A) in the case of a defendant diagnosed with a terminal illness-(i) not later than 72 hours after the diagnosis notify the defendant's attorney, partner, and family members of the

defendant's condition and inform the defendant's attorney, partner, and family members that they may prepare and submit

on the defendant's behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);

(ii) not later than 7 days after the date of the diagnosis, provide the defendant's partner and family members (including

extended family) with an opportunity to visit the defendant in person;

§ 3582. Imposition of a sentence of imprisonment, 18 USCA § 3582

(iii) upon request from the defendant or his attorney, partner, or a family member, ensure that Bureau of Prisons

employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant

to subsection (c)(1)(A); and

(iv) not later than 14 days of receipt of a request for a sentence reduction submitted on the defendant's behalf by the

defendant or the defendant's attorney, partner, or family member, process the request;

(B) in the case of a defendant who is physically or mentally unable to submit a request for a sentence reduction pursuant

to subsection (c)(1)(A)-(i) inform the defendant's attorney, partner, and family members that they may prepare and submit on the defendant's

behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);

(ii) accept and process a request for sentence reduction that has been prepared and submitted on the defendant's behalf

by the defendant's attorney, partner, or family member under clause (i); and

(iii) upon request from the defendant or his attorney, partner, or family member, ensure that Bureau of Prisons employees

assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to

subsection (c)(1)(A); and

(C) ensure that all Bureau of Prisons facilities regularly and visibly post, including in prisoner handbooks, staff training

materials, and facility law libraries and medical and hospice facilities, and make available to prisoners upon demand,

notice of-(i) a defendant's ability to request a sentence reduction pursuant to subsection (c)(1)(A);

(ii) the procedures and timelines for initiating and resolving requests described in clause (i); and

(iii) the right to appeal a denial of a request described in clause (i) after all administrative rights to appeal within the

Bureau of Prisons have been exhausted.

(3) Annual report.--Not later than 1 year after December 21, 2018, and once every year thereafter, the Director of the

Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the

House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A), which shall include

a description of, for the previous year-(A) the number of prisoners granted and denied sentence reductions, categorized by the criteria relied on as the grounds

for a reduction in sentence;

§ 3582. Imposition of a sentence of imprisonment, 18 USCA § 3582

(B) the number of requests initiated by or on behalf of prisoners, categorized by the criteria relied on as the grounds for

a reduction in sentence;

categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;

(D) the number of requests that attorneys, partners, or family members submitted on a defendant's behalf, categorized by

the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;

(E) the number of requests approved by the Director of the Bureau of Prisons, categorized by the criteria relied on as the

grounds for a reduction in sentence;

(F) the number of requests denied by the Director of the Bureau of Prisons and the reasons given for each denial, categorized

by the criteria relied on as the grounds for a reduction in sentence;

(G) for each request, the time elapsed between the date the request was received by the warden and the final decision,

categorized by the criteria relied on as the grounds for a reduction in sentence;

(H) for each request, the number of prisoners who died while their request was pending and, for each, the amount of time

that had elapsed between the date the request was received by the Bureau of Prisons, categorized by the criteria relied on

as the grounds for a reduction in sentence;

(I) the number of Bureau of Prisons notifications to attorneys, partners, and family members of their right to visit a

terminally ill defendant as required under paragraph (2)(A)(ii) and, for each, whether a visit occurred and how much time

elapsed between the notification and the visit;

(J) the number of visits to terminally ill prisoners that were denied by the Bureau of Prisons due to security or other

concerns, and the reasons given for each denial; and

(K) the number of motions filed by defendants with the court after all administrative rights to appeal a denial of a sentence

reduction had been exhausted, the outcome of each motion, and the time that had elapsed between the date the request was

first received by the Bureau of Prisons and the date the defendant filed the motion with the court.

(e) Inclusion of an order to limit criminal association of organized crime and drug offenders.--The court, in imposing a

sentence to a term of imprisonment upon a defendant convicted of a felony set forth in chapter 95 (racketeering) or 96 (racketeer

influenced and corrupt organizations) of this title or in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21

U.S.C. 801 et seq.), or at any time thereafter upon motion by the Director of the Bureau of Prisons or a United States attorney,

may include as a part of the sentence an order that requires that the defendant not associate or communicate with a specified

person, other than his attorney, upon a showing of probable cause to believe that association or communication with such person

is for the purpose of enabling the defendant to control, manage, direct, finance, or otherwise participate in an illegal enterprise.

§ 3582. Imposition of a sentence of imprisonment, 18 USCA § 3582

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1998; amended Pub.L. 100-690, Title VII, § 7107, Nov.

18, 1988, 102 Stat. 4418; Pub.L. 101-647, Title XXXV, § 3588, Nov. 29, 1990, 104 Stat. 4930; Pub.L. 103-322, Title VII, §

70002, Sept. 13, 1994, 108 Stat. 1984; Pub.L. 104-294, Title VI, § 604(b)(3), Oct. 11, 1996, 110 Stat. 3506; Pub.L. 107-273,

Div. B, Title III, § 3006, Nov. 2, 2002, 116 Stat. 1806; Pub.L. 115-391, Title VI, § 603(b), Dec. 21, 2018, 132 Stat. 5239.)

Notes of Decisions (1247)

18 U.S.C.A. § 3582, 18 USCA § 3582

Current through P.L. 117-80.

End of Document

Appendix D

§ 1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. §..., FSG § 1B1.13

KeyCite Red Flag - Severe Negative Treatment

Unconstitutional or Preempted Recognized as Repealed by Implication United States v. Cano, S.D.Fla., Dec. 16, 2020

United States Code Annotated

Federal Sentencing Guidelines (Refs & Annos)

Chapter One. Introduction, Authority, and General Application Principles (Refs & Annos)

Part B. General Application Principles

USSG, § 1B1.13, 18 U.S.C.A.

§ 1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)

Currentness

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of

imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved

portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that

they are applicable, the court determines that-(1)(A) Extraordinary and compelling reasons warrant the reduction; or

(B) The defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under

18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned;

(2) The defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and

(3) The reduction is consistent with this policy statement.

CREDIT(S)

(Effective November 1, 2006; amended effective November 1, 2007; November 1, 2010; November 1, 2016; November 1,

2018.)

COMMENTARY

<1. Extraordinary and Compelling Reasons.--Provided the defendant meets the requirements of subdivision (2),

extraordinary and compelling reasons exist under any of the circumstances set forth below:>

<(A) Medical Condition of the Defendant.-->

<(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life

trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is

§ 1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. §..., FSG § 1B1.13

not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage

organ disease, and advanced dementia.>

<(ii) The defendant is-->

<(I) suffering from a serious physical or medical condition,>

<(II) suffering from a serious functional or cognitive impairment, or>

<(III) experiencing deteriorating physical or mental health because of the aging process,>

<that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional

facility and from which he or she is not expected to recover.>

<(B) Age of the Defendant.--The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration

in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his

or her term of imprisonment, whichever is less.>

<(C) Family Circumstances.-->

<(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.>

<(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only

available caregiver for the spouse or registered partner.>

<(D) Other Reasons.--As determined by the Director of the Bureau of Prisons, there exists in the defendant's case

an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions

(A) through (C).>

<2. Foreseeability of Extraordinary and Compelling Reasons.--For purposes of this policy statement, an

extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a

reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably

could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under

this policy statement.>

<3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. § 994(t), rehabilitation of the defendant is not, by itself,

an extraordinary and compelling reason for purposes of this policy statement.>

<4. Motion by the Director of the Bureau of Prisons.--A reduction under this policy statement may be granted

only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission

encourages the Director of the Bureau of Prisons to file such a motion if the defendant meets any of the circumstances

set forth in Application Note 1. The court is in a unique position to determine whether the circumstances warrant

a reduction (and, if so, the amount of reduction), after considering the factors set forth in 18 U.S.C. § 3553(a)

and the criteria set forth in this policy statement, such as the defendant's medical condition, the defendant's family

circumstances, and whether the defendant is a danger to the safety of any other person or to the community.>

§ 1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. §..., FSG § 1B1.13

<5. Application of Subdivision (3).--Any reduction made pursuant to a motion by the Director of the Bureau of

Prisons for the reasons set forth in subdivisions (1) and (2) is consistent with this policy statement.>

<Background: The Commission is required by 28 U.S.C. § 994(a)(2) to develop general policy statements regarding

application of the guidelines or other aspects of sentencing that in the view of the Commission would further the

purposes of sentencing (18 U.S.C. § 3553(a)(2)), including, among other things, the appropriate use of the sentence

modification provisions set forth in 18 U.S.C. § 3582(c). In doing so, the Commission is authorized by 28 U.S.C. §

994(t) to “describe what should be considered extraordinary and compelling reasons for sentence reduction, including

the criteria to be applied and a list of specific examples.” This policy statement implements 28 U.S.C. § 994(a)(2)

and (t).>

Notes of Decisions (2)

Federal Sentencing Guidelines, § 1B1.13, 18 U.S.C.A., FSG § 1B1.13

As amended to 11-1-21.

End of Document

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.