United States v. Canales-Ramos ( 2021 )


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  •              United States Court of Appeals
    For the First Circuit
    No. 21-1141
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JORGE MARCELO CANALES-RAMOS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Francisco A. Besosa, U.S. District Judge]
    Before
    Lynch and Selya, Circuit Judges,
    and McCafferty,* District Judge.
    Hector Sueiro-Alvarez, with whom Eric Alexander Vos, Federal
    Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public
    Defender, Supervisor, Appeals Division, and Kevin E. Lerman,
    Research and Writing Specialist, were on brief, for appellant.
    David C. Bornstein, Assistant United States Attorney, with
    whom W. Stephen Muldrow, United States Attorney, and Mariana E.
    Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
    Division, were on brief, for appellee.
    *   Of the District of New Hampshire, sitting by designation.
    December 9, 2021
    SELYA, Circuit Judge.   Defendant-appellant Jorge Marcelo
    Canales-Ramos seeks compassionate release based on what he alleges
    to be "extraordinary and compelling" reasons pursuant to 
    18 U.S.C. § 3582
    (c)(1)(A), as amended by the First Step Act, Pub. L. No.
    115-391, § 603(b), 
    132 Stat. 5194
    , 5239 (2018).        The defendant
    contends that the district court abused its discretion when it
    denied his motion for such relief.      After careful consideration,
    we affirm.
    I
    We briefly rehearse the relevant facts and travel of the
    case.   In September of 2011, the defendant was arrested aboard a
    vessel — in waters off the coast of the U.S. Virgin Islands — and
    found to be in possession of 48.2 kilograms of cocaine.       At the
    time, the defendant was serving a five-year term of supervised
    release imposed after his guilty plea to drug-related charges in
    the District of Puerto Rico (D.P.R.).
    In the wake of the defendant's 2011 arrest, the D.P.R.
    court convened a revocation hearing.     The defendant admitted that
    he had violated the conditions of his supervised release by leaving
    Puerto Rico without permission and by engaging in renewed criminal
    activity.    On February 22, 2012, the district court imposed a
    thirty-month revocation sentence and ordered that sentence "to be
    served consecutively to any other term of imprisonment currently
    being served or to be imposed upon" the defendant.
    - 3 -
    By the time the revocation sentence was imposed, the
    defendant had pleaded guilty in the District of the Virgin Islands
    (D.V.I.) to drug-conspiracy and drug-possession charges.                    See 
    21 U.S.C. §§ 841
    (a)(1), 846.            Even so, the D.V.I. court did not
    convene the disposition hearing until May 9, 2012.                      At that
    hearing, the D.V.I. court imposed a 168-month term of immurement
    on each of the two counts of conviction and ordered those sentences
    to run concurrently.        These concurrent terms of immurement were
    later reduced to 135 months pursuant to 
    18 U.S.C. § 3582
    (c)(2) and
    Guideline Amendment 782, USSG App. C Supp., amend. 782.
    Neither the D.V.I. sentence nor the D.V.I. judgment
    mentioned the D.P.R. revocation sentence.               Administrative records
    show   that,   as   of   last   October,     the   Bureau    of   Prisons    (BOP)
    calculated a total aggregate incarcerative term — encompassing
    both the D.V.I. and D.P.R. sentences — of 165 months.                         That
    calculation reflected that the D.V.I. and D.P.R. sentences were
    run consecutively.
    After     unsuccessfully          pursuing       an    administrative
    grievance with the BOP, the defendant filed a pro se motion in the
    D.P.R. case.    That motion (filed in November of 2019) sought the
    appointment    of   counsel     to   bring    a    post-conviction     challenge
    concerning the consecutive nature of his revocation sentence.                  The
    defendant predicated this initiative on our decision in United
    States v. Almonte-Reyes, 
    814 F.3d 24
     (1st Cir. 2016) — a decision
    - 4 -
    that we discuss below.        See infra Part III(B).         Following the
    appointment of counsel, the defendant filed the instant motion for
    compassionate   release,      alleging     extraordinary    and   compelling
    reasons, in November of 2020.          See 
    18 U.S.C. § 3582
    (c)(1)(A)(i).
    This was not his first such motion:         he had filed a similar motion
    in the D.V.I. case a few months earlier.
    In both his      D.V.I. and     D.P.R. compassionate-release
    motions, the defendant alleged, among other things, that his pre-
    existing medical infirmities, along with the conditions of his
    confinement, posed a substantial risk of severe illness should he
    contract the COVID-19 virus.        This risk, he alleged, constituted
    an "extraordinary and compelling" reason for a sentence reduction.
    
    Id.
     § 3582(c)(1)(A)(i).       In particular, the defendant pointed to
    his hypertension, hyperlipidemia, liver disease, diabetes, and
    pancreatitis,   together     with   the   potentially   elevated    risk   of
    illness from COVID-19 posed by his race (Black) and his ethnicity
    (Latino).   His D.P.R. motion — but not his D.V.I. motion — recast
    the alleged Almonte-Reyes error as a further reason warranting
    compassionate release.
    While   these    motions      were   pending,   the    defendant
    contracted COVID-19 in January of 2021.            He advised the D.P.R.
    court of this fact,         and the court extended the government's
    deadline to file a sur-reply.          The government filed a sur-reply
    about a week later.    On the same day, the D.P.R. court denied the
    - 5 -
    defendant's compassionate-release motion.           In its order, the court
    noted that it had reviewed certain pertinent materials, including
    the parties' briefs and the defendant's medical records.                     It
    concluded in relevant part that the defendant "ha[d] not identified
    any   extraordinary    or   compelling     reason   for   reduction   of    his
    sentence."     It also reiterated that no error had been committed in
    the imposition of the defendant's "sentences to run concurrently
    but consecutively to his sentence on revocation."
    This timely appeal ensued.         The defendant's counterpart
    D.V.I. motion for compassionate release remains pending.
    II
    Our review of a district court's denial of a sentence-
    reduction motion pursuant to section 3582(c)(1)(A) is for abuse of
    discretion.     See United States v. Saccoccia, 
    10 F.4th 1
    , 4-5 (1st
    Cir. 2021).     This is a respectful standard under which we assess
    factual determinations for clear error, evaluate claims of legal
    error de novo, and afford judgment calls a measure of deference.
    See 
    id.
    At the outset, the defendant draws our attention to a
    growing consensus among the courts of appeals.                 This consensus
    holds that even though the compassionate-release statute requires
    a   district   court   to   ensure    that   any    sentence    reduction    is
    "consistent" with "applicable" policy statements issued by the
    Sentencing Commission,       
    18 U.S.C. § 3582
    (c)(1)(A), the current
    - 6 -
    policy statement is not "applicable" to prisoner-initiated motions
    for compassionate release (as contrasted with motions brought by
    the BOP).    See Saccoccia, 10 F.4th at 7-8 (collecting cases).                 We
    previously have explained the circumstances giving rise to the
    doubts about whether the current policy statement is "applicable"
    to prisoner-initiated motions, see id., and it would serve no
    useful purpose to repastinate that ground.                As we explain below,
    the issue is not one that we must decide today.
    On    the   "policy    statement"       front,      the   defendant's
    argument rests on unbridled speculation that the district court
    regarded    the    current     policy     statement        as   applicable     and
    constrained its analysis accordingly.          But the district court made
    it sufficiently clear that — regardless of whether the Sentencing
    Commission's      current    policy    statement     was     applicable    —   the
    defendant    had    failed    to      demonstrate    an      extraordinary     and
    compelling reason.
    We need not tarry.        The court below plainly concluded —
    without any reference to the policy statement — that the defendant
    "ha[d] not identified any extraordinary or compelling reason for
    reduction of his sentence."           This explicit statement shows with
    conspicuous clarity that the court considered and rejected all of
    the defendant's proffered reasons.            Nothing in the court's order
    suggests that this blanket rejection was either based on or
    constrained by the current policy statement.
    - 7 -
    To be sure, the parties advanced below differing views
    as to whether the current policy statement has any bearing upon
    prisoner-initiated compassionate-release motions.                       The defendant
    argued that the current policy statement should be disregarded,
    and    the   government        countered      that    it    should   be    seen    as   a
    constraint.         Viewed against this backdrop, the most sensible
    understanding of the district court's decision not to address this
    dispute      is   that    it   did    not    regard    the    dispute     as   outcome-
    determinative.        Such an understanding is buttressed by what the
    district court said in its order.                     After determining that no
    extraordinary and compelling reasons had been identified, the
    district court acknowledged that "even if an inmate's health [were]
    at risk (which is not the case here), or even if the inmate me[t]
    one    or    more    of    the   parameters"         in    the   policy    statement,
    compassionate release may be denied.                       Had the district court
    treated the policy statement's categories of extraordinary and
    compelling reasons as binding, it would have referred only to those
    categories.         Here, however, the district court identified an
    alternative to those categories (extraordinary and compelling
    reasons based on other health risks).                     The necessary implication
    is that the court's analysis was not constrained by the policy
    statement.
    The defendant's most loudly bruited counter-argument is
    that    we    can   infer      that    the    district       court   thought      itself
    - 8 -
    constrained by the current policy statement because some of the
    order's   reasoning   parallels    points    made    in    the   government's
    briefing.     This is a bridge too far and, in any event, the
    defendant's observation cuts the other way:              despite buying into
    several of the government's arguments, the district court felt
    free to bypass the "policy statement" contretemps.1                  The most
    cogent explanation for that bypass is that the issue did not
    matter.
    The   defendant   argues,   in   the    alternative,     that   the
    district court's order is ambiguous as to whether it considered
    the current policy statement binding.        He also argues more broadly
    — relying on the Supreme Court's seminal sentencing decisions in
    Gall v. United States, 
    552 U.S. 38
    , 51 (2007), and Rita v. United
    States, 
    551 U.S. 338
    , 356 (2007) — that the district court failed
    adequately to explain its reasons for denying relief.                Assuming,
    without deciding, that those standards apply on review of a denial
    of   a    compassionate-release     motion,        the    district     court's
    explanation passes muster.      The order is admittedly brief, but in
    1 The defendant also tries to bootstrap his argument based on
    the district court's generalized reference to cases relied on by
    the government. But the defendant identifies only one case that
    adhered to the policy statement criteria, see United States v.
    Horton, No. 13-16, 
    2020 WL 4473405
    , at *3-4 (M.D. Pa. Aug. 4,
    2020), and the district court did not mention that case.        By
    contrast, the case cited by the district court eschewed any
    resolution of the "policy statement" issue. See United States v.
    Gianelli, 
    513 F. Supp. 3d 199
    , 200-01 (D. Mass. 2021).
    - 9 -
    sentencing     matters,      "brevity    is     not     to    be    confused         with
    inattention."      United States v. Dávila-González, 
    595 F.3d 42
    , 48
    (1st    Cir.   2010)    (quotations          omitted).         Rather,        the    key
    consideration is whether the appellate court can discern that the
    lower court had "a reasoned basis" for its decision.                          Rita, 
    551 U.S. at 356
    ; see Dávila-González, 595 F.3d at 48.                        As explained
    above, we can deduce from the order — despite its brevity — that
    the district court concluded that whether the policy statement was
    binding    made    no   difference      to     its    determination           that   the
    defendant's       asserted    reasons    were        not     enough      to     justify
    compassionate release.
    The defendant's broader remonstrance fares no better.
    He claims that the district court merely adopted the arguments
    from the government's briefing but turned a blind eye to the
    defendant's arguments regarding his specific medical conditions.
    At bottom, though, this is not a complaint that the decision
    reflects inadequate reasoning but, rather, a complaint that the
    district court's completely adequate reasoning did not mirror the
    defendant's views.      And — as is evident by our ensuing analysis —
    the    district    court's    choice    not    to     embrace      the    defendant's
    medical-related arguments was a reasoned one.                      Consequently, we
    proceed to the defendant's remaining claims of error.
    - 10 -
    III
    This brings us to the meat of the appeal:                     the district
    court's conclusion that the defendant's proffered reasons were
    insufficient     to    warrant    compassionate        release.          The   pivotal
    question is whether the district court abused its discretion in
    holding   that   the     particular      circumstances        identified       by   the
    defendant failed to justify compassionate release.
    Compassionate         release     under    section      3582(c)(1)(A)(i)
    demands   that   there     must    be    a   reason   or     set   of    reasons    for
    compassionate release that is both "extraordinary and compelling."
    
    18 U.S.C. § 3582
    (c)(1)(A)(i).            Congress — apart from stating that
    rehabilitation alone "shall not be considered an extraordinary and
    compelling reason" for compassionate release — did not elucidate
    this standard.        
    28 U.S.C. § 994
    (t).          Assuming, as we do, that a
    court adjudicating a prisoner-initiated motion for compassionate
    release   may    venture    beyond       the     confines     of   the    Sentencing
    Commission's     current    policy      guidance,      the    "extraordinary        and
    compelling" standard is logically guided by the plain meaning of
    those terms.
    The plain meaning of "extraordinary" suggests that a
    qualifying reason must be a reason that is beyond the mine-run
    either in fact or in degree. See Webster's Third New International
    Dictionary of the English Language Unabridged 807 (1981) (defining
    "extraordinary" as "going beyond what is usual, regular, common,
    - 11 -
    or customary"); see also United States v. Hunter, 
    12 F.4th 555
    ,
    562 (6th Cir. 2021) (suggesting that such reason must be "most
    unusual," "far from common," or "hav[e] little or no precedent").
    By the same token, the plain meaning of "compelling" suggests that
    a qualifying reason must be a reason that is both powerful and
    convincing.        See   Webster's     Third,    supra   at    462     (defining
    "compelling" as "forcing, impelling, [or] driving [circumstance]"
    and as "tending to convince or convert by or as if by forcefulness
    of evidence"); see also Hunter, 12 F.4th at 562.                     Benchmarked
    against those definitions, the district court acted within the
    ambit   of   its   discretion    in    concluding   that      the    defendant's
    proffered reasons for compassionate release fell short.
    A
    To begin, we consider the defendant's proffered medical
    reasons and risk of illness from COVID-19.          The district court did
    not say whether or not the defendant's proffered medical reasons
    exhibited an exceptional medical need.            Rather, the court made a
    factual determination that although the defendant had pre-existing
    medical infirmities and eventually contracted COVID-19, he was
    "being closely monitored" and his health was in "stable" condition.
    The defendant does not make any concerted effort to
    challenge those findings.        Nor would such an effort be fruitful:
    the defendant's medical records unequivocally show that after
    contracting    COVID-19,    he   remained      "[a]symptomatic,"       that   BOP
    - 12 -
    medical staff confirmed that he exhibited no untoward symptoms,
    and that his oxygen levels and temperature were well within normal
    ranges.
    The defendant urges us not to take the medical records
    at face value.      Despite what they show, he strives to persuade us
    that the possibility of severe illness from COVID-19 — considering
    factors    like    his     comorbidities     and     the   conditions   of     his
    confinement — remain extraordinary and compelling reasons for
    compassionate release.2           We are not persuaded.
    The district court made a reasonable risk assessment and
    determined that the current state of the defendant's health and
    the care that he was receiving weighed against a finding that an
    extraordinary and compelling reason                existed for compassionate
    release.    This amounted to a judgment call — a judgment call that
    falls within the wide compass of the district court's discretion.
    As   we   have    said,    "not    every   complex    of   health   concerns    is
    sufficient to warrant compassionate release . . . even in the
    midst of the COVID-19 pandemic."                 Saccoccia, 10 F.4th at 5.
    Consequently, we leave intact the district court's reasonable
    determination       that     the     defendant       failed   to    proffer     an
    We note that the defendant — who declined the vaccine shortly
    2
    after the district court's denial of his compassionate-release
    motion — has since been fully vaccinated.
    - 13 -
    extraordinary and compelling medical reason for compassionate
    release.
    B
    We turn next to the defendant's claim that a putative
    sentencing       error   should   tip   the    balance     toward   finding   an
    extraordinary and compelling reason for compassionate release.
    This claim of error has its genesis in United States v. Almonte-
    Reyes, which was decided several years after the defendant's
    revocation sentence was imposed.            There, we interpreted 
    18 U.S.C. § 3584
    (a) and determined that a federal sentencing court lacks the
    authority to direct that a sentence run consecutively to a federal
    sentence yet to be imposed.         See 814 F.3d at 28.
    The defendant posits that if the D.P.R. court had the
    benefit of Almonte-Reyes, it would not have run (and could not
    lawfully have run) the revocation sentence consecutive to the not-
    yet-imposed D.V.I. sentence.            Building on this foundation, the
    defendant further posits that if the D.V.I. court had been writing
    on a clean slate — unconstrained by the D.P.R. court's declaration
    that the revocation sentence was to run consecutively — it would
    have imposed its sentence to run concurrently with the D.P.R.
    sentence.    In that event, the defendant asserts, he already would
    have served both sentences in full.
    It     was   comfortably        within   the    district    court's
    discretion to conclude that the putative sentencing error was
    - 14 -
    insufficient to warrant compassionate release.          Though perhaps
    extraordinary, that putative sentencing error did not — in the
    circumstances of this case — afford a compelling reason to reduce
    the defendant's sentence.3
    A close look at the defendant's situation leaves no doubt
    that his proffered reason cannot be classified as "compelling."
    He has provided no evidence of any disparity between his aggregate
    sentence and the aggregate sentence that would have resulted had
    both sentences been imposed after Almonte-Reyes.        He does no more
    than suggest that had his revocation sentence not been imposed in
    contravention of the rule later announced in Almonte-Reyes, he
    "may" have been eligible for release at an earlier date.
    The   defendant's   suggestion   is   woven   entirely   from
    gossamer strands of speculation and surmise.       He gave the court
    below no basis for concluding that, had the D.P.R. court not run
    the revocation sentence consecutive to the not-yet-imposed D.V.I.
    3 Although the district court reasonably rejected the claim
    that the putative sentencing error constituted an extraordinary
    and compelling reason for compassionate release, the defendant
    seizes on the district court's statement addressing the
    consecutive nature of the sentence to suggest that the district
    court committed legal error. This is too much of a stretch: the
    statement seems to describe the D.V.I. court's judgment (as the
    defendant concedes), and the district court's awkward phrasing is
    best understood as an attempt to explain that any Almonte-Reyes
    error was harmless. Given that the parties' briefs in the court
    below were crystal clear on this point, we think that — contrary
    to the defendant's importunings — this imprecision affords
    insufficient   reason  to   believe   that  the  district   court
    misunderstood the parties' arguments.
    - 15 -
    sentence, the D.V.I. court would have proceeded to impose a fully
    concurrent sentence.        The D.V.I. judgment did not mention the
    revocation sentence, and the default rule is that those sentences
    would run consecutively.         See 
    18 U.S.C. § 3584
    (a) ("Multiple terms
    of   imprisonment      imposed   at   different    times     run   consecutively
    unless the court orders that the terms are to run concurrently.").
    Apart from the D.V.I. court's silence on the subject, it also
    should be noted that the D.V.I. court imposed a downwardly variant
    sentence (more than sixty months below the bottom of the guideline
    range).    Given this largesse, there is nothing to support the
    defendant's conjecture that the D.V.I. court — were it free to do
    so — would have opted to run the two sentences concurrently.                  In
    short, the defendant offered nothing that might have persuaded the
    district court (or this court, for that matter) that the putative
    Almonte-Reyes error lengthened his aggregate sentence at all.
    So,    too,     the     defendant      failed     to    present   any
    idiosyncratic circumstances sufficient to buttress his claim.                The
    district court's appraisal of the sentencing factors suggests that
    it believed the sentence to be appropriate, given the nature of
    the offense and the history and characteristics of the offender.
    Even   though    the    defendant     offered     evidence    of   his   claimed
    rehabilitation, the district court — after it marshalled various
    - 16 -
    sentencing considerations militating against compassionate release
    — was unconvinced.4
    The defendant counters that the putative Almonte-Reyes
    error is both extraordinary and compelling, asserting that it was
    a non-retroactive decision that could not have been the basis for
    any timely post-conviction challenge.         In mounting this assertion,
    he   draws   on   a   handful   of    decisions   in   which   courts   have
    acknowledged that claims involving non-retroactive changes in law
    affecting sentencing exposure may constitute an extraordinary and
    compelling reason sufficient to justify compassionate release.
    See, e.g., United States v. Maumau, 
    993 F.3d 821
    , 837 (10th Cir.
    2021); United States v. McGee, 
    992 F.3d 1035
    , 1047-48 (10th Cir.
    2021); United States v. McCoy, 
    981 F.3d 271
    , 285-87 (4th Cir.
    2020).    Even if we accept, for argument's sake, the logic of the
    decisions that he embraces, those cases do not go so far as to
    hold that such a change in the law, without more, may comprise an
    extraordinary     and   compelling      reason    sufficient   to   warrant
    compassionate release. Rather, they suggest that the changed legal
    4Because the district court reasonably concluded that the
    defendant failed to demonstrate an extraordinary and compelling
    reason for compassionate release, we need not address in detail
    its review of the universe of sentencing factors.      We note,
    however, that a district court's supportable determination that
    the section 3553(a) factors weigh against the granting of
    compassionate release constitutes an independently sufficient
    basis to uphold a denial of such relief. See Saccoccia, 10 F.4th
    at 4.
    - 17 -
    landscape must be considered in view of a defendant's particular
    circumstances.       See, e.g., Maumau, 993 F.3d at 838 (Tymkovich, J.,
    concurring) ("[A] district court may consider the legislative
    change   to    the   stacking   provision      only    in   the   context   of    an
    individualized review of a movant's circumstances."); McGee, 992
    F.3d at 1048 (reasoning that the First Step Act's non-retroactive
    amendments might rise to the level of "extraordinary and compelling
    reasons" when considered in combination with "a defendant's unique
    circumstances"); McCoy, 981 F.3d at 285-87 (holding that the First
    Step Act's changes to section 924(c), in combination with the
    resulting      "disparity,"     may     amount        to    "extraordinary       and
    compelling"      reasons).      As    we     previously      have   stated,      the
    circumstances the defendant presented were insufficient to make
    his claim compelling.
    That ends this aspect of the matter.             We hold that the
    district court did not abuse its discretion in rejecting the
    defendant's plea that the putative Almonte-Reyes error warranted
    a reduction of his sentence.
    IV
    We need go no further.           The short of it is that our
    examination of the record reveals that the court below did not
    trespass — or even closely approach — the margins of its broad
    discretion      in   denying    the    defendant's         compassionate-release
    - 18 -
    motion.     For the reasons elucidated above, the judgment of the
    district court is
    Affirmed.
    - 19 -
    

Document Info

Docket Number: 21-1141P

Filed Date: 12/9/2021

Precedential Status: Precedential

Modified Date: 12/9/2021