United States v. Gutierrez ( 2023 )

Appellate Case: 22-3139 Document: 010110812547 Date Filed: 02/14/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3139
(D.C. No. 2:17-CR-20007-JAR-4)
MARLON GUTIERREZ, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
Appellant Marlon Gutierrez, proceeding pro se, appeals the district
court’s denial of his compassionate-release motion under 18 U.S.C.
§ 3582(c)(1)(A). The government chose not to file a response. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
The case is therefore submitted without oral argument. 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is not binding precedent, except under the doctrines of law of the case, res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.
Appellate Case: 22-3139 Document: 010110812547 Date Filed: 02/14/2023 Page: 2
BACKGROUND
From 2015 to 2017, Gutierrez conspired with at least eight co-defendants
to distribute methamphetamine and other drugs out of his rental home in Kansas
City, Kansas, where he lived with his girlfriend and her minor children. In 2019,
Gutierrez pleaded guilty to one count of conspiracy to possess
methamphetamine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii), 846, and 860a. In October 2020, the district
court sentenced Gutierrez to 260 months’ imprisonment and five years’
supervised release.
In September 2021, Gutierrez administratively requested compassionate
release from prison due to his health conditions. The prison denied his request.
In March 2022, Gutierrez, proceeding pro se, filed a compassionate-
release motion in the district court under 18 U.S.C. § 3582(c)(1)(A)(i), asking
the court to reduce his sentence to time served. Gutierrez argued that the
COVID-19 outbreak at the Oakdale Federal Prison and his “particular medical
vulnerabilities” presented extraordinary and compelling reasons to reduce his
sentence. R. vol. 4, at 18–21. Gutierrez explained that he is “particularly
medically vulnerable [to COVID-19 infection] because he is 42 years old,
suffers from asthma, diabetes, and morbid obesity.” Id. at 20. He also argued
that he is a “fully rehabilitated[] first-time offender[] who presents no
likelihood of specific or general danger . . . of future criminal activity.” Id. at
21.
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Gutierrez also addressed the sentencing factors in 18 U.S.C. § 3553(a)
and argued that these factors supported reducing his sentence to time served. He
acknowledged that he had committed a serious offense, but he argued that his
health risks and the availability of supervised release as an alternative
punishment outweighed the need for him to complete his original sentence.
The government responded to Gutierrez’s motion by pointing out that
Gutierrez was vaccinated for COVID-19 in spring 2021. Though he tested
positive for COVID-19 in February 2022, Gutierrez hadn’t experienced severe
effects. So the government argued that Gutierrez failed to establish
extraordinary and compelling reasons for compassionate release under
§ 3582(c)(1)(A)(i). The government also argued that the § 3553(a) factors
weighed against reducing Gutierrez’s sentence to time served because doing so
“would seriously diminish the nature and seriousness of his offense and the need
for his sentence to continue to provide just punishment and otherwise promote
respect for the law.” R. vol. 4, at 153–54.
The district court denied Gutierrez’s motion for compassionate release.
United States v. Gutierrez, No. 17-cr-20007-04-JAR, 2022 WL 2528082, at *1
(D. Kan. July 7, 2022). The court found that “Gutierrez’s vaccination status
mitigates his risk such that his medical conditions do not present an
extraordinary and compelling reason for a sentence reduction.” Id. at *2. The
court held that Gutierrez failed to “establish extraordinary and compelling
reasons for compassionate release.” Id. at *3.
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The court also addressed the § 3553(a) factors, reasoning that “releasing
Gutierrez at this relatively early stage would not reflect the seriousness of his
offense, promote respect for the law, provide just punishment, afford adequate
deterrence, or protect the public.” Id. at *4. The court explained that “the 260-
month sentence originally imposed remains sufficient, but not greater than
necessary, to meet the sentencing factors in § 3553(a) and punish the offense
involved.” Id.
STANDARD OF REVIEW
We review a district court’s order denying a § 3582(c)(1)(A) motion for
abuse of discretion. United States v. Hemmelgarn, 15 F.4th 1027, 1031 (10th
Cir. 2021) (citation omitted). “A district court abuses its discretion when it
relies on an incorrect conclusion of law or a clearly erroneous finding of fact.”
Id. (quoting United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013)).
Because Gutierrez proceeds pro se, we construe his pleadings liberally without
acting as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citations omitted).
DISCUSSION
Federal courts are generally forbidden from modifying a term of
imprisonment after it has been imposed. Freeman v. United States, 564 U.S.
522, 526 (2011) (quoting 18 U.S.C. § 3582(c)). But this “rule of finality is
subject to a few narrow exceptions,” including when a defendant moves for a
sentence reduction under § 3582(c)(1). United States v. Maumau, 993 F.3d 821,
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830 (10th Cir. 2021) (quoting Freeman, 564 U.S. at 526). We often refer to
§ 3582(c)(1) motions as compassionate-release motions. See id. at 826.
District courts follow a three-step test in evaluating compassionate-
release motions. Id. at 831 (citations omitted). First, the court “must find
whether extraordinary and compelling reasons warrant a sentence reduction.” Id.
(cleaned up). Second, the court “must find whether such reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” Id.
(cleaned up). And third, the court must “consider any applicable § 3553(a)
factors and determine whether, in its discretion, the reduction authorized by
steps one and two is warranted in whole or in part under the particular
circumstances of the case.” 1 Id. (cleaned up). District courts may deny a
compassionate-release motion on any of the three steps without addressing the
others. United States v. Hald, 8 F.4th 932, 942 (10th Cir. 2021) (quoting United
States v. McGee, 992 F.3d 1035, 1043 (10th Cir. 2021)).
On appeal, Gutierrez doesn’t present a clear theory of how the district
court abused its discretion in denying his compassionate-release motion—
1
The § 3553(a) factors include (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant;” (2) the need for
the sentence to “reflect the seriousness of the offense,” deter future crime,
protect the public, and effectively provide the defendant with treatment; (3) “the
kinds of sentences available;” (4) “the kinds of sentence and the sentencing
range established” for the offense at the time of sentencing; (5) certain policy
statements issued by the Sentencing Commission; (6) the need to avoid
“unwarranted sentencing disparities” among similarly situated defendants; and
(7) the need for victim restitution. 18 U.S.C. § 3553(a).
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instead, he seems to claim that the district court didn’t err at all. He concedes
that the district court applied the correct law and properly decided the facts, and
he states that “[t]he district court’s judgment was not wrong.” Opening Br. 5.
But he argues that the district court failed to consider important grounds for
relief: “Sentence disparity review, medical conditions, post-rehabilitation
progress that work in favor and satisfy the [§] 3553 factors.” 2 Id. at 4.
As Gutierrez appears to concede in his brief, the district court didn’t
abuse its discretion by relying “on an incorrect conclusion of law or a clearly
erroneous finding of fact.” Hemmelgarn, 15 F.4th at 1031 (quoting Battle, 706
F.3d at 1317). The district court properly found that Gutierrez’s “vaccination
status mitigates his risk such that his medical conditions do not present an
extraordinary and compelling reason for a sentence reduction.” Gutierrez, 2022
WL 2528082, at *2. A district court doesn’t abuse its discretion by finding that
a defendant who receives and benefits from the COVID-19 vaccine fails to
establish extraordinary and compelling reasons warranting a sentence reduction.
United States v. McRae, No. 21-4092, 2022 WL 803978, at *2–3 (10th Cir. Mar.
17, 2022) (unpublished) (citation omitted). Gutierrez received the COVID-19
2
Gutierrez’s appellate brief seems to raise a new argument about an
alleged sentencing disparity. To the extent that Gutierrez’s brief raises a new
and independent argument about a sentencing disparity, Gutierrez has waived
this argument because he didn’t raise it before the district court in his
compassionate-release motion. Except in extraordinary circumstances, we won’t
consider arguments raised for the first time on appeal. McDonald v. Kinder-
Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (citation omitted).
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vaccine, and he appeared to benefit from it because he didn’t experience severe
complications from his COVID-19 infection. So the district court didn’t abuse
its discretion by finding that Gutierrez failed to show an extraordinary and
compelling need for a sentence reduction. See id.Nor did the district court abuse its discretion by holding on alternative
grounds that the § 3553(a) factors didn’t support a sentence reduction. We can
reverse a district court’s weighing of the § 3553(a) factors only if we are left
with “a definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.”
Hald, 8 F.4th at 949 (quoting United States v. Chavez-Meza, 854 F.3d 655, 659
(10th Cir. 2017)). Here, the district court weighed the § 3553(a) factors and
found that the seriousness of Gutierrez’s offense and the need to deter similar
criminal activity weighed against reducing his sentence. Gutierrez, 2022 WL
2528082, at *4. Gutierrez committed a serious drug crime, and he has served
less than half of his sentence. We aren’t left with a definite and firm conviction
that the district court erred in holding that Gutierrez’s sentence was sufficient
but not greater than necessary to serve the purposes of § 3553(a).
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CONCLUSION
The district court didn’t abuse its discretion by denying Gutierrez’s
compassionate-release motion. We affirm.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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