United States v. Guerrero ( 2022 )

Appellate Case: 22-3053 Document: 010110763018 Date Filed: 11/03/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 3, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3053
(D.C. No. 2:09-CR-20088-JWL-1)
MICHAEL GUERRERO, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MORITZ, and CARSON, Circuit Judges.
_________________________________
Michael Guerrero moved for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i). The district court denied his motion, and he appeals that
decision. We affirm.
Background
Since 2010 Guerrero has been serving a 235-month sentence for a drug
offense. In 2021 he moved for compassionate release. A court may reduce a
*
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 This order and judgment is not binding precedent,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.
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sentence under the relevant compassionate-release provision if “extraordinary and
compelling reasons” warrant the reduction; the “reduction is consistent with
applicable policy statements” from the Sentencing Commission; and after
considering any applicable factors in 18 U.S.C. § 3553(a), the court determines that
the circumstances of the case warrant a reduction. § 3582(c)(1)(A)(i); see also
United States v. Hald, 8 F.4th 932, 937–38 (10th Cir. 2021), cert. denied, 142 S. Ct.
2742 (2022).
Guerrero’s motion argued that two extraordinary and compelling reasons
warranted his release. First, he suffers from medical conditions that increase his risk
of severe illness if he contracts COVID-19. And his detention, he argued, increased
his risk of contracting the virus. Second, his wife had been indicted and detained on
a drug charge, forcing his two adult daughters to care for his three minor children and
his minor stepchild. The adult daughters, he argued, “simply cannot” parent the
minor children, evidenced by the recent commitment of Guerrero’s minor son to a
juvenile corrections facility. Aplt. App. at 35. He argued that he “is the only
available family member capable of caring for” the children. Id. at 28.
The district court concluded that Guerrero did not present extraordinary and
compelling reasons for his release. The court noted that Guerrero had already
recovered from a COVID-19 infection and had received a vaccine against the virus.
His vaccination, the court concluded, “significantly reduces the risk that he will
experience a severe complication or death from another COVID-19 infection.” Id. at
140. And the court opined that “the virus has been circulating so widely that
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[Guerrero’s] chances of contracting COVID-19 are likely the same whether he is in
custody or out of custody.” Id. As for Guerrero’s family circumstances, the court
concluded they were “not remotely akin to the family circumstances described as
extraordinary and compelling by the Sentencing Commission or recognized by other
courts in granting compassionate release.” Id. at 141. And the court noted that
Guerrero’s “concerns for his children did not deter him from engaging in the
conspiracy for which he is incarcerated and do not differentiate [him] from the vast
majority of other defendants with children and families.” Id. at 142. Having
concluded that extraordinary and compelling reasons did not support Guerrero’s
release, the court denied his motion.
Discussion
We review the district court’s ruling for an abuse of discretion. See United
States v. Hemmelgarn, 15 F.4th 1027, 1031 (10th Cir. 2021). A district court abuses
its discretion if it relies on an incorrect legal conclusion or a clearly erroneous factual
finding. Id.The district court did not err when it concluded that Guerrero’s medical
conditions, combined with the pandemic, did not amount to an extraordinary and
compelling reason to release him. See United States v. Lemons, 15 F.4th 747, 751
(6th Cir. 2021) (agreeing “that a defendant’s incarceration during the COVID-19
pandemic—when the defendant has access to the COVID-19 vaccine—does not
present an ‘extraordinary and compelling reason’ warranting a sentence reduction”).
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As the court recognized, Guerrero’s receiving a vaccine against COVID-19 reduced
his risk of severe illness or death from the virus.
Even so, Guerrero argues that the court erred when it opined that “the virus has
been circulating so widely that [his] chances of contracting COVID-19 are likely the
same whether he is in custody or out of custody.” Aplt. App. at 140. Guerrero
makes a fair point, at least at first glance. After all, he cited to the district court a
study finding that, during roughly the first year of the pandemic, COVID-19
incidence and mortality rates were higher among the prison population than the
national population. At a minimum, we see no record support for a finding that
Guerrero’s release would not reduce his chances of contracting the virus.
After a closer look, however, we conclude that the court’s statement did not
amount to an abuse of discretion. We do not read the statement as a finding of
empirical fact. The statement itself expresses uncertainty, saying only that the risks
of infection in prison and in the community were likely the same. In the end, we
think the statement merely reflects the court’s opinion that Guerrero would have
faced a significant risk of reinfection even in the community.
Even if we thought the court’s risk assessment amounted to a clearly erroneous
factual finding, however, we would not reverse. “Like other errors, abuses of
discretion may be harmless.”1 United States v. Tony, 948 F.3d 1259, 1264 (10th Cir.
1
The government does not argue that any error in the court’s analysis was
harmless. But we have discretion to initiate harmless-error review ourselves. United
States v. Spence, 721 F.3d 1224, 1230 n.6 (10th Cir. 2013). We exercise that
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2020). “An error is harmless unless it had a substantial influence on the outcome or
leaves one in grave doubt as to whether it had such effect.” United States v. Vaughn,
370 F.3d 1049, 1051 (10th Cir. 2004) (internal quotation marks omitted). We have
no doubt the district court would have concluded that Guerrero’s vaccination and
prior infection alone left him without an extraordinary and compelling reason for
release based on his medical conditions and the pandemic. The court’s order makes
clear that its opinion about the relative risks of infection in prison and in the
community did not drive its analysis.
Nor did the district court err when in concluded that Guerrero’s family
situation did not create an extraordinary and compelling reason for his release. The
record refutes Guerrero’s argument that the district court misunderstood him to argue
merely that “his incarceration had a negative impact on his family.” Aplt. Br. at 26–
27. The court’s order accurately described Guerrero’s argument before rejecting it,
recognizing that Guerrero’s wife had been indicted, that his adult children had been
forced to care for his minor children, that they had been “struggling to do so
effectively,” and that his son had been placed in a juvenile corrections facility. Aplt.
App. at 141.
Guerrero emphasizes that a Sentencing Commission policy statement says that
extraordinary and compelling reasons for a reduced sentence include the “death or
incapacitation of the caregiver of the defendant’s minor child or minor children.”
discretion here because the record is not complex, and the harmlessness of any error
is not debatable. See id.5
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U.S. Sent’g Guidelines Manual § 1B1.13 cmt. 1(C)(i). He argues that
“incapacitation” under the policy statement includes not only medical incapacitation
but also legal incapacitation such as his wife’s detention. He also argues that the
court should have found his family circumstances to be an extraordinary and
compelling reason for release under the policy statement’s catch-all provision,
§ 1B1.13 comment 1(D).
To the extent Guerrero contends § 1B1.13 bound the district court’s decision,
he is mistaken. When ruling on a compassionate-release motion, such as Guerrero’s,
filed by a defendant rather than the Director of the Bureau of Prisons, a district
court’s discretion is not currently restricted by any Sentencing Commission policy
statements, for § 1B1.13 applies only to motions filed by the Director. Hald, 8 F.4th
at 938 n.4.
At the same time, though, “it would hardly be an abuse of discretion for a
district court to look to the present policy statement for guidance.” Id. The district
court appears to have done that here, concluding that Guerrero’s circumstances
differed from those “described as extraordinary and compelling by the Sentencing
Commission or recognized by other courts in granting compassionate release.” Aplt.
App. at 141. In Guerrero’s view, the court mistakenly believed § 1B1.13 comment
1(C)(i) covers only medical incapacitation and not, say, legal incapacitation. But the
court did not hold that the comment categorically excludes all incapacitation other
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than medical incapacitation.2 In our view, the court’s order merely reflects its
opinion that Guerrero’s circumstances were not extraordinary and compelling
compared to other, perhaps more typical cases of caregiver incapacitation. And
although the court noted that Guerrero’s family members did not need medical care,
contrary to Guerrero’s argument, the court did not hold that he “had to show evidence
of medical incapacitation” to establish an extraordinary and compelling reason for
release. Aplt. Br. at 25.
At bottom, the district court simply concluded that the circumstances Guerrero
presented did not “amount to an extraordinary and compelling reason to reduce his
sentence.” Aplt. App. at 142. The court had discretion to determine for itself what
constitutes an extraordinary and compelling reason for release, see United States v.
Maumau, 993 F.3d 821, 832 (10th Cir. 2021), and it did not abuse that discretion.
Guerrero lastly argues the district court disregarded his release plan. But
nothing in the court’s order suggests it disregarded any of Guerrero’s evidence or
arguments. Guerrero offered two potential extraordinary and compelling reasons for
his release: his increased risk of severe disease from COVID-19 and his family
circumstances. Aplt. App. at 129–30. After concluding these circumstances did not
amount to extraordinary and compelling reasons to release him, the court had no
reason to discuss his release plan.
2
We express no opinion about whether a caregiver’s incarceration qualifies as
“incapacitation” under § 1B1.13 comment 1(C)(i). We need not resolve that issue
because § 1B1.13 does not apply to Guerrero’s motion and because the district court
did not expressly hold that “incapacitation” means medical incapacitation.
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Conclusion
We affirm the district court’s order.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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