United States v. Colmenares Fierro ( 2022 )

Case: 21-40566 Document: 00516378031 Page: 1 Date Filed: 06/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2022
No. 21-40566
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jamed Nasmir Colmenares Fierro,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-295-3
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Jamed Nasmir Colmenares Fierro, federal prisoner #26311-078,
appeals the district court’s denial of his motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A). On appeal, he argues that he has shown
extraordinary and compelling reasons warranting compassionate release.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-40566
Specifically, he contends that his latent tuberculosis puts him at a heightened
risk of serious illness or death due to COVID–19 infection. He also argues
that the district court erred in finding that the sentencing factors set forth in
18 U.S.C. § 3553(a) counseled against releasing him. We AFFIRM.
We review a denial of a motion for compassionate release for abuse of
discretion. See United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
Here, the district court issued a thorough, 19-page opinion finding that
Colmenares Fierro’s medical condition was not an “extraordinary and
compelling reason[]” that warranted release under 18 U.S.C.
§ 3582(c)(1)(A)(i) and that the § 3553(a) factors likewise counseled against
release. See United States v. Colmenares Fierro, No. 4:12-CR-295 (3), 2021 WL
2806942 (E.D. Tex. July 2, 2021). Neither holding was an abuse of discretion.
First, as the district court pointed out, prison medical staff had
recommended treatment for Colmenares Fierro’s latent tuberculosis, but he
refused. The district court soundly reasoned that, “[u]nder these
circumstances, his declining the recommended treatment for latent
tuberculosis . . . precludes him from relying on this condition as a basis for
compassionate release.” Id. at *6 n.6; accord United States v. Glasper, 854 F.
App’x 748, 750 (7th Cir. 2021); United States v. Broomfield, No. 20-14514,
2022 WL 896825, at *1 (11th Cir. Mar. 28, 2022).1 Colmenares Fierro also
fails to show clear error in the district court’s finding, based on infection and
fatality rates, that “the facility where [he] is housed is handling the
1
Colmenares Fierro admits in his brief that he refused the treatment but claims he
did so because he was diagnosed with hepatitis in 1993 and suspected that the tuberculosis
treatment might cause liver issues. This argument, however, was never presented to the
court below and has thus been forfeited. See McClellon v. Lone Star Gas Co., 66 F.3d 98, 100
(5th Cir. 1995). Moreover, the district court determined that “Colmenares Fierro’s records
do not reflect . . . that he has . . . hepatitis,” 2021 WL 2806942, at *6—a finding he does
not acknowledge or contest on appeal.
2
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No. 21-40566
[COVID–19] outbreak appropriately and providing adequate medical care.”
2021 WL 2806942, at *7. That care includes making the COVID vaccine
available to inmates. The district court appropriately cited the facility’s
health-related measures as a factor counseling against a finding of
extraordinary circumstances warranting Colmenares Fierro’s release. Id. All
things considered, the district court justifiably concluded that Colmenares
Fierro does not face the kind of heightened vulnerability to COVID that
might warrant compassionate release under § 3582(c)(1)(A)(i). See United
States v. Thompson, 984 F.3d 431, 433–35 (5th Cir. 2021).
Second, besides finding that extraordinary and compelling reasons did
not warrant release, the district court determined in the alternative that the
factors set forth in 18 U.S.C. § 3553(a) also counseled against release.
Specifically, in light of the nature and circumstances of Colmenares Fierro’s
offense of conviction, his criminal history, the large amount of cocaine
involved, his leadership role in an international drug-trafficking organization,
and the fact that he has only served approximately 32% of his sentence, the
district court concluded that granting Colmenares Fierro early release would
not promote adequate deterrence, protect the public from further crimes,
reflect the seriousness of the offense, promote respect for the law, or provide
just punishment. See § 3553(a)(1), (a)(2)(A)-(C). We find no abuse of
discretion in this conclusion—which, as the district court correctly noted,
serves as a basis for denying compassionate release independent of that
court’s § 3582(c)(1)(A)(i) holding. See Chambliss, 948 F.3d at 693–94. To the
extent that Colmenares Fierro disagrees with the district court’s weighing of
the § 3553(a) factors, he has failed to show “a sufficient ground for reversal.”
Id. at 694.
For these reasons, the judgment of the district court is AFFIRMED.
3