United States v. Moreira

FILED
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022
United Page:
States Court 1
of Appeals
Tenth Circuit
July 26, 2022
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3251
(D.C. No. 2:06-CR-20021-KHV-JPO-1)
HECTOR MOREIRA, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
Mr. Hector Moreira, proceeding pro se, 1 appeals from the district court’s
dismissal of his compassionate release motion under 18 U.S.C.
§ 3582(c)(1)(A)(i). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1(a) and Tenth Circuit Rule 32.1(A). After examining the briefs
and appellate record, this panel has determined unanimously that oral argument
would not materially assist in the determination of this appeal. See F ED . R. A PP .
P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted
without oral argument.
1
Because Mr. Moreira appears pro se, we construe his filings liberally,
but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1
(10th Cir. 2013).
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 2
I
At all material times, Mr. Moreira has been incarcerated at USP Terre
Haute in Indiana, a penal facility of the Federal Bureau of Prisons (“BOP”). In
2007, he was convicted of multiple violations of 21 U.S.C. § 841 and 18 U.S.C.
§ 2 for his role in a drug-trafficking conspiracy. Based on a total adjusted offense
level of 44 and a criminal history category of I, the U.S. Sentencing Guidelines
Manual (“U.S.S.G.” or “Guidelines”) imprisonment range for Mr. Moreira’s
crimes was life in prison. The district court sentenced Mr. Moreira to life in
prison. A panel of this Court affirmed his sentence on direct appeal. See United
States v. Moreira, 317 F. App’x 745 (10th Cir. 2008) (unpublished).
On July 3, 2020, Mr. Moreira petitioned the officials at USP Terre Haute to
place him in home confinement pursuant to the Coronavirus Aid, Relief, and
Economic Security (“CARES”) Act, Pub. L. No. 116-136, § 12003(b)(2), 134
Stat. 281, 516 (2020). R., Vol. IV, at 37 (Pet.’s Home Confinement Request,
dated July 3, 2020). The Warden denied his request on July 13, 2020, concluding
that Mr. Moreira did not meet the priority guidelines for a transfer to home
confinement. See id. (Resp. to Pet.’s Home Confinement Request, dated July 13,
2020). Although he was informed of his right to file an administrative appeal,
Mr. Moreira failed to do so.
However, on September 24, 2020, Mr. Moreira filed a so-called
compassionate release motion in federal district court under 18 U.S.C.
2
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 3
§ 3582(c)(1)(A)(i), arguing that the COVID-19 pandemic necessitated a reduction
of his sentence. 2 See id. at 18 (Mot. Brought Under 18 U.S.C. § 3582(c)(1)(A)(i),
filed Sept. 24, 2020); see also United States v. Maumau, 993 F.3d 821, 824 (10th
Cir. 2021) (discussing the statutory provisions that “authorize defendants to file
their own motions for compassionate release”). Section 3582(c)(1)(A)(i) allows a
district court to modify a prisoner’s sentence if “extraordinary and compelling
reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Mr. Moreira
sought compassionate release in light of his life sentence, his hypertension
diagnosis, his increased risk of contracting COVID-19 at USP Terre Haute, his
rehabilitation efforts, and his desire to provide support to his “ailing” father. See
R., Vol. IV, at 25–34.
On November 25, 2020, the district court dismissed Mr. Moreira’s motion,
principally due to a purported lack of jurisdiction stemming from his apparent
failure to exhaust administrative remedies. 3 See id. at 120–21 (Dist. Ct.’s Order
2
The CARES Act expanded the power of the BOP to “place a prisoner
in home confinement” in light of the pandemic. See CARES Act, Pub. L. No.
116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020). But this relief is distinct from
that which a prisoner may secure through a motion for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(A), which involves a reduction in the
prisoner’s sentence. As applied here, that means the home confinement relief that
Mr. Moreira sought from the Warden in July 2020 cannot be equated with the
relief that he subsequently sought in September 2020 from the district court.
3
The compassionate release statute includes an exhaustion
requirement, specifying that “the court . . . may reduce the term of imprisonment”
(continued...)
3
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 4
Dismissing Pet.’s Mot., dated Nov. 25, 2020). Additionally, the district court
thoroughly reviewed the merits of Mr. Moreira’s motion, individually addressing
the factors that he cited in support of his claim for relief—especially those factors
correlating with the criteria identified by the “Sentencing Commission [in its
Policy Statement, U.S.S.G. § 1B1.13] . . . that may constitute [extraordinary and
compelling] grounds for compassionate release.” Id. at 122–23. The district
court ultimately found that Mr. Moreira failed to show that “[his] factors, either
individually or collectively, establish extraordinary and compelling reasons for
release.” Id. at 129. Thus, the district court found that Mr. Moreira failed to put
forth “reasons that warrant his release under Section 3582(c)(1)(A),” and
concluded that dismissal was proper. Id. at 130.
Importantly, the district court did not stop there. Specifically, the court
concluded that even if Mr. Moreira had exhausted his administrative remedies and
“[e]ven if [Mr. Moreira’s] life sentence, his rehabilitation efforts, his father’s
failing health, the conditions at USP Terre Haute and the COVID-19 pandemic
were considered ‘extraordinary and compelling’ reasons for release [under the
3
(...continued)
under certain detailed circumstances either “upon motion of the defendant after
the defendant has fully exhausted all administrative rights to appeal a failure of
the [BOP] to bring a motion on the defendant’s behalf” or, alternatively, “the
lapse of 30 days from the receipt of such a request by the warden of the
defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A) (emphasis
added).
4
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 5
criteria of § 1B1.13], the Court [still] would deny relief after considering the
various factors under 18 U.S.C. § 3553.” Id. at 129.
The court elaborated on its reasoning:
A sentence of time served, or approximately 13 years, is
inconsistent with the seriousness of defendant’s offense,
the need for deterrence and the need to protect the public.
Specifically, defendant committed a significant drug
trafficking offense. As part of the offense conduct,
defendant was responsible for 4.89 kilograms of actual
methamphetamine. He also possessed a firearm and was
a manager or supervisor in the criminal activity that
involved at least five participants. Defendant obstructed
justice by recklessly creating a substantial risk of death or
serious bodily injury to another person while fleeing from
a law enforcement officer. Defendant’s calculated offense
level was 44, which is greater than the maximum of 43
under the Sentencing Guidelines.
The Court recognizes that defendant has participated
in several BOP programs, including training as a plumber.
He apparently has made progress toward rehabilitation.
Even so, on balance, the factors under Section 3553(a) do
not support a reduced sentence.
Id. at 129–30 (citations omitted).
In sum, the court rested its denial of Mr. Moreira’s motion on separate and
independent grounds and concluded that, even assuming that Mr. Moreira were
otherwise eligible for relief, the court still would deny him compassionate release
because the balance of the § 3553(a) factors tilted against him. This appeal
followed.
5
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 6
In his appellate briefing, Mr. Moreira acknowledges that the district court
denied relief based “on several independent reasons.” Aplt.’s Opening Br. at 3.
In that regard, he observed that “although [the court] based its decision on [Mr.]
Moreira’s failure to exhaust administrative remedies, it nonetheless conducted a
full evaluation of [Mr.] Moreira’s circumstances, including the § 3553(a) factors
and the [U.S.S.G.] § 1B1.13 policy statement.” Id. Attach. A.
Mr. Moreira contends that the court “abused its discretion,” when it
“dismissed [his] motion for lack of jurisdiction.” Id. Attach. B. More
specifically, he argues that he actually exhausted his administrative remedies. See
id. at 4. To that end, Mr. Moreira asserts that § 3582(c)(1)(A) requires only that
“thirty days pass[] from submission of [a home confinement] request to the
warden” before a district court may entertain a request for compassionate release.
Id. Attach. A. As such, Mr. Moreira argues that he exhausted his administrative
remedies because “the required thirty (30) days had elapsed when [he] filed his
pro-se motion.” Id.
Mr. Moreira further contends that the district court erred in its “procedural
decision denying him relief, based upon the use of the now defunct and
inapplicable” Guidelines Policy Statement—that is, U.S.S.G. § 1B1.13—which,
he says, “does not apply to motions filed by defendant[s] in a pro-se [sic]
capacity.” Id. at 2. Lastly, though he does not challenge in a specific or
meaningful manner the district court’s § 3553(a) analysis, Mr. Moreira concludes
6
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 7
that considering his circumstances “individually or collectively,” “he is entitled to
‘compassionate release.’” Id. Attach. B.
II
“[U]nder the current statutory framework, a prisoner may move for
compassionate release ‘only if three requirements are met: (1) the district court
finds that extraordinary and compelling reasons warrant such a reduction; (2) the
district court finds that such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission; [4] and (3) the district court
considers the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they are
4
By its plain terms, the Guidelines compassionate release Policy
Statement, § 1B1.13, prescribes the circumstances under which “[u]pon 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” of a prisoner, “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 . . . extraordinary and compelling reasons warrant the
reduction.” U.S.S.G. § 1B1.13(1)(A). The commentary to this provision
identifies the following reasons that may constitute grounds for extraordinary and
compelling circumstances: (1) the defendant’s medical condition; (2) the
defendant’s age; (3) the defendant’s family circumstances; and (4) other
extraordinary and compelling reasons as determined by the Director of the Bureau
of Prisons. See U.S.S.G. § 1B1.13, cmt. n.1. Because the text literally speaks of
compassionate release motions filed by the BOP Director, a question arose in the
federal courts as to whether this Guidelines provision applies when, as here, the
compassionate release motion is filed by a prisoner. As discussed infra, the
district court answered that question in the affirmative, but subsequent binding
precedent in our circuit indicates that the court was mistaken.
7
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 8
applicable. [5]’” United States v. Hemmelgarn, 15 F.4th 1027, 1029 (10th Cir.
2021) (quoting Maumau, 993 F.3d at 831).
“A district court ‘may deny compassionate-release motions when any of the
three prerequisites listed in § 3582(c)(1)(A) is lacking and do[es] not need to
address the others.’” Id. (alteration in original) (quoting United States v. McGee,
992 F.3d 1035, 1043 (10th Cir. 2021)). Stated otherwise, “[i]f the most
convenient way for the district court to dispose of a motion for compassionate
release is to reject it for failure to satisfy one of the steps, we see no benefit in
requiring it to make the useless gesture of determining whether one of the other
steps is satisfied.” United States v. Hald, 8 F.4th 932, 942–43 (10th Cir. 2021),
cert. denied, --- U.S. ----, 142 S. Ct. 2742 (2022).
5
18 U.S.C. § 3553(a) lists the following factors that a district court
should consider when determining the appropriate sentence for a defendant: (1)
“the nature and circumstances of the offense and the history and characteristics of
the defendant;” (2) “the need for the sentence imposed[ ] . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense[,] to afford adequate deterrence to criminal conduct[,]
to protect the public from further crimes of the defendant[,] and . . . to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner;” (3) “the kinds of sentences
available;” (4) “the kinds of sentence and the sentencing range established for[] . .
. the applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines[ ] . . . .;” (5) “any pertinent policy
statement” issued by the Sentencing Commission; (6) “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct; and” (7) “the need to provide restitution to
any victims of the offense.” 18 U.S.C. § 3553(a).
8
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 9
“We review de novo whether a district court ‘possesse[s] jurisdiction to
modify [a] [d]efendant’s sentence’ under § 3582(c)(1)(A).” United States v.
Saldana, 807 F. App’x 816, 818 n.4 (10th Cir. 2020) (unpublished) (alterations in
original) (quoting United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997));
cf. United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013) (“The scope of
a district court’s authority in a []sentencing [modification] proceeding under
§ 3582(c)(2) is a question of law that we review de novo.” (alterations in original)
(quoting United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008))).
More generally, “[w]e review a district court’s order denying relief on a
§ 3582(c)(1)(A) motion for abuse of discretion.” Hemmelgarn, 15 F.4th at 1031;
see also United States v. Williams, 848 F. App’x 810, 812 (10th Cir. 2021)
(unpublished) (reviewing the denial of a sentence reduction under
§ 3582(c)(1)(A)(i) for abuse of discretion); Saldana, 807 F. App’x at 818 n.4
(“We review for abuse of discretion the district court’s decision to deny an
authorized sentence reduction.”); cf. United States v. Piper, 839 F.3d 1261, 1265
(10th Cir. 2016) (“We review for an abuse of discretion a district court’s decision
to deny a reduction of sentence under 18 U.S.C. § 3582(c)(2).” (quoting United
States v. Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012))). Under this standard,
“[a] district court abuses its discretion when it relies on an incorrect conclusion of
law or a clearly erroneous finding of fact.” Hemmelgarn, 15 F.4th at 1031
(quoting United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013)).
9
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 10
But “[l]ike other errors, abuses of discretion may be harmless.” United
States v. Tony, 948 F.3d 1259, 1264 (10th Cir. 2020). Thus, “if we find an abuse
of discretion, we must determine whether the error was harmless” before we
reverse the district court’s disposition. United States v. Vaughn, 370 F.3d 1049,
1051 (10th Cir. 2004). “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.’” Id. (quoting United States v. Cestnik, 36 F.3d 904, 910 (10th Cir.
1994)).
III
We agree with Mr. Moreira that the district court committed legal error by
finding that it did not have jurisdiction to review Mr. Moreira’s motion.
Furthermore, insofar as the district court concluded that U.S.S.G. § 1B1.13’s
criteria are applicable and binding—where Mr. Moreira and not the Director of
the BOP filed the compassionate release motion—we conclude that Mr. Moreira’s
suggestion of error also is on target. However, we ultimately conclude that these
two errors are harmless and uphold the district court’s judgment.
As Mr. Moreira recognizes, the district rested its decision on several
independent bases. More specifically, in addressing the exhaustion question and
the merits factors that a prisoner must satisfy to secure compassionate release, the
court reasoned that even assuming that Mr. Moreira had administratively
exhausted his claims and demonstrated extraordinary and compelling reasons
10
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 11
under the criteria of U.S.S.G. § 1B1.13, the court still would deny his motion for
compassionate release “after considering the various factors under 18 U.S.C.
§ 3553(a).” R., Vol. IV, at 129. In other words, the district court correctly
perceived that § 3553(a) provides a separate and distinct basis for denying a
compassionate release motion and determined that, irrespective of whether Mr.
Moreira satisfied the other grounds for compassionate release, his motion was
appropriately denied because the balance of the § 3553(a) factors tilted against
him. Notably, Mr. Moreira does not find fault in any specific or meaningful way
with the district court’s § 3553(a) analysis. Accordingly, we conclude that this
analysis stands undisturbed and supports the court’s decision to deny Mr.
Moreira’s motion for compassionate release. This denial thus was not an abuse of
discretion.
A
In United States v. Hemmelgarn, a decision published after the district
court dismissed Mr. Moreira’s motion, we determined as a matter of first
impression that the exhaustion requirement found in § 3582(c)(1)(A) is not
“jurisdictional in nature.” 15 F.4th at 1030–31. Specifically, we
concluded—following our sister circuits who had previously looked into the
matter—that “§ 3582(c)(1)(A)’s exhaustion requirement is a claim-processing
rule.” Id. at 1031. Practically, this means that, if the government does not argue
exhaustion before the district court, that argument ordinarily is not
11
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 12
preserved—regardless of whether a movant “failed to provide proof that he
exhausted his administrative remedies.” Id.; cf. Eberhart v. United States, 546
U.S. 12, 15 (2005) (explaining that claim-processing rules “may be ‘unalterable
on a party’s application’ but ‘can nonetheless be forfeited if the party asserting
the rule waits too long to raise the point’” (quoting Kontrick v. Ryan, 540 U.S.
443, 456 (2004))).
Put simply, the district court here committed legal error when it sua sponte
concluded that Mr. Moreira’s motion for compassionate release was subject to
dismissal for lack of jurisdiction because he allegedly failed to administratively
exhaust his remedies. Rather, the court should have inquired whether the
government sought to enforce the exhaustion rule. See Hemmelgarn, 15 F.4th at
1031 (“Even though [the movant] failed to provide proof that he exhausted his
administrative remedies [for purposes of § 3582(c)(1)(A)], the government did not
argue exhaustion on appeal. This argument is waived.”); cf. United States v.
Purify, No. 20-5075, 2021 WL 5758294, at *3 & n.2 (10th Cir. Dec. 3, 2021)
(unpublished) (concluding that the government did not waive its exhaustion
argument on appeal, because the government, at the “first opportunity” afforded
to it, “argued forcefully” that petitioner failed to exhaust his remedies under of
§ 3582(c)(1)(A)). 6
6
The government actually failed to present an exhaustion argument
before the district court. See R., Vol. IV, at 78–98 (Government’s Resp. to
(continued...)
12
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 13
Furthermore, the district court committed another error—this one related to
whether Mr. Moreira had made a sufficient showing of extraordinary and
compelling reasons. In particular, the district court reasoned that, even though
Mr. Moreira moved for compassionate release—instead of the BOP Director—the
provisions of U.S.S.G. § 1B1.13 defined the relevant and controlling criteria for
determining whether his reasons for seeking relief were extraordinary and
compelling. In this regard, the court stated:
In December of 2018, the First Step Act amended Section
3582(c)(1)(A) to permit defendants (rather than only the BOP) to
file motions for compassionate release. The Sentencing
Commission’s policy statement, which was effective November
1, 2018, nonetheless remains the relevant policy statement in
determining whether “extraordinary and compelling reasons”
warrant defendant’s release. Unless the grounds for resentencing
fall within one of the specific categories that Congress has
authorized under Section 3582(c), the Court lacks jurisdiction to
consider defendant’s request.
R., Vol. IV, at 124 (citation omitted). Thus, the district court determined that,
even where the movant is a prisoner, as here, § 1B1.13’s criteria is applicable and
6
(...continued)
§ 3582 Mot., filed Oct. 26, 2020); id. at 84 & n.5 (the government conceding that
“it appears” that the exhaustion requirement “is met” in this case by virtue of the
Warden denying Mr. Moreira’s July 3, 2020, request for home confinement,
which the government characterizes as a request for “compassionate release”).
Thus, notwithstanding the fact that Mr. Moreira’s initial request submitted to the
Warden was related placement in home confinement—a substantially different
request than a motion for a reduction of sentence pursuant to § 3582(c)(1)(A),
see United States v. Springer, 820 F. App’x 788, 790–92 & n.5 (10th Cir. 2020)
(unpublished)—the government seemingly did not preserve an exhaustion
challenge.
13
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 14
controlling in the assessment of whether the prisoner has shown extraordinary and
compelling reasons.
However, after the district court issued its order, we expressly ruled to the
contrary—first in our McGee decision, and thereafter in other binding precedent.
992 F.3d at 1050 (“We conclude instead, as have the Second, Fourth, Sixth, and
Seventh Circuits, that the Sentencing Commission’s existing policy statement is
applicable only to motions for sentence reductions filed by the Director of the
BOP, and not to motions filed directly by defendants.”); accord Maumau, 993
F.3d at 836–37; cf. Hald, 8 F.4th 938 n.4 (stating that “the district court’s
discretion is not restricted by any Sentencing Commission policy statements,” but
noting that “it would hardly be an abuse of discretion for a district court to look
to the present policy statement for guidance”). Accordingly, to the extent that the
district court deemed § 1B1.13’s criteria to be applicable and controlling in its
assessment of whether Mr. Moreira had offered extraordinary and compelling
reasons in support of his compassionate release motion—as Mr. Moreira
suggests—the court erred.
B
We nevertheless uphold the district court’s denial of Mr. Moreira’s motion
for compassionate release, regardless of the court’s errors in concluding that (1) it
lacked jurisdiction because of Mr. Moreira’s purported failure to exhaust and (2)
it was obliged to apply U.S.S.G. § 1B1.13’s criteria even though Mr.
14
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 15
Moreira—not the BOP Director—was the movant. That is because these two
errors were harmless.
As Mr. Moreira himself recognizes, the district court denied him relief
based “on several independent reasons.” Aplt.’s Opening Br. at 3. Specifically,
the court reasoned that even assuming that Mr. Moreira had administratively
exhausted his claims and demonstrated extraordinary and compelling
reasons—under the criteria of U.S.S.G. § 1B1.13—it still would deny his motion
for compassionate release “after considering the various factors under 18 U.S.C.
§ 3553(a).” R., Vol. IV, at 129.
In particular, the district court explained that “[e]ven if [Mr. Moreira’s] life
sentence, his rehabilitation efforts, his father’s failing health, the conditions at
USP Terre Haute and the COVID-19 pandemic were considered ‘extraordinary
and compelling’ reasons for release, the Court would deny relief after considering
the various factors under 18 U.S.C. § 3553.” Id. Then tracking the § 3553(a)
factors, the court first stated that “[a] sentence of time served, or approximately
13 years, is inconsistent with the seriousness of [Mr. Moreira’s] offense, the need
for deterrence and the need to protect the public.” Id. at 129–30. The court
specifically observed that Mr. Moreira “committed a significant drug trafficking
offense” and “was responsible for 4.89 kilograms of actual methamphetamine.”
Id. at 130. Next, the court noted Mr. Moreira’s “possess[ion] of a firearm and
[his status as] a manager or supervisor in the criminal activity that involved at
15
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 16
least five participants.” Id. The court additionally stated that Mr. Moreira
“obstructed justice by recklessly creating a substantial risk of death or serious
bodily injury to another person while fleeing from a law enforcement officer.” Id.
Lastly, the court recounted that Mr. Moreira’s calculated offense level was 44
“which is greater than the maximum of 43 under the Sentencing Guidelines.” Id.
In sum, the court reasoned that, even though Mr. Moreira “has participated in
several BOP programs” and “apparently has made progress toward
rehabilitation[,] . . . . on balance, the factors under Section 3553(a) do not support
a reduced sentence.” Id.
Mr. Moreira does not specifically or meaningfully find fault with the
district court’s § 3553(a) analysis. In particular, he does not dispute any of the
court’s factual findings concerning the circumstances of his crime, the sentence
imposed, or his calculated offense level. He does not even attempt to argue that
the court failed to consider or otherwise incorrectly applied the § 3553(a) factors.
See Aplt.’s Opening Br. Attach. B (explaining that the court “engaged in a[n]
analysis” that “consider[ed] all the aforementioned [§ 3553(a) factors] and the
need for deterrence, as well as the need to protect the public”). Indeed, Mr.
Moreira merely surmises that the court “failed to address and recognize the
significant strides and rehabilitative effort(s)” as outlined in “character letter(s)”
from BOP employees submitted on his behalf. Id. at 4. He also cursorily states
that at least five other inmates “who had . . . more serious and violent crime(s)
16
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 17
were granted ‘compassionate release’” around the same time he submitted his
petition. Id. However, all of this is not enough for us to conclude that the district
court abused its discretion here in conducting its § 3553(a) analysis. See United
States v. Singer, 825 F.3d 1151, 1158 (10th Cir. 2016) (“[W]e will ‘find an abuse
of discretion only if the district court was arbitrary, capricious, whimsical, or
manifestly unreasonable when it weighed the permissible § 3553(a) factors.’”
(emphasis added) (alteration in original) (quoting United States v. Craig, 808 F.3d
1249, 1261 (10th Cir. 2015))).
As a panel of our Court most recently explained:
To the extent [movant] is arguing the district court should have
given more weight to her post-sentencing conduct, we reject this
argument. [Movant] maintains that since she has been serving
her custodial sentence, she has made significant efforts towards
self-improvement: for example, she has pursued vocational
training, drug education, and drug-abuse treatment. [Movant] is
correct that district courts generally may consider a defendant’s
post-sentencing rehabilitation under § 3553(a), but the “weighing
of the § 3553(a) factors is committed to the discretion of the
district court[.]” We conclude the district court did not abuse its
discretion by finding that, on balance, [movant’s] history and
characteristics weighed against a sentence reduction.
United States v. Setiyaningsih, No. 21-8093, 2022 WL 2160001, at *2 (10th Cir.
June 15, 2022) (unpublished) (citations omitted) (quoting Hald, 8 F.4th at 949).
In sum, as to the district court’s § 3553(a) analysis, Mr. Moreira offers no
specific or meaningful argument that the district court abused its discretion. And
Mr. Moreira has clearly acknowledged that the court’s § 3553(a) ruling provides
17
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 18
an independent basis for denying his motion for compassionate release.
Accordingly, regardless of the court’s errors in concluding that it lacked
jurisdiction due to Mr. Moreira’s purported failure to exhaust administrative
remedies, and that it was obliged in this case involving a prisoner’s
compassionate release motion to apply U.S.S.G. § 1B1.13’s criteria, we uphold
the district court’s denial of Mr. Moreira’s motion for compassionate release
because the two errors are harmless. And the court did not abuse its discretion in
denying Mr. Moreira’s motion based on its application of the sentencing factors
of § 3553(a). IV
For the foregoing reasons, we AFFIRM the district court’s judgment.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
18