United States v. Alcazar

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 14, 2023
• Docket: 23-2004
• Status: Unpublished

Opinion

Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 14, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2004 (D.C. No. 1:17-CR-02380-JCH-1) GWENDOLYN ALCAZAR, (D.N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

Gwendolyn Alcazar appeals the district court’s denial of her request for a

sentence reduction under 18 U.S.C. § 3582(c)(1)(A), commonly known as

compassionate release. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

BACKGROUND

In September 2017, a federal grand jury indicted Alcazar for possession

of “500 grams and more” of a substance containing methamphetamine with

intent to distribute, and with aiding and abetting, in violation of 21 U.S.C.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 2

§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. App. vol. 1, at 8. In November 2018,

Alcazar pleaded guilty to the charge. The district court sentenced Alcazar

within the applicable guideline range to the minimum mandatory sentence of

120 months’ imprisonment, plus five years of supervised release.

On August 18, 2020, Alcazar submitted a request for compassionate

release to the prison’s warden. As extraordinary and compelling reasons for

release, Alcazar cited the COVID-19 pandemic, her medical conditions, her

father’s declining health, and an “ongoing court battle” involving her five

children “regarding a sexual abuse case with a family member.” App. vol. 2, at

55. 1 Alcazar also noted that she has worked a job and completed classes while

incarcerated. If released, Alcazar promised, among other commitments, to

attend college, enroll in an out-patient program, continue her sobriety, and

obtain employment.

On September 1, 2020, the warden denied Alcazar’s request, noting that

she “may commence an appeal of th[e] decision via the administrative remedy

process by submitting [her] concerns on the appropriate form (BP-9) within 20

1 To the extent we quote from sealed volumes, we have determined that the quoted material either appears in Alcazar’s brief or in the district court’s order attached to Alcazar’s brief (which was not filed under seal), or isn't sensitive. See Fed. R. Civ. P. 5.2(h) (stating party waives privacy protection for own information by filing not under seal).

2 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 3

days.” Id. at 65. Two days later, Alcazar submitted a request using the BP-9

form. 2

On October 6, 2020, the warden denied Alcazar’s second request,

explaining that if she was not “satisfied with this decision, [she could] appeal

to the Regional Director at Bureau of Prisons” and indicating that her “appeal

must be received in the Western Regional Office within (20) days.” Id. at

66–67 (emphasis added). This instruction complied with the applicable

regulation, 28 C.F.R. § 542.15(a), which states:

An inmate who is not satisfied with the Warden’s response may submit an appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.

Next, according to Alcazar, she tried to appeal the warden’s second

denial to the Bureau of Prisons Office of General Counsel (OGC), but the

prison did not give her the proper paperwork and ultimately “told [her] it was

too late to appeal.” Op. Br. at 10. Even so, Alcazar asserts that she completed

and sent the new forms to the OGC but did not receive a response. As the

district court observed, Alcazar’s remedy-history form includes a

compassionate release entry with a “status date” of October 13, 2020, with

2 Alcazar’s September 3, 2020 request is on a BP-229(13) form but the district court noted that this is often called a BP-9 form. 3 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 4

“CLD” 3 listed as the status, but without any further detail. App. vol. 2, at 123.

In the proceedings before the district court, the government asserted that

Alcazar had not appealed the warden’s second denial, as she had claimed.

In the district court, Alcazar then moved for compassionate release under

§ 3582(c)(1)(A)(i). Her bases for release mirrored those provided in her initial

letter to the warden: her health conditions, her severe obesity, the prison’s

policies making her obesity less manageable, her heightened susceptibility to

COVID-19, her history of self-harm, her good behavior in prison, and her need

to care for her father and children. Id. at 123, 129. The government did not

challenge the legitimacy of Alcazar’s diagnoses or medical conditions which

include: “obesity, chronic hepatitis C, bipolar disorder, PTSD, amphetamine

related use, major depressive disorder, anxiety, and borderline personality

disorder.” Id. at 123.

In its sealed order, the district court dismissed without prejudice

Alcazar’s motion for failure to exhaust her administrative remedies. The court

explained, “Even if appealing to the OGC before the regional director was not

an issue, the record does not contain evidence of Ms. Alcazar’s appeal to the

OGC.” Id. at 126; see also 28 C.F.R. § 571.63(b) (categorizing the General

Counsel’s denial of an inmate’s request under § 3582(c)(1)(A) as “a final

3 This acronym appears on Alcazar’s remedy-history form, but neither the record, the parties’ briefs, nor the district court’s order indicate what “CLD” represents. 4 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 5

administrative decision”). Because Alcazar had the burden to show exhaustion

and failed to explain the significance of the October 13, 2020 entry on her

remedy history form, the district court ruled that the “record’s silence on the

alleged OGC appeal comes at Ms. Alcazar’s expense.” App. vol. 2, at 126.

The district court also declined Alcazar’s request for an evidentiary

hearing on exhaustion, explaining that “the resolution of that hearing would

probably take longer than the dismissal without prejudice and Ms. Alcazar

completing, with documentation, the BOP’s administrative remedy procedure.”

Id. at 127 n.1.

In the alternative, the district court concluded that Alcazar’s motion

failed on the merits because Alcazar had not established extraordinary reasons

warranting a sentence reduction. Specifically, the court explained that medical

conditions rarely meet the extraordinary requirement. In support, the court

noted that courts routinely deny relief: based on COVID-19 to vaccinated

incarcerated persons; and to individuals, like Alcazar, who are classified at

Care Level 1 or 2 on the BOP’s four-level medical classification scale. The

court also found that the record did not show that Alcazar’s release was

necessary to preserve the life of her elderly father or to protect her children

from alleged abuse.

Alcazar timely appealed.

5 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 6

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). “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)).

DISCUSSION

Alcazar challenges the district court’s order dismissing her motion on

two grounds: (1) that the district court erred in concluding that she had failed to

exhaust her administrative remedies and (2) that the district court erred in

concluding that her motion failed to establish extraordinary and compelling

reasons for her early release.

Because the government has withdrawn its argument that Alcazar failed

to exhaust her administrative remedies, we will assume for purposes of this

appeal that she adequately exhausted those remedies. 4 Our inquiry thus focuses

on the district court’s merits determination.

4 In withdrawing its exhaustion argument, the government explained:

In preparing for oral argument, . . . the undersigned learned that the Department of Justice has taken the position that the ‘lapse’ provision of § 3582(c)(1)(A) allows a defendant to file a motion for compassionate release once thirty days have passed after the warden receives a request, regardless of whether the warden acts on the request or not, and without requiring the defendant to exhaust the BOP’s administrative process. (footnote continued) 6 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 7

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 § 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)(A). United States v. Maumau, 993 F.3d 821, 830

(10th Cir. 2021) (quoting Freeman, 564 U.S. at 526).

District courts follow a three-step test in evaluating § 3582(c)(1)(A)

compassionate-release motions. Id. at 831. 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 [18 U.S.C.]

§ 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.” 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, 942–43 (10th Cir. 2021). Only

the first requirement—extraordinary and compelling reasons—is at issue on

appeal.

Appellee’s letter to the court at 2, ECF No. 11044695 (Nov. 14, 2023). 7 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 8

First, Alcazar asserts that the district court disregarded her high

susceptibility to severe illness or death from another COVID-19 infection based

on her medical conditions: obesity, high blood pressure, anemia, hepatitis C,

post-traumatic-stress disorder, borderline diabetes, borderline personality

disorder, bipolar disorder, major depressive disorder, amphetamine-related

disorder, and “long Covid.” Op. Br. at 33–34. 5 She also notes that she “ha[s]

attempted suicide and was placed on suicide watch.” Id. at 34. But the district

court did address the risks associated with COVID-19 along with all of

Alcazar’s medical conditions. The district court first cited several cases in

which courts in this circuit have denied compassionate release to incarcerated

persons (1) who have contracted COVID-19, (2) “with comorbidities who have

contracted and recovered from COVID-19,” (3) “who suffer from similar

conditions and diagnoses” as Alcazar, and (4) “who are classified at Care Level

1 or 2 on the BOP’s four-level medical classification scale.” App. vol. 2, at

128–29 (collecting cases).

Applying these principles, the district court concluded that because

Alcazar is vaccinated, has recovered from COVID-19, and is classified at

health Care Level 1 and mental health Care Level 2, that her diagnoses and

conditions do not “go beyond what is usual, regular, or common.” Id. at 129.

5 We can’t tell from Alcazar’s brief how many times she has been infected with COVID-19. Compare Op. Br. at 14 (three times) with Op. Br. at 33 (two times). 8 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 9

Thus, the court ruled, she did not meet the extraordinary and compelling

standard. Id. Alcazar does not challenge the court’s factual findings or the

cases that the district court relied on in so ruling. Nor does Alcazar cite any

case in which a court has found, under circumstances much like her own, that

extraordinary and compelling circumstances exist. Accordingly, we see no

abuse of discretion.

Second, Alcazar asserts that the district court should have granted her

motion based on her allegation that her prison facility had a forced “herd

immunity” policy. Op. Br. at 34. Because Alcazar did not provide the district

court with any evidence of this accusation, the district court did not abuse its

discretion in declining to grant Alcazar compassionate release on this basis.

Third, Alcazar states, “[i]n light of all of the factors that she informed

the district court, which are stated above in the fact section of this brief, it was

arbitrary and capricious for the district court to refuse to release her to serve

the remainder of her sentence outside the BOP facility that was unable to

protect her” from COVID-19. Id. Aside from her health concerns, these

“factors” included unsupported allegations that the BOP provided her

inadequate medical care (related to COVID-19 and an injury she received from

falling out of a top bunk) and unsupported claims that she is the only person

who can protect her children from alleged abuse by a family member. But

Alcazar cited no evidence supporting these allegations. App vol. 2, at 129. Nor

does she cite any caselaw indicating that a court has ever granted

9 Appellate Case: 23-2004 Document: 010110968546 Date Filed: 12/14/2023 Page: 10

compassionate release under similar circumstances. Alcazar also does not

indicate how the district court erred in concluding that the record did not

support these allegations. Thus, we see no abuse of discretion.

CONCLUSION

For these reasons, we affirm the district court’s denial of Alcazar’s

motion for compassionate release.

Entered for the Court

Gregory A. Phillips Circuit Judge