Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8072 (D.C. No. 2:01-CR-00099-NDF-1) XAVIER ARRIOLA-PEREZ, (D. Wyo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, MATHESON and EID, Circuit Judges. _________________________________
Xavier Arriola-Perez appeals from the district court’s denial of his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.1
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 “Although he is represented by counsel in this appeal, we review [Mr. Arriola-Perez’s] pro se [compassionate release] motion liberally.” United States v. Herring, 935 F.3d 1102, 1107 n.2 (10th Cir. 2019). Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 2
BACKGROUND
In 2003, a jury convicted Mr. Arriola-Perez of (1) one count of conspiracy to
possess with intent to distribute and to distribute methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (2) one count of possession with
intent to distribute methamphetamine and aiding and abetting possession with intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C.
§ 2. At sentencing, the district court found that he was responsible for 16.3
kilograms of methamphetamine (mixture). His offense level was 42 (a base offense
level of 38, plus a 4-level increase for acting in a leadership role), and his criminal
history category was IV, resulting in a Guidelines range of 360 months to life. The
district court sentenced Mr. Arriola-Perez to serve 400 months’ imprisonment. This
court affirmed the convictions and sentence. United States v. Arriola-Perez,
137 F. App’x 119, 137 (10th Cir. 2005).
In 2015, the district court reduced Mr. Arriola-Perez’s sentence based on
retroactively applicable Sentencing Guidelines Amendment 782. That provision
lowered Mr. Arriola-Perez’s base offense level to 36, which, with the 4-level
leadership-role increase, resulted in an offense level of 40. The Guidelines range
remained the same—360 months to life. The district court resentenced
Mr. Arriola-Perez to 360 months’ imprisonment.
Then, in 2018, Congress passed the First Step Act, which among other
provisions authorized defendants to file motions for compassionate relief on their
own behalf. In 2021, after exhausting his administrative remedies, Mr. Arriola-Perez
2 Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 3
moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), which allows
release upon a finding of “extraordinary and compelling reasons.” The government
opposed the motion, and the district court denied relief, concluding Mr. Arriola-Perez
had not established extraordinary and compelling reasons to justify release.
DISCUSSION
The First Step Act empowered defendants to bring motions for compassionate
release on their own behalf. Section 3582(c)(1)(A)(i) allows the court to reduce a
defendant’s sentence of imprisonment if the court “finds that . . . extraordinary and
compelling reasons warrant such a reduction,” so long as the court considers
applicable factors set forth in 18 U.S.C. § 3553(a) and finds that a sentence
“reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Construing the statute’s plain language, this court has established
three requirements for granting motions under § 3582(c)(1)(A)(i):
(1) the district court finds that extraordinary and compelling reasons warrant . . . a reduction; (2) the district court finds that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (3) the district court considers the factors set forth in § 3553(a), to the extent they are applicable.
United States v. McGee, 992 F.3d 1035, 1042 (10th Cir. 2021). Here, the district
court focused on the first requirement.
In part, Mr. Arriola-Perez’s motion was based on the length of his sentence.
He argued that his 360-month sentence was excessive for his offenses,
disproportionate to the sentences received by other defendants, and longer than the
sentence he would receive if he were sentenced when he filed his motion or if certain
3 Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 4
provisions had been made retroactive. Particularly, Mr. Arriola-Perez suggested that,
had he been sentenced at the time of his motion, he likely would have had a base
offense level of 34 (resulting in an adjusted offense level of 38) and a lower criminal
history score, which would put him in criminal history category III rather than IV.
The latter argument was based on a 2010 Guidelines provision, Amendment 742, that
was not made retroactive.
The district court declined to find that the length of Mr. Arriola-Perez’s
sentence was an extraordinary and compelling circumstance. It rejected the
suggestion that 34 would be a more appropriate base offense level. And regarding
Amendment 742, it stated, “as to Defendant’s criminal history category, it was
correctly calculated at sentencing; the Court is not in a position to make
Amendment 742 apply retroactively since the Sentencing Commission chose not to
do so.” R. Vol. 1 at 115.
On appeal, Mr. Arriola-Perez’s sole argument is that the district court
misinterpreted the scope of its authority under § 3582(c)(1)(A) in stating that it could
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Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8072 (D.C. No. 2:01-CR-00099-NDF-1) XAVIER ARRIOLA-PEREZ, (D. Wyo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, MATHESON and EID, Circuit Judges. _________________________________
Xavier Arriola-Perez appeals from the district court’s denial of his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.1
* 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. 1 “Although he is represented by counsel in this appeal, we review [Mr. Arriola-Perez’s] pro se [compassionate release] motion liberally.” United States v. Herring, 935 F.3d 1102, 1107 n.2 (10th Cir. 2019). Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 2
BACKGROUND
In 2003, a jury convicted Mr. Arriola-Perez of (1) one count of conspiracy to
possess with intent to distribute and to distribute methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (2) one count of possession with
intent to distribute methamphetamine and aiding and abetting possession with intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C.
§ 2. At sentencing, the district court found that he was responsible for 16.3
kilograms of methamphetamine (mixture). His offense level was 42 (a base offense
level of 38, plus a 4-level increase for acting in a leadership role), and his criminal
history category was IV, resulting in a Guidelines range of 360 months to life. The
district court sentenced Mr. Arriola-Perez to serve 400 months’ imprisonment. This
court affirmed the convictions and sentence. United States v. Arriola-Perez,
137 F. App’x 119, 137 (10th Cir. 2005).
In 2015, the district court reduced Mr. Arriola-Perez’s sentence based on
retroactively applicable Sentencing Guidelines Amendment 782. That provision
lowered Mr. Arriola-Perez’s base offense level to 36, which, with the 4-level
leadership-role increase, resulted in an offense level of 40. The Guidelines range
remained the same—360 months to life. The district court resentenced
Mr. Arriola-Perez to 360 months’ imprisonment.
Then, in 2018, Congress passed the First Step Act, which among other
provisions authorized defendants to file motions for compassionate relief on their
own behalf. In 2021, after exhausting his administrative remedies, Mr. Arriola-Perez
2 Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 3
moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), which allows
release upon a finding of “extraordinary and compelling reasons.” The government
opposed the motion, and the district court denied relief, concluding Mr. Arriola-Perez
had not established extraordinary and compelling reasons to justify release.
DISCUSSION
The First Step Act empowered defendants to bring motions for compassionate
release on their own behalf. Section 3582(c)(1)(A)(i) allows the court to reduce a
defendant’s sentence of imprisonment if the court “finds that . . . extraordinary and
compelling reasons warrant such a reduction,” so long as the court considers
applicable factors set forth in 18 U.S.C. § 3553(a) and finds that a sentence
“reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Construing the statute’s plain language, this court has established
three requirements for granting motions under § 3582(c)(1)(A)(i):
(1) the district court finds that extraordinary and compelling reasons warrant . . . a reduction; (2) the district court finds that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (3) the district court considers the factors set forth in § 3553(a), to the extent they are applicable.
United States v. McGee, 992 F.3d 1035, 1042 (10th Cir. 2021). Here, the district
court focused on the first requirement.
In part, Mr. Arriola-Perez’s motion was based on the length of his sentence.
He argued that his 360-month sentence was excessive for his offenses,
disproportionate to the sentences received by other defendants, and longer than the
sentence he would receive if he were sentenced when he filed his motion or if certain
3 Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 4
provisions had been made retroactive. Particularly, Mr. Arriola-Perez suggested that,
had he been sentenced at the time of his motion, he likely would have had a base
offense level of 34 (resulting in an adjusted offense level of 38) and a lower criminal
history score, which would put him in criminal history category III rather than IV.
The latter argument was based on a 2010 Guidelines provision, Amendment 742, that
was not made retroactive.
The district court declined to find that the length of Mr. Arriola-Perez’s
sentence was an extraordinary and compelling circumstance. It rejected the
suggestion that 34 would be a more appropriate base offense level. And regarding
Amendment 742, it stated, “as to Defendant’s criminal history category, it was
correctly calculated at sentencing; the Court is not in a position to make
Amendment 742 apply retroactively since the Sentencing Commission chose not to
do so.” R. Vol. 1 at 115.
On appeal, Mr. Arriola-Perez’s sole argument is that the district court
misinterpreted the scope of its authority under § 3582(c)(1)(A) in stating that it could
not apply Amendment 742 because the Sentencing Commission did not make it
retroactive. We review this legal issue de novo. See McGee, 992 F.3d at 1041.
In McGee, this court held that in assessing “extraordinary and compelling
reasons,” a district court could consider a subsequent change in the law, even though
the change had not been made retroactive. See id. at 1047. Moreover, in United
States v. Maumau, 993 F.3d 821, 828, 837 (10th Cir. 2021), this court affirmed the
grant of compassionate release based, in part, on the fact that the defendant’s
4 Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 5
sentence would have been shorter if non-retroactive portions of the First Step Act
applied to him. And the Supreme Court very recently upheld this approach in a case
involving another portion of the First Step Act (the portion authorizing district courts
to reduce sentences imposed for certain crack-cocaine offenses). See Concepcion v.
United States, No. 20-1650, -- S. Ct. --, 2022 WL 2295029, at *4 (U.S. June 27,
2022) (“[A] district court adjudicating a motion under the First Step Act may
consider other intervening changes of law (such as changes to the Sentencing
Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First
Step Act motion.”).
The district court extensively discussed McGee and Maumau, but it is not clear
from its statement regarding Amendment 742 whether it fully understood it could
grant relief based on a non-retroactive provision. But even assuming that the district
court did misinterpret the scope of its authority in evaluating the sentence-length
argument, reversal is not warranted.
Under McGee, a lengthy sentence alone cannot support a reduction under
§ 3582(c)(1)(A). See 992 F.3d at 1048. Instead, “it can only be the combination of
such a sentence and a defendant’s unique circumstances that constitute ‘extraordinary
and compelling reasons’ for purposes of § 3582(c)(1)(A)(i).” Id. In considering
Mr. Arriola-Perez’s motion, the district court not only denied the sentence-length
arguments, but also concluded that his proffered unique circumstances did not
support compassionate release. Thus, it did not find either part of the combination
required to grant a compassionate-release motion.
5 Appellate Case: 21-8072 Document: 010110704515 Date Filed: 07/01/2022 Page: 6
In light of McGee, the district court’s rejection of the proffered unique
circumstances is fatal to the compassionate release motion, regardless of sentence
length. Yet Mr. Arriola-Perez does not appeal this ground for denying the motion.2
Therefore, we decline to remand for further consideration of the lengthy-sentence
argument. See Lebahn v. Nat’l Farmers Union Unif. Pension Plan, 828 F.3d 1180,
1188 (10th Cir. 2016) (“When a district court dismisses a claim on two or more
independent grounds, the appellant must challenge each of those grounds.”); Starkey
ex rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1252 (10th Cir. 2009)
(“When an appellant does not challenge a district court’s alternate ground for its
ruling, we may affirm the ruling.”).
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Allison H. Eid Circuit Judge
2 Mr. Arriola-Perez surmises that “had the district court recognized its authority to consider Amendment 742 together with the other extraordinary and compelling circumstances presented, that factor might have been the one that tipped the balance of the scale in favor of a sentence reduction for Mr. Arriola-Perez.” Aplt. Opening Br. at 14. Nothing in the order, however, indicates the court would have evaluated the unique-circumstances arguments any differently had it accepted the Amendment 742 argument.