United States v. Duran

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 23, 2022
• Docket: 21-4104
• Status: Unpublished

Opinion

Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 23, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-4104 (D.C. No. 1:15-CR-00027-TS-2) CANDELARIO MARTINEZ DURAN, (D. Utah)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

Candelario Martinez Duran appeals the district court’s denial of his motion for

compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). We affirm.

Background

Mr. Duran pleaded guilty to possessing methamphetamine with the intent to

distribute it. He received a sentence of 120 months’ imprisonment. After serving

more than six years of his sentence, he moved for compassionate release. He argued

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 2

that his age (at the time, 61) and several medical problems (hypertension, asthma,

sleep apnea, prediabetes, and obesity) put him “at risk for subsequent COVID-19

exposure,” even though he had already contracted the virus and received a vaccine

against it. R. vol. 1 at 30 (boldface omitted). He also said that he had been

rehabilitated, having “gained perspective into his thinking errors and behavior.” Id.

at 24.

A court may reduce a 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 particular circumstances of the case warrant a reduction. 1

§ 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).

The district court denied Mr. Duran’s motion for two alternative reasons.

First, the court concluded that Mr. Duran did not show an extraordinary and

compelling reason for a sentence reduction because he had been vaccinated against

COVID-19. Second, the court concluded that the relevant § 3553(a) factors showed

A district court has discretion to determine for itself whether extraordinary 1

and compelling reasons exist. See United States v. Maumau, 993 F.3d 821, 832 (10th Cir. 2021). When ruling on a compassionate-release motion filed by a defendant, such as Mr. Duran’s motion, a district court’s discretion is not currently limited by any Sentencing Commission policy statement. See United States v. Hald, 8 F.4th 932, 938 n.4 (10th Cir. 2021), cert. denied, 142 S. Ct. 2742 (2022). 2 Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 3

that Mr. Duran’s release would be inappropriate. Mr. Duran now argues that the

district court erred in reaching both conclusions.

Discussion

We review the denial of a compassionate-release motion 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.

1. Extraordinary and compelling reasons for a reduced sentence.

We start with Mr. Duran’s challenge to the district court’s conclusion that he

did not show an extraordinary and compelling reason for a reduced sentence. 2 The

court acknowledged Mr. Duran’s argument that his age and medical conditions

increased his risk of severe complications or death from COVID-19. It then

recognized, however, that several courts have decided that a vaccinated defendant

could not show an extraordinary and compelling reason for early release “based on

COVID-19 concerns.” R. vol. 1 at 103 (internal quotation marks omitted). The

district court agreed with those decisions, and it therefore concluded that Mr. Duran

did not show an extraordinary and compelling reason for a shorter sentence.

Mr. Duran argues that the court abused its discretion by failing to consider his

personal risks and instead applying a categorical rule: that vaccination precludes the

2 The parties dispute whether Mr. Duran preserved this challenge in the district court. Resolving this dispute would not affect the outcome of this appeal, so we will assume the argument is preserved. 3 Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 4

showing of an extraordinary and compelling reason for a reduced sentence related to

COVID-19. Moreover, Mr. Duran says, the authority the court cited for this

categorical rule is outdated because it did not account for the appearance of new virus

variants and the reduced efficacy of vaccines over time.

We see no abuse of discretion. The court expressly considered Mr. Duran’s

personal risks. One significant factor affecting his risk of harm from COVID-19,

however, is his having received a vaccine against it. And although Mr. Duran faults

the district court for relying on decisions from an earlier stage of the pandemic,

decisions issued after the district court’s ruling continue to hold that vaccination will

generally prevent a showing of an extraordinary and compelling reason for release

related to the pandemic. See, e.g., 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”).

To be sure, courts have recognized that a defendant “who can show that he is

unable to receive or benefit from a vaccine still may” qualify for compassionate

release. United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021). Mr. Duran,

though, did not show that his personal circumstances prevented him from benefiting

from the vaccine he received. True, he claimed that his vaccination did not eliminate

all risk from COVID-19, saying, for example, that he “can continue to face threats

from COVID-19 despite already contracting it and [having] been given a vaccine.

Many variants are making their way throughout the country.” R. vol. 1 at 30;

4 Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 5

see also id. at 23–24 (asserting that “given the variant strains, and despite

vaccination, his compromised health could still put him at risk”); id. at 25 (asserting

that “the threat of variants and subsequent exposure still exist, given the conditions in

prison” and that “[e]ven with vaccination, risks of infection still remain”). But his

general, conclusory references to risks presented by virus variants do not amount to a

plausible claim that he did not benefit from his vaccine. And so the district court did

not abuse its discretion when it concluded that he failed to show an extraordinary or

compelling circumstance for a reduced sentence.

2. The district court’s consideration of the § 3553(a) factors.

Even if Mr. Duran could show an extraordinary and compelling reason for a

reduced sentence, the district court concluded, the relevant § 3553(a) factors showed

that a reduction was not appropriate. The court specifically cited the seriousness of

Mr. Duran’s offense, his criminal history, the need to deter Mr. Duran and others,

and the need to protect the public. The court also commended Mr. Duran’s

rehabilitation efforts. Mr. Duran contends that the court abused its discretion by

“considering the § 3553(a) factors only as they related to [his] original sentencing.”

Aplt. Opening Br. at 22 (underline omitted).

Again we see no abuse of discretion. For starters, we note that the record

refutes the premise that the court considered the § 3553(a) factors “only as they

related to Mr. Duran’s original sentencing,” id. (underline omitted), for the court

expressly cited Mr. Duran’s rehabilitation efforts. Mr. Duran is correct, however,

when he says that the court did not mention in its § 3553(a) discussion the facts

5 Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 6

offered to show an extraordinary and compelling reason for a shorter sentence—

Mr. Duran’s age and medical problems against the backdrop of the pandemic. And

as he says, “those facts are relevant to the § 3553(a) analysis.” Hald, 8 F.4th at 947.

But when we read the court’s order in the context of the record and the parties’

arguments, we have no reason to think it ignored those facts when it considered the

relevant § 3553(a) factors. After all, the court expressly referenced those facts at

least twice in its order. Besides, our cases do not require a court to mention every

fact or argument bearing on its assessment of the § 3553(a) factors before denying

compassionate release. See Hald, 8 F.4th at 948. The “judge need only set forth

enough to satisfy the appellate court that she has considered the parties’ arguments

and has a reasoned basis for exercising her own legal decisionmaking authority.” Id.

(brackets and internal quotation marks omitted); see also Chavez-Meza v. United

States, 138 S. Ct. 1959, 1965 (2018) (“In some cases, it may be sufficient for

purposes of appellate review that the judge simply relied upon the record, while

making clear that he or she has considered the parties’ arguments and taken account

of the § 3553(a) factors, among others.”). The district court did that here.

Conclusion

The district court’s order is affirmed.

Entered for the Court

Gregory A. Phillips Circuit Judge

6 Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 7

United States v. Duran, No. 21-4104

ROSSMAN, J., concurring.

I respectfully concur in the judgment but would affirm only because, under the

standards governing our review, the district court did not abuse its discretion under

18 U.S.C. § 3553(a).

I write separately to emphasize that resolving a motion under 18 U.S.C.

§ 3582(c)—and particularly the inquiry into whether extraordinary and compelling

reasons exist—requires district courts to undertake “an individualized, case-by-case”

assessment. United States v. McGee, 992 F.3d 1035, 1047 (10th Cir. 2021). In my

view, a district court does not satisfy its obligations under § 3582(c) by relying

exclusively on a defendant’s vaccination status, or access to a vaccine, to determine

what risks a defendant faces because of their pre-existing health conditions, and to

decide whether those risks constitute extraordinary and compelling reasons

warranting compassionate release. A categorical legal rule of this nature, adopted by

some courts but not ours, may be what the district court invoked here. See United

States v. Hald, 8 F.4th 932, 936 n.2 (10th Cir. 2021) (“As of oral argument in May

2021, all three men had either been vaccinated or been offered the opportunity to be

vaccinated against COVID-19. Although we do not consider this development in

resolving their appeals, there is certainly room for doubt that Defendants’ present

circumstances would support a finding of ‘extraordinary and compelling reasons.’”).

To be sure, whether a defendant has been vaccinated (and specifically against

which variant) could inform the compassionate release calculus in the appropriate Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 8

case. But a blanket approach is at odds with the principles of individualized

sentencing and is particularly ill-suited to the ever-changing factual circumstances

presented by the COVID-19 pandemic.