United States Court of Appeals For the First Circuit
No. 22-1007
UNITED STATES OF AMERICA,
Appellee,
v.
ALFREDO GONZALEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Kayatta, Lynch, and Howard, Circuit Judges.
K. Hayne Barnwell for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, and Alexander S. Chen, Assistant United States Attorney, were on brief, for appellee.
May 25, 2023 HOWARD, Circuit Judge. This appeal requires us to
elaborate on our recent decision requiring a "holistic approach"
when considering compassionate release motions that are not
governed by the U.S. Sentencing Commission's policy statement in
U.S.S.G. §1B1.13. United States v. Trenkler, 47 F.4th 42, 50 (1st
Cir. 2022). Defendant-appellant Alfredo Gonzalez contends that
the district court, without having had the benefit of our decision
in Trenkler, ran afoul of our guidance therein in evaluating his
compassionate release motion. He consequently urges us to remand
for resentencing. Because we determine that no such error
occurred, we affirm the judgment of the district court. In doing
so, we also reaffirm that even a holistic review of a compassionate
release motion under Trenkler should be guided by the defendant's
presentation of his own arguments.
I.
We previously summarized the factual background of
Gonzalez's case in his post-conviction appeal, see United States
v. Gonzalez, 949 F.3d 30, 32-34 (1st Cir. 2020), and at this
juncture we recite only the procedural background that postdates
that decision. After we affirmed his conviction and sentence,
Gonzalez moved in early 2021 for a reduction of his prison sentence
under 18 U.S.C. § 3582(c)(1)(A), as revised by the First Step Act
("FSA"). See Pub. L. 115-391, § 603(b), 132 Stat. 5194, 5239
(2018). The Act went into effect approximately six months after
- 2 - the district court sentenced Gonzalez to a 240-month term of
imprisonment and, as described in more detail below, "created a
new regime in which -- for the first time -- prisoners [could]
seek compassionate release even when the [Bureau of Prisons
('BOP')] does not deign to act on their behalf." United States v.
Ruvalcaba, 26 F.4th 14, 22 (1st Cir. 2022).1
Crucially for the purposes of this appeal, Gonzalez's
motion to the district court presented two alternative arguments
in favor of compassionate release. He urged the district court
either to release him from prison immediately on account of medical
preconditions "that increase his risk for serious illness or death
from COVID-19," or -- "if the court denies [his] request to be
released immediately" -- to reduce his sentence on account of "a
gross sentencing disparity." The latter argument was, in turn,
undergirded by two points. Gonzalez first noted that his November
2017 conviction and the district court's subsequent imposition of
his sentence in June 2018 occurred during a nineteenth-month window
between (1) the end, in May 2017, of a previously more lenient
Justice Department policy about federal prosecutors' use of the
sentence-enhancement regime of 21 U.S.C. § 851 and (2) the
1As noted by the Second Circuit, "compassionate release is a misnomer" for the sentence-reduction provision of § 3582(c)(1)(A). United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020). We nevertheless opt to use "compassionate release" as a shorthand for the provision, in line with common practice.
- 3 - subsequent passage of the FSA in December 2018. That timing meant
that Gonzalez was subjected to a lengthy 20-year mandatory minimum
sentence, to which -- as the government conceded -- he in all
likelihood would not have been subjected had he been sentenced
outside of this window. He also objected in relevant part that he
received a "substantially higher" sentence than his codefendants,
a disparity that he contended was driven at least in part by the
government's filing of an § 851 information.
The government responded -- incorrectly, as it would
turn out -- that the district court was bound to follow the policy
statement of U.S.S.G. §1B1.13 in assessing Gonzalez's motion. It
consequently argued that the district court should not grant the
motion under the framework of that provision because, despite being
admittedly "eligible for compassionate release based on his
medical condition," Gonzalez was "a danger to the community." See
U.S.S.G. §1B1.13(2) (providing that a district court cannot reduce
a prison term under that provision if the defendant is "a danger
to the safety of any other person or to the community"). The
government also asserted with reference to the factors of 18 U.S.C.
§ 3553(a) that "the seriousness of the defendant's criminal
conduct and the danger he poses to the public militate against a
sentence reduction." After the court ordered the government to
file supplemental briefing addressing Gonzalez's sentencing
disparity arguments, the government additionally contended in
- 4 - relevant part that granting compassionate release based on a
sentencing disparity caused by the FSA would "undermin[e] [the
FSA's] non-retroactivity provisions." See FSA § 401(c), 132 Stat.
at 5221.
The district court ultimately granted Gonzalez's request
for a sentence reduction, but not immediate release. The court
accurately presaged our subsequent ruling in Ruvalcaba, holding
that U.S.S.G. §1B1.13 did not apply to Gonzalez's compassionate
release motion. Having freed itself from the strictures of that
provision, the court wrote that it was persuaded that the sentence
it had imposed was "disproportionately harsh" with reference both
to the nineteen-month window described above and to Gonzalez's
codefendants, even though "Gonzalez committed a serious crime."
It concluded that resentencing was thus warranted. Nevertheless,
the court noted in a footnote prior to its sentence-reduction
discussion that it was "not persuaded that Gonzalez's health status
qualifies as an extraordinary and compelling circumstance that
justifies his immediate release," both because of (1) the BOP's
mitigation measures and the availability of COVID-19 vaccines and
(2) the fact that Gonzalez "committed a serious crime that warrants
a lengthy prison sentence."
The district court proceeded to reduce Gonzalez's
sentence from 240 to 180 months. This appeal followed.
- 5 - II.
"We review a district court's denial or grant of a
compassionate release motion for abuse of discretion." Trenkler,
47 F.4th at 46. "Questions of law are reviewed de novo and findings
of fact are reviewed for clear error." Id.
III.
As alluded to above, Gonzalez's primary argument on
appeal is that the district court used the "singular[,] reason-
by-reason analysis" against which we warned in Trenkler by
"fail[ing] to assess the COVID-19 factors [that Gonzalez raised]
along with the gross sentencing disparity" when it evaluated his
compassionate release motion. Gonzalez's argument is that
Trenkler worked a sea change in our law. It did not -- nor did it
purport to do so.
A.
On a preliminary note, our framing of Gonzalez's
arguments is informed by this appeal's unique procedural history.
Gonzalez originally did not predicate his appellate arguments on
Trenkler, a decision that postdated the filing of his opening brief
by several weeks. Rather, he advanced several unavailing arguments
that we describe in more detail below. We then ordered the parties
to address the impact of Trenkler on Gonzalez's case in their
subsequent briefs, and Gonzalez duly focused on Trenkler in his
reply brief and at oral argument. We now do so as well, recognizing
- 6 - that complying with our court's express order to present arguments
on a certain issue calls for applying the "exception [to the usual
rule of reply-brief waivers] where 'justice so requires' and where
the opposing party would not be unfairly prejudiced by our
considering the issue." United States v. Fields, 823 F.3d 20, 32
n.8 (1st Cir. 2016) (quoting United States v. Torres-Rosario, 658
F.3d 110, 116 (1st Cir. 2011)).
We nevertheless note that we are unpersuaded by
Gonzalez's original arguments. He first claimed that the district
court clearly erred in its analysis of the risks of a COVID-19
reinfection and, relatedly, of the BOP's mitigation measures,
including administering the COVID-19 vaccine. But, as Gonzalez
recognizes, the clear-error standard is a high hurdle to clear:
"[c]lear error 'exists only when we are left with the definite and
firm conviction that a mistake has been committed.'" United States
v. Centeno-González, 989 F.3d 36, 50 (1st Cir. 2021) (quoting
United States v. Hicks, 575 F.3d 130, 138 (1st Cir. 2009)). And,
despite Gonzalez's attempts to distinguish his case from our
decision in United States v. Canales-Ramos, that case is
instructive for the proposition that we should be especially loath
to disrupt a district court's "judgment call[s]" concerning a
defendant's health status in the context of a compassionate release
motion. 19 F.4th 561, 567 (1st Cir. 2021); see id. ("The district
court made a reasonable risk assessment and determined that the
- 7 - current state of the defendant's health and the care that he was
receiving weighed against a finding [of] an extraordinary and
compelling reason. . . . '[N]ot every complex of health concerns
is sufficient to warrant compassionate release[.]'" (quoting
United States v. Saccoccia, 10 F.4th 1, 5 (1st Cir. 2021))).
Mindful of those considerations, we discern no clear
error in the district court's analysis of the COVID-19 risks.
Gonzalez's counsel acknowledged to the district court that, even
with the evidence he presented, "we just don't really fully have
our arms around what the risk of reinfection is," and that the
evidence at the time speculatively suggested "real concerns" of
reinfection. And the district court explicitly said it was willing
to reconsider its assumption that "reinfection is relatively rare"
if Gonzalez presented it with "better evidence." Far from being
left with a "firm conviction that a mistake has been committed" or
a sense that the district court made an "[un]reasonable risk
assessment," we glean from this record that the court came to a
defensible, if debatable, conclusion based on the as-yet-emergent
body of evidence before it. Cf. United States v. Correa-Osorio,
784 F.3d 11, 24 (1st Cir. 2015) ("[A] party cannot show clear error
if there are competing views of the evidence.").
Gonzalez's arguments about the district court's reliance
on BOP mitigation efforts and vaccination are no more persuasive
on the same logic. The relevant footnote in the district court's
- 8 - opinion suggests that the court did not, as Gonzalez claims,
"find[] that BOP mitigation efforts were adequate to protect [him]
from harm," nor "assume[] that vaccination would eliminate
Gonzalez's risks from another COVID-19 infection." Rather, the
district court noted that these mitigation efforts only
cumulatively reinforced its conclusion that the COVID-19 concerns
did not rise to the level of an extraordinary and compelling
circumstance.
Gonzalez's contention that the district court erred by
"failing to consider [Gonzalez's COVID-19-related arguments] under
[18 U.S.C.] § 3553(a)" is also without merit. The district court
was under no obligation to repeat these arguments in its § 3553(a)
analysis. "Our case law is pellucid that a district court, when
conducting a section 3553(a) analysis, need not tick off each and
every factor in a mechanical sequence. Instead, we presume --
absent some contrary indication -- that a sentencing court
considered all the mitigating factors and that those not
specifically mentioned were simply unpersuasive." Saccoccia, 10
F.4th at 10 (citation omitted). In addition, to the extent that
Gonzalez takes issue with the district court for seemingly not
factoring in the COVID-19 arguments in its sentence reduction
analysis, we cannot fault the court for following Gonzalez's own
lead, as further discussed below, see infra, section III.C.
- 9 - Finally, Gonzalez originally urged us to remand his case
so that "the District Court [could] consider the latest
developments concerning high reinfection rates of vaccinated
people, waning immunity, and decreased vaccine effectiveness
against the Omicron subvariants." It is true that our court in
Trenkler "permitted [the district court] to consider any factual
developments that ha[d] transpired since it[]" issued its original
opinion. 47 F.4th at 50. But we see no reason to do so here,
where -- unlike in Trenkler -- we discern no potential error in
the district court's analysis that would warrant remanding in the
first place.
B.
A district court exercising its powers to reduce a
sentence of imprisonment under § 3582(c)(1)(A) ordinarily must
ensure that "such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission." However, as we
explained in Ruvalcaba, no such statement currently exists with
respect to prisoner-initiated motions: U.S.S.G. §1B1.13 "was last
modified in November of 2018 -- before the FSA amended the
compassionate-release statute to allow for prisoner-initiated
motions . . . [-- and] [t]he text of the current policy statement
makes pellucid that it is 'applicable' only to motions for
compassionate release commenced by the BOP." 26 F.4th at 20; see
also U.S.S.G. §1B1.3 ("Upon motion of the Director of the Bureau
- 10 - of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce
a term of imprisonment . . . ." (emphasis added)). "The policy
statement is therefore not 'applicable,' on a literal reading, to
motions brought by prisoners; it applies only to motions brought
by the BOP." Ruvalcaba, 26 F.4th at 20.2
In the absence of an applicable policy statement, we
determined in Ruvalcaba that a district court "may consider any
complex of circumstances raised by a defendant as forming an
extraordinary and compelling reason warranting relief," id. at 28,
with the exception of rehabilitation alone, since Congress
explicitly mandated that such a rationale "shall not be considered
an extraordinary and compelling reason."3 28 U.S.C. § 994(t). We
2 We note that this window may well be closing, as the Sentencing Commission voted to amend U.S.S.G. §1B1.13 to reflect the FSA's changes to 18 U.S.C. § 3582(c)(1)(A). See Sentencing Guidelines for United States Courts, 88 Fed. Reg. 28254, 28254-59 (May 3, 2023); see also Ruvalcaba, 26 F.4th at 23-24 ("If and when the Sentencing Commission issues updated guidance applicable to prisoner-initiated motions for sentence reductions consistent with both section 3582(c)(1)(A) and the statutory mandate under [28 U.S.C. § 994(t)], district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance."). 3We have also clarified that "the mere fact of a 'pre-First Step Act mandatory life sentence imposed under [21 U.S.C.] § 841(b)(1)(A) cannot, standing alone, serve as the basis for a sentence reduction under [section] 3582(c)(1)(A)(i),'" Ruvalcaba, 26 F.4th at 28 (second alteration in original) (quoting United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021)), and that "correct application of the 'extraordinary and compelling' standard for compassionate release naturally precludes classic
- 11 - then expounded upon the "any complex of circumstances" approach in
Trenkler, reasoning that "district courts should be mindful of the
holistic context of a defendant's individual case when deciding
whether the defendant's circumstances satisfy the 'extraordinary
and compelling' standard." 47 F.4th at 49-50. We remanded in
that case because the "analytical path" that the district court
took in analyzing the arguments Trenkler put forward for
compassionate release -- and, consequently, in ultimately granting
his motion -- was "susceptible to multiple interpretations,"
although it was at least evident that the court found the
undisputed sentencing error that marred Trenkler's case persuasive
in that regard. Id. at 46, 50. We noted that,
[o]n one hand, we can appreciate the possibility that the district court discarded Trenkler's other proposed reasons [apart from the sentencing error] one by one but, with the holistic context of those reasons in mind, deemed the circumstances surrounding the sentencing error alone to meet the "extraordinary and compelling" criteria. But we can also see how discarding all proposed reasons except one could represent a singular reason-by-reason analysis, not a review of the individual circumstances overall. In the end, our careful review of the district court's thorough (but pre-Ruvalcaba) decision leaves us uncertain as to whether it took a holistic approach when reviewing Trenkler's proposed reasons and ultimately concluding that the sentencing error constituted a sufficiently extraordinary and compelling reason to grant relief.
post-conviction arguments, without more, from carrying such motions to success," Trenkler, 47 F.4th at 48.
- 12 - Id. at 50.
C.
As noted, Gonzalez urges us to follow in Trenkler's
footsteps and remand because, according to him, "the [d]istrict
[c]ourt plainly took a 'reason-by-reason' approach[,] rather than
a holistic appraisal with respect to [his] sentencing disparity
claim and his claim that he was particularly vulnerable to COVID-
19." He faults the district court for "fail[ing] to assess the
COVID-19 factors along with the gross sentencing disparity
suffered by [him], which is [ostensibly] what the holistic analysis
requires."
We find no fault in the district court's reasoning under
Ruvalcaba and Trenkler. Our court's instruction in Ruvalcaba
explicitly stated that a district court can consider "any complex
of circumstances raised by a defendant." 26 F.4th at 28 (emphasis
added). This focus on the defendant's presentation of his own
arguments comports with the notion that "in the first instance and
on appeal . . . , we rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of
matters the parties present." United States v. Sineneng-Smith,
140 S. Ct. 1575, 1579 (2020) (alteration in original) (quoting
Greenlaw v. United States, 554 U.S. 237, 243 (2008)).
- 13 - To that end, Gonzalez made it clear to the district court
no less than eight times over the course of his briefing and during
the hearing on his motion for compassionate release that he meant
to advance two alternative arguments, one for immediate release
predicated on COVID-19 concerns and another for a reduced sentence
based on the sentencing disparity.4 In that respect, his
presentation of the arguments crucially differs from Trenkler's,
who by our court's count proffered five combined reasons in support
of his motion for compassionate release. Trenkler, 47 F.4th at
4 As his counsel pointed out at oral argument before us, Gonzalez did at one point in his brief to the district court state that his "medical vulnerability to COVID-19 and gross sentencing disparity, either separately or in combination, constitute extraordinary and compelling reasons to reduce his sentence." However, when weighed against his multiple and consistent statements to the district court -- both in his briefing and in the subsequent hearing -- that the two arguments were meant to be proffered as separate alternatives, we do not accept the contention that this statement alone could have alerted the district court to an argument incorporating COVID-19 concerns as part of the sentence-reduction analysis, or vice-versa. Cf. United States v. Nieves-Meléndez, 58 F.4th 569, 579 (1st Cir. 2023) ("'[A] litigant has an obligation to spell out its arguments squarely and distinctly' before the district court." (quoting United States v. Diggins, 36 F.4th 302, 319 (1st Cir. 2022))). Moreover, while Gonzalez's counsel did also state at the hearing that the district court could factor the sentencing- disparity issues as an "[18 U.S.C.] § 3553(a) factor[]" if it accepted the immediate release argument, we note that an argument for including a factor in the district court's § 3553(a) analysis differs from an argument that the same factor should constitute an "extraordinary and compelling reason[]" for compassionate release under § 3582(c)(1)(A). See Saccoccia, 10 F.4th at 4 (characterizing a district court's "extraordinary and compelling" and § 3553(a) analyses as separate findings under § 3582(c)(1)(A)).
- 14 - 45. Ruvalcaba also offered to the district court multiple
arguments in favor of reducing his sentence, without seeking
different remedies based on the separate arguments, thereby
similarly differentiating his motion from Gonzalez's bifurcated
argument. See Memorandum in Support of Motion to Reduce Sentence
at 31, United States v. Ruvalcaba, No. 05-cr-10037 (D. Mass. Mar.
23, 2020), ECF No. 510; Supplemental Motion to Reduce Sentence at
5, United States v. Ruvalcaba, No. 05-cr-10037 (D. Mass. Apr. 21,
2020), ECF No. 512.
Given these discrepancies, we conclude from the record
before us that it was eminently reasonable for the district court
to follow Gonzalez's lead in analyzing the two factors separately,
especially since Gonzalez sought different forms of relief under
each argument. Cf. United States v. Brooker, 976 F.3d 228, 237
(2d Cir. 2020) (noting that, under § 3582(c)(1)(A), "[a] district
court could, for instance, reduce but not eliminate a defendant's
prison sentence, or end the term of imprisonment but impose a
significant term of probation or supervised release in its place").
We moreover take this opportunity to clarify that, while courts
should still follow the "any complex of circumstances" approach
under Ruvalcaba for as long as no applicable policy statement
applies to prisoner-initiated motions for compassionate release,
this approach should be shaped by the arguments advanced by
defendants. After all, "as a general rule, '[o]ur adversary system
- 15 - is designed around the premise that the parties know what is best
for them, and are responsible for advancing the facts and arguments
entitling them to relief.'" Greenlaw, 554 U.S. at 244 (quoting
Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J.,
concurring in part and concurring in judgment)).
IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
- 16 -