United States v. Salcido

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 4, 2021
• Docket: 20-2108
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 4, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-2108 (D.C. No. 2:16-CR-04290-KG-1) IGNACIO SALCIDO, JR., (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BRISCOE, and CARSON, Circuit Judges. _________________________________

Ignacio Salcido, Jr., proceeding pro se1, appeals the district court’s denial of

his motion to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A), as amended by

the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Exercising

* 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Because Mr. Salcido proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). jurisdiction under 28 U.S.C. § 1291, we agree with the district court that Mr. Salcido

was not entitled to relief, but we remand with instructions to the district court to

vacate the order denying the motion and to dismiss for lack of jurisdiction.

I. BACKGROUND

A federal grand jury in the District of New Mexico indicted Mr. Salcido for

transporting a minor in interstate and foreign commerce with the intent to engage in

criminal sexual activity, in violation of 18 U.S.C. § 2423(a). Mr. Salcido pled guilty.

The district court sentenced him to 120 months in prison. He is currently serving his

sentence at the Federal Medical Center in Fort Worth, Texas (“FMC Fort Worth”).

When Mr. Salcido attempted to appeal, this court enforced the appeal waiver in his

plea agreement and dismissed the appeal. See United States v. Salcido, 783 F. App’x

800, 804 (10th Cir. 2019).

Mr. Salcido filed an emergency motion to reduce sentence and for

compassionate release under 18 U.S.C. § 3582(c)(1)(A). He argued that

extraordinary and compelling reasons justified his early release, including (1) the

presence of COVID-19 at FMC Fort Worth and (2) his elderly mother’s health care

needs. He did not allege he had exhausted his administrative remedies. The

Government raised Mr. Salcido’s failure to exhaust as a reason to deny the motion. It

further argued Mr. Salcido had not presented sufficient reasons for compassionate

release and that he still posed a significant danger to community safety. The district

court agreed with the Government on both grounds. It therefore denied the motion as

2 procedurally defective and for failure to allege extraordinary and compelling reasons

justifying release.

II. DISCUSSION

Mr. Salcido presents no argument challenging the district court’s

determination that he did not exhaust his administrative remedies. His failure to

exhaust was fatal to his motion. The district court “may not modify a term of

imprisonment once it has been imposed” unless the Director of the Bureau of Prisons

moves for sentence modification on a defendant’s behalf (which did not occur here)

or unless the defendant so moves and “has fully exhausted all administrative rights to

appeal a failure of the Bureau of Prisons to bring” such a motion. 18 U.S.C.

§ 3582(c)(1)(a). The district court therefore correctly concluded Mr. Salcido’s

motion was procedurally defective.

This procedural defect meant the district court lacked the authority to review

Mr. Salcido’s request, so dismissal rather than denial of the motion was the

appropriate disposition. See United States v. White, 765 F.3d 1240, 1250 (10th Cir.

2014).

III. CONCLUSION

We vacate the order denying Mr. Salcido’s motion and remand with

instructions to dismiss it for lack of jurisdiction. We deny Mr. Salcido’s motion for

appointment of counsel. We also deny his motion to proceed in forma pauperis

because he has not advanced “a reasoned, nonfrivolous argument on the law and facts

3 in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502,

505 (10th Cir. 1991).

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge