United States v. Theodore Vazquez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 19, 2021
• Docket: 20-14390
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14390 Non-Argument Calendar ________________________

D.C. Docket No. 6:17-cr-00282-RBD-GJK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THEODORE VAZQUEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 19, 2021)

Before MARTIN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 20-14390 Date Filed: 07/19/2021 Page: 2 of 8

Theodore Vazquez, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A). On appeal, Vazquez argues both that the district court did not

understand its authority to grant his motion and abused its discretion in denying his

motion. After careful consideration, we affirm.

I.

In 2018, Vazquez entered into a plea agreement with the government, by

which he pled guilty to possessing a firearm after having been convicted of felony

offenses, in violation of 18 U.S.C. § 922(g)(1). The agreement stipulated that

Vazquez entered a firearm range in 2016 and signed a “Guest Release and Waiver”

wherein he falsely indicated that he had not been convicted of a felony. At the

firing range, Vazquez possessed and fired several firearms. Vazquez had been

convicted of nine felonies at the time.

The magistrate judge permitted Vazquez to remain at liberty pending the

resolution of his criminal case. However, when Vazquez violated the conditions of

his release by failing to reside at his approved residence, the magistrate judge

added an additional condition that Vazquez be restricted to his residence while on

pretrial release.

A probation officer prepared a Presentence Investigation Report (“PSR”).

The PSR assigned Vazquez a criminal history category of VI, and described his

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prior felony convictions, including his conviction for tampering with a witness in a

drug trafficking case in which Vazquez was the defendant. According to the PSR,

Vazquez had gone to the witness’s place of employment and threatened to kill him

and his children. The PSR also noted that Vazquez was a documented gang

member at the time he made these threats. However, by the time of his sentencing

for possessing a firearm after being convicted of felonies, Vazquez “reported no

current gang affiliation.” Vazquez did not object to anything in the PSR.

In May 2018, the district court sentenced Vazquez to 15 years’

imprisonment, which was the statutory minimum. However, the court stated that

had the mandatory minimum not limited its discretion, it would have imposed a

lower sentence because Vazquez “was not utilizing the firearms in a way that was

in an effort to defeat law enforcement or to commit other criminal acts.”

In September 2020, Vazquez filed the present pro se motion for

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Vazquez argued

that extraordinary and compelling circumstances warranted his release because he

had various health conditions that placed him at an increased risk of contracting

COVID-19, and the Bureau of Prisons had not provided him proper treatment.

Specifically, he said he suffered from hypothyroidism, chronic venous

insufficiency, a history of bacterial infections and tuberculosis, a bilateral

orchiectomy, edema, and an enlarged prostate. He also alleged that there were

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many cases of COVID-19 among inmates, including several deaths, at the facility

where he was incarcerated. In support of his motion, Vazquez also pointed to his

rehabilitation during incarceration, including his participation in programs as well

as his excellent disciplinary record and work history.

The government conceded that Vazquez presented extraordinary and

compelling reasons for release, namely that he is severely obese, which puts him at

an increased risk of contracting COVID-19. Yet the government urged the district

court to deny Vazquez compassionate release, arguing that he still posed a danger

to the community and the 18 U.S.C. § 3553(a) factors weighed against release.

The district court denied Vazquez’s motion. The court concluded that

Vazquez had demonstrated extraordinary and compelling circumstances warranting

release, especially due to his obesity in conjunction with COVID-19. The court

also found that FCI Coleman Medium, where Vazquez was incarcerated, was

suffering from an “outbreak of COVID-19, with 34 staff members testing positive

and two inmate deaths.”

Nevertheless, the district court determined that Vazquez posed a danger to

the community if released because he was “a documented gang member, with a

violent criminal history—including a conviction for witness tampering after he

traveled to a witness’s workplace and threatened to kill the witness and his

children.” The court also determined that the § 3553(a) factors weighed against

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Vazquez’s release, and noted that he had served only three years of his 15-year

sentence so release “would undermine the need for a just sentence and one that

promote[d] respect for the law and [was] both a general and specific deterrent—

and it would be contrary to Congress’s intentions in setting a mandatory minimum

sentence for his crime.”

This is Vazquez’s appeal.

II.

We review de novo whether a district court was authorized to modify a term

of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020).

We review a district court’s denial of a motion for compassionate release under 18

U.S.C. § 3582(c)(1)(A) for an abuse of discretion. United States v. Harris, 989

F.3d 908, 911–12 (11th Cir. 2021). A district court abuses its discretion if it

applies an incorrect legal standard, applies the law in an incorrect or unreasonable

fashion, fails to follow proper procedures in making a determination, or makes

clearly erroneous factual findings. United States v. McLean, 802 F.3d 1228, 1233

(11th Cir. 2015). We liberally construe pro se filings. Jones v. Fla. Parole

Comm’n, 787 F.3d 1105, 1107 (11th Cir. 2015).

III.

Construing his pro se brief liberally, Vazquez argues the district court

abused its discretion when it denied his motion for compassionate release because

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(1) the court wrongly concluded it lacked the authority to reduce his sentence;

(2) the court incorrectly found that he posed a danger to the community if released

because Vazquez had previously been released pretrial; and (3) the court

improperly considered dangerousness to the exclusion of Vazquez’s risk of dying

if he contracted COVID-19. We are unable to agree.

For starters, the district court did not find that it lacked authority to grant

Vazquez compassionate release. To the contrary, the court determined Vazquez

exhausted his administrative remedies and considered the merits of his motion.

And the district court’s statement that reducing Vazquez’s sentence “would be

contrary to Congress’s intentions in setting a mandatory minimum sentence for his

crime” does not amount to a determination that the court lacked authority to grant

him compassionate release. Neither can we say the court abused its discretion by

finding that Vazquez posed a danger to the community if released or gave

insufficient weight to his risk in the face of COVID-19. It is true that the district

court found—and the government conceded—that Vazquez presented

extraordinary and compelling reasons for release: namely, his severe obesity which

puts him at increased risk if he contracts COVID-19. However, the United States

Sentencing Guidelines applicable to motions for compassionate release under

§ 3582(c)(1)(A)(i) require the district court to also determine that “[t]he defendant

is not a danger to the safety of any other person or to the community, as provided

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in 18 U.S.C. § 3142(g).” USSG § 1B1.13(2). Factors to consider in determining

the danger a defendant poses include: (1) the nature and circumstances of the

offense charged; (2) the weight of the evidence against the individual; (3) the

history and characteristics of the individual; and (4) the nature and seriousness of

the danger that would be posed by the individual’s release. 18 U.S.C. § 3142(g).

A defendant may pose a danger to the community not only through physical

violence, but also if he might engage in criminal activity detrimental to the

community. United States v. King, 849 F.2d 485, 487 n.2 (11th Cir. 1988).

Beyond that, our precedent says that, when considering a motion under

§ 3582(c)(1)(A)(i), a district court “must ensure that the record reflects that it

considered the applicable § 3553(a) factors.” United States v. Cook, 998 F.3d

1180, 1185 (11th Cir. 2021) (quotation marks omitted) (alteration adopted). Thus,

consideration of whether Vazquez continued to pose a danger to the community—

even despite a finding of extraordinary and compelling reasons—was proper not

only under the applicable Guideline, but also under our binding precedent because

it goes to “the history and characteristics of the defendant” and “the need for the

sentence imposed,” two of the § 3553(a) factors.1 See 18 U.S.C. § 3553(a)(1), (2).

1 The district court’s consideration of the § 3553(a) factors was sufficient. Where consideration of the § 3553(a) factors is mandatory, it is not necessary for the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of them. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). Instead, an acknowledgement by the district court that it considered the § 3553(a) factors is sufficient. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). A sentence may be affirmed so long as the record 7 USCA11 Case: 20-14390 Date Filed: 07/19/2021 Page: 8 of 8

We cannot say the court’s finding that Vazquez continued to pose a danger

to the community was “clearly erroneous.” McLean, 802 F.3d at 1233. As the

district court explained, Vazquez was “a documented gang member, with a violent

criminal history—including a conviction for witness tampering after he traveled to

the witness’s workplace and threatened to kill the witness and his children.” And

while Vazquez notes that he was released pretrial, which suggests a lack of

dangerousness, he violated the conditions of his pretrial release.

On this record, the district court did not abuse its discretion when it denied

Vazquez’s motion for compassionate release. We therefore affirm.

AFFIRMED.

indicates that the court considered a number of the factors. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). Here, the district court expressly stated that it had considered the § 3553(a) factors, and the record confirms this. For instance, in addition to the factors described above, the court explained its view that because Vazquez had served only a small portion of his sentence, granting relief would not promote respect for the law or act as a deterrent, and it would undermine the need for a just sentence. See 18 U.S.C. § 3553(a)(2)(A), (B). 8