United States of America v. Kevin Maurice Wilson

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN MAURICE WILSON,
Defendant - Appellant.
No. 20-1324
(D.C. No. 1:18-CR-00562-CMA-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Kevin Wilson appeals the district court’s order denying his motion for
compassionate release. For the reasons explained below, we affirm.
Background
In 2019, Wilson pleaded guilty to one count of being a felon in possession of a
firearm. His sentencing range under the United States Sentencing Guidelines was 57
to 71 months, but the district court varied downward and imposed a 46-month
sentence and three years of supervised release.
In July 2020, Wilson (acting through counsel) moved for a reduced sentence
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
October 19, 2021
Christopher M. Wolpert
Clerk of Court
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under the compassionate-release statute, 18 U.S.C. § 3582(c)(1)(A)(i). In his motion,
Wilson noted that he had exhausted his administrative remedies by first seeking
compassionate release from the prison warden, who denied that request. See
§ 3582(c)(1)(A). As extraordinary and compelling reasons justifying compassionate
release, he cited his medical diagnoses of type 2 diabetes mellitus and hypertension,
which placed him at a higher risk of severe illness and death from COVID-19, and
the status of the COVID-19 outbreak in his federal prison. He further argued that the
combination of his medical conditions and the pandemic shifted the balance of the 18
U.S.C. § 3553(a) factors to favor release.
In response, the government conceded that Wilson exhausted his
administrative remedies and that Wilson’s medical diagnoses in combination with the
COVID-19 pandemic constituted extraordinary and compelling reasons. But it argued
that the district court should deny relief because the § 3553(a) factors did not warrant
early release and because Wilson posed a danger to the community.
The district court denied relief in a short, two-page order. It did not expressly
discuss exhaustion or opine on the existence of extraordinary and compelling
reasons, but it noted that Wilson had served less than one-third of his sentence;
concluded that he was “a danger to the community,” given his criminal history and
the circumstances of the underlying offense; and found that “[t]he [§] 3553(a) factors
weigh[ed] against early release.” R. vol. 2, 13–14. Wilson appeals.
Analysis
We review the denial of a compassionate-release motion for abuse of
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discretion. United States v. Mannie, 971 F.3d 1145, 1155 (10th Cir. 2020). “A district
court abuses its discretion when it relies on an incorrect conclusion of law or a
clearly erroneous finding of fact.” United States v. Battle, 706 F.3d 1313, 1317 (10th
Cir. 2013). To the extent that the parties’ arguments require interpretation of
§ 3582(c)(1)(A) and the district court’s scope of authority under that statute, our
review is de novo. United States v. McGee, 992 F.3d 1035, 1041 (10th Cir. 2021).
Section 3582(c)(1)(A) provides that a district court may grant a motion for a
reduced sentence if, “after considering the factors set forth in [§] 3553(a)[,] . . . it
finds that . . . extraordinary and compelling reasons warrant such a reduction . . . and
that such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 1 We have distilled these requirements into a three-part test,
explaining that the district court may grant a compassionate-release motion only if it
(1) finds extraordinary and compelling reasons warranting early release,
(2) concludes that early release is consistent with applicable policy statements issued
by the Sentencing Commission, and (3) determines that the § 3553(a) factors favor
release. McGee, 992 F.3d at 1042–43. “[D]istrict courts may deny compassionate-
release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is
lacking and do not need to address the others.” Id. at 1043 (quoting United States v.
Elias, 984 F.3d 516, 519 (6th Cir. 2021)); see also United States v. Hald, 8 F.4th 932,
1 Previously, only the Director of the Bureau of Prisons could file a motion for
compassionate release on behalf of a prisoner. See McGee, 992 F.3d at 1041–42. But
under recent statutory amendments, a defendant may now file such a motion on his or
her own behalf (after exhausting administrative remedies). See id.; § 3582(c)(1)(A).
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942–43 (10th Cir. 2021) (agreeing with McGee that district court deciding
compassionate-release motion need not proceed in any particular order).
Wilson’s first argument on appeal relates to the “applicable policy statements
issued by the Sentencing Commission” in step two of the compassionate-release
analysis. § 3582(c)(1)(A). “The Sentencing Commission’s most recent policy
statement regarding sentencing reductions under § 3582(c)(1) was promulgated on
November 1, 2018” and appears at U.S.S.G. § 1B1.13. McGee, 992 F.3d at 1048.
This policy statement largely tracks the requirements of the statute, but it expands on
the meaning of the phrase “extraordinary and compelling reasons” and adds an
additional requirement: that the district court find the defendant is not a danger to the
community. See § 1B1.13(2) & nn.1–2, 4. But this policy statement predates the
statutory amendment allowing defendants to file compassionate-release motions. See
McGee, 992 F.3d at 1048. As such, it constrains the district court’s discretion—both
by its own terms and by our precedent interpreting those terms—only for motions
filed by the Director of the Bureau of Prisons. See id. at 1050; § 1B1.13 & n.4. For
defendant-filed motions for compassionate release, like Wilson’s in this case,
§ 1B1.13 does not limit the district court’s discretion. McGee, 992 F.3d at 1048,
1050.
Accordingly, Wilson asserts that the district court erred by considering itself
bound by the policy statement to deny relief on the basis that Wilson was a danger to
the community. See § 1B1.13(2). Wilson agrees with the government that, because he
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forfeited this argument by failing to raise it below, our review is for plain error. 2 See
United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (“When a party fails to
raise an argument below, we typically treat the argument as forfeited. And when an
appellant raises a forfeited argument on appeal, we will reverse only if the appellant
can satisfy our rigorous plain-error test.” (citation omitted)); United States v. Zander,
794 F.3d 1220, 1233 n.5 (10th Cir. 2015) (holding that defendant adequately raised
plain error by arguing for it in reply brief). “To obtain relief under the plain-error
standard,” Wilson must show that the error (1) occurred, (2) is plain, (3) affected his
substantial rights, and (4) “seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Marquez, 898 F.3d 1036, 1045
(10th Cir. 2018) (alteration in original) (quoting United States v. Bustamante-
Conchas, 850 F.3d 1130, 1137 (10th Cir. 2017) (en banc)).
On the first two prongs of this test, the government agrees (in a letter of
supplemental authority submitted under Federal Rule of Appellate Procedure 28(j))
that plain error occurred “if the district court thought itself constrained by § 1B1.13.”
2 The government alternatively argues that we should decline to consider this
issue because Wilson invited error by “affirmatively ask[ing] the [district] court to
consider” the policy statement. Aplee. Br. 24–25; see also United States v. Robinson,
993 F.3d 839, 850 (10th Cir.) (noting that we do not review invited error, which
occurs when “district court[] adopt[s] a defendant’s own erroneous suggestion”),
cert. denied, 2021 WL 4508676 (Oct. 4, 2021). But although Wilson cited the policy
statement in his compassionate-release motion, he offered it as only one option for
how the district court could decide whether extraordinary and compelling reasons
existed. Indeed, he specifically argued that the district court was “not limited to the
examples of extraordinary and compelling reasons listed in . . . § 1B1.13 n.1(A)–
(C).” R. vol. 3, 67. And Wilson said nothing at all about the dangerousness factor in
§ 1B1.13(2). Thus, we reject the government’s invited-error argument.
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Aplee. Rule 28(j) Letter, Mar. 31, 2021 (emphasis added); see also United States v.
Koch, 978 F.3d 719, 726 (10th Cir. 2020) (“An error is plain if it is ‘clear or obvious
at the time of the appeal.’” (quoting United States v. Salas, 889 F.3d 681, 686–87
(10th Cir. 2018))). And the district court denied relief, in part, because “Wilson’s
criminal history and the circumstances of the instant offense suggest that he is a
danger to the community.” R. vol. 2, 13. Notably, the “danger to the community”
factor in the compassionate-release context comes directly from the policy statement,
not the statute. Compare § 3582(c)(1)(A)(i), with § 1B1.13(2); see also United States
v. Carralero-Escobar, No. 20-2093, 2021 WL 2623160, at *2 (10th Cir. June 25,
2021) (unpublished) (noting that dangerousness determination “tracks a provision in
the policy statement allowing relief only if the court finds that the ‘defendant is not a
danger to the safety of any other person or to the community’” (quoting
§ 1B1.13(2))). 3 But nothing in the record clarifies whether the district court
erroneously considered itself bound by the policy statement to deny relief based on
dangerousness or if it merely allowed the dangerousness factor to guide its decision.
Compare McGee, 992 F.3d at 1048 (finding “that the district court erred in
considering itself bound by th[e] policy statement”), with Hald, 8 F.4th at 938 n.4
(noting that “it would hardly be an abuse of discretion for a district court to look to
the present policy statement for guidance”). Nevertheless, we assume that the district
court considered itself bound by the policy statement to deny relief based on its
3 Although unpublished, we find Carralero-Escobar persuasive. See Fed. R.
App. P. 32.1(a); 10th Cir. R. 32.1(A).
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assessment of Wilson’s dangerousness and thus plainly erred under our holding in
McGee. 4 See Carralero-Escobar, 2021 WL 2623160, at *3 (finding first two prongs
of plain error satisfied when district court denied relief based on dangerousness even
though it “did not expressly cite the policy statement”).
At the third prong of the plain-error analysis, Wilson must show “a reasonable
probability that the error affected the outcome of the proceedings.” Koch, 978 F.3d at
729 (quoting United States v. Burns, 775 F.3d 1221, 1224 (10th Cir. 2014)). He
argues he satisfies this prong simply because the district court applied the wrong
legal standard. But in so doing, Wilson ignores that the district court’s dangerousness
finding was not the exclusive basis for its decision; it also denied relief because the
§ 3553(a) factors did not favor early release. As such, the government is correct that
Wilson cannot show the district court’s error—considering itself bound by the
provisions in § 1B1.13(2)—affected his substantial rights. In the absence of that
error, the district court’s alternative § 3553(a) ruling still stands. See Carralero-
Escobar, 2021 WL 2623160, at *3 (holding that defendant’s policy-statement
argument failed at third prong because “district court expressly found that the
§ 3553(a) factors did not support defendant’s request, a finding that warranted
denying the motion independent of any policy statement”); cf. United States v.
Sherwood, 986 F.3d 951, 953 (6th Cir. 2021) (“Because [defendant] was denied relief
4 Because we assume that Wilson establishes this legal error, we need not and
do not consider his additional argument that the district court’s dangerousness
finding is unsupported by the record.
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exclusively due to his failure to satisfy § 1B1.13(2)’s requirement that a defendant
not be a danger to the community, we reverse and remand this case to the district
court for application of the remaining § 3582(c)(1)(A) factors.” (emphasis added)).
Accordingly, Wilson’s policy-statement argument fails at the third prong of plain
error and does not warrant reversal.
Next, Wilson argues that the district “court’s failure to make any finding on
the existence of extraordinary and compelling reasons under § 3582(c)(1)(A)(i)
appears to have compromised its analysis under § 3553(a).” Aplt. Br. 26. In so
arguing, Wilson acknowledges Hald’s conclusion that the district court need not find
extraordinary and compelling reasons as a threshold matter before moving to the
remaining steps of the compassionate-release analysis. See 8 F.4th at 942–43. But he
relies on a statement in Hald in which “[w]e emphasize[d] that we [we]re not saying
that a court can deny compassionate-release relief on the ground that release is not
appropriate under § 3553(a) if the court has not considered the facts allegedly
establishing extraordinary and compelling reasons for release.” Id. at 947.
To the extent that Wilson interprets this language in Hald as imposing a
requirement that the district court expressly consider “the facts allegedly establishing
extraordinary and compelling reasons for release” in its § 3553(a) analysis, we reject
Wilson’s argument. Id. Such an interpretation contradicts the basic sentencing
premise that a district court need not expressly set forth a detailed § 3553(a) analysis.
See id. at 948. Indeed, elsewhere in Hald, we noted that “at initial sentencing we
ordinarily do not require ‘specific discussion of [§] 3553(a) factors’” for within-
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Guidelines sentences and then explained that “nothing more detailed is required to
justify imposing or maintaining under either paragraph of § 3582(c) a sentence within
the recommended range of the applicable [G]uidelines.” 5 Id. (quoting United States v.
Ruiz-Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007)).
Of course, as Hald acknowledged, such “facts are relevant to the § 3553(a)
analysis.” Id. at 947; see also id. at 943 (“[V]arious facts that would support a finding
of [extraordinary and compelling] reasons are relevant to the § 3553(a) analysis. But
to the extent that they influence that analysis, it is irrelevant whether those facts meet
the test of ‘extraordinary and compelling reasons.’”). Viewed in that light, Wilson’s
argument shifts into a contention that the district court abused its discretion in
weighing other § 3553(a) factors more heavily than the COVID-19 pandemic and
Wilson’s medical conditions. But we do not reweigh the district court’s balancing of
the § 3553(a) factors; doing so “is beyond the ambit of our review.” United States v.
Lawless, 979 F.3d 849, 856 (10th Cir. 2020). Nor do we have a “definite [or] firm
conviction that the lower court made a clear error of judgment or exceeded the
bounds of permissible choice” in weighing certain factors more heavily than
Wilson’s medical conditions and the COVID-19 pandemic. Ruiz-Terrazas, 477 F.3d
at 1201 (quoting United States v. Weidner, 437 F.3d 1023, 1042 (10th Cir. 2006)).
Specifically, we find no error in the district court’s conclusion that granting relief
would amount to “a drastic reduction in [Wilson’s] sentence [that] would neither
5 Wilson’s original sentence was outside his Guidelines range, but the district
court varied downward, in Wilson’s favor.
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reflect the seriousness of the instant offense nor promote respect for the law.” R. vol.
2, 14; see also § 3553(a)(2)(A). And the district court appropriately emphasized
Wilson’s criminal history and the circumstances of his current offense, which
involved possession of two loaded guns and a distribution quantity of drugs. See
§ 3553(a)(1). We thus find no abuse of discretion in the district court’s analysis.
Finally, and relatedly, Wilson argues that the district court abused its
discretion by denying relief in an order that is too brief to allow for meaningful
appellate review. Assuming that “district courts have equivalent duties when initially
sentencing a defendant and when later modifying the sentence,” a district court
“‘must adequately explain the chosen sentence to allow for meaningful appellate
review.’” Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 (2018) (quoting Gall
v. United States, 552 U.S. 38, 50 (2007)). But with “respect to the brevity or length
of the reasons the judge gives . . . , the ‘law leaves much’ to ‘the judge’s own
professional judgment.’” Id. at 1966 (quoting Rita v. United States, 551 U.S. 338,
356 (2007)). Stated differently, as Wilson notes, “just how much of an explanation”
is required “depends . . . upon the circumstances of the particular case.” Id. at 1965.
Relevant circumstances include the simplicity (or complexity) of the case, whether
the sentence-reduction judge is the same judge who imposed the original sentence,
and the language of the order. See id. at 1964, 1967–68.
Here, the district court’s brief explanation was adequate. Wilson’s
compassionate-release motion presented a fairly simple question of whether to grant
early release based on COVID-19. Indeed, Wilson’s motion focused primarily on the
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medical conditions that render him particularly vulnerable to COVID-19; even his
§ 3553(a) argument contended that the combination of his medical conditions and the
pandemic shifted the balance of those factors to favor release. See United States v.
Navarro, 986 F.3d 668, 671–72 (6th Cir. 2021) (finding COVID-19 compassionate-
release motion to be “conceptually simple” where motion “focused exclusively on”
combination of defendant’s medical conditions and COVID-19).
Moreover, the district-court judge who denied Wilson’s motion is the same
judge who originally sentenced him. From this context, we can infer the judge’s
familiarity with the record and relevant facts. See Chavez-Meza, 138 S. Ct. at 1967;
United States v. Moreno, 793 F. App’x 705, 707 (10th Cir. 2019) (unpublished)
(“[T]he judge who ordered [defendant]’s original sentence also ordered his sentence
modification, so he was familiar with the record and defendant.”). 6 We can also infer
that “that the district court’s view of the § 3553 factors had not changed by the time
of [Wilson]’s motion for compassionate release.” Navarro, 986 F.3d at 672.
Additionally, the district court expressly stated that it conducted a “complete
review of the [m]otion on the merits” and considered “the applicable factors provided
in [§ 3553(a)].” R. vol. 2, 13; see also Chavez-Meza, 138 S. Ct. at 1967 (affirming
district court’s brief sentence-modification order in which “judge certified (on a
form) that he had ‘considered’ petitioner’s ‘motion’ and had ‘tak[en] into account’
the relevant Guidelines policy statements and the § 3553(a) factors” (alteration in
6 Although unpublished, we find Moreno persuasive. See Fed. R. App. P.
32.1(a); 10th Cir. R. 32.1(A).
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original) (quoting App. 106–07)). It further specifically mentioned two § 3553(a)
factors that “weigh[ed] against early release”: “the seriousness of the instant offense”
and “promot[ing] respect for the law.” R. vol. 2, 14; see also Moreno, 793 F. App’x
at 707 (affirming sentence-modification order as sufficient in part because district
court “stated in its resentencing order that it had considered the § 3553(a) factors”
and “additionally explained two specific considerations for the . . . sentence”). These
statements are sufficient explanation in this context. See Chavez-Meza, 138 S. Ct. at
1967–68 (“[G]iven the simplicity of this case, the judge’s awareness of the
arguments, his consideration of the relevant sentencing factors, and the intuitive
reason why he picked [this] sentence . . . , the judge’s explanation (minimal as it was)
fell within the scope of the lawful professional judgment that the law confers upon
the sentencing judge.”); Navarro, 986 F.3d at 672; Moreno, 793 F. App’x at 707.
Under these circumstances, we find no abuse of discretion in the brevity of the
district court’s order.
Conclusion
Even assuming the district court plainly erred by considering itself bound to
deny relief based on the dangerousness factor in the policy statement at § 1B1.13,
Wilson cannot show a reasonable probability of a different result because the district
court also denied relief based on its independent § 3553(a) analysis. Additionally, the
district court did not err by failing to expressly mention the facts allegedly
establishing extraordinary and compelling reasons in its § 3553(a) analysis. Nor did
the district court otherwise abuse its discretion in conducting its § 3553(a) analysis,
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and its order, although brief, was sufficient to allow for meaningful appellate review.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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