4:21-cr-00052•USA v. Villatoro
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1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA v. WILFIDO ADAN HERRERA VILLATORO § § § § § § § § CASE NUMBER 4:21-CR-52 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE DENYING DEFENDANT’S MOTION FOR COMPASSIONATE RELEASE Pending before the undersigned is a pro se Motion for Compassionate Release pursuant to 18 U.S.C. ' 3582(c)(1)(A) (doc. #58) filed by Defendant.1 The Government responded to Defendant’s motion in opposition. (Doc. #60.) Probation is also opposed to Defendant’s motion. After reviewing all applicable facts and law, the undersigned recommends denying Defendant’s motion without prejudice. I. BACKGROUND Defendant was convicted of the offense of Conspiracy to Manufacture and Distribute Cocaine Intending, Knowing, and with Reasonable Cause to Believe that the Cocaine will be Unlawfully Imported into the United States, a violation of 21 U.S.C. § 963 and 21 U.S.C. § 960(b)(1), a Class A felony. He was arrested initially in Huehuetenango, Guatemala on January 18, 2022, on a federal indictment warrant and extradited to the United States on June 23, 2022, being ultimately detained since that time. He was sentenced on March 8, 2024, by The Honorable Michael J. Truncale, to a term of 70 months’ imprisonment followed by a 2-year term of supervised release. 1 This motion was referred to the undersigned United States magistrate judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. 28 U.S.C. § 636(b)(1)(B); E.D. TEX. LOCAL R. CR-59(a); (Doc. #62). Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 1 of 8 PageID #: <pageID>
2 Defendant is scheduled for release from the Bureau of Prisons (“BOP”) on August 11, 2026. See BOP INMATE LOCATOR, https://www.bop.gov/inmateloc/ (last visited February 19, 2026). Probation reported that his projected satisfaction date for First Step Act Release (with his current 120 days of First Step Act Credits included) is September 10, 2026, with a home detention eligibility date of March 10, 2026. Defendant argues that he should receive compassionate release based on “(1) the 2025 amendments to the United States Sentencing Guidelines that allow a presumption of a mitigating- role adjustment for low-level, paid-task offenders; (2) Fifth and Ninth Circuit precedent applying these amendments; (3) Defendant’s verified low level role and lack of proprietary interest; and (4) his already overserved sentence under the newly applicable Guideline framework.” (Doc. #58.) The Government responded to Defendant’s motion stating that Defendant failed to exhaust his administrative remedies with the BOP and failed to meet his burden of showing extraordinary and compelling circumstances. (Doc. #60.) Specifically, the Government alleges that the amendment does not apply retroactively to his case, nor would his case be successful on the merits as he took on more than a minor role in this drug trafficking operation. (Id.) The Probation Department for the Eastern District of Texas also recommends denying Defendant’s motion for the same reasons as well as a lack of evidence to support that he has any medical issues that would qualify as an extraordinary and compelling circumstance. II. LEGAL STANDARD Section 3582(c)(1)(A) “authorize[s] a sentence reduction where: (1) ‘extraordinary and compelling reasons warrant such a reduction,’ (2) ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission,’ and (3) such a reduction is appropriate ‘after considering the factors set forth in section 3553(a) to the extent that they are applicable.’” United States v. Shkambi, 993 F.3d 388, 389 (5th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)). Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 2 of 8 PageID #: <pageID>
3 Section 3582(c)(1)(A) does not define the “extraordinary and compelling reasons” that may merit compassionate release. The Sentencing Commission, however, has the authority to “promulgate general policy statements … that describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” United States v. Williams, No. 3:18-CR-0291-B-2, 2021 WL 1865005, at *2 (N.D. Tex. 2021) (quoting Shkambi, 993 F.3d at 391). On November 1, 2023, the Sentencing Commission issued an amended policy statement, U.S.S.G. § 1B1.13, setting forth the circumstances that are considered “extraordinary and compelling reasons.” These include the defendant’s medical circumstances, age, family circumstances, whether the defendant is a victim of abuse, “other reasons,” and whether he is serving an unusually long sentence. See U.S.S.G. § 1B1.13(b).2 As of November 1, 2023, policy statement 1B1.13 applies to motions filed by the Director of the BOP and motions filed by a defendant. U.S.S.G. § 1B1.13(a). In addition, the Fifth Circuit explained—after looking at the terms “extraordinary” and “compelling” in the dictionary—that prisoners can seek relief under § 3582(c)(1) only when they face some “extraordinarily severe exigency, not foreseeable at the time of sentencing, and unique to the life of the prisoner.” United States v. Escajeda, 58 F.4th 184, 186 (5th Cir. 2023). III. ANALYSIS A. Exhaustion of Administrative Remedies Before seeking relief from the court, a defendant must first submit a request to the warden of the facility where he is housed to move for compassionate release on his behalf and then either exhaust his administrative remedies or wait 30 days from the warden’s receipt of his request. 18 U.S.C. § 3582(c)(1)(A); United States v. Franco, 973 F.3d 465, 467 (5th Cir. 2020). After 30 days 2 Section six of this policy statement (for unusually long sentences) is not applicable in the Fifth Circuit as its precedent precludes considering non-retroactive changes in any law as an extraordinary and compelling reason justifying sentence reduction. United States v. Austin, 125 F.4th 688, 692 (5th Cir. 2025). Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 3 of 8 PageID #: <pageID>
4 have passed or the defendant has exhausted all administrative rights to appeal the BOP’s failure to move on his behalf, a defendant may ask a court for a sentence reduction under section 3582(c)(1)(A). Defendant asserts in a conclusory fashion that he filed a request with Bureau of Prisons and more than 30 days have passed without relief. (Doc. #58, p. 2.) Attached to his motion is a form for compassionate release filled out on October 13, 2025, stating that he has a debilitating medical condition due to pain in his hip from two bullets inside his body. (Id., p. 6.) It is unclear if this was a form submitted to BOP. Moreover, Defendant is not asserting medical grounds in his current motion with the court. In Defendant’s reply, he stated that he submitted a formal request to the warden of FCI Miami on January 15, 2025, and he attached a copy of said request. (Doc. #61-1.) This request sought a sentence reduction under 18 U.S.C. § 3632(d)(4)(c), which provides for application of time credits toward prerelease custody for prisoners who participate in recidivism reduction programs or productive activities. (Id.) He also requested a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) for extraordinary and compelling reasons, but he did not assert any specific grounds. (Id); see United States v. York, No. 4:07-CR-181-SDJ, 2025 WL 1397198, at *2 (E.D. Tex. May 14, 2025), appeal dism’d, No. 25-40360, 2025 WL 3733894 (5th Cir. Aug. 6, 2025) (holding that a broad, general request to the warden will not meet the exhaustion requirement because it fails to give the BOP an opportunity to fairly evaluate the prisoner’s request). Probation reported to the court on December 16, 2025, that a record check with the Bureau of Prisons revealed no administrative remedy data available and provided the court with a printout dated December 10, 2025, stating “no remedy data exists for this inmate.” Further, the probation officer attempted to contact the Supervisory Attorney at the Bureau of Prisons Consolidated Legal Center, Mr. Robert Clark, along with Defendant’s assigned case manager at the Bureau of Prisons, Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 4 of 8 PageID #: <pageID>
5 Mr. Mohamad Osman, Miami FCI, to verify the status of his administrative remedies, with no response received from either source. As such, there is no evidence to confirm that Defendant has satisfied the administrative remedies requirement of § 3582(c)(1)(A). Furthermore, the court finds that Defendant’s motion lacks merit as discussed below. B. Extraordinary and Compelling Reasons Defendant argues that the court should grant compassionate release based upon “other reasons” and points to Amendment 833, which amended sentencing guidelines 3B1.2 (mitigating role) and 2D1.1(e)(2) (offense level for drug crimes) and went into effect on November 1, 2025.3 These guidelines were amended to provide favorable adjustments to the offense level of defendants who played a minor role in a drug conspiracy and to make sure that drug quantity alone will not defeat a minor-role reduction. This amendment, however, is not one of the selected amendments to be applied retroactively. See U.S.S.G. 1B1.10(d). The Fifth Circuit has held very clearly that “a non-retroactive change in the law is not an extraordinary or compelling reason to reduce a prisoner’s sentence.” Austin, 125 F.4th at 692. The court explained that a non-retroactive change in the law affects every prisoner previously sentenced under that provision in the exact same way, so it cannot be an “extraordinarily severe exigency” nor “unique to the life of the prisoner” as the court previously defined the phrase. As such, this change in the law may not be considered an extraordinary and compelling circumstance. Nonetheless, Defendant’s claim that he took on only a minor role in the multiple drug trafficking organizations of which he was a member is without merit. As explained in detail in the Government’s response and in the Presentence Investigation Report, Defendant was a high-level cocaine dealer that facilitated, received, and purchased large quantities of cocaine in Guatemala 3 Defendant incorrectly states that this amendment went into effect on November 1, 2023. Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 5 of 8 PageID #: <pageID>
6 for distribution there as well as Mexico and the United States. (Docs. #44, #60.) He was identified as a “right-hand man” for the heads of the organizations. (Id.) He conducted cocaine deals that involved millions of dollars and hundreds of kilograms of cocaine. (Id.) Given these facts, Defendant would not qualify for a minor role reduction under the guidelines. C. Section 3553 Factors and Danger Notwithstanding all previous analysis, compassionate release should be denied because it is not justified by the Section 3553(a) factors and Defendant remains a possible danger to the community. See 18 U.S.C. § 3582(c)(1)(A) (requiring courts to consider the § 3553(a) factors before granting compassionate release); United States v. Chambliss, 948 F.3d 691, 693–94 (5th Cir. 2020). Even when a prisoner has demonstrated an extraordinary and compelling reason under the compassionate-release statute, relief may still “be refused after weighing the sentencing factors of 18 U.S.C. § 3553(a).” Id. The factors are as follows: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for--(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines; (5) any pertinent policy statement issued by the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a). Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 6 of 8 PageID #: <pageID>
7 In reference to the offense conduct, as discussed above, Defendant was a part of multiple sophisticated drug trafficking operations, which distributed narcotics to several countries. Although there is no evidence that Defendant has shown himself to be violent, his drug distribution poses a danger to the community. See United States v. Morgan, No. 3:12-CR-220-L, 2013 WL 363437, at *2 (N.D. Tex. Jan. 25, 2013) (citing United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989)) (“A person’s continued drug dealing or distribution of drugs constitutes “a danger and threat to the community.”). Further, there is a need for Defendant to serve the remainder of his sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, and to afford adequate deterrence from future criminal conduct. The nature of the offense, his dangerousness, and all other applicable factors fail to persuade the court that Defendant should receive compassionate release in this case. See 18 U.S.C. § 3553(a). IV. RECOMMENDATION The “burden falls on the defendant to convince the [court] to exercise discretion to grant the motion for compassionate release.” Ward v United States, 11 F.4th 354, 359–60 (5th Cir. 2021). The undersigned finds that Defendant has failed to meet his burden in demonstrating an extraordinary and compelling reason for compassionate release. Accordingly, the undersigned recommends denying Defendant’s motion. V. OBJECTIONS Pursuant to 28 U.S.C. § 636(b)(1)(C), each party to this action has the right to file objections to this Report and Recommendation. Objections to this Report must (1) be in writing, (2) specifically identify those findings or recommendations to which the party objects, (3) be served and filed within fourteen (14) days after being served with a copy of this Report, and (4) be no more than eight (8) pages in length. See 28 U.S.C. § 636(b)(1)(C); FED. R. CRIM. P. 59(b)(2); Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 7 of 8 PageID #: <pageID>
8 E.D. TEX. LOCAL R. CR-59(c). A party who objects to this Report is entitled to a de novo determination by the United States district judge of those proposed findings and recommendations to which a specific objection is timely made. 28 U.S.C. § 636(b)(1)(C); FED. R. CRIM. P. 59(b)(3). A party’s failure to file specific, written objections to the proposed findings of fact and conclusions of law contained in this report, within fourteen (14) days of being served with a copy of this report, bars that party from: (1) entitlement to de novo review by the United States district judge of the findings of fact and conclusions of law, see Rodriguez v. Bowen, 857 F.2d 275, 276– 77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of any such findings of fact and conclusions of law accepted by the United States district judge, see Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc). . ___________________________________ Christine L Stetson UNITED STATES MAGISTRATE JUDGE SIGNED this the 24th day of February, 2026. Case 4:21-cr-00052-MJT-CLS Document 63 Filed 02/24/26 Page 8 of 8 PageID #: <pageID>
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