USA v. ORNELAS-PIO, ET.AL

OCR transcription for search; preserved printed pages are authoritative

Case 7:23-cr-00051 Document671_ Filed 07/16/26 in TXSD Page1of14
United States District Court

them District of T
United States District Court Southem District of Texas
Southern Distric ENTERED
FILED

ce <== _ UNITED STATES DISTRICT COURT J nee a .
>», JUL 16 202 = SOUTHERN DISTRICT OF TEXAS athan Geasnen

° Nathan Ochsner, Clerk MCALLEN DIVISION

UNITED STATES OF AMERICA

VS. CASE NO. 7:23-CR-0051-5

Gr Lr Lr Lr MN

BALDEMAR MALACARA NOYOLA, JR.

REPORT AND RECOMMENDATION

Defendant BALDEMAR MALACARA NOYOLA, JR. is currently serving a prison term - ~ |
of 65 months for possessing with intent to distribute methamphetamine. (Dkt. No. 588). Pending
is his pro se Motion for Modification of Sentence (the “Motion”) (Dkt. No. 632), which is
predicated on “extraordinary and compelling” circumstances as contemplated by 18 U.S.C. §
3582(c)(1)(A)(i). Defendant seeks re-sentencing so a term of supervised release may be imposed,
thus making him eligible for time credits from the Bureau of Prisons (the “BOP”) on his prison’
sentence.! (Jd. at 5-9). For reference, the sentencing court decided against imposing supervised
release given Defendant’s status as a deportable alien. (See Dkt. No. 650 at 4 & 12). In support
of extraordinary circumstances, Defendant offers that the non-imposition of supervised release
creates unwarranted sentencing disparities. (Dkt. No. 632 at 7-9).

The Government has filed a response in opposition (Dkt. No. 662), arguing that Defendant
fails to establish each of the procedural and substantive elements necessary to modify his sentence |
(id. at 7-1 1), According to the Government, Defendant does not show that he adequately exhausted

his administrative remedies before the BOP (id. at 16-17), nor does Defendant present

' Defendant offers several cases where district courts have modified sentences to add a term of supervised
release insofar as the effect of the modification is to reduce the term of incarceration. See, e.g., United
States v. Perez Sanchez, 2024 WL 1069884 (E.D.N.Y. Mar. 12, 2024) (collecting cases).

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AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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extraordinary and compelling circumstances (id. at 9-15). Defendant has submitted a reply (Dkt.
No. 668), standing by his prior argument for re-sentencing (id. at 5-19), while also raising a new
circumstance—the medical incapacitation of his elderly father (id. at 19-22).
This matter was referred to the Magistrate Judge for report and recommendation pursuant
to 28 U.S.C. § 636(b)(1). Upon reviewing the record and the relevant law, the Magistrate Judge .
RECOMMENDS that the Motion (Dkt. No. 632) be DENIED.
I. BACKGROUND
Defendant agreed at re-arraignment that the following factual basis offered by the
Government in support of his guilty plea was true and correct:
On or about [July 24, 2018], in the Southern District of Texas, [Defendant]
possessed with intent to distribute approximately 60 kilograms of
methamphetamine. [Defendant] received two speaker boxes containing the
methamphetamine from Chino, and he subsequently delivered them to an
individual, who, unbeknownst to [Defendant], was an informant for the Drug
Enforcement Administration.
[A co-conspirator] then also delivered an additional two speaker boxes to the
informant for the Drug Enforcement Administration. There were 40 kilograms of
methamphetamine that [Defendant] delivered to the informant for the Drug
Enforcement Administration. [Defendant] intended that the drugs be further
distributed.
(Dkt. No. 640 at 20-21).
In January 2023, Defendant was indicted on several counts related to the unlawful
trafficking of methamphetamine. (Dkt. No. 1). He was detained pending trial. (Dkt. No. 113).
In December 2023, Defendant pleaded guilty pursuant to a plea agreement at a re-
arraignment held before the undersigned Magistrate Judge to one count of possessing with intent

to distribute 500 grams or more of a mixture or substance containing methamphetamine under _

Title 21, United States Code, Section 841(a)(1) and 841(b)(1)(A). (Dkt. Nos. 434, 451, 466, 640).

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The Probation Office then prepared a Presentence Report (“PSR”) using the 2023 version
of the United States Sentencing Guidelines (the “Guidelines”). (Dkt. No. 494 at 42). The PSR |
recommended a base offense level of 38 under § 2D1.1(a)(5) and (c)(1) given the type and amount
of the narcotics involved in the offense, or 59.65 kilograms of “Ice” methamphetamine. (/d. at 42-
43). Also recommended was a two-level upward adjustment to the offense level for Defendant’s
“aggravating role” pursuant to § 3B1.1(c), insofar as Defendant “coordinated” the transportation
of methamphetamine between co-conspirators. (Jd. at 43). Assuming a three-level downward
adjustment for full acceptance of responsibility under § 3E1.1, the PSR calculated a total offense ;
level of 37. (See id. at 43-44, 49). Based on his lack of criminal history, Defendant was placed in
a criminal history category of I. Ud at 44). The PSR noted that the applicable statutory prison
term was 10 years to life, and that under the Guidelines, Defendant’s offense level of 37 and

‘criminal history category of I yielded an advisory imprisonment range of 210 to 262 months. (Id.
at 49). The PSR further noted that the offenses of conviction carried a term of supervised release
of five years up to life. (See id.).

The defense filed objections to the PSR, requesting that Defendant’s offense level be

calculated as if he were an average participant, that he receive full acceptance of responsibility, — a

' that he receive a two-level reduction to the offense level pursuant to § 4C1.1 for being a first-time
offender, that he receive a two-level reduction pursuant to § 2D1.1(b)(18) for meeting the criteria
of § 5C1.2(a), or the “safety valve” provision, and that he be sentenced without regard to any
statutory minimum sentence in accordance with the safety valve. (Dkt. Nos. 487, 554).

In September 2024, Defendant was sentenced by the Honorable Micaela Alvarez, Senior .
United States District Judge. (Dkt. No. 588 at 1). Judge Alvarez effectively sustained the

objections to the PSR and granted the defense’s sentencing-related requests, thus calculating

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Defendant’s offense level at 31 and imposing a prison sentence of 65 months, which represented
a downward variance from the revised Guidelines range of 108 to 135 months of imprisonment.
(See id. at 2; see also Dkt. No. 589 at 1-2). No fine was imposed. (See Dkt. No. 588 at 3; see also
Dkt. No. 589 at 1). Nor did Judge Alvarez impose a term of supervised release. (See Dkt. No. 588
at 4). The Magistrate Judge notes that, subject to the safety valve, a defendant may be sentenced
to a term of supervised release without regard to any statutory mandatory minimums. See 18
U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2(a). Moreover, consistent with Sections 5D1.1 and
5D1.2 of the Guidelines, Judge Alvarez specifically stated that no supervised release would be
imposed insofar as Defendant was a non-citizen of the United States, but rather a citizen of Mexico,
and thus likely to be deported after serving his prison term.” (See Dkt. No. 650 at 4 & n.2).

A final judgment was entered on October 2, 2024. (Dkt. No. 588).

On September 11, 2025, Defendant submitted a letter to the warden of his BOP facility,
writing as follows:

Pursuant to [§ 3582(c)(1)], I am making this request for compassionate release to

exhaust my remedies prior to filing a formal motion with the Court. More

specifically, I am requesting that you reduce my term of imprisonment by 1 year

considering my [time] credits do not apply towards my early release[.] (I do not —

have a term of supervised release, which is necessary to get [time] credits

applied[.]) Please let me know in writing whether you grant or deny my request

within 30 days.
(Dkt. No. 632-1 at 2).

Less than one week later, on September 17th, the warden responded in writing that—

[iJn accordance with Program Statement 5050.50, the [BOP] does not have

authority, through its compassionate release/reduction in sentence procedures, to

reduce an inmate’s sentence based on the belief an unfair sentence was

administered. Any changes to your court order sentence must be addressed through
the sentencing court.

? Insofar as Defendant argues that the imposition of supervised release was mandatory (Dkt. No. 632 at 2),
his argument is foreclosed. The Magistrate Judge addressed this issue at length through a report and
recommendation for the denial of a motion by Defendant for collateral review. (Dkt. No. 650 at 4, 11).

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Accordingly, your request for a Compassionate Release/Reduction in Sentence is
denied. If you are not satisfied with this response, you may appeal through the
[BOP], Administrative Remedy Process by obtaining an Informal Resolution form
through your Correctional Counselor. ,

(Id. at 1).

Defendant did not appeal the warden’s denial through the BOP but proceeded instead to
file the Motion, which is dated October 15, 2025. (Dkt. No. 632 at 9). Defendant explains his
situation as follows:

[Defendant] has participated in evidence-based recidivism reduction programming
activities. [He] has enrolled in many educational programs offered by the [BOP].
Through these educational classes, he has demonstrate[d] not only personal growth
and rehabilitation, but has also learned various skills. However, the BOP has
informed [Defendant] that he cannot obtain the benefits of [time credits] because
his sentence did not include a term of supervised release.

(id. at 2). For reference, inmates who successfully participate in Evidence-Based Recidivism

Reduction Programs or Productive Activities are generally eligible to receive time credits towards

transfer to prerelease custody or supervised release, 18 U.S.C. § 3632(d)(4)(C), such that up to: --

twelve months of time credits may be used to reduce an inmate’s prison sentence, see id. §
3624(g)(3). Time credits cannot be applied towards an early supervised release if no term of |
supervised release was imposed. Again, supervised release was not imposed here given
Defendant’s status as a deportable alien. In support of extraordinary circumstances, Defendant
argues that his ineligibility for time credits is unfairly affected by the non-imposition of supervised
release given his immigration status. (Dkt. No. 632 at 7-9). According to Defendant, the
circumstances create an unwarranted sentencing disparity between prisoners, like himself; who are

only likely to be deported, as against prisoners who are subject to final orders of removal, who are -

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categorically precluded from earning time credits.? See 18 U.S.C. § 3632(a), (b), (d)(4)(C), (E)().
see also United States v. Perez Sanchez, 2024 WL 1069884, at *3-5 (E.D.N.Y. Mar. 12, 2024).

On May 29, 2026, upon the Magistrate Judge’s order (Dkt. Nos. 656, 658), the Government
filed its opposition (Dkt. No. 662).

Defendant then submitted his reply dated June 10, 2026. (Dkt. No. 668). Notably, through
the reply, Defendant raises a new circumstance in support of re-sentencing, that is, the medical
incapacitation of his elderly father. (/d. at 19-22).

Il. LEGAL STANDARDS

Section 3582(c) provides, in relevant part, that the district court “may reduce the term of .
imprisonment (and may impose a term of probation or supervised release with or without
conditions that does not exceed the unserved potions of the original term of imprisonment),” upon
motion of the Director of the BOP, “or upon motion of the defendant after the defendant has fully -
exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the .
defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the
defendant’s facility, whichever is earlier,” after considering any applicable factors in 18 U.S.C. §
3553(a), if the district court finds that “extraordinary and compelling reasons warrant such a
reduction,” and “that such a reduction is consistent with applicable policy statements [under the .
Guidelines].” 18 U.S.C. § 3582(c)(1)(A)(i).

This statutory language sets out what are effectively four factors: (1) that the defendant has
exhausted their administrative rights; (2) that extraordinary and compelling circumstances warrant

the modification; (3) that a modification is consistent with the § 3553(a) sentencing factors; and

? The Government states that Defendant is not currently subject to a final order. (Dkt. No. 662 at 2-3).

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(4) that the modification is consistent with the Guidelines. See United States v. Shkambi, 993 F.3d
388, 392 (Sth Cir. 2021).

Where a defendant asks the BOP to file a motion on their behalf, as here, exhaustion may
follow two routes, United States v. Franco, 973 F.3d 465, 467 (Sth Cir. 2020), that is, either full
administrative exhaustion or the expiration of the statutory 30-day period, see United States v.
Garrett, 15 F.4th 335, 338 (Sth Cir. 2021). Following an initial request that the BOP bring a
motion on the prisoner’s behalf,

the prisoner has a choice. First, he may wait for a response from the BOP and seek

further administrative review of that response (assuming it is adverse). On that

path, only once he has “exhausted all administrative rights to appeal” may he bring

his motion in the district court. Second, a prisoner may wait 30 days after filing his

request and—whether the BOP has ruled on the request or not—he is free to file a

motion in the district court.

Id. (citing 18 U.S.C. § 3582(c)(1)(A)) (internal citations omitted). While this administrative
requirement is not jurisdictional, it is mandatory, Franco, 973 F.3d at 467-48, such that the district
court has no authority to waive it, United States v. Pinson, 2023 WL 5985245, at *3 (S.D. Tex.
Sept. 14, 2023) (citing Ross v. Blake, 578 U.S. 632, 639 (2016)).

For purposes of the term “extraordinary and compelling” circumstances, “extraordinary”
means beyond or out of the common order, remarkable, and singular. United States v. Escajeda,
58 F.4th 184, 186 (Sth Cir. 2023). “Compelling” refers to an irresistible driving force. Id. As
such, a prisoner may seek relief “only when they face some extraordinarily severe exigency, not
foreseeable at the time of sentencing, and unique to the life of the prisoner.” Jd.

The § 3553(a) sentencing 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

to reflect the seriousness of the offense, deter criminal conduct, protect the public, and provide the

defendant with needed education or vocational training; (3) the kinds of sentences available; (4)

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the kinds of sentences and sentencing ranges established for the applicable category of offense or
defendant; (5) any pertinent policy statements; (6) the need to avoid unwarranted sentence
disparities among defendants with similar records; and (7) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

Any modification must also be consistent with the relevant policy statements under the

Guidelines, which are found at § 1B1.13(b). See United States vy. Austin, 125 F.4th 688, 692 (Sth

Cir. 2025). Section 1B1.13(b) sets out several categories of circumstances deemed “extraordinary |
and compelling” under the Guidelines, including the following: (1) the medical circumstances of |
the defendant; (2) the age of the defendant; (3) the family circumstances of the defendant; (4) the
sexual abuse of the defendant while in BOP custody; and (5) any other, similarly grave,
circumstance or combination of circumstances. U.S.S.G. § 1B1.13(b). Notably, the family
circumstances of the defendant contemplate “[t]he incapacitation of the defendant’s parent when :
the defendant would be the only available caregiver for the parent.” Jd. at § 1B1.13(b)(3)(C). -
The defendant bears the burden of establishing these factors in support of a sentencing
reduction. United States v. Washington, 2020 WL 4000862, at *3 (E.D. La. July 15, 2020).
Il. ANALYSIS
_ Defendant raises two ostensibly “extraordinary and compelling” circumstances why his
sentence should be modified. The main circumstance, raised in the Motion itself, is that the non-
imposition of supervised release, which makes Defendant ineligible for time credits on his prison
sentence, was unfairly based on his deportable alien status and creates unwarranted sentencing
disparities with prisoners who are subject to final orders of removal. (Dkt. No. 632 at 7-9). The
other circumstance, raised for the first time in his reply, is that Defendant is the only available

caregiver for his elderly father, who has become incapacitated due to various medical conditions. _

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(Dkt. No. 668 at 19-22). Whatever the circumstance, Defendant fails to show one or more of the
necessary elements for the modification of his sentence.
A. Exhaustion

Although Defendant’s letter to the warden broadly states his request, Defendant does
appear to have exhausted his main ground for relief. (See Dkt. No. 632-1 at 2). Defendant
requested that his sentence be reduced considering that his time credits did not apply towards early
release, and the warden interpreted this request as based on Defendant’s belief that an “unfair”
sentence was administered. (/d. at 1). Then, rather than appeal the denial through the BOP process, -
Defendant waited just over 30 days to file the Motion with this court. See Garrett, 15 F.4th at 338.

On the other hand, there is no indication that Defendant ever asked the BOP to move to
reduce his sentence based on his family circumstances. Because the exhaustion requirement is
mandatory, see Franco, 973 F.3d at 467-48, Defendant’s family circumstances are not subject to
further consideration.* Defendant is otherwise free to exhaust this separate basis for release by
requesting that the BOP file a motion on his behalf.
B. Extraordinary and Compelling Circumstances

In terms of extraordinary and compelling circumstances, Defendant argues that denying

him the opportunity for early release based on the non-imposition of supervised release creates

* Even assuming exhaustion, Defendant’s claim is conclusory and not otherwise supported by the record.
Defendant declares that “[bJecause of [various debilitating medical] conditions, [his] father needs assistance
with his daily activities and his medical care[,]” and “[Defendant] [is] the only available caregiver for [his] ©
father.” (Dkt. No. 668-1 at 3). However, the PSR reflects that, after Defendant’s arrest, his wife and
children were forced to relocate with his parents, who are providing financial assistance. (Dkt. No. 494 at —
45-46, 48). Defendant fails to explain who has cared for his father since his arrest, let alone why his mother —
and his wife are unable or unavailable as caregivers. See United States v. Wheeler, 2025 WL 25795839, at
*3 (W.D. Wash. Sept. 5, 2025); see also United States v. Wilson, 2024 WL 4267923, at *5-7 (E.D. Tex. —
Sept. 23, 2024).

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unwarranted sentencing disparities. (Dkt. No. 632 at 7-9). Defendant offers several cases where
district courts have modified sentences under § 3582(c) to add a term of supervised release insofar
as the practical effect of the modification is a reduction in the term of incarceration. See United. |
States v. Perez Sanchez, 2024 WL 1069884 (E.D.N.Y. Mar. 12, 2024); see also United States y.
Oprea, 2023 WL 6958690 (D.N.H. Oct. 20, 2023); United States v. Nienadov, 2023 WL 4139026
(S.D. Tex. June 22, 2023). Of these, the case offering the best articulation of extraordinary and
compelling circumstances is perhaps United States v. Perez Sanchez, 2024 WL 1069884 (E.D.N.Y.
Mar. 12, 2024).° The Perez Sanchez court explained as follows:

[The defendant] is unable to earn credit for participation in recidivism-reducing
activities solely because I did not sentence him to any supervised release—and I
did so because he would likely be deported after imprisonment. [The defendant] is
not subject to a final order of removal, however, and since J sentenced him, the
BOP has clarified that individuals subject only to [immigration] detainers are
eligible to apply [time] credits toward their early release. There is a significant
difference between an individual’s possible eventual deportation and a final order
of removal. See Roldan v. Racette, 984 F.2d 85, 88 (2d Cir. 1993) (describing the
“clear majority view” that an [immigration] detainer “does not result in present
confinement” by [immigration authorities], but is merely “a notice that future
[immigration] custody will be sought at the conclusion of a prisoner’s pending
confinement by another jurisdiction”); Bell v. U.S.L.N.S., 292 F. Supp. 2d 370, 373-
74 (D. Conn. 2003) (“Unlike a final order of removal, a detainer is not a definitive
decision regarding deportation or an order that will necessarily result in
[immigration authorities] taking [a prisoner] into custody .... A detainer is more
of a notice.”). I see no reason that [the defendant’s] immigration status should
preclude him from earning and applying [time] credits for as long as he is subject
to only an [immigration] detainer.

Id. at *4 (internal citations omitted). The Perez Sanchez court thus found extraordinary and - -

compelling circumstances based on (i) a deemed lack of clarity at the time of sentencing whether

5 One of the other cases, decided out of the Southern District of Texas, United States v. Nienadov, 2023 WL
4139026 (S.D. Tex. June 22, 2023), is unhelpful insofar as the court merely noted that the defendant “[had] _.
presented evidence of the extraordinary hardship his continued confinement present{ed] for his family,
victims of the Ukraine war.” Jd. at *1.

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the defendant was eligible for time credits, and (ii) an unwarranted sentencing disparity between
prisoners subject to immigration detainers and those subject to final orders of removal. See id.

That said, other courts have rejected extraordinary and compelling circumstances where
they deliberately chose not to impose supervised release based on applicable Guidelines policy.
In United States v. Iossifov, 2024 WL 4906480 (E.D. Kay. Nov. 27, 2024), for example, the court
held as follows:

The Court was deliberate at the time of [the defendant’s] sentencing in declining to
include a term of supervised release. It based this decision on the [Guidelines],
which state that “[t]he court ordinarily: should not impose a term of supervised
release in a case in which supervised release is not required by statute and the
defendant is a deportable alien who likely will be deported after imprisonment.”
U.S.S.G. § 5D1.1(c). At sentencing, the Court further explained that it was
“following the recommendation in § 5D1.1c, [which] elected against a supervision
term. [The defendant] will be deported following service of his sentence; his return
to the U.S. is highly unlikely. The Court perceives no deterrent value in a
supervision term.” Although he may not yet be subject to a final order of removal,
... the Court here sentenced [the defendant] on the express understanding that he
would be deported following service of his sentence.

Id. at *9 (internal citations modified and omitted). The Jossifov court went further in noting that—
[w]hat [the defendant] really seeks is post-hoc manipulation of his sentence to
create a pathway to earlier release. The Court has no appetite and sees no authority
for modifying his sentence in this way, effectively adding nominal carceral time
but then affixing an inapplicable [supervised release] term just to facilitate a
different ultimate result. That is not what § 3582 allows or envisions. The Court
sentenced with plain intent not to impose supervised release. This tracked the
guidelines and was [as] a result fully ordinary and not compelling.
Id.
Notably, the United States District Court for the Northern District of Texas, through United
States v. Mendoza, 2025 WL 35878 (N.D. Tex. Jan. 6, 2025), applied similar reasoning to reach
the same conclusion as the Jossifov court. Mendoza, 2025 WL 35878, at *4 (citing Jossifov, 2024

WL 4906480, at *9).

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The lossifov and Mendoza holdings align with the Fifth Circuit’s pronouncement that relief
under § 3582(c)(1)(A)@) requires “some extraordinarily severe exigency, not foreseeable at the
time of sentencing, and unique to the life of the prisoner.” Escajeda, 58 F.4th at 186. Defendant
cannot show that these requirements have been met insofar as the non-imposition of supervised
release was consistent with § 5D1.1’s policy statements. Moreover, the sentencing record is clear
that Judge Alvarez specifically considered supervised release but decided against it given

Defendant’s status as a deportable alien. As an experienced Senior United States District Judge,

there is no reason to believe that Judge Alvarez would have been unaware of the effect of her. ~

decision on the BOP sentence calculation. -

As such, Defendant fails to show extraordinary and compelling circumstances for a.
modification of his sentence. |
C. Sentencing Factors

Defendant relies on two main arguments in attempting to show that a modification is -
consistent with the § 3553(a) sentencing factors. First, Defendant argues that, absent his eligibility
for time credits, he is deprived of an incentive to participate in rehabilitative programming. (Dkt.
No. 632 at 6). Furthermore, in citing the need to avoid unwarranted sentencing disparities,
Defendant points out that many non-citizens, like himself, who are not subject to final orders of 7
removal, are subject to early release to immigration custody upon the application of time credits. _
(Ud. at 7-9). Along these lines, Defendant contends that six of his co-defendants were sentenced
to terms of supervised release after their prison sentences, such that they will ultimately serve less
prison time than him when accounting for time credits. (id. at 2).. |

These arguments aré unconvincing. To begin, the applicable statutory scheme offers

multiple uses for credits earned through Defendant’s participation in rehabilitative programming.

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(Dit. No. 662 at 8-9). The incentives and rewards for prisoners who participate in such .
programming include phone and video conferencing privileges, additional visitation time, .
increased commissary spending, and access to email. 18 U.S.C. § 3632(d)(1), (3).

Nor does Defendant show that he is subject to unwarranted sentencing disparities, whether
in general or with respect to his co-defendants. As noted above, the non-imposition of supervised
release was specifically contemplated by § 5D1.1, and Defendant was sentenced accordingly.
Moreover, of the six co-defendants noted by Defendant, only one is a non-citizen like himself,
namely, Ivan Ornelas-Pio. See United States v. Ornelas-Pio, Action No. 7:23-CR-0051-1 (S.D.
Tex.), Dkt. No. 445. In that co-defendant’s case, Judge Alvarez imposed a term of five years of
supervised release. Id., Dkt. No. 586 at 3. What Defendant fails to note, however, is that his co-
defendant was sentenced to a prison term of 200 months. Id. at 2. Defendant is not similarly |
situated in-that respect. His sentence of 65 months represented a substantial downward variance
of 43 months from the low end of the advisory Guidelines range of 108 months. The fact of this

| downward variance can be understood to reflect that Judge Alvarez intended for Movant to serve
the full breadth of his prison term.

As such, Defendant fails to show a modification of his sentence is consistent with the - .
sentencing factors.
D.. Guidelines Policy

Finally, based on holdings like Jossifov and Mendoza, Defendant fails to show that a ~

modification of his sentence is consistent with:-§ 1B1.13(b) of the Guidelines.

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IV. CONCLUSION
Recommendation

For these reasons, the Magistrate Judge RECOMMENDS that the Motion (Dkt. No. 632)

be DENIED.
Objections

Within fourteen (14) days after being served a copy of this report, a party may serve and
file specific, written objections to the proposed recommendations. 28 U.S.C. § 636(b)(1)(C); Fed.
R. Civ. P. 72(b). Failure to file written objections within fourteen (14) days after service shall bar
an aggrieved party from de novo review by the District Judge on an issue covered in this report
and from appellate review of factual findings accepted or adopted by the District Judge, except on —
grounds of clear error or manifest injustice.

Directive to Clerk of Court

The Clerk of Court is DIRECTED to forward a copy of this report to the parties by any

receipted means.

DONE at McAllen, Texas this 16th day of July 2026.

hited’States Magistrate Judge

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