UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN HERNANDEZ, Defendant - Appellant. No. 21-3155 (D.C. No. 2:14-CR-2 0046-JWL-TJJ-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , BRISCOE , and MATHESON , Circuit Judges.

________________ _________________ Defendant John Hernandez appeals from th e district court’s denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compa ssionate release. Ex ercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I Hernandez is a native and citizen of Belize. In 2014, he pled guilty to distribution of methamphetamine and unlawful reentry after a prior aggravated felony

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 1, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 12 conviction. The district court senten ced him to 108 months’ imprisonment on the distribution conviction and 48 months ’ imprisonment on the unlawful reentry conviction, with the terms to be served conc urrently. The district court also ordered Hernandez to serve a three-ye ar term of supervised rele ase following the conclusion of his terms of imprisonment. In June 2021, Hernandez filed seve ral pro se motions seeking immediate compassionate release under § 35 82(c)(1)(A)(i). Hernandez noted in his motions that his projected release date was August 31, 2022. He argued, however, that the risk he would contract COVID-19 in prison amount ed to an extraordinary and compelling circumstance justifying early release because he suffered from heart disease 1 and this condition placed him at greate r risk of serious illness or death from COVID-19. Hernandez urged the court to exercise its discretion to or der his release upon consideration of the 18 U.S.C. § 3553(a) factors. The district court denied the motions. Hernandez now appeals fro m the district court’s decision.
II “[T]he plain language” of § 3582(c )(1)(A)(i) “creates a three-step
test.” United States v. Hald , 8 F.4th 932, 937 (10th Ci r. 2021) (internal quotation marks omitted). “At step one a district court must find whether extraordinary and compelling reasons warrant a sentence reduction.” Id. at 938 (ellipsis and internal quotation marks omitted). “At step two a district court must find whether such

1 According to Hernandez’s motions, he “received (4) st ents in [his] arteries on 12/7/2015.” ROA, Vol. I at 68. Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 23 reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 2 Id . (ellipsis and internal quotation marks omitted). “At step three § 3582(c)(1)(A) instructs a court to consid er any applicable 18 U.S.C. § 3553(a) factors and determine whether, in its disc retion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the
case.” Id . (brackets, ellipsis, and internal qu otation marks omitte d). “[D]istrict courts may deny compassionate-release mo tions” based on any of the three steps, “and do not need to address the others.” Id. at 942 (italics and internal quotation marks omitted). “We review a district court’s order denying relief on a § 3582(c)(1)(A) motion for abuse of discretion.” United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021)

. “A district court abuses its disc retion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” Id . (quotations omitted). Here, the government conceded that He rnandez satisfied step one. To begin with, the government noted th at the Department of Just ice, consistent with the guidance of the Centers for Disease Contro l and Prevention, had identified “serious heart conditions, including . . . coronary arte ry disease” to be among the risk factors that place inmates at higher risk of comp lications from COVID-19. ROA, Vol. I at

2 Because the Sentencing Commission’s existing policy statement only applies to motions filed by the Director of the Bur eau of Prisons, the second step is not relevant when, like here, the prisoner ha s moved for compassi onate release. See United States v. McGee , 992 F.3d 1035, 1050 (10th Cir. 2021). Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 34 114. The government in turn noted that Hernandez’s medical re cords confirmed that he suffered from heart dise ase and had thus establis hed an extraordinary and compelling reason allowing for consider ation of compassionate release under § 3582(c)(1)(A). The district court accep ted the government’s step one concession and thus focused its an alysis on step three. The district court began its step three analysis by finding that, despite Hernandez’s heart disease, his “particularized risk of harm from the coronavirus d[id] not appear to be substantially el evated.” ROA, Vol. I at 152; see Hald , 8 F.4th at 947 (stating courts may consider the facts regarding extraord inary and compelling reasons for release in the § 3553(a) analysis). Th e district court noted in support that Hernandez’s “medical records indicate[d] that his [heart] condition [wa]s being treated while in prison.” ROA, Vol. I at 152. The district court also noted in support that Hernandez “ha[d] re cently received [COVID-19] vaccinations, and the virus [wa]s by no means prevalent at [his] prison, with only two cases . . . at the present time.” 3 Id . The district court stat ed that these fact s, “along with the Section 3553(a) factors,” persuaded it “that a sentence reduction to time served [wa]s not warranted here.” Id

.

3 The district court stated in its decision that the two cases at Hernandez’s prison were among the inmate pop ulation. In fact, however, the record indicates that those two cases were among prison staff, and that no inmates at the prison were suffering from COVID-19. Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 45 Among the § 3553(a) factors that th e district court considered were Hernandez’s criminal history and his hist ory of disciplinary infractions while in prison. 4 The district court noted, after citing those two factors, that “[a] reduction would therefore result in an overall sent ence that would not properly reflect the seriousness of the offense, and [Hernandez] has not show n that he would not pose a danger to others upon release.” Id . at 152–53. The district court also focused on Hern andez’s status as an illegal immigrant and what that would mean for Hernandez in terms of freedom and COVID-19 risk if he were released from prison. With respect to the issue of He rnandez’s freedom from confinement, the district court first noted that Hernandez “concede[ d] that he w[ould] likely be deported to Belize upon the conclu sion of this term of imprisonment.” Id

. at 153. “Thus,” the district court conc luded, it was unlikely “that a reduction of [Hernandez’s] sentence to tim e served would . . . result in his freedom,” and that instead he would likely “continue to be detained by ICE pending removal proceedings.” Id . As for Hernandez’s risk of contracting COVID-19, the district court noted “the dearth of present cases at [Hernandez’s] prison” and in turn

4 Those disciplinary infractions incl ude: (1) disposing of contraband by swallowing it; (2) involvement in a two-on- one fight; (3) destro ying property worth $100 or less; (4) giving or accepting money without aut horization; (5) possessing twenty-two small strips of wh ite paper hidden in his left sock and testing positive for heroin; (6) being absent from an assi gnment; (7) use of drugs or alcohol; (8) introduction of marijuana; (9) use of marijuana; (10) fai ling to stand count; (11) tattooing or self-mutilation; (12) ph one abuse; and (13) giving or accepting money without authorization. Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 56 concluded “[t]here [wa]s no re ason to believe that” Herna ndez’s risk of contracting COVID-19 at an ICE facility “would be any lower.” Id

. Lastly, the district court stated: because [Hernandez] would not be subject to supe rvision in Belize, the requested reduction to time served woul d mean that [his] sentence failed to account for the seriousness of his o ffense to an even greater degree, as his sentence would be further redu ced by the effective elimination of his term of supervised release. Id

. In his appeal, Hernandez challenges some of the district court’s findings and conclusions. To begin with, he argues that his term of supervised release, and the fact that he would not be subject to supervision if rem oved, has no rational relationship to his motion for a reduced sent ence. But Hernandez’ s arguments, in our view, miss the point of the dist rict court’s reference to supe rvised release. Because it is almost certain that Hern andez will be deported upon re lease from prison, he will not be subject to supervision, as the district court origin ally intended when it imposed the sentence. The district c ourt simply concluded that fact , if combined with an early release from prison and a resulting twelve-m onth or more reduction in his term of imprisonment, would “fail[] to account for the seriousness of [Hernandez’s] offense.” 5 Id . at 153. We are not persuaded that this conclusion, which focused on

5 Hernandez filed his pro se motions to modify his sentence on June 1, 2021, approximately fourteen months prior to hi s estimated release date from prison, and the district court issued its memorandum and order denyi ng Hernandez’s motions on August 27, 2021, approximately twelve months prior to Hernandez’s estimated release date. Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 67 the length of Hernandez’s imprisonment comp ared to the seriousne ss of his offenses of conviction, amounted to an abuse of di scretion on the part of the district court. Hernandez next complains th at it was “speculative [for the district court] to assume that his ICE detainer would preclude effective relief” in terms of both his freedom and “his risk from COVID-19.” Aplt. Br. at 17. We disagree. To begin with, we are not persuaded that the district court abused its di scretion by inferring, based upon the undisputed facts regarding Hernandez’s immigration status and his conviction for illegal reentry, that Hern andez will be taken into ICE custody immediately upon his release from prison. Indeed, we conclude that such an inference is entirely reasona ble. To conclude otherwis e would effectively require a district court, when faced with a motion for reduction filed by a prisoner who has been convicted of illegal reentry, to conduc t an evidentiary hearing in order to make findings of fact regarding ICE’s expected response to the prisoner’s release from prison. Nor are we persuaded that the distri ct court abused its di scretion by inferring, based upon the extremely low rate of COVI D-19 at Hernandez’s prison, that it was unlikely that the COVID-19 rate at an ICE detention facility would be even lower. Finally, Hernandez argues that the distri ct court erred in finding that he had multiple prior convictions involving violence a nd the use of firearms. On this point, we agree with Hernandez. According to the presentence investigation report (PSR), Hernandez had three prior adu lt criminal convictions, all arising in the California state courts: (1) a 1992 conviction for assa ult, for which he was sentenced to 36 months supervision; (2) a 1993 conviction for robbery, for which he was sentenced to Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 78 5 years’ imprisonment; and (3) a 1996 conv iction for possession of a firearm by a felon, for which he was sentenced to 15 years’ imprisonment. Unfortunately, the PSR does not provide a description of the un derlying conduct that gave rise to these convictions. Thus, Hernandez is correct that the district c ourt erred in finding that he “had multiple prior convictions that did involve violence a nd the use of firearms.” ROA, Vol. I at 152. That said, we have little trouble concl uding that this err oneous factual finding was harmless. 6 The district court’s overall con cern, as we read its decision, was Hernandez’s history of serious criminal con duct and disciplinary violations. And that concern, we conclude, is amply supported by the record on appeal. In terms of Hernandez’s criminal history, the PSR make s clear that Hernandez has been involved in criminal activity si nce he was a teenager, and has spen t most of his adult life either in confinement or engaged in criminal conduct. For example, Hernandez was confined in the California st ate prison system from 1997 th rough early 2010, when he was paroled on the possession of a fire arm conviction at the age of 37. Approximately four years later, he was charged with the federal crimes—illegal reentry and distribution of methamphetamine—that gave ri se to his current federal confinement. And, as for Hernandez’s disc iplinary violations, those are recounted in

6 Although Hernandez correctly notes in his reply brief that the government has not argued harmless error, we have held that when harmless error is clear, we may raise it sua sponte

. See United States v. Holly , 488 F.3d 1298, 1308 (10th Cir. 2007) (“Despite this cour t’s general reluctance to sua sponte apply harmless error review, it may be appropriate to do so where the certai nty of the harmlessness is readily apparent.”). We conclude that is preci sely the situation here. Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 89 undisputed detail in an attachment to the government’s response to Hernandez’s motion. Although Hernandez attempts to downplay the seriousness of some of those violations, the overall pattern exhibited by the record amply supports the concern expressed by the district court. Thus, in sum, any factual errors that Hernandez has identified in the district court’s decision do not persuade us that the district cour t abused its discretion in denying Hernandez’s motion to re duce his sentence to time served.
III The judgment of the dist rict court is AFFIRMED.

Entered for the Court
Mary Beck Briscoe Senior Circuit Judge Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 9