United States Court of Appeals

For the First Circuit

No. 21-1137

UNITED STATES,

Appellant,

v.

MARIO R. RIVERA-RODRÍGUEZ, a/k/a Papolín,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Gelpí, Howard, and Thompson,

Circuit Judges.

David C. Bornstein, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, were on brief for 

appellant.

Samuel Carrion, with whom Eric Alexander Vos, Federal Public 

Defender, Franco L. Pérez-Redondo, Assistant Federal Public 

Defender, and Kevin E. Lerman, Research & Writing Attorney, were 

on brief for appellee. 

July 20, 2023
- 2 -

THOMPSON, Circuit Judge. Today's appeal confronts both 

the extraordinary and the, arguably, mundane. The government seeks 

reversal of two district court rulings, one granting appellee, 

Mario Rivera-Rodríguez ("Rivera"), compassionate release from 

incarceration, the other denying the government's subsequent 

request for reconsideration. We face the extraordinary as we 

contemplate whether the district court below was obligated to 

rescind the compassionate release it had granted to Rivera premised 

upon his heightened health risks associated with the COVID-19 virus 

(COVID) (in and of itself, an extraordinary remedy). And we face 

the mundane as we consider whether it was reasonable for the court 

to conclude, in the exercise of its considerable discretion, that 

although Rivera had in fact been vaccinated before his release, 

reconsideration of its initial judgment was not warranted here. 

For reasons we get into below, we affirm. We begin by 

describing the events leading up to, and following, the district 

court's release grant before zooming out to provide broader context 

on compassionate release and the government's authority to appeal 

its grant. We conclude by exploring the merits of the government's 

challenges to both judgments below -- arguments we ultimately 

reject. 
- 3 -

I. Background

A. Rivera's Crime & Sentencing

On August 6, 2009, Saro Díaz-Rosa lost his life at the 

hands of Rivera and another person (an unidentified "John Doe"). 

Rivera and an accomplice, arriving at a gas station in Río Grande, 

Puerto Rico, spotted Díaz-Rosa standing at an air pump. After 

sizing him up and making the decision to steal his Ford Club Wagon,

they proceeded to shoot at Díaz-Rosa multiple times, ultimately

killing him. Hightailing the vehicle away from the station, Rivera 

and his compadre wound up abandoning it later in the day on Calle

Yunquecito in Carolina. 

While to this day his accomplice remains unidentified, 

Rivera surrendered and was arrested by authorities the following 

month. In October 2009, he was indicted for carjacking resulting 

in death in violation of 18 U.S.C. § 2119(3) and discharging a 

firearm causing the murder of a person in violation of 18 U.S.C. 

§ 924(c)(1)(A)(iii), (j). 

Eventually, Rivera accepted a plea agreement, under 

which he pled guilty to the carjacking count in exchange for the 

government's agreement to drop the firearms charge and recommend 
- 4 -

he serve a 240-month prison sentence.1 The agreement was reviewed

by the court during Rivera's November 2011 sentencing hearing.2 

Pursuant to its sentencing tasks, the court, after 

determining the applicable guideline sentencing range to be from 

210 to 262 months, accepted the government's recommendation under 

the agreement -- imposing a term of 240 months of incarceration, 

followed by five years of supervised release. 

B. COVID & Compassionate Release

Nearly nine years later, along comes COVID. On 

January 31, 2020, federal authorities declared the highly 

transmissible virus to be a public health emergency. See

Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020). As the 

1 Under the terms of the agreement, he also agreed to withdraw 

a motion he had filed seeking to suppress his confession, which he 

had given after waiving his Miranda rights. See Miranda v. 

Arizona, 384 U.S. 436, 475 (1966) ("If [an] interrogation continues 

without the presence of an attorney and a statement is taken, a 

heavy burden rests on the government to demonstrate that the 

defendant knowingly and intelligently waived his privilege against 

self-incrimination and his right to retained or appointed 

counsel."). 

2 During the hearing the court acknowledged several mitigating 

sentencing factors raised by the defense such as Rivera's various 

familial traumas, including his troubled childhood. The same went 

for Rivera's issues with addiction and his mental, cognitive, and 

emotional deficiencies. At one point, the court raised Rivera's 

probable "frontal lobe structural deficiencies . . . which 

[affect] the ability to understand the consequences of certain 

actions." The hearing also included testimony from Díaz-Rosa's 

family expressing the significant devastation and struggles they 

faced since his death, and from Rivera expressing his deep remorse 

for the crime he had committed.
- 5 -

pandemic presented health risks to vulnerable communities 

throughout the globe, our public health authorities concluded that 

the risk of infection was particularly acute among those housed in 

densely occupied congregate settings such as prisons. See Centers 

for Disease Control and Prevention, Guidance on Management of 

COVID-19 in Homeless Service Sites and in Correctional and

Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/corona

virus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html. 

That October, represented by the public defender, 

Rivera, who his prison FCI Butner I ("Butner") had classified as 

a chronic care inmate, identified himself as uniquely at risk of 

death or severe illness were he to contract COVID, due to his 

obesity, chronic hypertension, and pre-diabetes. Accordingly, he 

motioned the court for compassionate release under the First Step 

Act, 18 U.S.C. § 3582(c)(1)(A), which authorizes the federal courts 

to reduce an incarcerated individual's prison term should there be 

"extraordinary and compelling" reasons for doing so.3 In his 

written submission, he argued that his heightened health risks 

3 18 U.S.C. § 3582(c)(1)(A)(i) states that a 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 portion of the original term of imprisonment), after 

considering the [sentencing] factors set forth in section 3553(a) 

to the extent that they are applicable, if it finds that 

extraordinary and compelling reasons warrant such a 

reduction . . . ."
- 6 -

constituted an extraordinary and compelling reason to release him 

from prison, particularly given that several COVID outbreaks had 

occurred at Butner, and had resulted in the death of multiple 

incarcerated persons there. As Rivera urged, citing to United 

States v. Amarrah, which we quote: "The Court sentenced Defendant 

to [240] months in prison; it did not sentence him to death or to 

incarceration that carries a significant risk of death." 458 F. 

Supp. 3d 611, 618 (E.D. Mich. 2020). Besides his health factors, 

Rivera also pointed to his good behavior while incarcerated --

he'd experienced only one minor disciplinary infraction ten years 

prior -- and his extensive efforts at rehabilitation while serving 

his sentence -- he'd taken numerous BOP (Federal Bureau of Prisons) 

courses heavy on education and personal development and had an 

outstanding employment record during his imprisonment -- arguing

that because of the steps he had taken to reform himself, he would 

not be a danger to the community were he to be released. In 

support of his motion, Rivera submitted his prison medical records, 

education transcripts, and a job reference letter, as well as the 

compassionate release request form he had submitted to the BOP

(upon which the BOP had failed to act) before filing his own 

motion. He requested his sentence be reduced to time served, with 

a condition that he be placed in home detention and electronic 

monitoring for the first year of his supervised release term.
- 7 -

The government emphatically objected. In a written

submission, it highlighted the measures taken by the BOP to 

minimize the risk of COVID transmission into and throughout its 

facilities. It further insisted that Rivera's medical conditions 

did not rise to the level of extraordinary and compelling 

circumstances required for release, and, even if they did, 

releasing him after only eleven years would be inappropriate given 

the severity of both his offense and his prior criminal history.4 

Responding to the government's filing, Rivera presented a pointby-point rebuttal to the merits of each objection, and further 

urged that, against the backdrop of the serious risks presented by 

COVID in Butner (and given his significant steps towards 

rehabilitation), the court should err on the side of protecting 

his life and health by granting him early release.

Neither side requested a hearing, and on January 8, 2021, 

the court issued a ruling on the papers. In it, the court described 

Rivera as "a 48−year−old man suffering from obesity, hypertension, 

and potentially undiagnosed Type II Diabetes, conditions that 

increase his risk of severe illness from COVID−19." The court 

4 Rivera had previously been arrested and convicted for 

offenses stemming from charges of breaking and entering a home and 

stealing property from it, including a video camera that he later 

sold, domestic violence, committing armed robbery, resisting a 

public authority while driving an unauthorized vehicle with the 

intent to distribute marijuana, and unlawfully possessing a loaded 

firearm.
- 8 -

also observed that nine individuals incarcerated at Butner had 

died due to COVID.5 It concluded that this number of deaths, 

alongside Rivera's medical conditions, qualified as extraordinary 

and compelling reasons justifying early release. The court further

noted his impressive disciplinary record and rehabilitative 

efforts while incarcerated, as well as the fact that Rivera had 

"already served more than 11 years of his sentence, 57% of his 

statutory term (and 66% if you take into account his expected 

release date for good conduct . . .)." 

In the order granting Rivera's motion, the court reduced 

Rivera's sentence to time served and modified his release 

conditions to impose home detention and electronic monitoring for 

the first three years of his five-year supervised release term.

In so doing the court made clear that a modified sentence "would 

still reflect the seriousness of the offense, promote respect for 

the law, and provide just punishment for the offense."

C. The Government's Appeal & Rivera's Release

Before the ink could dry on the district court's order, 

the government filed an immediate appeal, along with an emergency 

motion asking the district court to stay Rivera's release in the 

5 The government, in its subsequent motion for 

reconsideration, corrected the record on this point by identifying 

that two of these deaths did not occur at Butner, but instead at 

an adjacent minimum security satellite camp. Rivera, when opposing 

the motion, agreed with this correction.
- 9 -

meantime. In its motion, the government emphasized the fact that 

doses of a COVID vaccine had already been delivered to Butner, and 

that Rivera would likely receive one relatively soon. The motion 

reiterated the severity of Rivera's crime and his risk of reoffending, and it urged the district court to stay Rivera's release 

until the First Circuit could have a chance to weigh in. In 

response, the district court issued a temporary stay of Rivera's 

release until January 12th and directed him to respond to the 

government's motion before that date, which he did on January 11th.

In his reply, Rivera opposed the government's stay 

request stressing the government had failed, for a couple of 

primary reasons, to meet its burden for obtaining such a stay. 

First, Rivera predicted the government was unlikely to succeed on 

the merits. Second, he maintained that given his numerous health 

infirmities, he would face irreparable harm if incarcerated while 

the government's appeal was pending. Conversely, said Rivera, the 

government would face no harm if he was kept in home confinement 

per the modified terms of his supervised release as such a 

condition provided adequate protection for the public.

Continuing, he argued that denying the stay and allowing him to 

remain outside the prison benefitted the public interest because 

it maintained the normal course of appellate proceedings,6 which 

6 A heads up to the reader. Throughout this back and forth, 

neither the government nor Rivera addressed the source (nor posited 
- 10 -

typically do not involve staying a lower court's decision absent 

unusual circumstances, and reduced the prison population, thus 

lessening the marginal risk he posed to furthering the transmission 

of the virus within the prison. While Rivera did acknowledge the 

government's new proffer that Butner might soon have vaccines 

available, he did not respond to it specifically. Rather, he 

accused the government of making no attempt "to address the legal 

standard for securing a stay."

In a surprising turn of events, Rivera submitted two 

additional filings on January 11, 2021 (which turned out to be a 

very busy day for court filings). First, he filed an informative 

motion alerting the court that he had, in fact, already been 

released from prison as per the court's January 8th order and prior 

to the court temporarily staying that release. Second, he filed 

a motion requesting the district court lift the stay of his release 

and instead maintain the status quo, allowing him to remain outside 

Butner while the lower court contemplated a final ruling on whether 

to grant a permanent stay during the pendency of the government's 

appeal before this court. 

a lack) of jurisdiction over the government's appeal from his 

compassionate release order. Given their silence, the 

government's notice of appeal and motion to stay, as well as 

Rivera's opposition to the latter, all appear to assume that the 

government was authorized to bring such an appeal. We'll get to 

this jurisdictional wrinkle shortly.
- 11 -

D. The Government's Motion to Reconsider

Later, on January 11th, the district court was apprised 

of yet another twist: In an emergency motion for reconsideration 

filed by the government, it informed the court that unbeknownst to 

the court, the government, and even defense counsel, Rivera had 

already been vaccinated prior to his release. Rivera, the 

government had just learned, received his first dose of the PfizerBioNTech COVID vaccine on December 19, 2020 (some nineteen days 

prior to the court's January 8th order granting his compassionate 

release) and a second dose on January 5, 2021 (three days before 

the release order was issued and implemented). 

Rivera promptly filed an objection to the 

reconsideration request. According to defense counsel, although 

he had not been personally aware of Rivera's vaccination status, 

in his view Rivera's numerous health risks still counseled in favor 

of denying the government's motion. Hours after receiving the 

filings, the court issued a line order denying the reconsideration 

motion. Given the pendency of the government's appeal, the court 

determined it lacked jurisdiction over the government's motion. 

The next day, rather than proceed with its appeal or seek an 

indicative ruling on its reconsideration request pursuant to 

Federal Rule of Civil Procedure 62.1,7 the government opted to

7 Federal Rule of Civil Procedure 62.1(a)(3) states that "[i]f 

a timely motion is made for relief that the court lacks authority 
- 12 -

withdraw its appeal, thereby restoring the district court's 

authority over the controversy.

Two days later, on January 14, 2021, the government filed 

a renewed motion to reconsider, once again asking the court to 

vacate its compassionate release order.8 In general, the 

government cited newly discovered evidence, and presented fresh 

legal arguments as reasons for the court to reverse course. More 

specifically, it argued first that the compassionate release order 

had been based on inaccurate information, that is, the threat COVID 

posed to Rivera based upon the assumption that he had not been 

vaccinated. Second, the government contended that the court's 

order had overestimated the overall risk of COVID at Butner --

noting that only one person incarcerated at the facility had COVID 

at the time of filing, and that no deaths had occurred there in 

eight months. Attesting to this latter assertion, and attached to 

the motion, was a declaration by Andrew Stock, the Clinical 

Director at the Federal Medical Center serving those incarcerated 

at Butner. In Stock's declaration, he described the various 

to grant because of an appeal that has been docketed and is 

pending, the court may," in an indicative ruling, "state either 

that it would grant the motion if the court of appeals remands for 

that purpose or that the motion raises a substantial issue."

8 Like its emergency motion to reconsider, the government's 

renewed motion apparently assumed the motion was properly raised, 

as it did not specifically assert the court's jurisdictional 

authority to reconsider its compassionate release decision.
- 13 -

actions taken by the BOP in order to address and mitigate the risk 

of COVID within the facility. He also described the circumstances 

surrounding those who had died from COVID while incarcerated there 

(totaling twenty-seven throughout the five facilities making up 

the broader Federal Correctional Complex containing Butner).9

Third, on the rehabilitation front, the government challenged the 

court's characterization of Rivera as greatly rehabilitated and 

asserted that, either way, his reduced sentence failed to 

adequately reflect the severity of his crime.

9 For context, as Rivera describes in his brief, conditions 

at Butner were exceptionally bad. According to a pandemic response 

report issued by the Department of Justice, there were regular 

failures to follow BOP quarantine guidance within the facility, a 

lack of widespread COVID testing for long periods of time, and 

cross-contamination between facilities by staff. As of January 

17, 2021 (shortly after the government sought reconsideration in 

this case), "226 inmates had active COVID-19 cases and 2 additional 

inmates had died as a result of COVID-19, bringing to 27 the total 

number of Butner inmate deaths caused by COVID-19." Department of 

Justice Office of the Inspector General, Pandemic Response Report 

21-031, Remote Inspection of Federal Correctional Complex Butner 

(Jan. 2021), https://www.oversight.gov/sites/default/files/oigreports/DOJ/21-031.pdf. Additionally, twenty-three staff members 

had active COVID cases at the time. Id. 

As an aside, Stock's declaration was initially filed by the 

BOP on June 3, 2020, in response to a class-action lawsuit brought 

on behalf of individuals incarcerated at Butner and adjacent 

facilities, who sought sweeping relief from the disturbing 

conditions throughout the federal complex. See Hallinan v. 

Scarantino, 466 F. Supp. 3d 587, 590 (E.D.N.C. 2020) 

("[P]etitioners assert respondents have failed to control the 

spread of the virus that causes COVID-19 within FCC-Butner, thus 

exposing them to a substantial risk of contracting the disease."). 
- 14 -

In further support of its arguments, the government 

submitted additional reasons for the court to change its mind --

describing certain pivotal updates postdating Rivera's release 

from incarceration, all of which, the government submitted,

undermined the justifications for his release. According to the 

motion, given that Rivera had relocated to a housing project in 

Carolina, a municipality in Puerto Rico that was experiencing 

higher rates of COVID transmission than Butner at the time, it was 

evident that Rivera had overstated his concerns about COVID. Based 

on Carolina's transmission rates, the government further suggested 

that Rivera would, in fact, be safer if returned to Butner. In a 

similar vein, the government claimed that Rivera's health 

conditions were less significant than the court had determined, 

describing communications between him and his probation officer 

wherein Rivera stated that his health conditions, because of the 

various medications he was taking, were "under control" and that 

he did not need to rush to get health insurance following his 

release. Given these turns of events, coupled with Rivera's 

updated vaccination status, the government argued that none of his 

health risks were sufficiently extraordinary and compelling to 

warrant release.

Rivera fired back. As relevant here, touching briefly 

upon the court's jurisdiction to entertain the government's 

motion, Rivera, in a footnote, stated that he would "assume without 
- 15 -

conceding" that the government's motion was appropriate in this 

case, even though, in his estimation, "it [might] be argued that 

the government is seeking reconsideration within the sentencing 

context" and therefore proceeding inappropriately. See United 

States v. Tanco-Pizarro, 892 F.3d 472, 477 n.1 (1st Cir. 2018) 

("[T]here is simply no such thing as a 'motion to reconsider' an 

otherwise final sentence." (quoting United States v. Ortiz, 741 

F.3d 288, 292 n.2 (1st Cir. 2014))). Also of import, Rivera 

observed that all of the government's arguments, except the one 

concerning his vaccination status, had already been raised or could

have been raised in opposition to his compassionate release motion. 

In a footnote centering a portion of the government's argument 

(more on this to come), he remarked that "[t]echnically, [he] could 

argue that . . . [the vaccination] evidence does not qualify as 

newly discovered evidence because the government could have 

learned of it in the exercise of due diligence." However, he 

characterized that argument as hyper-technical and stated that, 

assuming his vaccination status would qualify as newly discovered 

evidence for the purposes of reconsideration, it was still 

insufficient for altering the court's prior decision. As he saw 

it, based on the available science at the time, the vaccination in 

and of itself did not sufficiently obviate the risks he confronted 

while incarcerated. For support, he pointed to the less than 100% 

efficacy rate of the shots, the possibility of contracting the 
- 16 -

virus after being inoculated but before full immunity had been 

developed, and the ambiguity surrounding how long any immunity 

provided by the vaccine might last. 

To distill the bulk of his arguments: Rivera contended 

his medical conditions were sufficiently severe, his 

rehabilitation record was sufficiently impressive, and -- given 

the constantly changing nature of COVID rates at Butner, along 

with the prison's demonstrated inability to keep those in its 

custody safe -- his circumstances were, in fact, sufficiently 

extraordinary and compelling for the court to sustain its 

compassionate release order. Disputing the government's argument 

to the contrary, he insisted that "[i]n prison, living in close 

quarters with hundreds of other inmates and coming in contact with 

staff that comes and goes from the prison, is [] not, as the 

government suggests, a situation where he [would be] better off." 

In response to Rivera's objection, the government did 

not address Rivera's legal assertions raising the possibility that 

the motion to reconsider might be barred because it effectively 

arose from a "sentence." Nor did it address Rivera's contention 

that the vaccination evidence might not actually constitute newly 

discovered evidence for the purposes of reconsideration. Instead, 

the government drilled down on its insistence that the vaccine had 

eliminated the primary reason for Rivera's early release, thereby 

necessitating reversal of the compassionate release order. In 
- 17 -

doing so, it urged the court to reconsider its order given that 

the vaccination had occurred while his compassionate release 

motion was pending. The government did not attempt to explain the 

relevance of the timing of Rivera's vaccination relative to the 

government's legal arguments to the court.

About two weeks after this legal sparring ceased, the 

government, on February 2, 2021, filed a notice with the court 

seeking a prompt ruling on its reconsideration request and 

providing updated COVID statistics from Butner and Carolina, 

Puerto Rico, where Rivera was still residing. Later that day, the 

court obliged the government's request and issued an order denying 

the government's motion for reconsideration.

In a short order the court chiefly relied on due 

diligence grounds as its basis for denying relief. Specifically, 

the court found that "had the parties exercised due diligence, the 

evidence regarding [Rivera's] vaccination could have been 

presented earlier." Similarly disposing of the government's other 

arguments on reconsideration, the court noted that arguments 

"regarding the number and timing of [COVID] deaths at [Butner], 

the nature and risks posed by [Rivera's] medical conditions, the 

reduced risks posed by [his] medical conditions being under 

control, and [his] rehabilitation record could have been 

presented" before the court entered its order granting 

compassionate release. 
- 18 -

Dissatisfied, the government filed a timely notice of 

appeal challenging the district court's orders granting Rivera's 

compassionate release motion and denying the government's request 

for reconsideration. And here we are. 

II. Jurisdiction

Before we can reach the merits of the government's 

arguments, we must first tackle the jurisdictional hiccups that 

Rivera identifies in his brief. After all, "[f]ederal courts, as 

courts of limited jurisdiction, may not presume the existence of 

subject matter jurisdiction, but, rather, must appraise their own 

authority to hear and determine particular cases." Watchtower 

Bible & Tract Soc. of New York, Inc. v. Colombani, 712 F.3d 6, 10 

(1st Cir. 2013) (quoting Cusumano v. Microsoft Corp., 162 F.3d 

708, 712 (1st Cir. 1998)). 

Rivera mounts a two-pronged jurisdictional attack. He 

first contends that our court lacks jurisdiction over any district 

court decision granting compassionate release. Next, he takes aim 

at the government's reconsideration motion, arguing that the 

district court lacked jurisdiction to take it up in the first 

instance and that we, in turn, lack any authority to consider it 

further. We take up Rivera's first jurisdictional challenge and 

then move on to the next.10 

10 We do so with the benefit of jurisdictional arguments 

debuted by the government in its reply brief which, contrary to 
- 19 -

A. Government Appeals from Compassionate Release

As our rules require,11 the government, in its opening 

brief, asserts a jurisdictional hook which it contends authorizes 

this court to consider its appeal of the district court's

compassionate release order, specifically, 18 U.S.C. § 3731.12 In 

its reply brief, the government also raised the possibility of 

jurisdiction under 28 U.S.C. § 1291.13 Irrelevant are both, says 

Rivera's claims of waiver, were still available to the government 

in order to respond to the jurisdictional challenges Rivera raised 

in response to its opening brief. See Cabán Hernández v. Philip 

Morris USA, Inc., 486 F.3d 1, 5 (1st Cir. 2007) ("Ordinary raiseor-waive rules do not apply with respect to claims that a court 

lacks subject matter jurisdiction."). 

11 To the extent that Rivera is arguing that the government's 

jurisdictional statement was insufficiently detailed to pass 

muster under our rules, we disagree. See Fed. R. App. P. 

28(a)(4)(A), (B) ("The appellant's brief must contain . . . a 

jurisdictional statement, including . . . the basis for the 

district court's . . . subject-matter jurisdiction, with citations 

to applicable statutory provisions . . . [and] the basis for the 

court of appeals' jurisdiction, with citations to applicable 

statutory provisions . . . ."). The government's brief does assert 

a jurisdictional basis for this appeal. It is of no moment (to 

jump ahead) that we ultimately locate our jurisdiction in a statute 

different from the one the government cites. See Arizona v. 

Manypenny, 451 U.S. 232, 237, 250 (1981) (finding jurisdiction 

under 28 U.S.C. § 1291, even though the government had invoked 18 

U.S.C. § 3731 in its jurisdictional statement). 

12 18 U.S.C. § 3731 states, in relevant part, that "[a]n appeal 

by the United States shall lie to a court of appeals from a decision 

or order, entered by a district court of the United States, 

granting the release of a person charged with or convicted of an 

offense, or denying a motion for revocation of, or modification of 

the conditions of, a decision or order granting release." 

13 28 U.S.C. § 1291 provides, in relevant part, that "[t]he

courts of appeals . . . shall have jurisdiction of appeals from 
- 20 -

Rivera: Notwithstanding what the government claims, it has no 

right to appeal an adverse ruling granting compassionate release 

as such appeals may not be brought under either of the limited 

statutory pathways, cited by the government, that might otherwise 

authorize a government's criminal appeal. It follows, so the 

argument goes, that if the government has no right to appeal then

this court lacks the authority to entertain such an appeal.

From our deep dive into this jurisdictional protestation 

it appears we are the first circuit court to have to confront this 

question directly; while, to our knowledge, none of our sister 

circuits have denied their jurisdiction to entertain a government 

compassionate release appeal, those that have resolved such 

appeals have seemingly done so without facing a targeted 

jurisdictional challenge and consequently, without the need to wax 

loquaciously about the source of their authority to review such a 

decision adverse to the government.14

all final decisions of the district courts of the United 

States . . . ."

14 The Third and Tenth Circuits have summarily assumed 

jurisdiction under 28 U.S.C. § 1291. See United States v. HerreraGenao, No. 21-2345, 2023 WL 2755577, at *2 (3d Cir. Apr. 3, 2023); 

United States v. Maumau, 993 F.3d 821, 824 (10th Cir. 2021). The 

Fourth and Sixth Circuits have exercised jurisdiction without 

naming its source, in cases where the briefs cited § 1291 and 18 

U.S.C. § 3731, and § 1291 and 18 U.S.C. § 3742(b), respectively. 

See Brief for Appellant at 2, United States v. McCoy, 981 F.3d 271 

(4th Cir. 2020) (No. 20-6821), 2020 WL 3958578; Brief for Appellant 

at 2, United States v. Sweet, 2021 WL 5371402 (6th Cir. Nov. 18, 

2021) (No. 21-1477).
- 21 -

Because Rivera squarely raised this jurisdictional 

issue, we now consider his challenge. First, some fundamentals: 

"It is common ground that 'appeals by the Government in criminal 

cases are something unusual, exceptional, not favored.'" United 

States v. Watson, 386 F.3d 304, 307 (1st Cir. 2004) (quoting 

Carroll v. United States, 354 U.S. 394, 400 (1957)). Accordingly, 

"[t]he government has no right of appeal in criminal cases except 

where a statute expressly grants such a right." United States v. 

Kane, 646 F.2d 4, 5 (1st Cir. 1981). 

With those general principles in the backdrop, Rivera's 

argument goes like this. First, he says his compassionate release 

order ought to be understood as a sentencing order, and therefore 

face the same appealability constraints applied to other 

sentences. Under this paradigm, grounds for the government to 

appeal a sentencing decision are generally limited to those 

enumerated in 18 U.S.C. § 3742(b), the primary statute that governs 

criminal sentencing appeals. See 18 U.S.C. § 3742(b) (stating 

that the government may appeal "an otherwise final sentence if the 

sentence--(1) was imposed in violation of law; (2) was imposed as 

a result of an incorrect application of the sentencing guidelines;

(3) is less than the sentence specified in the applicable guideline 

range . . . ; or (4) was imposed for an offense for which there is 

no sentencing guideline and is plainly unreasonable"). Given the 

parameters of 18 U.S.C. § 3742(b), Rivera argues, and the 
- 22 -

government does not disagree, that none of its provisions apply 

here.

Continuing, Rivera maintains that with 18 U.S.C. 

§ 3742(b) out of contention, the government, as it argues, is left 

to rely instead upon either 28 U.S.C. § 1291 or 18 U.S.C. § 3731.

But our case law is clear, says Rivera, that neither 28 U.S.C. 

§ 1291 which gives the courts of appeals jurisdiction over final 

decisions of the district court, nor 18 U.S.C. § 3731 which affords 

appeal rights from certain district court orders granting release 

of persons in limited situations, authorizes a government appeal

from a sentencing decision. See United States v. Patterson, 882 

F.2d 595, 599 (1st Cir. 1989) ("[T]he Court has reaffirmed that 

the Federal Government enjoys no inherent right to appeal a 

criminal judgment, and that the grant of general appellate 

jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize 

such a federal appeal" (quoting Arizona v. Manypenny, 451 U.S. 

232, 246–47 (1981))), abrogated on other grounds by Taylor v. 

United States, 495 U.S. 575 (1990); id. (holding that § 3731 

"cannot be read to include government appeals from sentencing 

orders."). And since the government finds no other statutory 

support to ground its appeal, no jurisdiction may lie with this 

court. As we mentioned, the government disagrees with Rivera's 

argument.
- 23 -

We begin by observing that in United States v. Trenkler, 

we considered another government appeal from an order granting 

compassionate release, thus exercising our jurisdiction over the 

matter. 47 F.4th 42 (1st Cir. 2022) (vacating and remanding an 

order granting compassionate release). There, the government, 

without challenge to the appellate court's jurisdictional 

underpinning, cited 28 U.S.C. § 1291 as the basis for this court's 

exercise of jurisdiction over its appeal. Today, we make explicit 

what in Trenkler we necessarily implied (remember, we police our 

jurisdiction),15 as we confirm our jurisdiction over the 

government's compassionate release appeal. 28 U.S.C. § 1291

grounds our authority and because we so conclude, we need not 

address, as the government contends, whether 18 U.S.C. § 3731 might 

also provide a jurisdictional pathway. Here's why.

As an initial matter and as the government's brief points 

out, Rivera's jurisdictional arguments misinterpret the nature of 

compassionate release. What they incorrectly take for granted is 

15 In Trenkler, as well as in our cases reviewing compassionate 

release appeals brought by defendants, we did not expressly state 

the grounds for our jurisdiction to consider the appeals. However, 

the briefs for these cases suggest that each of them was brought, 

at least in part, under 28 U.S.C. § 1291. See Brief for Appellant 

at 1, United States v. Trenkler, 47 F.4th 42 (1st Cir. 2022) (No. 

21-1441); see also Brief for Appellant at iv, United States v. 

Ruvalcaba, 26 F.4th 14 (1st Cir. 2022) (No. 21-1064), 2021 WL 

1249120; Brief for Appellant at 2, United States v. Diaz-Castro, 

2022 WL 1415327 (1st Cir. May 3, 2022) (No. 21-1550), 2021 WL 

6102766; Brief for Appellant at 7, United States v. Saccoccia, 10 

F.4th 1 (1st Cir. 2021) (No. 20-2045), 2021 WL 510580.
- 24 -

the notion that his "sentence-reduction order" (as he describes 

it) should be treated like a traditional sentencing order. Yet 

quite the opposite is true -- our analogous precedent has 

repeatedly distinguished the two and instead concluded that a 

sentence reduction order is in fact "a horse of a different hue." 

United States v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993). 

In United States v. McAndrews, we considered this 

question (original sentencing versus sentencing modification) in 

our review of a sentence reduction order granted under Federal 

Rule of Criminal Procedure 35(b). Id. Rule 35(b) authorizes a 

court to reduce an individual's prison sentence should they provide 

substantial assistance to the government in investigating or 

prosecuting another person. Fed. R. Crim. P. 35(b). In McAndrews, 

the government likened the Rule 35(b) sentence reduction order 

before us to a downward departure granted during sentencing for 

providing substantial assistance -- which, at the time, would have 

been unappealable.16 12 F.3d at 277. 

16 At the time, "neither refusals to depart nor downward 

departures" were appealable. McAndrews, 12 F.3d at 277. This 

changed with the Supreme Court's decision in United States v. 

Booker, which clarified that courts of appeals are to review 

sentences for reasonableness. 543 U.S. 220 (2005). We have since 

held that, "[a]s a by-product" of Booker, we review "sentences 

shaped by discretionary departure decisions" for reasonableness. 

United States v. Anonymous Defendant, 629 F.3d 68, 73-74 (1st Cir. 

2010). 
- 25 -

We disagreed, instead concluding that the attempted 

analogy was "unpersuasive in connection with appellate 

jurisdiction," given that "an order resolving a Rule 35(b) 

motion . . . is not, properly speaking, a sentence." Id. at 277-

78. First, we observed that "[b]y definition, a sentence must 

already have been imposed before Rule 35(b) can be invoked and a 

sentence reduction contemplated." Id. at 277. From there, we 

reasoned that "[c]ast in this mold," appealability "accords with 

the general principle, taken for granted in both our criminal and 

civil jurisprudence, that rulings disposing of motions which seek 

to alter preexisting judgments are appealable." Id. 

Rivera's jurisdictional challenge does not raise, nor do

we discern, any reason why his compassionate release order breaks 

this mold. Like sentence reductions requested under Rule 35(b), 

compassionate release motions, by definition, may only be brought 

after a sentence has been imposed on the movant. See 18 U.S.C. 

§ 3582(c) (establishing the terms by which a court may "modify a 

term of imprisonment once it has been imposed"). And like Rule 

35(b) motions, they seek to alter a preexisting judgment -- to 

wit, the sentence. Id.

Such reasoning satisfies us that Rivera's compassionate 

release order does not amount to a sentence,17 and accordingly, we 

17 We also read the Supreme Court's decision in Dillon v. 

United States to support this conclusion. See 560 U.S. 817 (2010).
- 26 -

follow the lead of McAndrews and conclude that compassionate 

release appealability, "like appealability with respect to the 

disposition of virtually all other post-judgment motions, is 

governed by 28 U.S.C. § 1291." 12 F.3d at 277. Orders resolving 

compassionate release motions amount to final judgments; like 

sentence reduction orders granted under Rule 35(b), they 

"satisf[y] the preconditions established by section 1291, for 

entry of the order leaves nothing further to be done." Id.18

While reviewing a different provision of 18 U.S.C. § 3582(c)(2), 

the Dillon Court concluded that the statute's "text, together with 

its narrow scope, shows that Congress intended to authorize only 

a limited adjustment to an otherwise final sentence and not a 

plenary resentencing proceeding." Id. at 826. Although that 

provision is narrower than § 3582(c)(1) (which is at issue here), 

we find the Court's distinction between a "limited adjustment" and 

a "plenary resentencing" instructive. 

18 We pause to address our precedential caution that "[i]n 

criminal cases, the policy against permitting [government] appeals 

to be taken too freely is heightened by speedy trial and double 

jeopardy concerns." United States v. Horn, 29 F.3d 754, 768 (1st 

Cir. 1994). These concerns do not apply here. Individuals who 

receive compassionate release have already been convicted of a 

criminal offense, so there is no risk that authorizing government 

appeals would deny them a prompt trial by dragging out their 

criminal proceedings. In such cases, "the determination of the 

defendant['s] guilt has been made, [the] sentence has been imposed, 

the attempted appeal is not interlocutory in any sense, and no 

prospect of piecemeal litigation endures." Id. at 768-69. And as 

individuals already convicted of a criminal charge, those granted 

compassionate release do not face constitutional risks under the 

Double Jeopardy Clause of the Fifth Amendment, which "forbids the 

retrial of a defendant who has been acquitted of the crime 

charged." Bullington v. Missouri, 451 U.S. 430, 437 (1981) 

(emphasis in original); see U.S. Const. amend. V ("No person

shall . . . be subject for the same offence to be twice put in 

jeopardy of life or limb . . . .").
- 27 -

Concluding that we have jurisdiction over the 

government's compassionate release appeal under 28 U.S.C. § 1291,19

we move on to Rivera's second set of jurisdictional challenges, 

which target the district court's authority, as well as ours, to 

consider the government's reconsideration bid.

B. The District Court's Reconsideration Decision

Like Rivera's other jurisdictional arguments, his 

challenge to the district court's authority to reconsider its 

compassionate release decision assumes that the order amounts to 

a sentence. Following this reasoning, the government's motion 

would likely have been barred because, under this court's 

precedent, "[t]here is simply no such thing as a 'motion to 

reconsider' an otherwise final sentence." Tanco-Pizarro, 892 F.3d 

at 477 n.1 (quoting Ortiz, 741 F.3d at 292 n.2). But given our 

analysis above, which distinguishes compassionate release and 

other sentence reduction orders from sentencing orders, this is 

clearly a nonstarter. 

19 For this reason, we need not consider the government's 

arguments seeking to characterize compassionate release orders as 

"collateral orders" potentially eligible for jurisdiction under 

§ 1291 on this other ground. See Horn, 29 F.3d at 768-69 (holding 

that, under the "special circumstance exception, a government 

appeal may be entertained in a criminal case on the authority of 

section 1291 if the appeal satisfies the conditions of the socalled collateral order doctrine" and prudential considerations do 

not counsel against authorizing the government's criminal appeal).
- 28 -

We agree with Rivera -- 18 U.S.C. § 3582(c) has set 

strict constraints on the authority of a sentencing court to modify 

a sentence after it has been imposed. See 18 U.S.C. § 3582(c) 

(listing limited exceptions, such as compassionate release, to the 

general rule that a "court may not modify a term of imprisonment 

once it has been imposed"). However, because we do not regard the 

district court's compassionate release as a sentence, we do not 

question its authority to reconsider the order. As the government 

points out, no statutes similarly bar a district court from 

returning to its previously issued sentence reduction order. In 

this absence, we observe no comparable limits to the "inherent 

authority" of the district courts, after resolving compassionate 

release motions, "to revisit their own orders" on reconsideration. 

Ortiz, 741 F.3d at 292 n.2. Therefore, we find the district 

court's exercise of jurisdiction over the government's 

reconsideration motion proper.20

20 We are skeptical of Rivera's contention that allowing the 

district court to reconsider an order granting compassionate 

release could open the door to disturbing the release of hundreds 

of individuals whose motions have been granted. As the Tenth 

Circuit has observed, "[t]he Federal Rules of Criminal Procedure 

do not authorize motions for reconsideration and accordingly do 

not specify a time within which they must be brought." United 

States v. Heath, 846 Fed. App'x 725, 728 (10th Cir. 2021). 

However, given that the Supreme Court has recognized motions for 

reconsideration in the criminal context since at least 1964, see

United States v. Healy, 376 U.S. 75, 77–78 (1964), several circuit 

courts have imposed time limits on motions for reconsideration to 

avoid the possibility of proceedings continuing indefinitely, see

United States v. Randall, 666 F.3d 1238, 1242 (10th Cir. 2011) 
- 29 -

We also reject Rivera's suggestion that we lack 

jurisdiction over the government's appeal from its reconsideration 

denial. Because 28 U.S.C. § 1291 authorizes our review of the 

government's appeal from a compassionate release order, the 

statute similarly affords us jurisdiction over the government's 

reconsideration appeal. Like appealability with respect to the 

disposition of virtually all other post-judgment motions, 

reconsideration denial falls within the purview of 28 U.S.C. § 1291

finality considerations. See McAndrews, 12 F.3d at 277. The 

court's reconsideration denial leaves "nothing further to be 

done," placing it in the company of other final judgments 

appealable under § 1291. Id.

With our jurisdiction to review the government's appeal 

under 28 U.S.C. § 1291 confirmed, we soldier on.21

(agreeing with the Fourth and Seventh Circuits that the time limit 

for reconsideration is the same as the time limit for filing an 

appeal); see also United States v. Wandell, No. 21-3051, 2022 WL

1535276, at *1 (3d Cir. May 16, 2022) (discussing same 14-day 

deadline for motion to reconsider compassionate release denial).

We have not adopted such a deadline and decline to do so today, 

given that the government here filed the motion within days of the 

district court's decision. We merely note that there are very

likely guard rails on the government's ability to move for 

reconsideration long after a motion for compassionate release has 

been granted.

21 To tie up one jurisdictional loose end, we note that 18 

U.S.C. § 3742(b) remains inapplicable to this appeal. As the 

government concedes, McAndrews suggests that compassionate release 

appeals, like Rule 35(b) reduction appeals, are "not controlled by 

18 U.S.C. § 3742 because such [orders are] not, properly speaking, 

[sentences]." McAndrews, 12 F.3d 277. Therefore, we need not 

consider Rivera's arguments that the government did not present 
- 30 -

III. Motions for Compassionate Release

Before assessing the merits of the government's 

contentions, we detour briefly to provide an overview of 

compassionate release and the statutory framework that governs it. 

18 U.S.C. § 3582(c), the compassionate release statute, provides 

limited circumstances under which a court may reduce an 

incarcerated person's term of imprisonment. Under the provision 

relevant here, a district court "may reduce the term of 

imprisonment . . . after considering the factors set forth in 

section 3553(a) to the extent that they are applicable, if it finds 

that--extraordinary and compelling reasons warrant such a 

reduction . . . ." 18 U.S.C. § 3582(c)(1)(A)(i).22 

sufficiently specific and timely authorization from the Department 

of Justice before pursuing this appeal. While § 3742(b) requires 

such authorization, see 18 U.S.C. § 3742(b) ("The Government may 

not further prosecute such appeal without the personal approval of 

the Attorney General, the Solicitor General, or a deputy solicitor 

general designated by the Solicitor General."), 28 U.S.C. § 1291 

does not. See 28 U.S.C. § 1291. 

22 18 U.S.C. § 3582(c)(1)(A) also requires the sentence 

reduction to be "consistent with applicable policy statements 

issued by the Sentencing Commission." Our case law has clarified 

that, because (up until recently) the Commission had not issued 

any policy statements applicable to prisoner-initiated motions for 

compassionate release, district courts "have discretion, 

unconstrained by any policy statement currently in effect, to 

consider whether a prisoner's particular reasons are sufficiently 

extraordinary and compelling to warrant compassionate release." 

Ruvalcaba, 26 F.4th at 23. We recognize that many of these 

compassionate release motions, like Rivera's, came before the 

courts during a worldwide health crisis -- a time of great 

uncertainty, even to the medical and health community. In the 

time since, the Sentencing Commission has promulgated new 

guidelines relevant for compassionate release motions, which we 
- 31 -

Successful movants for compassionate release under this 

section must generally meet three requirements. First, their 

request must be properly raised, either "upon motion of the 

Director of the Bureau of Prisons, or upon motion of the defendant 

after" they have tried and failed to convince the BOP to move on 

their behalf.23 Id. Second, they must present sufficiently 

"extraordinary and compelling reasons" warranting a sentence 

reduction. Id. And finally, they must convince the court that, 

after considering the sentencing factors enumerated in 18 U.S.C. 

§ 3553(a), "the reduction . . . is warranted in whole or in part 

under the particular circumstances of the case." United States v. 

Ruvalcaba, 26 F.4th 14, 19 (1st Cir. 2022) (quoting United States

v. Saccoccia, 10 F.4th 1, 4 (1st Cir. 2021) (omission in 

original)). These § 3553(a) factors, which any court must consider 

expect district courts to take heed of when determining whether an 

individual meets the statute's requirements for such relief. See

Amendments to the Sentencing Guidelines, U.S. Sentencing 

Commission (Apr. 27, 2023), 

https://www.ussc.gov/guidelines/amendments/adopted-amendmentseffective-november-1-2023.

23 "The passage of the [First Step Act] in 2018 represented 

'a paradigm shift' for compassionate release '[b]y empowering 

district courts to grant compassionate release' on prisonerinitiated motions." Trenkler, 47 F.4th at 46 (quoting Ruvalcaba,

26 F.4th at 22). Prior to the Act's amendment to the compassionate 

release statute, motions could only be brought by the BOP on behalf 

of incarcerated people. Under the amended statute, individuals 

may file their own motions with the district court if they have 

asked the BOP and either waited 30 days or exhausted their 

administrative rights to appeal a BOP denial. 18 U.S.C.

§ 3582(c)(1)(A). 
- 32 -

when imposing or modifying a criminal sentence, generally revolve 

around the nature and characteristics of the offense, the 

defendant, and the sentence imposed relative to both.24 18 U.S.C. 

§ 3553(a). 

If a court determines that a movant meets the statute's 

requirements, it may order their release from prison. In place of 

the unserved portion of the defendant's sentence, the court may 

also impose a term of supervised release or probation. 18 U.S.C. 

§ 3582(c)(1)(A) ("[T]he 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 portion of the original term of imprisonment)."). "As 

long as the individualized circumstances, taken in the aggregate, 

satisfy the 'extraordinary and compelling' standard, granting 

relief would be consistent with Congress's judgment that a 

modification of a sentence legally imposed may be warranted when 

extraordinary and compelling reasons for taking that step exist."

24 For example, 18 U.S.C. § 3553(a) requires a sentencing 

court to consider, among other delineated factors, "the nature and 

circumstances of the offense and the history and characteristics 

of the defendant" as well as "the need for the sentence imposed to 

reflect the seriousness of the offense, to promote respect for the 

law, and to provide just punishment for the offense; to afford 

adequate deterrence to criminal conduct; to protect the public 

from further crimes of the defendant; and to provide the defendant 

with needed educational or vocational training, medical care, or 

other correctional treatment in the most effective manner." 18 

U.S.C. § 3553(a). 
- 33 -

Ruvalcaba, 26 F.4th at 27 (citing United States v. McCoy, 981 F.3d 

271, 288 (4th Cir. 2020)).

Here, the court concluded that Rivera met the conditions 

for compassionate release and reduced his prison term to time 

served while imposing additional supervised release conditions 

(home detention and electronic monitoring for the first three years 

of his five-year term). On appeal, the government sees multiple 

problems with these determinations, as well as the court's refusal 

to reconsider its compassionate release decision.

IV. Our Take

Given the procedural posture of this case, we deem it 

prudent to begin our discussion with the government's challenges 

to the court's order denying reconsideration because, were we to 

agree with the government that the district court somehow faltered

in denying the government's motion (we don't), our analysis would 

likely end there, and we would remand the case back to the district 

court for further consideration. 

A. The Government's Reconsideration Denial

To recap for clarity, Rivera's compassionate release 

motion required him to demonstrate that he presented extraordinary 

and compelling reasons justifying a sentence reduction and that 

the reduction was warranted even after considering the § 3553(a) 

sentencing factors. See 18 U.S.C. § 3582(c)(1)(A). In opposition, 

the government argued that Rivera failed on both accounts. After 
- 34 -

losing, the government urged the court to reconsider based on newly 

discovered evidence and on newly raised arguments. The court 

declined to do so after finding that (1) had the parties exercised 

due diligence, the government's key piece of new evidence --

Rivera's vaccination status -- could have been presented earlier, 

and (2) the rest of the government's arguments could have also 

been presented prior to Rivera's release. 

We begin by stating an uncontroversial principle: Once 

a court has issued a ruling based upon the facts and arguments 

presented by the litigants, it becomes final. See United States

v. Metro. Dist. Comm'n, 847 F.2d 12, 14 (1st Cir. 1988) ("The 

general rule is that a judgment becomes final . . . when the court 

enters a decision resolving the contested matter, leaving nothing 

to be done except execution of the judgment."). Accordingly, 

motions for reconsideration are granted sparingly, and we pay high 

deference to a court's refusal to disturb a prior final judgment 

by granting one. See Nansamba v. N. Shore Med. Ctr., Inc., 727 

F.3d 33, 37 (1st Cir. 2013) ("Finality is an important element in 

the judicial process, and setting aside a final judgment requires 

more than the frenzied brandishing of a cardboard sword. Such a 

motion must satisfy a special set of criteria; it is not enough 

merely to cast doubt on the soundness of the underlying 

judgment."). Therefore, we review the court's denial of the 

government's motion for abuse of discretion. Guadalupe-Báez v. 
- 35 -

Pesquera, 819 F.3d 509, 518 (1st Cir. 2016). Historically, we 

have found as much "only when 'the original judgment evidenced a 

manifest error of law, if there [was] newly discovered evidence, 

or in certain other narrow situations." Biltcliffe v. 

CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (quoting 

Global Naps, Inc. v. Verizon New England, Inc., 489 F.3d 13, 25 

(1st Cir. 2007)).

As an asterisk to this list, we have noted that a court 

may refuse reconsideration requests "based on the 'new evidence'

exception if that evidence 'in the exercise of due diligence could 

have been presented earlier.'" United States v. Allen, 573 F.3d 

42, 53 (1st Cir. 2009) (quoting Emmanuel v. Int'l Bhd. of 

Teamsters, Local Union No. 25, 426 F.3d 416, 422 (1st Cir. 2005)). 

Because arguments stemming from such evidence could have been 

raised before the court issued its underlying judgment, they may 

not be raised for the first time on reconsideration. See Morán

Vega v. Cruz−Burgos, 537 F.3d 14, 18 n.2 (1st Cir. 2008) ("A 

district court is entitled to disregard arguments made in a [motion 

for reconsideration] that 'could, and should, have been made before 

judgment issued.'") (quoting ACA Fin. Guar. Corp. v. Advest, Inc., 

512 F.3d 46, 55 (1st Cir. 2008)).

On appeal, the thrust of the government's 

reconsideration grievances boils down to two particular types of 

alleged error: the failure of the district court to consider new 
- 36 -

evidence and its failure to accept and appreciate new arguments 

that it characterizes as identifying "manifest errors" in the 

district court's release decision. We take each in turn.

1. Newly Discovered Evidence

Rivera's Vaccination Status

On appeal, the government argues that the court abused 

its discretion when it concluded that, had due diligence been 

exercised, evidence of Rivera's vaccination could have been 

presented before Rivera's compassionate release was granted. The 

government says this was prejudicial error because Rivera, 

himself, had declined to make this particular argument. As the 

government sees it, Rivera took this line of reasoning off the 

table when, as we previously mentioned, he opted, in his opposition 

to reconsideration, to "assume for the sake of argument this 

[vaccination] evidence is newly discovered within the meaning of 

the standard for motions for reconsideration[.]"25 As the 

25 To remind, in a footnote to Rivera's opposition to 

reconsideration, his counsel stated:

Technically, we could argue that since Mr. Rivera 

received the second shot three days before the Court's 

release order, this evidence does not qualify as newly 

discovered evidence because the government could have 

learned of it in the exercise of due diligence. But we 

are not going to be hyper-technical because the fact is 

that even the undersigned attorney was not aware that 

Mr. Rivera had been vaccinated. Thus, we will assume 

for the sake of argument that this evidence is newly 

discovered within the meaning of the standard for 
- 37 -

government's reasoning goes, the district court, by still finding 

that the evidence did not fall within this meaning, inappropriately 

"resurrected" an issue Rivera had otherwise waived. In doing so, 

the court prejudiced the government -- which had been led to 

believe there was "little reason" to make its due diligence case.

"[D]ue diligence is a context-specific concept" that 

requires a movant to "exercise a degree of diligence commensurate 

with that which a reasonably prudent person would exercise in the 

conduct of important affairs." United States v. Maldonado-Rivera, 

489 F.3d 60, 69 (1st Cir. 2007). "Where timeliness hinges on the 

presence or absence of due diligence . . . it raises 'a normative 

question of how much diligence should be expected of a reasonable 

lay person.'" Meléndez Colón v. Rosado Sánchez, 995 F.3d 262, 267 

(1st Cir. 2021) (quoting Villarini-Garcia v. Hosp. Del Maestro, 

Inc., 8 F.3d 81, 84 (1st Cir. 1993)). Accordingly, we understand 

due diligence to be a "mixed" question of fact and law, because 

its resolution "necessitate[s] combining factfinding with an 

elucidation of the applicable law." In re Extradition of Howard, 

996 F.2d 1320, 1328 (1st Cir. 1993). We review such mixed 

questions on a "degree-of-deference continuum," wherein "the more 

fact-dominated the question, the more likely it is that the trier's 

motions for reconsideration, but insist that it is 

insufficient to alter the outcome.
- 38 -

resolution of it will be accepted unless shown to be clearly 

erroneous." Id.

However, we need not pinpoint what precise standard to 

apply to the district court's reasoning here because, after 

considering the government's argument, we conclude it suffers from

a fundamental flaw.26 It made no attempt whatsoever to meet its 

legal burden when it sought reconsideration, as we now explain. 

In order to secure reconsideration, as we noted, a 

"movant must demonstrate either that newly discovered evidence 

(not previously available) has come to light or that the rendering 

court committed a manifest error of law." Palmer v. Champion 

Mortg., 465 F.3d 24, 30 (1st Cir. 2006). Here, the government's 

burden was to convince the court that Rivera's vaccination status, 

which it contends had just come to light, constituted such 

evidence. Our precedent has repeatedly clarified the scope of 

this burden, cautioning that "a party who seeks relief from a 

judgment based on newly discovered evidence must, at the very 

least, offer a convincing explanation as to why he could not have 

proffered the crucial evidence at an earlier stage of the 

proceedings." Karak v. Bursaw Oil Corp., 288 F.3d 15, 19-20 (1st 

Cir. 2002); see also Lepore v. Vidockler, 792 F.2d 272, 274 (1st 

26 For this reason, we do not address the government's 

arguments urging us to find that a de novo standard should control 

our review of the district court's due diligence analysis in this 

case.
- 39 -

Cir. 1986) ("It is difficult to see how the district court abused 

its discretion [in denying a motion to reconsider] when [the 

movant] offered no explanation for the lateness of the [new] 

affidavits."). Thus, the government, as the reconsideration 

movant, bore the burden of demonstrating in its initial 

reconsideration filing the existence of newly discovered evidence 

and, as crucial here, why that evidence, if alleged to be newly 

discovered, could not have been discovered earlier in the exercise 

of due diligence. Despite this burden, the government's 

reconsideration motion made no effort to explain why Rivera's 

vaccination status could not have been presented earlier. It 

raised no argument at all that due diligence had been exercised 

and provided no reason for the delay in discovering this 

information. Instead, even before Rivera filed an objection making 

mention of what the government took for granted, the government's 

reconsideration motion disregarded its burden and proceeded on the 

assumption that the vaccination evidence qualified as newly 

discovered. 

Therefore, we cannot and do not fault the court for 

concluding, in the absence of a proffer from the government to the 

contrary in its filings, that the evidence could have been 

presented earlier. And Rivera's failure to provide substantive 

arguments on this issue when he opposed reconsideration did not 

waive the government's burden of proof, nor foreclose the court's 
- 40 -

ability to scrutinize whether, in its view, it had been met.27 In 

fact, Rivera's opposition directly contended (but declined to 

fully argue) that the burden had not been met, and that due 

diligence would have yielded this evidence earlier. Accordingly, 

the government's motion for reconsideration (and subsequent reply) 

offered clear opportunities to demonstrate that due diligence 

could not have yielded Rivera's vaccination status, or to refute 

Rivera's abbreviated claim to the contrary. As we see it, our 

case law, alongside Rivera's contention, provided ample notice to 

the government that a due diligence tender would have been 

reasonably expected ab initio.28 And contrary to the government's 

27 Similarly, we are not barred from relying on this ground 

to affirm the district court's due diligence finding, even though 

Rivera's brief presents entirely distinct arguments on this issue. 

Rivera insists that the government failed to exercise due diligence 

in monitoring his vaccination status, and further suggests that, 

either way, we may infer that the district court had concluded the 

vaccine would not eliminate his health risks.

Because we are not confined to the reasoning provided by 

either party as we review the district court's decision, we affirm 

on the grounds stated above and decline to consider Rivera's 

alternative reasons for affirming. See ML-CFC 2007-6 Puerto Rico 

Properties, LLC v. BPP Retail Properties, LLC, 951 F.3d 41, 46 

(1st Cir. 2020) ("That neither of the parties developed this 

argument [in their initial briefs] . . . does not prevent us from 

ruling on this basis."); Kamen v. Kemper Fin. Servs., Inc., 500 

U.S. 90, 99 (1991) ("When an issue or claim is properly before the 

court, the court is not limited to the particular legal theories 

advanced by the parties, but rather retains the independent power 

to identify and apply the proper construction of governing law.").

28 Because Rivera's contention squarely raised, albeit

briefly, the due diligence issue before the court, we are also 

confident that the court did not, as the government argues in its 

brief, violate the party presentation principle by considering due 
- 41 -

assertions, which lack legal support within our case law, the 

district court was not required to overlook the government's

omission and view the government's moving papers as still compliant

with its dual burdens to first produce and then persuade. Any 

blame for the government's failure to make its case below lies 

with it, not with Rivera or with the court. 

Therefore, we see no error, nor prejudice, in the court's 

due diligence finding. Moreover, we will not consider due 

diligence arguments the government now raises for the first time 

diligence when it ruled. Broadly, the principle refers to the 

fact that, in litigation, "we rely on the parties to frame the 

issues for decision and assign to courts the role of neutral 

arbiter of matters the parties present." Greenlaw v. United 

States, 554 U.S. 237, 243 (2008). The government reasons that the 

court overstepped its role here, and therefore violated the 

principle, by ruling on due diligence grounds that Rivera had 

"deliberately waived."

However, the court's actions below are entirely distinct from 

those held to be violations of the principle by the Supreme Court. 

In those cases, unlike here, the offending courts had sua sponte 

raised, and ruled on, issues that neither party had mentioned. 

See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) 

(rejecting a court's decision to order amicus briefs on, and 

ultimately rule based on, a constitutional legal theory that was 

not part of the appellant's arguments below nor in the district 

court); Wood v. Milyard, 566 U.S. 463 (2012) (reversing a court's 

decision to dismiss a habeas petition on statute of limitations 

grounds after the court sua sponte raised the issue and the 

government still expressly declined to argue the affirmative 

defense); Greenlaw, 554 U.S. at 255 (vacating court of appeals 

decision to sua sponte order a sentence increase in response to a 

defendant's unsuccessful appeal, in the absence of a cross-appeal 

by the government). We are satisfied that this distinction 

provides at least one basis for concluding that the principle was 

not violated here.
- 42 -

on appeal.29 See Carrozza v. CVS Pharmacy, Inc., 992 F.3d 44, 59 

(1st Cir. 2021) ("[A]ppellants cannot raise an argument on appeal 

that was not 'squarely and timely raised in the trial court.'")

(quoting Thomas v. Rhode Island, 542 F.3d 944, 949 (1st Cir. 

2008)).

Rivera's Post-Release Actions

Independent of its first argument, the government also 

challenges the district court's treatment of two additional pieces 

of "newly discovered evidence" -- gamechangers from the 

government's perspective -- introduced in its reconsideration 

motion, both of which post-date the district court's January 8th

order and thus could not have been raised earlier. As noted 

previously, each evidentiary offering concerned occurrences 

following Rivera's release from Butner. To remind, the first was 

Rivera's conversation with his probation officer during which he 

shared that he had not had any health issues recently, his medical 

conditions were all "under control," and he did not need to 

prioritize getting medical insurance. The second was Rivera's 

post-release relocation to Carolina, Puerto Rico, where the COVID 

infection rate, according to the government, was "greater than 

29 These arguments, which should have been presented to the 

district court, center on the relatively early timing of Rivera's 

vaccination, the unpredictable timing of the district court's 

compassionate release decision, and the logistical burdens 

prosecutors face in accessing an incarcerated person's medical 

records.
- 43 -

[Butner's] by a factor of 24.66--i.e., Carolina's infection rate 

[was] 2,465 percent greater than his prison's." As the government

tells it, this evidence suggests that Rivera, in his motion for 

compassionate release, had necessarily overstated his medical 

concerns and his fear of contracting COVID in prison.

The district court did not expressly address either of 

these proffers when it denied the government's motion. Rather, it 

cited its broad authority to disregard new evidence that could 

have been discovered in the exercise of due diligence, and, nodding 

to Rivera's health-related disclosures, held, as crucial here,

that the government's specific arguments regarding "the reduced 

risks posed by [Rivera's] medical conditions being under control" 

could have been presented prior to the court's compassionate 

release decision. The government says this was error, as no amount 

of due diligence could have led it to anticipate Rivera's postrelease statements and behavior. According to the government, 

Rivera's relocation to Puerto Rico defied his stated plan to reside 

in the continental U.S. after his release (which the government 

seems to assume had lower transmission rates, like Butner did at 

the time), and his prison medical records provided alongside his 

compassionate release motion made no indication that his health 

conditions were under control. 

In our view, the government's grievances misunderstand 

the district court's holding. As we interpret the court's decision
- 44 -

it is apparent it had concluded that, regardless of Rivera's postrelease representations and actions, the government, at the time 

it objected to Rivera's compassionate release motion, had ample 

information at its disposal about Rivera's health and conditions 

at Butner to make an informed and rational argument about why 

compassionate release was unwarranted. From the court's 

perspective, it did not do so. And while the government makes 

much of Rivera's medical musings to his probation officer to 

suggest otherwise, this argument ignores the reality that the 

government was at liberty to independently access and, as 

importantly, assess Rivera's medical records when it opposed 

Rivera's compassionate release in the first instance, particularly 

when Rivera's health status and COVID's impact on the same was 

squarely before the court. Because motions for reconsideration do 

not "permit a party to advance arguments it should have developed 

prior to judgment," Biltcliffe, 772 F.3d at 930, we fail to see 

how the court, even if it considered this evidence, abused its

discretion in discounting the evidence and the arguments that flow 

from it. As for Rivera's post-release relocation to Carolina, we 

simply infer that even if the court was willing to give some 

consideration to this new circumstance it was unmoved by it and 

concluded that it was insufficient to alter its compassionate 

release calculus. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 

35 (1st Cir. 2007) (affirming denial of reconsideration where newly 
- 45 -

raised evidence, even if considered, "would not have affected the 

bottom-line result"). We see no abuse of discretion.

2. Newly Raised Arguments

Up next, the government challenges the district court's 

refusal to consider its reconsideration arguments taking aim at

what, in its view, were "manifest errors" of law (distinct from 

errors arising from evidentiary concerns) committed by the court 

when it granted Rivera compassionate release. We take this 

argument to mean that even if the district court properly declined 

to consider newly discovered evidence, it nonetheless erred by not 

properly applying the relevant compassionate release jurisprudence 

to the evidence at hand.

On appeal, the government argues that the court's

conclusion was an abuse of discretion. In its reconsideration 

motion, and now on appeal, the government claims that its arguments 

concerning Butner's safety and Rivera's health conditions were 

raised not to shift arguments, but instead to correct manifest 

errors in the district court's compassionate release decision. 

For instance, the government charges that the district court, in 

granting Rivera's motion for compassionate release, "had 

misunderstood the significance of the number of inmates in Rivera's 

prison who had died from COVID-19" and had clearly erred when it 

found that Rivera's conditions increased his risk of severe illness 

from the virus. Pushing back on the court's conclusion that its 
- 46 -

arguments should have been raised before the court had issued its 

compassionate release order, the government notes that "[a] 

litigant cannot point out an error until it occurs."

In its ruling the court, acknowledging its authority to 

"disregard arguments made in a [motion for reconsideration] that 

'could, and should, have been made before judgment issued,'" 

summarily refused to consider what it deemed to be newly raised 

legal challenges. See Morán Vega, 537 F.3d at 18 n.2 (quoting ACA 

Fin. Guar. Corp., 512 F.3d at 55). It did so after reasoning that 

the government's arguments -- "regarding the number and timing of 

COVID−19 deaths at [Rivera's] institution, the nature and risks 

posed by [Rivera's] medical conditions, [and] the reduced risks 

posed by [Rivera's] medical conditions being under control" --

could have been presented before Rivera's release was ordered.

As we consider the government's contentions we note that 

while it may be true that "a litigant cannot point out an error 

until it occurs," the government's reconsideration arguments go 

far beyond pointing out error by the court. Rather, they raise a 

new set of arguments -- entirely distinct from those made by the 

government in its opposition to Rivera's compassionate release 

motion -- that present new grounds as to why it believes Rivera's 

release was not warranted. We conclude as much after reviewing 

the government's opposition to Rivera's compassionate release 

request alongside its subsequent motion to reconsider. Between 
- 47 -

the two filings, the government's take on the COVID conditions at 

Butner and its arguments concerning Rivera's health conditions 

transformed markedly. Even though Rivera's compassionate release 

motion presented reasons why he believed the poor pandemic 

conditions at Butner, specifically, helped make his case for 

release, the government's opposition was unresponsive to these 

points. Instead and at most, it emphasized the broader COVID 

mitigation measures taken throughout the BOP and argued that Rivera 

had not shown that his facility (which the government, naming a 

different federal prison, misidentified) was "unequipped to 

provide appropriate medical treatment if he were to become sick." 

And it further argued that Rivera's health conditions were 

insufficient for compassionate release because they failed to meet 

the definition of "extraordinary and compelling reasons" presented 

by the U.S. Sentencing Commission in its policy statement 

associated with U.S. Sentencing Guideline § 1B1.13.30

30 Quoting the statement directly, the government urged denial 

based on the fact that Rivera did "not explain how any of [his] 

conditions, or their combination, in any way limit his ability to 

provide self-care within the correctional facility." See U.S.S.G. 

§ 1B1.13 cmt. n.1(A)(ii) (including, in a list of extraordinary 

and compelling reasons for compassionate release, medical 

conditions "that substantially diminish[] the ability of the 

defendant to provide self-care within the environment of a 

correctional facility and from which he or she is not expected to 

recover."). At the time of the filing, there was significant 

disagreement about whether district courts were bound by this 

policy statement when considering compassionate release motions 

brought directly by incarcerated movants. In Ruvalcaba, which was 
- 48 -

These initial points, made in opposition to Rivera's 

release request, bear little resemblance to the government's 

arguments on reconsideration. Suddenly, the government was armed 

with a bevy of arguments centered on its belief that Butner, 

specifically, was in fact much safer than Rivera's compassionate 

release motion had suggested. Similarly, the reasons why the 

government did not believe Rivera's circumstances were 

extraordinary and compelling seem to have dramatically shifted. 

Moving away from the sentencing guideline policy statement, the 

government's arguments shifted to much more targeted critiques of 

Rivera's health conditions -- primarily arguing that his obesity 

was both mild and recently acquired and that, according to several 

courts, CDC guidelines do not consider hypertension or prediabetes as risk multipliers with COVID. See, e.g., United States

v. Manning, 5 F.4th 803, 807 (7th Cir. 2021) (noting that prediabetes "is not recognized by the CDC as increasing a person's 

risk from" COVID); United States v. Howard, 488 F. Supp. 3d 1177, 

1181 (M.D. Ala. 2020) (stating that, per the CDC, hypertension 

"may increase" an individual's risk of severe illness from COVID). 

The government had ample opportunity to speak to the 

pandemic conditions at Butner, as well as the purportedly minor 

nature of Rivera's health conditions and their relationship to 

decided after the district court's rulings in this case, we 

determined that they were not. 26 F.4th at 23.
- 49 -

COVID, prior to the court's issuance of its release decision. 

Having opted to eschew these potential arguments in favor of other 

ones when it opposed Rivera's release in the first instance, the 

government may not deploy them for the first time on 

reconsideration. See Iverson v. City Of Bos., 452 F.3d 94, 104 

(1st Cir. 2006) ("The presentation of a previously unpled and 

undeveloped argument in a motion for reconsideration neither cures 

the original omission nor preserves the argument as a matter of 

right for appellate review."). We cannot conclude that the 

government was at liberty to raise these substantively new 

arguments on reconsideration under the banner of correcting 

"manifest errors" by the court. See Biltcliffe, 772 F.3d at 930 

("A motion for reconsideration is not the venue to undo procedural 

snafus or permit a party to advance arguments it should have 

developed prior to judgment."). Accordingly, we see no abuse of 

discretion and affirm the district court's denial of the 

government's motion for reconsideration.

B. Rivera's Compassionate Release

We turn now to the district court's compassionate 

release decision without regarding the government's supplemental 

proffer, and confine our review to the arguments and evidence 

before the court at the time it granted Rivera's compassionate 

release motion. In its ruling, the court granted compassionate 

release after concluding that "[t]he number of COVID-19 deaths at 
- 50 -

[Rivera's] facility, along with [his] medical conditions, qualify 

as extraordinary and compelling reasons justifying a sentence 

reduction." Noting Rivera's rehabilitation record and the amount 

of his sentence that had already been served, the court referenced 

the § 3553(a) sentencing factors by concluding that "a modified 

sentence would still reflect the seriousness of [his] offense, 

promote respect for the law, and provide just punishment for [his] 

offense."

In its appeal, the government challenges the court's 

holdings and urges us to reverse the court's grant. Given the 

discretionary nature of compassionate release, we apply an abuse 

of discretion standard as we review the court's findings as to 

Rivera's extraordinary and compelling reasons for compassionate 

release and whether the § 3553(a) sentencing factors supported 

release. Saccoccia, 10 F.4th at 4 (noting that "[a]t both steps 

of this pavane, our standard of review," for abuse of discretion, 

"is the same"). Under this standard, "we review the district 

court's answers to legal questions de novo, factual findings for 

clear error, and judgment calls with some deference to the district 

court's exercise of its discretion." Id. (quoting Akebia 

Therapeutics, Inc. v. Azar, 976 F.3d 86, 92 (1st Cir. 2020)).

1. Extraordinary and Compelling Reasons

The government maintains that Rivera has failed to 

demonstrate extraordinary and compelling reasons sufficient for 
- 51 -

compassionate release, and claims that the court committed clear 

error when it concluded otherwise. The burden here is high, as 

"[o]n clear error review, we will 'not . . . upset findings of 

fact or conclusions drawn therefrom unless, on the whole of the 

record, we form a strong, unyielding belief that a mistake has 

been made.'" United States v. Padilla-Galarza, 990 F.3d 60, 73 

(1st Cir. 2021) (quoting Cumpiano v. Banco Santander P.R., 902 

F.2d 148, 152 (1st Cir. 1990)). 

Before us, the government raises challenges to each 

aspect of the court's reasoning on its compassionate release 

decision. First, it argues that the court overstated the dangers 

at Butner -- claiming that it was error to act "upon Rivera's 

rhetoric about his prison's COVID-19 infection rate instead of 

actual evidence of its exceptionally low COVID-19 infection rate." 

Next, the government suggests that Rivera's health conditions, 

even assuming he was unvaccinated, did not pose a sufficient risk 

to warrant release. Specifically, the government contends that 

Rivera's obesity was too recent and too moderate to favor release, 

and that hypertension and pre-diabetes do not raise health risks 

associated with COVID to the degree necessary for release.

Finally, understanding the court to have overly relied on Rivera's 

rehabilitation as another extraordinary and compelling reason to 
- 52 -

release him, the government argues that the court overstated his 

progress when it highlighted the accomplishments in his record.31 

All of these arguments suffer a defect that we have 

already identified above as fatal: as Rivera points out, they are 

not the grounds on which the government initially opposed his 

compassionate release. None of these arguments surfaced prior to 

the government's reconsideration request, including the 

government's arguments critiquing Rivera's rehabilitation record 

-- which was not addressed at all in the government's opposition 

to Rivera's motion. "When a party makes an argument for the first 

31 After identifying Rivera's extraordinary and compelling 

reasons for release, and before assessing the § 3553(a) factors, 

the court stated: 

[Rivera's] record while serving his sentence suggests he 

has made great progress towards rehabilitation: (1) 

only one minor disciplinary infraction that occurred 

almost 10 years ago for being unsanitary and untidy; (2) 

has devoted a significant amount of time on educational 

and personal development programming (800 hours of 

English as a second language, 180−hour vocational 

program for custodial maintenance, drug abuse education, 

non−residential drug abuse program, and several other 

classes[)]; and (3) [Rivera] has worked at the UNICOR 

Optics factory at the FCI Butner complex and as an 

orderly, and received positive letters of recommendation 

from his supervisors.

While we read the court's order to be presenting this 

rehabilitation record in support of the requisite § 3553(a) 

analysis, we pause to note that no statute prohibits 

rehabilitation, when combined with other extraordinary and 

compelling reasons, from serving as one of a court's bases for 

granting compassionate release. See 28 U.S.C. § 944(t) (stating 

that "[r]ehabilitation of the defendant alone shall not be 

considered an extraordinary and compelling reason" for granting a 

sentence reduction) (emphasis added). 
- 53 -

time in a motion for reconsideration, the argument is not preserved 

for appeal." Dillon v. Select Portfolio Servicing, 630 F.3d 75, 

80 (1st Cir. 2011). 

While the government might still have requested, at 

least in the alternative, that we consider these arguments in 

search of plain error below, it did not. See United States v. 

Jimenez, 512 F.3d 1, 3 (1st Cir. 2007) ("Because the appellant 

raises the issue . . . for the first time on appeal, our review is 

for plain error."). The government waived any arguments it might 

have in this regard "by failing to address the governing standard 

of plain error review in [its] opening brief." United States v. 

Espinoza-Roque, 26 F.4th 32, 36 (1st Cir. 2022). See also United 

States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016) ("At most, we 

review the remainder of [Appellant's] challenges for plain error. 

[Appellant] has waived these challenges because he has not even 

attempted to meet his four-part burden for forfeited 

claims . . . ."). In the absence of any additional arguments 

challenging the court's determination that extraordinary and 

compelling reasons warranted Rivera's release, we observe no abuse 

of discretion on this finding. 

2. The Sentencing Factors

Finally, we examine the district court's conclusion 

challenged by the government that Rivera's release was appropriate 
- 54 -

in light of the § 3553(a) sentencing factors.32 The government 

separately argues that, even if Rivera demonstrated the requisite 

extraordinary and compelling circumstances required for 

compassionate release, these § 3553(a) factors still counsel 

against the district court exercising its discretionary authority 

to release him. As the government sees it, the district court 

inappropriately weighed the sentencing factors when it concluded 

otherwise -- giving disproportionate weight to Rivera's 

rehabilitation record at the expense of other factors, such as the 

importance that his sentence reflects the seriousness of his 

offense, avoids sentencing disparities, promotes general 

deterrence, and promotes respect for the law. See 18 U.S.C. § 

3553(a)(2), (6).

But let us pause to rehearse what is axiomatic. 

"Decisions [that involve weighing the § 3553(a) factors] are within 

the sound discretion of sentencing courts, and we 'will not disturb 

a well-reasoned decision to give greater weight to particular 

sentencing factors over others.'" United States v. SantiniSantiago, 846 F.3d 487, 492 (1st Cir. 2017) (quoting United States

32 Rivera contends that the government has waived its 

challenge to the court's weighing of the § 3553 sentencing factors 

by failing to fully develop this argument in its opposition filing. 

We disagree, observing that the government had argued, in its 

opposition, that the factors could not support releasing Rivera 

and, in its reconsideration motion, described the district court's 

contrary conclusion as error. Therefore, we consider the 

government's challenges to the court's weighing of the factors. 
- 55 -

v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009)). Therefore, we review 

this decision for abuse of discretion, and will find no abuse "as 

long as the court has provided a plausible explanation, and the 

overall result is defensible.'" United States v. Torres–Landrúa,

783 F.3d 58, 68 (1st Cir. 2015) (quoting United States v. Trinidad–

Acosta, 773 F.3d 298, 321 (1st Cir. 2014)). 

In arguing that the court abused its discretion here the 

government points to the seriousness of Rivera's offense, and 

claims that the court failed to justify the disparity between 

Rivera's applicable guideline sentencing range, 210 to 262 months, 

and the amount of time he actually spent in prison, 135.5 months. 

In support, the government cites United States v. Crespo-Rios,

where we reasoned that while "[t]here is no dispute that a district 

court can vary, even dramatically, from a guideline sentencing 

range based on the factors enumerated in § 3553, . . . if the 

district court 'decides that an outside-Guidelines sentence is 

warranted, [it] must consider the extent of the deviation and 

ensure that the justification is sufficiently compelling to 

support the degree of the variance.'" 787 F.3d 34, 37-38 (1st 

Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)). 

We do not find the court's explanation of its § 3553(a) 

analysis lacking or scant. Immediately following its description 

of Rivera's rehabilitation record, the court indicated: 
- 56 -

[Rivera] has already served more than 11 years of his 

sentence, 57% of his statutory term (and 66% if you take 

into account his expected release date for good conduct 

in October 2026). As such, a modified sentence would 

still reflect the seriousness of the offense, promote 

respect for the law, and provide just punishment for the 

offense.

In our view, the court's reasoning here stands in contrast to the 

insufficient explanation provided by the sentencing court in 

Crespo-Rios, which we found deficient because "the district court 

focused exclusively on the defendant's potential for 

rehabilitation and low risk of recidivism" and "did not explain 

how it had weighed the other factors laid out in § 3553(a), or why 

this particular sentence was appropriate in light of these 

factors." 787 F.3d at 38.

Conversely, the district court here made clear its

belief that, even when considering the seriousness of Rivera's 

offense, Rivera's rehabilitation record and the fact that he had 

already served a slight majority of his sentence amply justified 

his functional variance. See United States v. Clogston, 662 F.3d 

588, 592 (1st Cir. 2011) (noting that an appellate court "must 

assay the record as a whole to gauge the sentencing judge's thought 

process"). We also credit the fact that the court expressly 

identified its consideration of the factors the government argues 

were ignored; "the court below may not have waxed longiloquent but 

'brevity is not to be confused with inattention.'" United States

v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014) (quoting
- 57 -

United States v. Turbides–Leonardo, 468 F.3d 34, 42 (1st Cir.

2006)). All in all, we consider the court's explanation for its 

sentence reduction plausible. 

But was the court's reduction here likewise defensible 

-- that is, reasonable? As we have routinely observed, 

"reasonableness is a protean concept, not an absolute. We think 

it follows that there is not a single reasonable sentence but, 

rather, a range of reasonable sentences. Consequently, reversal 

will result if—and only if—the sentencing court's ultimate 

determination falls outside the expansive boundaries of that 

universe." United States v. Martin, 520 F.3d 87, 92 (1st Cir. 

2008) (internal citation omitted). Accordingly, even when 

reviewing a sentence reduction that might be likened to a large 

variance from the applicable guideline sentencing range, we "give 

due deference to the district court's decision that the § 3553(a) 

factors, on a whole, justify the extent of the [reduction]." Id. 

"Further, '[i]n the sentencing context, we evaluate claims of 

unreasonableness in light of the totality of the circumstances.'" 

United States v. Pupo, 995 F.3d 23, 29 (1st Cir. 2021) (quoting 

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 

2013)).

The government argues that the court's reduction here 

was unreasonable given the "seriousness of [Rivera's] offense," 

and therefore failed "to promote respect for the law" and "provide 
- 58 -

just punishment for [his] offense." See 18 U.S.C. § 3553(a)(2)(A). 

We disagree. 

In its order the court discussed the amount of time 

Rivera had already served, and modified his supervised release 

term to include three years of home confinement and electronic 

monitoring.33 The court also gave a nod to Rivera's rehabilitation 

record, which his compassionate release motion had argued 

satisfied the objectives of deterrence and protection of the 

public, other § 3553(a) factors. See 18 U.S.C. § 3553(a)(2)(B), 

(C) (requiring the court to consider "the need for the sentence 

imposed (B) to afford adequate deterrence to criminal conduct; and 

(C) to protect the public from further crimes of the defendant"); 

see also United States v. Zayas-Ortiz, 808 F.3d 520, 524 (1st Cir. 

2015) (consulting "the record as a whole" in order to "infer the 

pertinent factors taken into account by the court below"). 

As we understand it, the court, after weighing the 

§ 3553(a) factors against those favoring Rivera's release (at 

least as presented by the litigants herein) found them satisfied

33 The government also suggests that the court should have 

considered the "benefits" of Rivera's plea agreement as part of 

its § 3553(a) analysis. While it is correct that the court made 

no express mention of Rivera's plea deal, we are aware of no case 

law that required it to. See Hughes v. United States, 138 S. Ct. 

1765, 1777 (2018) ("The district court can consider the benefits 

the defendant gained by entering a Type–C agreement when it decides 

whether a reduction is appropriate (or when it determines the 

extent of any reduction)[.]") (emphasis added). 
- 59 -

and explained why that was so. In our view on balance and based 

on the totality of the circumstances, we cannot say it was 

unreasonable for the court to have arrived at this conclusion. 

There is no "requirement that a district court afford each of the 

section 3553(a) factors equal prominence. The relative weight of 

each factor will vary with the idiosyncratic circumstances of each 

case, and the sentencing court is free to adapt the calculus 

accordingly." United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 

2006) (internal citation omitted). We see no abuse of discretion.

V. Conclusion

For the foregoing reasons, we affirm the district 

court's grant of Rivera's motion for compassionate release and 

denial of the government's subsequent motion to reconsider.34

34 Having affirmed both of the district court's rulings below, 

we have no reason to consider the government's arguments urging 

us, should we vacate either decision, to reverse the district 

court's rulings rather than remand for further proceedings.