United States Court of Appeals

For the First Circuit

No. 21-1734

UNITED STATES,

Appellee,

v.

ÁNGEL AYALA-VÁZQUEZ,

a/k/a El Buster, a/k/a El Negro,

a/k/a Angelo Millones Papa Upa,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge,

Kayatta and Montecalvo, Circuit Judges.

Rafael F. Castro Lang for appellant.

David C. Bornstein, Assistant United States Attorney, with 

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

Bauzá-Almonte, Assistant United States Attorney, Appellate 

Division, were on brief, for appellee.

March 12, 2024
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BARRON, Chief Judge. This appeal is the most recent one 

that Ángel M. Ayala-Vázquez ("Ayala") has brought to us in relation 

to his federal convictions on drug-offense-related charges. See

United States v. Ayala-Vazquez, 751 F.3d 1 (1st Cir. 2014); AyalaVazquez v. United States, No. 18-2171, 2019 WL 10947347 (1st Cir. 

Nov. 22, 2019). Here, he challenges the denial of his attempts to 

have the life sentences that he received for those convictions 

reduced. We affirm.

I.

In April 2010, a federal grand jury in Puerto Rico handed 

up an indictment that charged Ayala and sixty-three co-defendants 

with various federal crimes related to their involvement in a 

drug-trafficking organization based in the Commonwealth. See

Ayala-Vazquez, 751 F.3d at 7. The indictment charged Ayala in 

relevant part with (1) "knowingly and intentionally . . . 

conspir[ing] . . . to knowingly and intentionally possess with 

intent to distribute and distribute controlled substances, to wit: 

in excess of one (1) kilogram of heroin . . . in excess of fifty 

(50) grams of cocaine base . . . in excess of five (5) kilograms 

of cocaine . . . [and] in excess of one thousand (1000) kilograms 

of marijuana," among other controlled substances, "within one 

thousand (1,000) feet of the real property comprising a public 

housing project," in violation of 21 U.S.C. §§ 841(a)(1) and 860 
- 3 -

(Count I); and (2) "knowingly and intentionally possess[ing] with 

intent to distribute fifty (50) grams or more of a mixture or 

substance containing . . . cocaine base . . . within one thousand 

(1,000) feet" of a public-housing project, in violation of 21 

U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2 (Count IV).

Ayala's trial took place in March 2011. At the charge 

conference, the government noted that, following Ayala's 

indictment, Congress had passed the Fair Sentencing Act -- which 

amended 21 U.S.C. § 841 as of August 3, 2010, by increasing the 

drug-quantity thresholds for the statutorily prescribed penalty 

ranges tied to cocaine-base offenses under that statute -- and 

that the Act's amended penalty-range provisions would apply to 

Ayala. See Fair Sentencing Act, Pub. L. No. 111-220, § 2, 124 

Stat. 2372, 2372 (2010) (amending 21 U.S.C. § 841(b)(1)(A)(iii) by 

striking "50 grams" and inserting "280 grams" and amending 

§ 841(b)(1)(B)(iii) by striking "5 grams" and inserting "28 

grams").

Prior to the Fair Sentencing Act, § 841 had set forth 

three distinct quantity-based penalty ranges for cocaine-baserelated offenses. For a § 841 offense of possessing with intent 

to distribute a controlled substance, the penalty range was 0 to 

20 years' imprisonment if the type and quantity of controlled 

substance were unspecified. See § 841(b)(1)(C) (2008). For an 

§ 841 offense of possessing with intent to distribute a controlled 
- 4 -

substance, the penalty range was 5 years' to 40 years' imprisonment

if the type and quantity of controlled substance were 5 grams or 

more of cocaine base. See § 841(b)(1)(B)(iii) (2008). For an 

offense of possessing with intent to distribute a controlled 

substance, the penalty range was 10 years' to life imprisonment if 

the type and quantity of controlled substance were 50 grams or 

more of cocaine base. See § 841(b)(1)(A)(iii) (2008). 

After the Fair Sentencing Act, there remain three 

distinct statutory penalty ranges for cocaine-base-related 

offenses. However, the Act raised the quantities of cocaine base 

necessary to trigger the higher penalty ranges. So, for the 

offense of possessing with intent to distribute a controlled 

substance, the penalty range is still 0 to 20 years' imprisonment

if the quantity and type of the controlled substance are 

unspecified, see § 841(b)(1)(C), but an offender must now possess 

with intent to distribute 28 grams or more of cocaine base to 

trigger the penalty range of 5 years' to 40 years' imprisonment, 

see § 841(b)(1)(B)(iii), and 280 grams or more of cocaine base to 

trigger the penalty range of 10 years' to life imprisonment, see

§ 841(b)(1)(A)(iii).

Ayala's indictment was handed up prior to the Fair 

Sentencing Act's enactment. But because, at the time of Ayala's 

trial, the Fair Sentencing Act required that an offender aid and 

abet or conspire in the possession of 280 grams or more of cocaine 
- 5 -

base to trigger the penalty range of 10 years' to life 

imprisonment, the government requested a special verdict form. 

That form asked, as to Count I, whether the jury found beyond a 

reasonable doubt that Ayala had conspired to possess with intent 

to distribute 280 grams or more of cocaine base and, as to Count 

IV, whether the jury found beyond a reasonable doubt that Ayala 

had aided and abetted the possession of with intent to distribute 

280 grams or more of cocaine base. Ayala did not object to the 

use of the form.

With respect to Count I, the jury found Ayala guilty of 

the crime charged in "Count I of the Indictment" and checked the 

line on the special verdict form indicating that the jury had 

determined beyond a reasonable doubt that the quantity of cocaine 

base "which [Ayala] conspired to possess with intent to distribute" 

was "Two hundred and eighty (280) grams or more." As to Count IV, 

the jury again found Ayala guilty of the crime charged in "Count 

Four of the Indictment" and again checked the line on the special 

verdict form that indicated that the jury had found beyond a 

reasonable doubt that the amount of cocaine base "which [Ayala] 

aided and abetted in the possession of with the intent to 

distribute" was "Two hundred and eighty (280) grams or more." 

Ayala appealed his convictions to this Court, without contesting 

that those convictions were for conspiring to possess with intent 

to distribute and aiding and abetting the possession of with intent 
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to distribute 280 grams or more of cocaine base, and we affirmed. 

See Ayala-Vazquez, 751 F.3d at 35.

Ayala's sentencing took place on October 26, 2011. The 

Presentence Investigation Report ("PSR") prepared by the U.S. 

Probation Office set forth, in relevant part, under the heading 

"Offense" the following:

Counts One, Three, Four, Five, and Six: 

Conspiracy to possess with intent to 

distribute, 50 grams or more of cocaine base 

"crack", one (1) kilogram or more of heroin,

five (5) kilograms or more of cocaine, and one 

thousand (1,000) kilograms of marihuana, 

within one thousand (1,000) feet of a housing 

facility owned by a public housing, a public 

school, or a park; aiding and abetting[.] (21 

U.S.C. §§ 841(a)(1), 846, and 860, Title 18, 

U.S.C. § 2). Class "A" felonies.

The PSR further stated that "[o]n April 26, 2011, [Ayala] 

was found guilty of conspiring to possess with intent to distribute 

. . . two hundred and eighty (280) grams or more of cocaine base." 

Ayala did not object to these aspects of the PSR. 

The sentencing court determined Ayala's base offense 

level under the U.S. Sentencing Guidelines to be 38. In doing so, 

the sentencing court used the interim version of the Guidelines 

that were based on the changes that the Fair Sentencing Act had 

made. The sentencing court then applied the relevant offense-level 

enhancements and, after finding that Ayala's Criminal History 

Category was III, calculated the applicable guideline range to be 

that of life imprisonment. Finding "no identifiable information 
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in [Ayala's] history and characteristics" to justify a downward 

variance, the sentencing court sentenced Ayala to a term of life 

imprisonment to be followed by a 10-year term of supervised release 

on various counts. 

Ayala's subsequent collateral challenges under 28 U.S.C. 

§ 2255(a) were denied. See Ayala-Vazquez v. United States, No. 

15-2447, 2018 WL 5734595 (D.P.R. Oct. 31, 2018). This Court then 

denied his request for a certificate of appealability. See AyalaVazquez, 2019 WL 10947347, at *1-2. 

Several years later, Ayala initiated the post-judgment 

proceedings that are at the heart of this appeal. On July 20, 

2021, Ayala filed with the U.S. District Court for the District of 

Puerto Rico a motion to reduce his sentence pursuant to § 404(b) 

of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, 5222 

(2018), and for relief pursuant to 18 U.S.C. § 3582(c)(1)(A), which 

is commonly known as the provision that permits a defendant to 

seek post-sentencing "compassionate release."

In support of the motion, Ayala argued that he was 

eligible for a sentence reduction under the First Step Act because

he had committed a "covered offense" within the meaning of § 404(a) 

of the First Step Act. He contended that the statutory penalty 

ranges under 21 U.S.C. § 841 for the cocaine-base offenses for 

which he had been convicted had been modified by the Fair 
- 8 -

Sentencing Act on August 3, 2010, and so after he had committed 

those offenses.

Ayala separately contended in the motion that he was 

entitled to relief under 18 U.S.C. § 3582, which provides that a 

court may modify an individual's term of imprisonment upon that 

individual's motion if the court determines that "extraordinary 

and compelling reasons" warrant such a reduction and that the 

sentencing factors set forth in 18 U.S.C. § 3553(a) weigh in favor 

of a reduction. 18 U.S.C. § 3582(c)(1)(A). Ayala argued that the 

"extraordinary and compelling circumstances" that warranted the 

reduction of his sentences were that he was a forty-five-year-old 

man suffering from hypertension and obesity and so was especially 

vulnerable to COVID-19 if he remained incarcerated.

The government timely opposed Ayala's motion on August 

27, 2021. Just four days later, on August 31, 2021, the District 

Court denied Ayala's motion.1

1 Ayala contends that the District Court abused its discretion 

by both denying his sentence-reduction motion before Ayala had an 

opportunity to file a reply brief and denying Ayala's motion to 

correct the District Court's subsequent order granting him leave

to file only a motion for reconsideration. The government contends 

that we do not have jurisdiction over this claim and that, even if 

we do, there was no abuse of discretion. Ayala concedes that he 

"fully discuss[es] the factual contentions and legal argument[s]" 

in his appellate briefs to us that he "would have . . . advance[d] 

in his reply[] had the District Court . . . allowed him the 

opportunity to file the reply." Thus, we may bypass the 

jurisdictional question, see Doe v. Town of Lisbon, 78 F.4th 38, 

44-45 (1st Cir. 2023), because we conclude that any error was 

harmless, given that the arguments Ayala contends he was wrongly 
- 9 -

The District Court first concluded that, under § 404(c) 

of the First Step Act, Ayala was ineligible for a sentence 

reduction under § 404(b) of that statute because he had been 

sentenced "in accordance with the amendments made by sections 2 

and 3 of the Fair Sentencing Act." § 404(c), 132 Stat. at 5222. 

The District Court then also rejected his request for relief under 

18 U.S.C. § 3582 on the ground that Ayala had failed to demonstrate 

extraordinary and compelling reasons to warrant such relief and 

that, in any event, the factors in 18 U.S.C. § 3553(a) militated 

against a sentence reduction. 

II.

We start with Ayala's challenge to the District Court's 

denial of his First Step Act motion for relief from the life 

sentences that he received for his convictions for the offenses 

set forth in Counts I and IV. The First Step Act "made retroactive 

the Fair Sentencing Act's changes to the mandatory minimum prison 

sentences for certain federal drug offenses," United States v. 

Melendez, 16 F.4th 315, 316 (1st Cir. 2021), and § 404 of the First 

barred from making below are all arguments that he has made to us 

and that we conclude are meritless. See Cornice & Rose Int'l, LLC

v. Four Keys, LLC, 76 F.4th 1116, 1123 (8th Cir. 2023) (holding 

that the district court's denial of an opportunity to file a 

sur-reply was harmless where "the argument [was] entirely 

procedural" and the party made no showing on appeal "that the 

district court would have reached a different result"); cf. United 

States v. Gagliardi, No. 98-1078, 1999 WL 1338351, at *3 (1st Cir. 

June 24, 1999).
- 10 -

Step Act gives "courts authority to reduce the sentences of certain 

[cocaine-base] offenders," Terry v. United States, 593 U.S. 486, 

491 (2021). But § 404(c) of the First Step Act provides that a 

person who has received a sentence that was imposed "in accordance 

with" the amendments made by sections 2 and 3 of the Fair 

Sentencing Act is not eligible for such relief, and as we have 

seen, the District Court denied Ayala's request for First Step Act 

relief on the ground that Ayala was such a person. Thus, the 

critical issue on appeal is whether the District Court was right 

on that score.

Ayala does not dispute that the sentencing court applied

sections 2 and 3 of the Fair Sentencing Act in sentencing him.2 

He focuses his challenge instead on whether, even if the sentencing 

court did apply those sections, the sentences were still not "in 

accordance with" the relevant provisions of the Fair Sentencing 

2 To the extent Ayala contends that those sections were not 

applied to him at sentencing on the ground that the sentencing 

court applied the 2010 version of the U.S. Sentencing Guidelines 

instead of the 2011 version, the latter of which Ayala asserts 

incorporated the Fair Sentencing Act's lower cocaine 

base-to-cocaine powder ratio, the argument is without merit. 

Following the Fair Sentencing Act's enactment, the Sentencing 

Commission promulgated emergency Guideline amendments that went 

into effect on November 1, 2010, pursuant to the Act. See

Sentencing Guidelines for United States Courts, 75 Fed. Reg. 66188 

(Oct. 27, 2010). The record supportably shows -- and Ayala does 

not contest -- that the sentencing court applied that version of 

the Guidelines, and there is no other indication in the record 

that the sentencing court did not apply the Fair Sentencing Act in 

sentencing Ayala. 
- 11 -

Act. He contends, contrary to the District Court's ruling denying 

him First Step Act relief under § 404(c), that the sentences were 

not "in accordance with" the amendments made by the Fair Sentencing 

Act because the Act did not permit a sentence of life imprisonment 

for either of his convictions, as he contends that the maximum 

sentence that the Fair Sentencing Act permitted for each was only 

40 years' imprisonment. He thus contends that we must vacate and 

remand the District Court's order denying his request for relief 

under the First Step Act. As we will next explain, however, we 

are not persuaded by Ayala's contention, even assuming that our 

review is de novo. See United States v. Goodwin, 37 F.4th 948, 

952 (4th Cir. 2022) (reviewing de novo whether a movant's sentences 

had been imposed "in accordance with" the Fair Sentencing Act to 

determine whether § 404(c) barred relief under the First Step Act).

A.

Ayala's challenge as it pertains to his Count IV-related 

sentence turns on a threshold contention that he makes about the 

nature of the underlying offense of conviction. He contends that 

the offense of conviction was the offense under 21 U.S.C. § 841 of 

aiding and abetting the possession of with intent to distribute 28 

grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), 

(b)(1)(B)(iii), rather than the offense of aiding and abetting the 

possession of with intent to distribute 280 grams or more of 
- 12 -

cocaine base, see § 841(a)(1), (b)(1)(A)(iii).3 He thus contends 

that, given the amendments that the Fair Sentencing Act made to 21 

U.S.C. § 841, the statutory penalty range for his offense of 

conviction was 5 years' to 40 years' imprisonment rather than 10 

years' to life imprisonment. On that basis, Ayala contends that 

he received a sentence that was not "in accordance with" sections 

2 and 3 of the Fair Sentencing Act, as he received a sentence that 

the Fair Sentencing Act bars for his offense of conviction.

Ayala's contention that the offense of conviction was of 

the 28-grams-or-more kind proceeds as follows: Ayala first points 

to the fact that Count IV, as set forth in the second superseding 

indictment, charged him with "aiding and abetting" the "knowing[] 

and intentional[] possess[ion of] with intent to distribute fifty

(50) grams or more of . . . cocaine base . . . within one thousand 

(1,000) feet" of a public-housing project "in violation of Title 

21, United States Code, Sections 841(a)(1) and 860; and Title 18, 

United States Code, Section 2" (first emphasis added). Moreover, 

Ayala argues, nothing presented to the jury suggested that there 

was any other offense of which he could have been found guilty on 

3 18 U.S.C. § 2 sets forth the "aiding and abetting" element 

of Ayala's offense as charged in the indictment. However, neither 

party contends that statute is relevant to the present inquiry 

insofar as we are ascertaining the penalty range that the Fair 

Sentencing Act ties to the cocaine-base offense for which Ayala 

was convicted. Thus, for ease of explanation, we limit our 

discussion to the relevant provisions in § 841.
- 13 -

Count IV. And, in pressing this latter record-based point, Ayala 

highlights the jury instructions, the transcripts of both parties' 

closing arguments, and the instructions that the sentencing court

gave to the jury, all of which, he argues, support his claim that 

his offense of conviction was based on his charged offense of the 

50-grams-or-more kind. From there, Ayala goes on to contend that, 

as a legal matter, his conviction had to be treated at his 

sentencing -- given that the sentencing took place after the Fair 

Sentencing Act's amendments took effect -- as if it were for the 

offense of aiding and abetting the possession of with intent to 

distribute 28 grams or more of cocaine base. 

Now, one might wonder why a conviction on a charge for 

a 50-grams-or-more offense must be treated as a conviction for a 

28-grams-or-more offense for purposes of sentencing. But there is 

an answer, at least as Ayala sees it.

The notion appears to be that, after the Fair Sentencing 

Act, there simply is no 50-grams-or-more offense under § 841 in 

any meaningful sense. Prior to the Fair Sentencing Act, Ayala 

argues, § 841 set a distinct penalty range for an offense of 

possessing with intent to distribute 50 grams or more of cocaine 

base -- the range being 10 years' to life imprisonment. After the 

Fair Sentencing Act, however, the amended version of § 841 no 

longer uses that quantity as a peg for any penalty range. Instead, 

the Fair Sentencing Act established distinct penalty ranges that 
- 14 -

correspond to only three distinct types of quantity-defined § 841 

offenses: an offense with an unspecified amount of a controlled 

substance (which includes cocaine base), which has a penalty range 

of 0 to 20 years' imprisonment, see § 841(a), (b)(1)(C); an offense 

with an amount of 28 grams or more of cocaine base, which has the 

penalty range of 5 years' to 40 years' imprisonment, see § 841(a), 

(b)(1)(B)(iii); and an offense with an amount of 280 grams or more 

of cocaine base, which has the penalty range of 10 years' to life 

imprisonment, see § 841(a), (b)(1)(A)(iii). 

The further notion, on Ayala's account, then appears to 

be that the 50-grams-or-more version of the § 841 offense is 

properly understood, post-Fair Sentencing Act, to correspond to 

the 28-grams-or-more rather than the 280-grams-or-more offense. 

And that is apparently because the 50-grams-or-more offense is 

pegged to an amount less than 280 grams, such that the penalty 

range for that conviction must be understood to be 5 years' to 40 

years' imprisonment rather than 10 years' to life imprisonment. 

Accordingly, Ayala contends, the Fair Sentencing Act barred the

imposition of the life sentence that he received for his Count IV 

conviction, thereby rendering the sentence imposed for that 

conviction not "in accordance with" the relevant provisions of the 
- 15 -

Fair Sentencing Act for purposes of § 404(c) of the First Step

Act.4

In contending that Ayala has it wrong, the government 

urges us to reject his premise about the nature of his offense of 

conviction being of the 28-grams-or-more kind. The government 

argues that, in fact, Ayala was convicted of the offense of aiding 

and abetting the possession of with intent to distribute 280 grams 

or more of cocaine base, not the 50-grams-or-more offense (and, 

hence, the 28 grams-or-more offense), as Ayala contends. 

To make the case, the government emphasizes that the 

jury, in finding Ayala guilty on Count IV, checked the line on the 

special verdict form that identified the quantity "which [Ayala] 

aided and abetted in the possession of with the intent to 

distribute" as being 280 grams or more of cocaine base. Thus, the 

government contends, Ayala was given a sentence that fell within 

the permissible statutory range for his offense of conviction and 

therefore was sentenced "in accordance with" the relevant 

4 We note that, because Ayala was convicted of aiding and 

abetting the possession of with intent to distribute cocaine base 

within 1,000 feet of a public-housing project, § 860(a) provides 

that the permissible maximum sentence for that offense may be 

doubled. See 21 U.S.C. § 860(a). Thus, even under Ayala's theory,

the maximum sentence that could have been imposed for his Count-IV 

conviction was 80 years' imprisonment. But even if the maximum 

sentence permitted by the Fair Sentencing Act was 80 years' 

imprisonment, Ayala's contention remains the same insofar as the 

Act barred the imposition of a life sentence. Accordingly, we 

refer to the penalty range of 5 years' to 40 years' imprisonment 

as set forth in § 841(b)(1)(B) for simplicity's sake. 
- 16 -

provisions of the Fair Sentencing Act for purposes of § 404(c), 

just as the District Court ruled, because the Fair Sentencing Act 

makes clear that a sentence of life imprisonment falls within the 

permissible statutory range for the 280-grams-or-more offense.

How, then, to resolve this dispute over the nature of 

the offense of conviction on Count IV? Significantly, Ayala bears 

the burden of showing that his conviction was for the 

28-grams-or-more offense and not the 280-grams-or-more offense. 

See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57-58 (2005) 

("Absent some reason to believe that Congress intended otherwise, 

therefore, we will conclude that the burden of persuasion lies 

where it usually falls, upon the party seeking relief."). As we 

will explain, we see no basis for concluding that Ayala has met 

that burden, because, while he is right that the indictment 

expressly refers in Count IV to the quantity of cocaine base being 

50 grams or more, that feature of the record cannot take him as 

far as he needs to go. 

First, and most importantly, the judgment of conviction 

with respect to the conviction on Count IV described the "Nature 

of Offense" as "aiding and abetting" the "possess[ion] with intent 

to distribute narcotics" without itself identifying a drug amount. 

Moreover, the judgment relevantly listed the provision, the 

violation of which constitutes the offense, as being "21 USC 

841(a)(1)," and that provision does not itself make any reference 
- 17 -

to drug quantities, as only § 841(b) does so, because that is the 

provision in § 841 that identifies the quantity-based sentencing 

ranges that apply to the offenses § 841 sets forth.

Further, the judgment of conviction, which was entered 

November 2, 2011, states that the judgment was imposed the same 

day as Ayala's sentencing. Thus, the judgment of conviction was 

entered after the sentencing judge had received and reviewed the 

PSR, which stated that Ayala "was found guilty of" aiding and 

abetting the "possess[ion of] with intent to distribute . . . two 

hundred and eighty (280) grams or more of cocaine base" -- a 

feature of the PSR to which Ayala had not objected.

Thus, from the face of the judgment of conviction, it 

does not appear that the sentencing judge, in entering judgment, 

understood drug quantity to be an element of the offense of which 

Ayala had been convicted -- which, if true, undermines Ayala's 

contention that he was convicted of the 50-grams-or-more offense 

(and hence the 28-grams-or-more offense). Nor do the features of 

the record on which Ayala asks us to focus show otherwise.

Notably, the indictment, in setting forth the elements 

of the offense, tracks the judgment of conviction in referring 

only to § 841(a), which makes no reference to drug quantity, and 

not § 841(b), which is the portion of the statute that does refer 

to drug quantity. Thus, it is not evident from the face of the 

indictment that the quantity of cocaine base that is 
- 18 -

referenced -- 50 grams or more -- was understood to have identified 

an element of the offense rather than merely a means of committing 

an offense that, as charged, was understood to be comprised of 

only non-quantity-based elements. See, e.g., United States v. 

Starks, 861 F.3d 306, 316 (1st Cir. 2017) (discussing ways "of 

distinguishing elements [of an offense] from means [of committing 

an offense]"); King v. United States, 965 F.3d 60, 66-67 (1st Cir. 

2020). 

Consistent with this understanding, jury instruction 26 

disclaims that drug quantity is an element of the offense charged. 

Moreover, on the seventeenth day of trial, the jury was instructed 

that "[i]t is against federal law to have a controlled substance 

in your possession with the intent of distributing it" before the 

sentencing court defined the offense's elements as: "First, that 

the defendant possessed a controlled substance as charged in each 

count, that is . . . [cocaine base for] Count Four. . . . Second, 

that [the defendant] did so with a specific intent to distribute 

the controlled substance over which he had actual or constructive 

possession[, and] third, that [the defendant] did so knowingly and 

intentionally." 

These instructions also comported with our case law at 

the time of both the indictment and the conviction. For, even at 

the time of Ayala's sentencing, we had not held that, statutorily, 

the drug quantity was an element of a § 841 offense rather than 
- 19 -

merely a means of committing it. See United States v. Douglas, 

644 F.3d 39, 40 n.1 (1st Cir. 2011); but see Terry, 593 U.S. at

493-94 (stating that, both pre- and post-Fair Sentencing Act, § 841 

sets forth three distinct cocaine-base offenses that are defined 

in lockstep based on drug quantity).

Ayala, however, at no point addresses any of the features 

of the record described above that call into question his premise 

that, even though the jury checked the 280-grams-or-more line on 

the special verdict form, the offense of conviction was the 

28–grams-or-more offense. See United States v. Zannino, 895 F.2d 

1, 17 (1st Cir. 1990) ("It is not enough merely to mention a 

possible argument in the most skeletal way, leaving the court to 

. . . put flesh on its bones."). Thus, we conclude that we must 

reject Ayala's challenge to the District Court's ruling that his 

Count IV-related sentence was imposed "in accordance with" the 

amendments made by the Fair Sentencing Act. For, as we have 

explained, his life sentence for his conviction on Count IV was 

"in accordance with" the relevant provisions of the Fair Sentencing 

Act insofar as he was convicted of the 280-grams-or-more offense, 

and Ayala has failed to meet his burden to show that he was not 

convicted of that offense. 

B.

Ayala's challenge as it relates to the life sentence 

that was imposed for his conviction on Count I fails, too -- and 
- 20 -

largely for the same reasons. Here, again, Ayala rests the 

challenge on the offense of conviction having as an element a 

quantity less than 280 grams or more of cocaine base. But once 

again we are not persuaded.

The judgment of conviction again undermines the notion 

that the charge and resultant conviction on Count I were for an 

offense of which an element was that the defendant conspired to 

possess with intent to distribute 50 grams or more of cocaine base. 

With respect to the conviction on Count I, the judgment describes 

the nature of the offense as a "[c]onspiracy to possess with intent 

to distribute narcotics" and lists the relevant statutory 

provision as being "21 USC 841(a)(1)." The judgment of conviction 

neither identifies a drug quantity nor references the portion of 

the statute, § 841(b), that does refer to drug quantity. And 

again, the judgment was entered after the sentencing court had 

considered, and Ayala did not relevantly object to, the PSR, which 

stated in relevant part that Ayala had been "found guilty of 

conspiring to possess with intent to distribute . . . two hundred 

and eighty (280) grams or more of cocaine base." 

As with Count IV, a review of the other relevant features 

of the record buttresses the conclusion that Ayala was not 

convicted of the 50-grams-or-more offense. 

Count I of the second superseding indictment charged 

Ayala with "knowingly and intentionally . . . conspir[ing] 
- 21 -

. . . to knowingly and intentionally possess with intent to 

distribute and distribute controlled substances, to wit . . . in 

excess of fifty (50) grams of cocaine base . . . within one 

thousand (1,000) feet" of a public housing project. Yet, Count I 

is similar to Count IV in that, in setting out the elements of the 

offense, it relevantly lists only § 841(a) without mention of 

§ 841(b). The jury instructions as to this count, moreover, stated 

that "[s]ection 846 makes it a separate Federal crime or offense 

for anyone to conspire to . . . violate Section 841 of Title[] 21. 

Section 841 makes it a crime for anyone to knowingly possess with 

the intent to distribute, that is to transfer controlled substances 

to another person," and as stated above, the jury instructions 

disclaimed that the quantities set forth in the indictment were 

elements of the offense being charged. In instructing the jury, 

moreover, the trial judge listed the elements the government had 

to prove for the conspiracy offense without mentioning drug 

quantity. 

Here, too, Ayala does not address these features of the 

record. Nor does he explain why, in light of them, the jury's 

beyond-a-reasonable-doubt finding that the quantity of cocaine 

base "[Ayala] conspired to possess with intent to distribute" was 

280 grams or more does not suffice to demonstrate that the offense 

of conviction on Count I was, as the government contends, a 

multidrug-conspiracy offense of which one of the elements was that 
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the conspiracy be to possess with intent to distribute 280 grams 

or more of cocaine base. See Zannino, 895 F.2d at 17. So, we 

once again see no basis for concluding that Ayala has met his 

burden of showing that the cocaine-base element of his offense of 

conviction was defined as 50 grams or more, rather than 280 grams 

or more. Accordingly, we see no basis for crediting Ayala's 

contention that his Count I-related sentence was not "in accordance 

with" sections 2 and 3 of the Fair Sentencing Act.5 

III.

We now turn to Ayala's challenge to the District Court's 

ruling denying him relief under 18 U.S.C. § 3582(c)(1)(A). That 

statute, commonly referred to as the compassionate-release 

statute, United States v. Saccoccia, 10 F.4th 1, 3 (1st Cir. 2021), 

authorizes a court upon motion by an incarcerated individual who 

has exhausted her administrative remedies "to reduce a term of 

imprisonment when extraordinary and compelling reasons warrant 

5 Ayala alternatively contends that, if his offenses of 

conviction are treated as having had 280 grams or more of cocaine 

base as elements, those convictions were unconstitutional under 

Alleyne v. United States, 570 U.S. 99, 108-10 (2013), given that 

drug-quantity is an element of the offenses to which the higher 

penalty ranges under § 841 are tied, see Terry, 593 U.S. at 492-

93, because that drug quantity was not charged in the terms of the 

indictment as an element of the relevant offenses for which Ayala 

was charged. We express no opinion as to the merits of that 

contention because Ayala makes no argument that, in consequence of 

Alleyne, his life sentence was not "in accordance with" the 

amendments made by sections 2 and 3 of the Fair Sentencing Act 

even if those offenses were in fact his offenses 

of conviction.
- 23 -

such a reduction," United States v. Ruvalcaba, 26 F.4th 14, 18 

(1st Cir. 2022) (internal quotations omitted), and when the 

sentencing factors set forth in 18 U.S.C. § 3553(a) counsel in 

favor of such a reduction, see 18 U.S.C. § 3582(c)(1)(A); United 

States v. Texeira-Nieves, 23 F.4th 48, 52-53 (1st Cir. 2022). 

Our review is for abuse of discretion. Saccoccia, 10 

F.4th at 4-5. Under this standard, we review embedded questions 

of law de novo and embedded factual findings for clear error. 

Ruvalcaba, 26 F.4th at 19. A district court abuses its discretion 

when it commits a "material error of law." United States v. 

Sepúlveda-Hernández, 752 F.3d 22, 33 (1st Cir. 2014).

A.

The District Court first concluded that Ayala had failed 

to establish "extraordinary and compelling circumstances" to 

warrant the requested relief, in part by explaining that Ayala's 

medical circumstances were not among those identified in the 

Sentencing Commission's Policy Statement, set forth in U.S.S.G. 

§ 1B1.13. The Policy Statement provides that only certain medical 

conditions -- such as a terminal illness, a condition that causes 

serious functional impairment, or a medical condition that 

requires specialized care that is not being provided -- constitute

extraordinary and compelling circumstances. See U.S.S.G. 

§ 1B1.13(b)(1).
- 24 -

The District Court thereafter concluded that, 

considering the § 3553(a) sentencing factors, Ayala was not 

entitled to relief under § 3582 because "[Ayala] is a danger to 

other persons and the community" based on his criminal record. 

The District Court, in so ruling, noted our observation in AyalaVazquez, 751 F.3d at 35, that the size and scope of the drugtrafficking operation of which Ayala had been the ringleader 

"[were] enough to take one's breath away" and that the operation's

"human toll" was "unknowable."

B.

Ayala first challenges the District Court's reliance on 

U.S.S.G. § 1B1.13 in concluding that he did "not meet the medical 

requirements for compassionate release set forth" in the Policy 

Statement. The government concedes that, given our decision in 

Ruvalcaba, the District Court erred insofar as it held that Ayala 

was not entitled to relief under § 3582 simply because he had not 

shown that he suffered from a medical condition identified in the 

Policy Statement. After all, as the government recognizes, we 

held in Ruvalcaba that, when the motion for compassionate release 

is brought by the defendant herself, the defendant may be able to 

show that there are "extraordinary and compelling reasons" that 

warrant relief apart from those reasons identified in the Policy

Statement. See 26 F.4th at 21-23.
- 25 -

Nonetheless, the government contends that any error in 

relying on the Policy Statement was harmless because the District 

Court separately concluded that, upon consideration of the 

§ 3553(a) factors, Ayala was not entitled to relief because of the 

danger that he posed. And, as Texeira-Nieves makes plain, a 

defendant who can show that there are extraordinary and compelling 

circumstances warranting a reduced sentence in her case may still 

be denied a reduction under § 3582(c) "solely on the basis of [the 

district court's] supportable determination that the section 

3553(a) factors weigh against the granting of such relief," 23

F.4th at 55. 

Ayala does not dispute that, to succeed on his challenge, 

he must show that the District Court erred in weighing the 

§ 3553(a) factors insofar as the District Court independently 

denied him relief based on that weighing. But Ayala contends both 

that the District Court did not independently base its denial of 

his motion on a weighing of the § 3553(a) factors and that, in any 

event, the District Court erred insofar as it did weigh those 

factors. We see no merit to either contention.

1.

Insofar as Ayala argues that the District Court based 

its conclusions solely on the requirement in U.S.S.G. 

§ 1B1.13(a)(2) that a defendant not be a "danger to the safety of 

any other person or the community" rather than on its own 
- 26 -

independent assessment of the § 3553(a) factors and that is 

reversible error because district courts are "not constrained by 

the existing policy statement," Ruvalcaba, 26 F.4th at 21; see 

also, e.g., United States v. Long, 997 F.3d 342, 356, 360-61 (D.C. 

Cir. 2021) (holding that district courts are not bound by the 

danger-to-others requirement in the Policy Statement in 

compassionate-release motions brought by the defendant), we do not 

agree that the record supports that contention. While the District 

Court did refer to § 1B1.13 in its discussion of Ayala's medical 

conditions, the District Court instead cited to § 3553(a) in its 

subsequent conclusion as to Ayala's dangerousness. Thus, we see 

no basis for reading the District Court as saying that its ruling 

on this point was constrained by the Policy Statement where neither 

the District Court said, nor the record otherwise indicates, that 

is the case. 

To argue otherwise, Ayala invokes the Sixth Circuit's 

decision in United States v. Sherwood, 986 F.3d 951 (6th Cir. 

2021). But, in that case, the Sixth Circuit vacated and remanded 

an order that, in its entirety, read, "[The defendant] has failed 

to demonstrate that he is not a danger to the community. Not only 

was he convicted of possession of child pornography, but he was 

convicted of transportation as well," on the basis that the 

district court had impermissibly relied exclusively on § 1B1.13. 

986 F.3d at 953-54. Here, however, there is the material 
- 27 -

difference that the District Court expressly cited to § 3553(a) 

for its conclusion that Ayala still posed such a danger. So, aside 

from not being binding on us, Sherwood provides no support for 

reading the District Court's order as Ayala would have us do. 

2.

As for the contention that the District Court erred in 

its weighing of the § 3553(a) factors, Ayala makes three separate 

arguments. None persuades us.

Ayala first argues that the fact that his offense conduct 

involved violence does not categorically bar him from being granted 

compassionate-release relief. In so contending, Ayala relies on 

several cases in which a district court granted 

compassionate-release relief to individuals serving "life 

sentences for murders." But, insofar as Ayala means to suggest 

that the District Court denied Ayala's motion based on the 

application of a categorical rule that § 3582 relief is unavailable 

to any defendant convicted of a violent offense, the record 

provides no support for the contention. Rather, the record shows 

that the District Court considered Ayala's criminal record and 

concluded that he still posed a danger to other persons and the 

community, given his specific circumstances. We also see no basis 

for concluding that exercise of discretion was itself an abuse of 

discretion. See Fontanillas-Lopez v. Morell Bauzá Cartagena & 

Dapena, LLC, 832 F.3d 50, 55 (1st Cir. 2016) (rejecting a challenge 
- 28 -

under abuse-of-discretion review that "suggest[ed] that we may 

reverse the district court merely because it could have exercised 

its 'ample latitude' differently"). 

Ayala next argues that, because the risks that COVID-19

poses to certain vulnerable incarcerated individuals can render an 

imposed sentence more severe than was contemplated at the time of 

sentencing, the District Court erred in not properly considering 

whether Ayala's sentence was "sufficient[] but not greater than 

necessary" to meet the purposes of sentencing, 18 U.S.C. § 3553(a), 

by failing to account for the risks COVID-19 poses to him. But 

the record shows that the District Court did consider the 

particulars of Ayala's health that assertedly rendered him 

vulnerable to COVID-19, and the District Court determined that 

Ayala's hypertension and obesity were being adequately treated by 

the Bureau of Prisons, that Ayala had received vaccinations to 

protect against COVID-19, and that the COVID-19 protocols of the

facility in which Ayala was incarcerated were appropriately 

functioning. We therefore understand the District Court to have 

implicitly concluded that whatever vulnerability to COVID-19 

existed in Ayala's circumstances did not render the carceral term 

so much harsher that the sentence became "greater than necessary" 

to meet the purposes of sentencing. 18 U.S.C. § 3553(a). 

Ayala's final contention is that the District Court did 

not adequately consider the mitigating circumstances in his 
- 29 -

case -- which he contends are his age, family support, lack of 

post-sentencing disciplinary infractions, and post-conviction 

rehabilitation -- when weighing the § 3553(a) factors. It is true 

that the District Court did not explicitly discuss these factors. 

But, as Ayala brought these factors to the District Court's 

attention in his motion, we see no basis for concluding that the 

District Court ignored them in determining that other § 3553(a) 

factors militated against granting the requested release. See

United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012) 

("Though we require consideration of the § 3553(a) factors, we do 

not require an express weighing of mitigating and aggravating 

factors or that each factor be individually mentioned."); United 

States v. Cortés–Medina, 819 F.3d 566, 571 (1st Cir. 2016) ("[W]e 

discern no abuse of discretion in the sentencing court's failure 

to acknowledge explicitly that it had mulled the defendant's 

arguments.")

IV.

For the reasons given, the judgment of the District Court 

is affirmed.