NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0076n.06

Case No. 20-3666

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHN MONTERO,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE NORTHERN 

DISTRICT OF OHIO

O P I N I O N

BEFORE: BATCHELDER, CLAY, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. John Montero, a federal prisoner proceeding with counsel, 

appeals the district court’s order denying his motion for compassionate release under 

18 U.S.C. § 3582(c)(1)(A). Because the district court did not abuse its discretion in denying 

Montero’s motion, we affirm.

I.

On July 19, 2017, Montero and eleven others were named in a multi-count drug-conspiracy 

indictment. Montero pleaded guilty to Count 1. In his plea, he admitted to selling substantial 

quantities of crack cocaine and possessing both cocaine and a firearm as part of the conspiracy, in 

violation of 21 U.S.C. § 846. The district court sentenced him to imprisonment for 77 months.

On April 20, 2020, Montero submitted a request for compassionate release to the Warden 

of FCI Elkton. The Warden denied the request on May 1, 2020. Three days later, Montero filed 
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his motion for compassionate release in federal court.1 He claimed that his release was justified 

because he was a non-violent drug offender with certain medical conditions—asthma and blood 

clotting—that rendered him more susceptible to COVID-19. He later claimed that he tested 

positive for COVID-19. 

The district court denied Montero’s motion on the merits after finding that he failed to

demonstrate extraordinary and compelling reasons to justify compassionate release, and 

alternatively that he remained a danger to the community. Montero appeals. 

II.

We review a district court’s decision denying compassionate release for an abuse of 

discretion. United States v. Kincaid, 802 F. App’x 187, 188 (6th Cir. 2020) (order). An abuse of 

discretion occurs when the district court “relies on clearly erroneous findings of fact, uses an 

erroneous legal standard, or improperly applies the law.” United States v. Flowers, 963 F.3d 492, 

497 (6th Cir. 2020) (quoting United States v. White, 492 F.3d 380, 408 (6th Cir. 2007)).

Generally, a district court “may not modify a term of imprisonment once it has been 

imposed.” 18 U.S.C. § 3582(c). But that prohibition has exceptions, including one known as 

“compassionate release.” Id. at § 3582(c)(1)(A)(i). We have recently issued a series of opinions 

articulating how district courts should analyze defendant-filed motions seeking compassionate 

release. See United States v. Ruffin, 978 F.3d 1000, 1006–07 (6th Cir. 2020); United States v. 

Jones, 980 F.3d 1098, 1106 (6th Cir. 2020); United States v. Elias, 984 F.3d 516, 519 (6th Cir.

2021); United States v. Hampton, --- F.3d ---, No. 20-3649, 2021 WL 164831, at *1–2 (6th Cir. 

Jan. 19, 2021). “In resolving those motions, district courts now face two questions: (1) whether 

1 On May 6, 2020, two days after filing his motion for compassionate release in federal court, Montero is said to have 

appealed the Warden’s denial of his request for compassionate release. Evidence of that appeal is not in the record. 

But the Government does not contend that Montero failed to appeal. 
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extraordinary and compelling circumstances merit a sentence reduction; and (2) whether the 

applicable § 3553(a) factors warrant such a reduction. A third consideration, the § 1B1.13 policy 

statement, is no longer a requirement courts must address in ruling on defendant-filed motions.” 

Hampton, 2021 WL 164831, at *1. To that end, district courts need not confine themselves to 

evaluating “extraordinary and compelling reasons” as defined by the Sentencing Commission in 

the § 1B1.13 policy statement. Elias, 984 F.3d at 519.

On appeal, Montero first argues that the district court abused its discretion by finding that 

no extraordinary and compelling reasons justified his release. He contends that the court 

impermissibly failed to consider his asthma and mischaracterized his blood clotting issues. We 

disagree.2

A district court has “full discretion” in determining whether an extraordinary and 

compelling reason justifies compassionate release where, as here, a defendant files a motion for 

compassionate release. See Jones, 980 F.3d at 1109. In finding that Montero did not demonstrate 

an extraordinary and compelling reason justifying his release, the district court recognized the 

dangers of the COVID-19 pandemic and expressed its sympathy to the increased risk of exposure 

and illness that prisoners face. It also found that Montero failed to show that he was at a 

substantially higher risk compared to others similarly situated and that although he tested positive 

2

In his reply brief, Montero also argues that, generally, district courts should not defer to the Sentencing Commission’s 

limited definition of “extraordinary and compelling reasons.” We agree. As our recent decisions have clarified, 

district courts need not defer to that definition for defendant-filed compassionate release motions. See, e.g., Elias, 984 

F.3d at 519. However, the district court’s denial of Montero’s motion in this case was justified entirely by its finding 

that Montero failed to demonstrate “extraordinary and compelling reasons” as required under the statute, without any 

reference to the Sentencing Commission’s additional application notes. See United States v. Robinson, No. 20-5929, 

2021 WL 71545, at *2 (6th Cir. Jan. 6, 2021) (order) (affirming denial of compassionate release motion when district 

court did not rely on commentary to USSG § 1B1.13). That remains a “permissible ground[]” for a district court to 

refuse to reduce a sentence. Hampton, 2021 WL 164831, at *1.

We also note that there may be questions about whether Montero exhausted his administrative remedies and whether 

he waited the requisite thirty days after the Warden’s receipt of his request before filing his motion for compassionate 

release. However, we do not decide those questions because they are not jurisdictional, and the Government does not 

raise them on appeal. See Ruffin, 978 F.3d at 1004.
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for the virus, his alleged symptoms were not life-threatening. Moreover, the court found that he 

provided no evidence demonstrating that he suffered from one of the risk factors identified by the 

Centers for Disease Control and Prevention (CDC) that would place him at a higher risk of a severe 

outcome. In doing so, the district court did not specifically mention Montero’s asthma. Failing to 

do so was not an abuse of discretion. See Elias, 984 F.3d at 521 (“Relying on official guidelines 

from the CDC is common practice in assessing compassionate-release motions.”).

To be sure, the CDC has identified moderate to severe asthma as a risk factor for more 

severe illness from COVID-19. See Clinical Care Guidance for Healthcare Professionals About 

Coronavirus (COVID-19): People with Certain Medical Conditions, Centers for Disease Control,

https://tinyurl.com/y3ewlf2p (last visited Jan. 25, 2021). And the Government concedes that in 

light of the COVID-19 pandemic, Montero’s asthma—if it were moderate to severe—could 

constitute an extraordinary and compelling reason justifying his release. But Montero did not 

contend at the district court level that he had moderate to severe asthma, nor does he do so on 

appeal. Moreover, as the district court noted, although Montero tested positive for COVID-19, he 

only complained of losing his sense of taste and smell. He did not allege that he experienced 

trouble breathing or provide medical records evidencing such trouble. Instead, he noted that his 

asthma was under control, thanks to an albuterol inhaler provided by FCI Elkton. At bottom, the 

district court did not abuse its discretion by failing to mention Montero’s asthma, which was not 

alleged to be moderate to severe, but was reportedly under control, and was not exacerbating his 

COVID-19 infection. 

Nor did the court abuse its discretion in finding that Montero’s blood clotting issue was not 

an extraordinary and compelling reason justifying compassionate release. The district court 

specifically considered Montero’s blood clotting and highlighted that he was already taking blood 
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thinners as treatment. Its further suggestion that Montero’s pre-existing course of treatment might 

serve as an additional layer of protection against blood clotting caused by his COVID-19 infection 

was supported by a medical study Montero cited in his own motion seeking release. Contrary to 

Montero’s contention, that suggestion does not render the court’s ultimate finding an abuse of 

discretion. See United States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010) (noting that a clearly 

erroneous factual finding must strike the court “as more than just maybe or probably wrong; it 

must strike us as wrong with the force a five-week-old, unrefrigerated dead fish” (quoting United 

States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990))). 

Montero also argues that the district court abused its discretion by finding that he was a 

danger to the community under USSG § 1B1.13. Because the district court did not abuse its 

discretion in denying Montero compassionate release based on its primary finding that no 

extraordinary or compelling reasons justified a reduction in his sentence, we need not address the 

district court’s alternative finding under § 1B1.13. 

We affirm.