UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ERNESTO MENDOZA-CONTRERAS, Defendant - Appellant. No. 22-5057 (D.C. No. 4:15-CR -00046-CVE-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , KELLY , and BACHARACH , Circuit Judges.

________________ _________________ Ernesto Mendoza-Contreras, a federal prisoner proceeding pro se, appeals from the district court’s denial of hi s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). Our jurisd iction arises under 28 U.S.C. § 1291. Because Mr. Mendoza-Contreras has not show n that the district court abused its discretion, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 30, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 12 I. Background Mr. Mendoza-Contreras pleaded guilty to a federal drug-conspiracy offense in 2015. The district court sentenced him to 156 months’ imprisonment. His projected release date is July 16, 2026. Mr. Mendoza-Contreras filed a pro se motion for compassionate release under § 3582(c)(1)(A)(i) on April 21, 2022, argu ing that extraordinary and compelling reasons warranted a reduction in his sent ence to time served. He relied on the following circumstances: prison conditions related to the spre ad of COVID-19 at North Lake CI, his medical conditions that in crease his risk of serious illness if he becomes infected with COVID-19, and a need to care for fa mily members with serious health conditions. The government filed a response opp osing the motion on May 20, 2022, and the district court denied it on May 27. 1
The district court reviewed Mr. Me ndoza-Contreras’s presentence report, which states that he had reported that “he is in ge nerally good health and taking medication for high cholesterol and hypertension.” R., Vol. 3 at 80. At the time he filed his motion, his prison medical record s indicated that he took daily medication for hypothyroidism and hyperlipidemia and that he was not presently being treated for obesity, bradycardia, or hypertension. He was in his late 40s at the time.

1 On May 31, 2022, Mr. Mendoza-Contrera s moved for an extension of time to file a reply. Because the district court had already ruled on his motion for compassionate release, it denied his moti on for an extension as moot. Unaware of the district court’s denial of compassiona te release, Mr. Mendo za-Contreras filed a reply on June 9. Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 23 Mr. Mendoza-Contreras was classified as “ care level 2 – stable, chronic care, with follow up care as needed.” Id. He received a COVID- 19 vaccination in May 2021 and a COVID-19 booster in December 2021, as well as vaccinations against other communicable diseases. The district court also made fi ndings regarding the conditions at Mr. Mendoza-Contreras’s prison facility, noti ng it was “aware that, at North Lake CI, . . . there are currently no COVID-19 positive inmates.” Id. at 81. The court stated that “[t]his controlled in fection rate suggests that th e facility is complying with the Bureau of Prison[s’] COVID-19 response plan, to include social distancing, surface sanitation, and availabi lity of the COVID-19 vaccine.” Id. Acknowledging that the risk of infection is greater in an institutional se tting, the court said the issue was “the likelihood of life-t hreatening or serious chroni c complications should an inmate become infected.” Id. It stated it “must balance this risk against its responsibility to uphold the reasons for imposition of an imprisonment sentence.” Id. The district court concluded: The record clearly reflects that defendant is not at undue risk. Although defendant suffers from ailments that, according to the Centers for Disease Control and Prevention [CDC], may plac e him at a higher risk of severe response to COVID-19, the Court finds th at defendant is not in jeopardy of serious complications should he contract the virus. Id. In making this finding, the court poi nted to Mr. Mendoza-Contreras’s medical history, his “comprehensive medical care,” the prescriptions he takes “to reduce risk factors,” his vaccination status for COVI D-19 and other communicable diseases, and his “imprisonment at a low in fection rate institution that is adhering to Bureau of Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 34 Prisons’ COVID-19 abatement protocols.” Id. The district court therefore decided that Mr. Mendoza-Contreras’s “medical c onditions do not rise to the level of extraordinary and compelling reasons to warrant a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).” Id. Addressing Mr. Mendoza-Contreras’s conten tion that he is needed at home to care for his chronically ill mother and adu lt daughter, the district court acknowledged that the Sentencing Commission’s existi ng policy statement does not apply to compassionate-release motions filed by de fendants. It nonetheless noted that although the current policy statement provides that certain family circumstances may support a reduced sentence, it specifies the incapacitation of a defendant’s “‘spouse or registered partner,’” rather than a parent or adult child. Id. at 82 (quoting USSG § 1B1.13 cmt. n.1(C)(ii)). The court found that “disruption of defendant’s life, and the concomitant difficulties for those wh o depend on defendant, are inherent in the punishment of incarceration,” stating that “[f]amily con cerns resulting from a defendant’s imprisonment are not ordinarily a factor to be considered at sentencing.” Id. It decided that Mr. Mendoza-Contreras’ s family concerns were not “a viable reason for reduction of senten ce under § 3582(c)(1)(A).” Id. The district court ultimately found th at the factors Mr. Mendoza-Contreras presented did not rise to th e level of extraordinary and compelling reasons warranting a reduction of his sentence. Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 45 II. Discussion A. Legal Background and Standard of Review Section 3582(c)(1)(A)(i), as amended in 2018 by the First Step Act, allows defendants to move for compassionate releas e in the district c ourt after exhausting Bureau of Prisons (BOP) administrative remedies. See United States v. Maumau , 993 F.3d 821, 830 (10th Cir. 2021). The district court may grant a motion when it (1) “finds that extraordinary and comp elling reasons warrant such a reduction”; (2) “finds that such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commission”; and (3) “considers the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they are applicable.” Id. at 831; see also § 3582(c)(1)(A)(i). “[D]istrict courts ma y deny compassionate-release motions when any of the three prerequisites list ed in § 3582(c)(1)(A) is lacking.” Maumau , 993 F.3d at 831 n.4 (internal quotation marks omitted). Th e district court denied Mr. Mendoza-Contreras’s compassionate-relea se motion because he did not satisfy the first prerequisite: he failed to demonstrate extrao rdinary and compelling reasons warranting a sentence reduction. A district court has broad discre tion to determine what constitutes “extraordinary and compelling reasons,” although that disc retion is circumscribed by the applicable policy statements i ssued by the Sentencing Commission. Id. at 834 (internal quotation marks omitted). Currently , there is no policy st atement applicable to motions filed by defendants. Id. at 837. Rather, the Sentencing Commission’s existing policy statement applies only to motions filed by the BOP; it therefore Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 56 “cannot constrain district c ourts’ discretion to consider whether any reasons are extraordinary and compelling” when the motion is filed by a defendant. Id. (internal quotation marks omitted). We review a district court’s rulin g on a compassionate-release motion for an abuse of discretion. United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021). “A district court abus es its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact[,]” id. (internal quotation marks omitted), or “when it renders a j udgment that is arbitrary, capricious, whimsical, or manifestly unreasonable,” United States v. Lewis , 594 F.3d 1270, 1277 (10th Cir. 2010) (interna l quotation marks omitted). We liberally construe Mr. Mendoza-Contreras’s pro se filings but we do not take on the role of being his advocate. See James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). 2
B. Medical Conditions and Prison Conditions Mr. Mendoza-Contreras challenges the di strict court’s conclusion that he failed to show extraord inary and compelling reasons for release based upon his medical conditions and the cond itions at his prison facility, North Lake CI. He first

2 On appeal Mr. Mendoza-Contreras refe rences arguments he made in his reply, some of which he maintains the di strict court “ignored .” But he does not expressly challenge the district court’s deni al as moot of his motion for an extension to file a reply. Local district court crim inal rules do not provide for the filing of a reply in support of a motion. See N.D.Okla.LCrR47. Moreover, we have reviewed Mr. Mendoza-Contreras’s reply and we fi nd no abuse of discretion or prejudice resulting from the district court’s ruli ng on his compassionate-release motion before the filing of a reply. See Walter v. Morton , 33 F.3d 1240, 1244 (10th Cir. 1994). Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 67 contends the district cour t reached an “unsupported me dical opinion” that he “is receiving treatment for his underlying medi cal conditions and is responding to that treatment.” Pet’r’s Opening Br . at 9. But his medical reco rds show that he is taking daily medication for hypothyroidism and hyperlipidemia and that his medical condition is listed as stab le, chronic care. Mr. Mendo za-Contreras argues that no evidence or caselaw supports the district court’s “conclusion that as long as a person is receiving treatment for any of the unde rlying medical conditions and risk factors identified by the CDC, and is responding to th at treatment, he is not in jeopardy of serious complications should he contract the virus.” Id. at 10. He asserts that the district court lacks author ity to reject the CDC’s guidance by concluding that his “underlying medical conditions do not place him at an in creased risk of serious illness or death if he is infected with COVID-19,” id. , although he acknowledges that “the district court did find th at [his] ailments place him at a higher risk of severe response to COVID-19,” id. at 11. Mr. Mendoza-Contrera s appears to contend that district courts lack discre tion to deny compassionate rele ase to any inmate who has an underlying medical condition that increa ses his risk of severe illness from COVID-19. We reject that pr oposition as inconsistent with the district court’s broad discretion to determine what constitutes extraordinary and compelling reasons under § 3582(c)(1)(A)(i). See Maumau , 993 F.3d at 834 (“district courts . . . have the Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 78 authority to determine for themselves wh at constitutes extraordinary and compelling reasons” (internal quotati on marks omitted)). Moreover, in finding that Mr. Mendo za-Contreras “is not at undue risk,” R., Vol. 3 at 81, the district court did not rely solely on his medical treatment and stable condition. It also cited his overall medical history, his vaccination status, and the low infection rate at North Lake CI. He contends that COVID-19 vaccinations and boosters are not 100% effective. Bu t we have recognized that “access to vaccination” may “weigh against a finding of extraordinary and compelling reasons.” United States v. Hald , 8 F.4th 932, 939 n. 5 (10th Cir. 2021), cert. denied , 142 S. Ct. 2742 (2022); see id. at 936 n.2 (noting “a growing consensus that either receiving or refusing COVID-19 vaccination weighs agai nst a finding of extraordinary and compelling circumstances” (internal quotati on marks omitted)). And according to the CDC, vaccination does lessen the poten tial for severe illness from COVID-19. 3 The scientific community has struggled in tryi ng to fully and accurate ly assess the risks from COVID-19. The decision by the district court in this case ultimately may prove to be scientifically unsound. But in the present uncerta in state of knowledge, we cannot say that its assessment of the ri sk to Mr. Mendoza-Contreras was clearly

erroneous.

3 “COVID-19 vaccines help protect against severe illness, hospitalization, and death. People who are up to date on C OVID-19 vaccines are much less likely to experience severe symptoms than people who are not up to date, if they get infected with SARS-CoV-2, the viru s that causes COVID-19.” https://www.cdc.gov/coronavirus/2019-ncov /vaccines/effectiven ess/why-measureeffectiveness/breakthrough-cases.html (last visited March 28, 2023). Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 89 Mr. Mendoza-Contreras argues the district court’s finding regarding the lack of positive COVID-19 cases at North Lake CI is clearly erroneous because the BOP website the government cited for this fact doe s not list any statis tics for that prison facility. See R., Vol. 3 at 51 & n.3. He is co rrect that the BOP website currently does not list that prison facility. See https://www.bop.gov/coronavirus/covid19_st atistics.html (last visited March 22, 2023)

. But he failed to provide any evidence that the website did not include the relevant statistics as of May 17, 2022, when the gove rnment cited it. And his assertion that “it is highly unlikely that North Lake CI is completely free from infection,” Pet’r’s Opening Br. at 16, does not demonstrate that the district court’s factual finding is clearly erroneous. Nor did the district court ignore Mr. Mendoza-Contreras’s arguments that No rth Lake CI’s design makes it impossible to implement CDC guidelines and that the prison facility “completely mishandled the COVID-19 pandemic,” id. The court found to the c ontrary that the “controlled infection rate” at North Lake CI “suggests that the facility is complying with the Bureau of Prison[s’] COVID-19 respons e plan.” R., Vol. 3 at 81. Finally, Mr. Mendoza-Contreras cites an unpublished district-court decision granting compassionate release to a prisoner housed at No rth Lake CI in 2020 based on an underlying medical condition that incr eased his risk of serious illness from COVID-19. We are not persuade d that this ruling demonstrat es that the district court abused its discretion by denying Mr. Me ndoza-Contreras’s motion under different circumstances in 2022. Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 910 Mr. Mendoza-Contreras fails to show th at the district court abused its discretion in concluding that his medical conditions and th e conditions at North Lake CI do not rise to the level of extraord inary and compelling reasons warranting a reduction in his sentence under § 3582(c)(1)(A)(i). C. Need to Care for Ailing Family Members Mr. Mendoza-Contreras also challenges the district court’s conclusion that his asserted need to care for his elderly moth er and adult daughter, both of whom have serious health conditions, does not amount to an extraordinary and compelling reason warranting his release. He first argues the district cour t made a clearly erroneous factual finding in stating that he cited the policy statem ent in USSG § 1B1.13 cmt. n.1(C)(ii) in support of his motion for comp assionate release. The district court did misstate that Mr. Mendoza-Contreras, rath er than the government, had cited that policy statement. See R., Vol. 3 at 82 (stating “D efendant cites” the policy statement); id. at 52 (government’s brief citing the policy statement). But regardless of which party cited the policy statement, the question is whethe r the district court abused its discreti on by considering it. Mr. Mendoza-Contreras correctly notes that the existing policy statement regarding compassionate release is not appli cable to a motion, li ke his, filed by the defendant. See Maumau , 993 F.3d at 837. He also ac knowledges that the district court recognized it was not constraine d by the existing policy statement. See R., Vol. 3 at 82 (district court stating that “the existing policy statements are not applicable to motions filed directly by defe ndants”). Nonetheless, he argues that the Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 1011 district court improperly limited its discretion by denying his motion based upon USSG § 1B1.13 cmt. n.1(C)(ii). This argum ent is unfounded. Th e district court did note that the policy statement “specifies a spouse or registered partner, not a defendant’s parent or adult child.” Id. (internal quotation marks omitted). But there is nothing to suggest that th e district court considered itself bound by that policy statement. And the court di d not abuse its discretion by lo oking to it for guidance. See Hald , 8 F.4th at 938 n.4 (“[I]t would hardly be an abuse of discretion for a district court to look to the pres ent policy statement for guidance.”). Finally, Mr. Mendoza-Contreras cites a district-court order granting a prisoner’s motion for compassionate rele ase based upon his need to care for his elderly mother. See Order Granting Comp assionate Release, United States v. Galaz-Felix , No. 1:03-cr-00062-TC-4 (Apr. 5, 2022) , ECF No. 879. But the granting of that prisoner’s motion—which, unlike in this case, was not opposed by the government, see id. at 1—does not demonstrate that th e court abused its discretion in denying Mr. Mendoza-Contreras’s motion.
III. Conclusion A district court has “substantial discre tion” in determining whether to grant compassionate release unde r § 3582(c)(1)(A)(i). Hald , 8 F.4th at 938 n.4. Mr. Mendoza-Contreras has not demonstrated any clearly errone ous factual finding underlying the district court’s decision that affected its ruling. And we do not “have a definite and firm conviction that the [dis trict] court made a cl ear error of judgment or exceeded the bounds of permissibl e choice in the circumstances.” United States v. Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 1112 Merritt , 961 F.3d 1105, 1111 (10th Cir. 2020) (b rackets and internal quotation marks omitted). We therefore affirm the district court’s denial of Mr. Mendoza-Contreras’s motion for compassionate release.

Entered for the Court

Harris L Hartz Circuit Judge Appellate Case: 22-5057 Document: 010110835310 Date Filed: 03/30/2023 Page: 12