UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HERIBERTO GARCIA-RODRIGUEZ, Defendant - Appellant. No. 22-8053 (D.C. No. 2:03-CR -00061-SWS-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and ROSSMAN , Circuit Judges.

________________ _________________ Heriberto Garcia-Rodriguez, proceeding pro se, appeals the district court's order denying his motion for re consideration of the court' s denial of his motion for compassionate release from federal prison under 18 U.S.C. § 3582(c)(1)(A)(i), as

* 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### December 13, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 12 amended by the First Step Act of 2018, Pub. L. No. 115-391, § 60 3(b)(1), 132 Stat. 5194, 5239. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 1
I. BACKGROUND
A. First Step Act The First Step Act allows federal prisone rs to move for compassionate release in district court after exhausting the Bure au of Prisons (the “BOP”) administrative remedies. See United States v. Maumau , 993 F.3d 821, 830-31 ( 10th Cir. 2021). The court may grant the motion only when it finds that (1) “extraordinary and compelli ng reasons” warrant release; (2) release is “consistent with appli cable policy statements issued by the Sentencing Commission”; and (3) release is warranted after consider ing the applicable 18 U.S.C. § 3553(a) factors. Id. at 831; see 18 U.S.C. § 3582(c)(1)(A). In ge neral, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking.” Maumau , 993 F.3d at 831 n.4 (quotations omitted); see also United States v. McGee , 992 F.3d 1035, 1043 (10th Cir. 2021). This appeal turns on the first prerequisite—ext raordinary and compelling reasons.

1 Because Mr. Garcia-Rodriguez appears pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 23 B. Procedural History Mr. Garcia-Rodriguez was convicted in 2004 of possession with intent to distribute more than 500 grams of methamphe tamine. ROA at 29. He was sentenced under 21 U.S.C. §§ 841(b)(1)(A) and 851 to life imprisonment because he had two prior felony drug convictions. Id . at 30. We upheld his conviction and sentence on appeal. See United States v. Garcia-Rodriguez , 127 F. App’x 440, 452 (10th Cir. 2005). His attempts to obt ain post-conviction relief unde r 28 U.S.C. § 2255 failed. On October 19, 2021, havi ng exhausted his administra tive remedies with the BOP, Mr. Garcia-Rodriguez moved for comp assionate release under the First Step Act. The district court rejected e ach of his four arguments and found no “extraordinary and compelling reas ons [to] warrant release.” See ROA at 195. First, he argued his life sentence is disproportionately longer than it would be today under the First Step Act. The district court rejected this ground for release, holding that under Tenth Circuit precedent, see United States v. McGee , 992 F.3d 1035, 1048 (10th Cir. 2021) , the lengthy sentence alone is insufficient to justify a sentence reduction. Id. at 188-91. Second, he urged that he has a strong reco rd of rehabilitation. Upon review of Mr. Garcia-Rodriguez’s prison record, the court concluded his rehabilitation was not so exceptional as to justify release. Id. at 191. Third, he said he is needed to care for his ailing mother. The court found that he provided no evidence to support this claim. Id. at 192. Fourth, he posited his exposure to COVID- 19. The court rejected this reason because he is fully vaccinated. Id. at 192-93. 2
The court thus denied the motion for co mpassionate release. ROA at 181-95.

2 The district court also considered the 18 U.S.C. § 3553(a) factors and found they supported denial of the motion. See ROA at 193-94. Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 34 Mr. Garcia-Rodriguez moved for reconsidera tion. The district court stated that he “reiterate[d] his previous arguments,” id. at 212, addressed them again anyway, and denied the motion on July 28, 2022, id. at 211-19. In his notice of appeal, Mr. Garcia-Rodriguez said he wished to challenge the July 28 order. Id. at 220.
II. DISCUSSION “We review the denial of First Step Ac t relief for an abuse of discretion, the same as other post-trial motions . Likewise, we review the di strict court's denial of a motion for reconsideration fo r abuse of discretion.” United States v. Warren , 22 F.4th 917, 927 (10th Cir. 2022) (quotations and citations omitted). On appeal, Mr. Garcia-Rodriguez does not challenge the district court’s treatment of his rehabilitati on argument. He addresses the life sentence, makes a COVID-19 point to support his argument about caregiving for his mother, and proposes immediate deportation as an alternative remedy.
A. Life Sentence Mr. Garcia-Rodriquez argues three points about his life sentence. First, he notes that Sentencing Guid elines were mandatory when he was sentenced but now they are advi sory. Aplt. Br. at 4. This argument is a variation on his contention that his senten ce would be different today than when he was sentenced in 2004. It does not challenge the district court’s conclusion that more is needed for compassionate release and that Mr. Ga rcia-Rodriguez had failed to present “individualized circumstances that would warrant sentence reduction.” ROA at 188. Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 45 Also, the argument is mispl aced because his life sent ence was based on 21 U.S.C. §§ 841(b)(1)(A) and 851 and not on the Guidelines. ROA at 29. Second, he states the Government agrees that he would not be subject to a mandatory life sentence if he we re sentenced today. Aplt. Br. at 4. Relatedly, he asserts that the Government ’s calculated sentencing ra nge for resentencing today would be 262 to 327 months. Id. at 5. This argument fails for the same reason as the first one. Third, he states that the Government “ points out that” his two prior convictions underlying his life sentence “are not conclusi ve.” Aplt. Br. at 4. This argument is not clearly presented or ade quately developed. Also, th is court upheld the sentence on direct appeal, including his challenge “that there was insu fficient evidence to support the judge’s finding of the two prior drug felonies beyond a reasonable doubt.” 127 F. App’x at 450. We held there was “am ple evidence.” Id. 3
B. COVID 19 and Caregiving Mr. Garcia-Rodriguez contends that “Covid-19 created hardships obstructed Petitioner Garcia-Rodriguez’s opportunity to explain and substantiate why Petitioner Garcia-Rodriguez is the only car egiver for his ailing and el derly mother.” Aplt. Br. at 5. This argument seems to apply more to his caregiving argument than to his

3 As he did in district c ourt, Mr. Garcia-Rodriguez ci tes cases from outside the Tenth Circuit, mostly from dist rict court, Aplt. Br. at 7- 8, that the district court rejected as failing to remedy his failure to show the combination of a lengthy sentence and individual uni que circumstances to cons titute “extraordinary and compelling reasons” for purposes of § 3582(c)(1)(A)(i). See ROA at 212. Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 56 COVID-19 exposure argument, but even if it a pplies to both, he di d not present it to the district court or argue plai n error here, so it is waived. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128-31 (10th Cir. 2011). 4
C. Deportation Finally, Mr. Garcia-Rodriguez asks us to “[c]onsider immediate deportation” as a “plausible alternative,” explaining that his sentence calls for deportation upon release. Aplt. Br. at 5. Although the rele ase plan he submitted to the district court called for him to live in Uruapan, Michoacan, Mexico, see ROA at 40, he did not explicitly present “immediate deportation” to the district court. However, in his motion for reconsideration of the district court’ s order denying his compassionate release motion, he cited his senten ce’s post-release deportation order to support his claim that he does not present a threat to public safety. Specifically, he argued that “Mr. Garcia will most likely be deported upon re lease, which is itself a punishment. Any lingering public safety concerns are mooted by the fact of Mr. Garcia’s impending deportation.” ROA at 207-08 (citations omitte d). Reading his district court filing liberally as proposing immedi ate deportation, we see no a buse of discretion in the district court’s determination that Mr. Garcia-Rodriguez failed to show “extraordinary and compelli ng” reasons for release.

4 Though Mr. Garcia-Rodriguez is pro se, he is subject to the same procedural rules governing other litigants. See United States v. Green , 886 F.3d 1300, 1307-08 (10th Cir. 2018) (stating that a litigant’s pro se status did not excuse compliance with the general procedural rule). Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 67 III. CONCLUSION We affirm the district court’s judgmen t. Because Mr. Garcia-Rodriguez has failed to show the “existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised,” Buchheit v. Green , 705 F.3d 1157, 1161 (10th Cir. 2012) (quotations omitted), we deny hi s motion to proceed on appeal in forma pauperis

. 5

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

5 Judge Rossman would grant Mr. Garc ia-Rodriguez’s motion to proceed on appeal in forma pauperis

. Appellate Case: 22-8053 Document: 010110781783 Date Filed: 12/13/2022 Page: 7