United States Court of Appeals

For the First Circuit

No. 22-1007

UNITED STATES OF AMERICA,

Appellee,

v.

ALFREDO GONZALEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Kayatta, Lynch, and Howard,

Circuit Judges.

K. Hayne Barnwell for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom 

Jane E. Young, United States Attorney, and Alexander S. Chen, 

Assistant United States Attorney, were on brief, for appellee.

May 25, 2023

 
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HOWARD, Circuit Judge. This appeal requires us to 

elaborate on our recent decision requiring a "holistic approach" 

when considering compassionate release motions that are not 

governed by the U.S. Sentencing Commission's policy statement in 

U.S.S.G. §1B1.13. United States v. Trenkler, 47 F.4th 42, 50 (1st 

Cir. 2022). Defendant-appellant Alfredo Gonzalez contends that 

the district court, without having had the benefit of our decision 

in Trenkler, ran afoul of our guidance therein in evaluating his 

compassionate release motion. He consequently urges us to remand 

for resentencing. Because we determine that no such error 

occurred, we affirm the judgment of the district court. In doing 

so, we also reaffirm that even a holistic review of a compassionate 

release motion under Trenkler should be guided by the defendant's 

presentation of his own arguments.

I.

We previously summarized the factual background of 

Gonzalez's case in his post-conviction appeal, see United States

v. Gonzalez, 949 F.3d 30, 32-34 (1st Cir. 2020), and at this 

juncture we recite only the procedural background that postdates 

that decision. After we affirmed his conviction and sentence, 

Gonzalez moved in early 2021 for a reduction of his prison sentence

under 18 U.S.C. § 3582(c)(1)(A), as revised by the First Step Act

("FSA"). See Pub. L. 115-391, § 603(b), 132 Stat. 5194, 5239 

(2018). The Act went into effect approximately six months after 
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the district court sentenced Gonzalez to a 240-month term of 

imprisonment and, as described in more detail below, "created a 

new regime in which -- for the first time -- prisoners [could]

seek compassionate release even when the [Bureau of Prisons

('BOP')] does not deign to act on their behalf." United States v. 

Ruvalcaba, 26 F.4th 14, 22 (1st Cir. 2022).1 

Crucially for the purposes of this appeal, Gonzalez's 

motion to the district court presented two alternative arguments

in favor of compassionate release. He urged the district court 

either to release him from prison immediately on account of medical 

preconditions "that increase his risk for serious illness or death 

from COVID-19," or -- "if the court denies [his] request to be 

released immediately" -- to reduce his sentence on account of "a 

gross sentencing disparity." The latter argument was, in turn, 

undergirded by two points. Gonzalez first noted that his November 

2017 conviction and the district court's subsequent imposition of 

his sentence in June 2018 occurred during a nineteenth-month window 

between (1) the end, in May 2017, of a previously more lenient

Justice Department policy about federal prosecutors' use of the 

sentence-enhancement regime of 21 U.S.C. § 851 and (2) the 

1 As noted by the Second Circuit, "compassionate release is 

a misnomer" for the sentence-reduction provision of 

§ 3582(c)(1)(A). United States v. Brooker, 976 F.3d 228, 237 (2d 

Cir. 2020). We nevertheless opt to use "compassionate release" as 

a shorthand for the provision, in line with common practice.
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subsequent passage of the FSA in December 2018. That timing meant 

that Gonzalez was subjected to a lengthy 20-year mandatory minimum 

sentence, to which -- as the government conceded -- he in all 

likelihood would not have been subjected had he been sentenced 

outside of this window. He also objected in relevant part that he

received a "substantially higher" sentence than his codefendants, 

a disparity that he contended was driven at least in part by the

government's filing of an § 851 information.

The government responded -- incorrectly, as it would 

turn out -- that the district court was bound to follow the policy 

statement of U.S.S.G. §1B1.13 in assessing Gonzalez's motion. It 

consequently argued that the district court should not grant the 

motion under the framework of that provision because, despite being

admittedly "eligible for compassionate release based on his 

medical condition," Gonzalez was "a danger to the community." See

U.S.S.G. §1B1.13(2) (providing that a district court cannot reduce 

a prison term under that provision if the defendant is "a danger 

to the safety of any other person or to the community"). The 

government also asserted with reference to the factors of 18 U.S.C. 

§ 3553(a) that "the seriousness of the defendant's criminal 

conduct and the danger he poses to the public militate against a 

sentence reduction." After the court ordered the government to 

file supplemental briefing addressing Gonzalez's sentencing 

disparity arguments, the government additionally contended in 
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relevant part that granting compassionate release based on a 

sentencing disparity caused by the FSA would "undermin[e] [the 

FSA's] non-retroactivity provisions." See FSA § 401(c), 132 Stat. 

at 5221. 

The district court ultimately granted Gonzalez's request 

for a sentence reduction, but not immediate release. The court 

accurately presaged our subsequent ruling in Ruvalcaba, holding

that U.S.S.G. §1B1.13 did not apply to Gonzalez's compassionate 

release motion. Having freed itself from the strictures of that 

provision, the court wrote that it was persuaded that the sentence 

it had imposed was "disproportionately harsh" with reference both

to the nineteen-month window described above and to Gonzalez's

codefendants, even though "Gonzalez committed a serious crime." 

It concluded that resentencing was thus warranted. Nevertheless, 

the court noted in a footnote prior to its sentence-reduction 

discussion that it was "not persuaded that Gonzalez's health status 

qualifies as an extraordinary and compelling circumstance that 

justifies his immediate release," both because of (1) the BOP's 

mitigation measures and the availability of COVID-19 vaccines and 

(2) the fact that Gonzalez "committed a serious crime that warrants 

a lengthy prison sentence."

The district court proceeded to reduce Gonzalez's 

sentence from 240 to 180 months. This appeal followed.
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II.

"We review a district court's denial or grant of a 

compassionate release motion for abuse of discretion." Trenkler, 

47 F.4th at 46. "Questions of law are reviewed de novo and findings 

of fact are reviewed for clear error." Id.

III.

As alluded to above, Gonzalez's primary argument on 

appeal is that the district court used the "singular[,] reasonby-reason analysis" against which we warned in Trenkler by

"fail[ing] to assess the COVID-19 factors [that Gonzalez raised] 

along with the gross sentencing disparity" when it evaluated his 

compassionate release motion. Gonzalez's argument is that

Trenkler worked a sea change in our law. It did not -- nor did it 

purport to do so.

A.

On a preliminary note, our framing of Gonzalez's 

arguments is informed by this appeal's unique procedural history. 

Gonzalez originally did not predicate his appellate arguments on 

Trenkler, a decision that postdated the filing of his opening brief 

by several weeks. Rather, he advanced several unavailing arguments 

that we describe in more detail below. We then ordered the parties 

to address the impact of Trenkler on Gonzalez's case in their 

subsequent briefs, and Gonzalez duly focused on Trenkler in his 

reply brief and at oral argument. We now do so as well, recognizing 
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that complying with our court's express order to present arguments 

on a certain issue calls for applying the "exception [to the usual 

rule of reply-brief waivers] where 'justice so requires' and where 

the opposing party would not be unfairly prejudiced by our 

considering the issue." United States v. Fields, 823 F.3d 20, 32 

n.8 (1st Cir. 2016) (quoting United States v. Torres-Rosario, 658 

F.3d 110, 116 (1st Cir. 2011)).

We nevertheless note that we are unpersuaded by 

Gonzalez's original arguments. He first claimed that the district 

court clearly erred in its analysis of the risks of a COVID-19 

reinfection and, relatedly, of the BOP's mitigation measures, 

including administering the COVID-19 vaccine. But, as Gonzalez 

recognizes, the clear-error standard is a high hurdle to clear: 

"[c]lear error 'exists only when we are left with the definite and 

firm conviction that a mistake has been committed.'" United States

v. Centeno-González, 989 F.3d 36, 50 (1st Cir. 2021) (quoting 

United States v. Hicks, 575 F.3d 130, 138 (1st Cir. 2009)). And, 

despite Gonzalez's attempts to distinguish his case from our 

decision in United States v. Canales-Ramos, that case is 

instructive for the proposition that we should be especially loath 

to disrupt a district court's "judgment call[s]" concerning a 

defendant's health status in the context of a compassionate release 

motion. 19 F.4th 561, 567 (1st Cir. 2021); see id. ("The district 

court made a reasonable risk assessment and determined that the 
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current state of the defendant's health and the care that he was 

receiving weighed against a finding [of] an extraordinary and 

compelling reason. . . . '[N]ot every complex of health concerns 

is sufficient to warrant compassionate release[.]'" (quoting 

United States v. Saccoccia, 10 F.4th 1, 5 (1st Cir. 2021))). 

Mindful of those considerations, we discern no clear 

error in the district court's analysis of the COVID-19 risks. 

Gonzalez's counsel acknowledged to the district court that, even 

with the evidence he presented, "we just don't really fully have 

our arms around what the risk of reinfection is," and that the 

evidence at the time speculatively suggested "real concerns" of 

reinfection. And the district court explicitly said it was willing 

to reconsider its assumption that "reinfection is relatively rare" 

if Gonzalez presented it with "better evidence." Far from being 

left with a "firm conviction that a mistake has been committed" or 

a sense that the district court made an "[un]reasonable risk 

assessment," we glean from this record that the court came to a 

defensible, if debatable, conclusion based on the as-yet-emergent 

body of evidence before it. Cf. United States v. Correa-Osorio, 

784 F.3d 11, 24 (1st Cir. 2015) ("[A] party cannot show clear error 

if there are competing views of the evidence."). 

Gonzalez's arguments about the district court's reliance 

on BOP mitigation efforts and vaccination are no more persuasive 

on the same logic. The relevant footnote in the district court's 
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opinion suggests that the court did not, as Gonzalez claims, 

"find[] that BOP mitigation efforts were adequate to protect [him] 

from harm," nor "assume[] that vaccination would eliminate 

Gonzalez's risks from another COVID-19 infection." Rather, the 

district court noted that these mitigation efforts only 

cumulatively reinforced its conclusion that the COVID-19 concerns 

did not rise to the level of an extraordinary and compelling 

circumstance.

Gonzalez's contention that the district court erred by 

"failing to consider [Gonzalez's COVID-19-related arguments] under 

[18 U.S.C.] § 3553(a)" is also without merit. The district court 

was under no obligation to repeat these arguments in its § 3553(a) 

analysis. "Our case law is pellucid that a district court, when 

conducting a section 3553(a) analysis, need not tick off each and 

every factor in a mechanical sequence. Instead, we presume --

absent some contrary indication -- that a sentencing court 

considered all the mitigating factors and that those not 

specifically mentioned were simply unpersuasive." Saccoccia, 10 

F.4th at 10 (citation omitted). In addition, to the extent that 

Gonzalez takes issue with the district court for seemingly not 

factoring in the COVID-19 arguments in its sentence reduction 

analysis, we cannot fault the court for following Gonzalez's own 

lead, as further discussed below, see infra, section III.C. 
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Finally, Gonzalez originally urged us to remand his case 

so that "the District Court [could] consider the latest 

developments concerning high reinfection rates of vaccinated 

people, waning immunity, and decreased vaccine effectiveness 

against the Omicron subvariants." It is true that our court in 

Trenkler "permitted [the district court] to consider any factual 

developments that ha[d] transpired since it[]" issued its original 

opinion. 47 F.4th at 50. But we see no reason to do so here, 

where -- unlike in Trenkler -- we discern no potential error in 

the district court's analysis that would warrant remanding in the 

first place. 

B.

A district court exercising its powers to reduce a 

sentence of imprisonment under § 3582(c)(1)(A) ordinarily must 

ensure that "such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission." However, as we 

explained in Ruvalcaba, no such statement currently exists with 

respect to prisoner-initiated motions: U.S.S.G. §1B1.13 "was last 

modified in November of 2018 -- before the FSA amended the 

compassionate-release statute to allow for prisoner-initiated 

motions . . . [-- and] [t]he text of the current policy statement 

makes pellucid that it is 'applicable' only to motions for 

compassionate release commenced by the BOP." 26 F.4th at 20; see 

also U.S.S.G. §1B1.3 ("Upon motion of the Director of the Bureau 
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of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce 

a term of imprisonment . . . ." (emphasis added)). "The policy 

statement is therefore not 'applicable,' on a literal reading, to 

motions brought by prisoners; it applies only to motions brought 

by the BOP." Ruvalcaba, 26 F.4th at 20.2

In the absence of an applicable policy statement, we 

determined in Ruvalcaba that a district court "may consider any 

complex of circumstances raised by a defendant as forming an 

extraordinary and compelling reason warranting relief," id. at 28,

with the exception of rehabilitation alone, since Congress 

explicitly mandated that such a rationale "shall not be considered 

an extraordinary and compelling reason."3 28 U.S.C. § 994(t). We 

2 We note that this window may well be closing, as the 

Sentencing Commission voted to amend U.S.S.G. §1B1.13 to reflect 

the FSA's changes to 18 U.S.C. § 3582(c)(1)(A). See Sentencing 

Guidelines for United States Courts, 88 Fed. Reg. 28254, 28254-59

(May 3, 2023); see also Ruvalcaba, 26 F.4th at 23-24 ("If and when 

the Sentencing Commission issues updated guidance applicable to 

prisoner-initiated motions for sentence reductions consistent with 

both section 3582(c)(1)(A) and the statutory mandate under [28 

U.S.C. § 994(t)], district courts addressing such motions not only 

will be bound by the statutory criteria but also will be required 

to ensure that their determinations of extraordinary and 

compelling reasons are consistent with that guidance.").

3 We have also clarified that "the mere fact of a 'pre-First 

Step Act mandatory life sentence imposed under [21 U.S.C.] 

§ 841(b)(1)(A) cannot, standing alone, serve as the basis for a 

sentence reduction under [section] 3582(c)(1)(A)(i),'" Ruvalcaba, 

26 F.4th at 28 (second alteration in original) (quoting United 

States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021)), and that 

"correct application of the 'extraordinary and compelling'

standard for compassionate release naturally precludes classic 
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then expounded upon the "any complex of circumstances" approach in 

Trenkler, reasoning that "district courts should be mindful of the 

holistic context of a defendant's individual case when deciding 

whether the defendant's circumstances satisfy the 'extraordinary 

and compelling' standard." 47 F.4th at 49-50. We remanded in 

that case because the "analytical path" that the district court 

took in analyzing the arguments Trenkler put forward for

compassionate release -- and, consequently, in ultimately granting 

his motion -- was "susceptible to multiple interpretations," 

although it was at least evident that the court found the

undisputed sentencing error that marred Trenkler's case persuasive

in that regard. Id. at 46, 50. We noted that,

[o]n one hand, we can appreciate the 

possibility that the district court discarded 

Trenkler's other proposed reasons [apart from 

the sentencing error] one by one but, with the 

holistic context of those reasons in mind, 

deemed the circumstances surrounding the

sentencing error alone to meet the 

"extraordinary and compelling" criteria. But 

we can also see how discarding all proposed 

reasons except one could represent a singular 

reason-by-reason analysis, not a review of the 

individual circumstances overall. In the end, 

our careful review of the district court's 

thorough (but pre-Ruvalcaba) decision leaves 

us uncertain as to whether it took a holistic 

approach when reviewing Trenkler's proposed 

reasons and ultimately concluding that the 

sentencing error constituted a sufficiently 

extraordinary and compelling reason to grant 

relief.

post-conviction arguments, without more, from carrying such 

motions to success," Trenkler, 47 F.4th at 48.
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Id. at 50. 

C.

As noted, Gonzalez urges us to follow in Trenkler's 

footsteps and remand because, according to him, "the [d]istrict 

[c]ourt plainly took a 'reason-by-reason' approach[,] rather than 

a holistic appraisal with respect to [his] sentencing disparity 

claim and his claim that he was particularly vulnerable to COVID19." He faults the district court for "fail[ing] to assess the 

COVID-19 factors along with the gross sentencing disparity 

suffered by [him], which is [ostensibly] what the holistic analysis 

requires." 

We find no fault in the district court's reasoning under 

Ruvalcaba and Trenkler. Our court's instruction in Ruvalcaba

explicitly stated that a district court can consider "any complex 

of circumstances raised by a defendant." 26 F.4th at 28 (emphasis 

added). This focus on the defendant's presentation of his own 

arguments comports with the notion that "in the first instance and 

on appeal . . . , 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." United States v. Sineneng-Smith, 

140 S. Ct. 1575, 1579 (2020) (alteration in original) (quoting 

Greenlaw v. United States, 554 U.S. 237, 243 (2008)).
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To that end, Gonzalez made it clear to the district court 

no less than eight times over the course of his briefing and during 

the hearing on his motion for compassionate release that he meant 

to advance two alternative arguments, one for immediate release 

predicated on COVID-19 concerns and another for a reduced sentence 

based on the sentencing disparity.4 In that respect, his 

presentation of the arguments crucially differs from Trenkler's, 

who by our court's count proffered five combined reasons in support 

of his motion for compassionate release. Trenkler, 47 F.4th at 

4 As his counsel pointed out at oral argument before us, 

Gonzalez did at one point in his brief to the district court state 

that his "medical vulnerability to COVID-19 and gross sentencing 

disparity, either separately or in combination, constitute 

extraordinary and compelling reasons to reduce his sentence." 

However, when weighed against his multiple and consistent 

statements to the district court -- both in his briefing and in 

the subsequent hearing -- that the two arguments were meant to be 

proffered as separate alternatives, we do not accept the contention 

that this statement alone could have alerted the district court to 

an argument incorporating COVID-19 concerns as part of the 

sentence-reduction analysis, or vice-versa. Cf. United States v. 

Nieves-Meléndez, 58 F.4th 569, 579 (1st Cir. 2023) ("'[A] litigant 

has an obligation to spell out its arguments squarely and 

distinctly' before the district court." (quoting United States v. 

Diggins, 36 F.4th 302, 319 (1st Cir. 2022))).

Moreover, while Gonzalez's counsel did also state at the 

hearing that the district court could factor the sentencingdisparity issues as an "[18 U.S.C.] § 3553(a) factor[]" if it 

accepted the immediate release argument, we note that an argument 

for including a factor in the district court's § 3553(a) analysis 

differs from an argument that the same factor should constitute an 

"extraordinary and compelling reason[]" for compassionate release 

under § 3582(c)(1)(A). See Saccoccia, 10 F.4th at 4 

(characterizing a district court's "extraordinary and compelling" 

and § 3553(a) analyses as separate findings under 

§ 3582(c)(1)(A)).
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45. Ruvalcaba also offered to the district court multiple 

arguments in favor of reducing his sentence, without seeking 

different remedies based on the separate arguments, thereby 

similarly differentiating his motion from Gonzalez's bifurcated 

argument. See Memorandum in Support of Motion to Reduce Sentence 

at 31, United States v. Ruvalcaba, No. 05-cr-10037 (D. Mass. Mar. 

23, 2020), ECF No. 510; Supplemental Motion to Reduce Sentence at 

5, United States v. Ruvalcaba, No. 05-cr-10037 (D. Mass. Apr. 21, 

2020), ECF No. 512.

Given these discrepancies, we conclude from the record 

before us that it was eminently reasonable for the district court 

to follow Gonzalez's lead in analyzing the two factors separately, 

especially since Gonzalez sought different forms of relief under 

each argument. Cf. United States v. Brooker, 976 F.3d 228, 237 

(2d Cir. 2020) (noting that, under § 3582(c)(1)(A), "[a] district 

court could, for instance, reduce but not eliminate a defendant's 

prison sentence, or end the term of imprisonment but impose a 

significant term of probation or supervised release in its place"). 

We moreover take this opportunity to clarify that, while courts 

should still follow the "any complex of circumstances" approach 

under Ruvalcaba for as long as no applicable policy statement 

applies to prisoner-initiated motions for compassionate release, 

this approach should be shaped by the arguments advanced by 

defendants. After all, "as a general rule, '[o]ur adversary system 
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is designed around the premise that the parties know what is best 

for them, and are responsible for advancing the facts and arguments 

entitling them to relief.'" Greenlaw, 554 U.S. at 244 (quoting 

Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., 

concurring in part and concurring in judgment)).

IV.

For the foregoing reasons, the judgment of the district 

court is affirmed.