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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Anwar Armando Barragan-Flores,

Defendant.

No. CR-16-00184-001-TUC-RM (LAB)

ORDER 

In the above-captioned case, Defendant Anwar Armando Barragan-Flores pled 

guilty to Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 1349, and 

Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A. (Doc. 263.) On September 

29, 2017, the Court sentenced Defendant to two consecutive terms of imprisonment—60 

months for the former offense and 24 months for the latter offense—followed by a fiveyear term of supervised release only for the former offense. (Id.) Additionally, the Court 

ordered that Defendant and his co-defendants jointly and severally pay $196,613.16 in 

restitution to the victims identified in this case. (Id. at 2.) Now pending before the Court 

is Defendant’s Amended Motion for Relief Under 18 U.S.C. § 3582(c)(1)(A)(i). (Doc. 

270.) Defendant asks that the Court reduce his custodial sentence to time served and 

convert the remainder of his 84-month term to supervised release,1 on the grounds that 

1 Defendant specifically asks that his custodial sentence be converted to supervised 

release “with home confinement [but] only if he were to remain in the United States 

(which he does not wish to do).” (Doc. 272 at 4; see also Doc. 270 at 20.) However, the 

Court is without authority to transfer Defendant to home confinement. United States v. 

Carlucci, 2020 WL 2527013, at *3 (D. Ariz. May 18, 2020), aff’d, 848 F. App’x 339 (9th 

Cir. 2021) (“While the CARES Act gives the BOP broad discretion to expand the use of 

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extraordinary and compelling reasons exist warranting this requested relief. (Id. at 2, 21; 

see also Doc. 272 at 4.) Namely, Defendant argues that his age and pre-existing medical 

conditions place him at a heightened risk of severe illness and/or death if he contracts 

COVID-19. (Doc. 270 at 5, 15–16.) The Government filed a Response in opposition to 

Defendant’s Motion (Doc. 271), and Defendant filed a Reply (Doc. 272). For the 

following reasons, the Court will deny Defendant’s Motion. 

I. Legal Standard

A court may reduce a term of imprisonment upon a defendant’s motion, after 

considering the factors set forth in 18 U.S.C. § 3553(a), if: (1) the defendant has fully 

exhausted his administrative remedies, (2) “extraordinary and compelling reasons” 

warrant the reduction, and (3) the reduction is consistent with applicable policy 

statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A). A 

defendant exhausts his administrative remedies by appealing a failure of the Bureau of 

Prisons to bring a motion on his behalf or by the lapse of 30 days from the receipt of a 

request for compassionate release by the warden of the defendant’s facility. Id. 

The Ninth Circuit recently held that the current version of U.S.S.G. § 1B1.13 is 

not an applicable policy statement for purposes of 18 U.S.C. § 3582(c)(1)(A) motions 

filed by a defendant. United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (per 

curiam). The Ninth Circuit explained that “[t]he Sentencing Commission’s statements in 

U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions 

filed by a defendant, but they are not binding.” Id. Therefore, the Court will rely on 

U.S.S.G. § 1B1.13 as persuasive but non-binding authority for purposes of evaluating the 

present Motion.

Both 18 U.S.C. § 3582(c)(1)(A) and U.S.S.G. § 1B1.13 direct courts to consider 

the sentencing factors set forth in 18 U.S.C. § 3553(a). U.S.S.G. § 1B1.13 further 

provides that a defendant’s sentence may be reduced only if it is determined that the 

home confinement during the COVID-19 pandemic, the Court lacks jurisdiction to order 

home detention under this provision.”). 

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defendant is “not a danger to the safety of any other person or to the community, as 

provided in 18 U.S.C. § 3142(g).” The application notes to U.S.S.G. § 1B1.13 describe 

specific circumstances that present “extraordinary and compelling reasons” for a sentence 

reduction, including when a defendant is “suffering from a serious physical or medical 

condition . . . that substantially diminishes the ability of the defendant to provide self-care 

within the environment of a correctional facility and from which he or she is not expected 

to recover.” U.S.S.G. § 1B1.13, cmt. n.1.

The factors to be considered in determining a sentence under 18 U.S.C. § 3553(a) 

include “the nature and circumstances of the offense and the history and characteristics of 

the defendant,” the sentencing range established by the Sentencing Guidelines, the need 

to avoid unwarranted sentence disparities among similarly situated defendants, and the 

need for the sentence imposed:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to 

provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a).

The factors to be considered in assessing dangerousness under 18 U.S.C. § 

3142(g) include the nature and circumstances of the defendant’s offense; the weight of 

the evidence against the defendant; the nature and seriousness of the danger to any person 

or the community posed by the defendant’s release, and the defendant’s history and 

characteristics, including “character, physical and mental condition, family ties, 

employment, financial resources, length of residence in the community, community ties, 

past conduct, history relating to drug or alcohol abuse,” and criminal history. 18 U.S.C. § 

3142(g).

II. Discussion 

On November 25, 2020, Defendant submitted a Compassionate Release/Reduction 

in Sentence request to the warden of the Giles W. Dalby Correctional Facility in Post, 

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Texas, where he is housed. (Docs. 267 at 1; Doc. 267-1 at 2–8.) On December 14, 2020, 

the warden denied Defendant’s request. (Doc. 267-1 at 8.) The parties do not dispute that 

Defendant satisfied the exhaustion requirement under 18 U.S.C. § 3582(c)(1)(A) prior to 

filing the instant Motion. (See Docs. 270 at 4 and 271 at 6.) The Court will thus accept 

that Defendant has exhausted his administrative remedies. See 18 U.S.C. § 3582(c)(1)(A). 

Although there is no dispute as to Defendant’s exhaustion efforts, the parties 

dispute whether Defendant’s early release is warranted under 18 U.S.C. § 

3582(c)(1)(A)(i). While Defendant argues that his vulnerability to COVID-19 due to his 

age, medical conditions, and incarceration constitute extraordinary and compelling 

reasons warranting his early release (Doc. 270 at 5, 15–16), the Government argues that 

Defendant’s present circumstances and the speculative possibility of contracting COVID19 are “far closer to ordinary than ‘extraordinary.’” (Doc. 271 at 8–10). Specifically, 

Defendant points to, among other health issues, his heart condition and being overweight, 

citing that both are CDC-identified conditions that make him more likely to get severely 

ill from a COVID-19 infection. (Doc. 270 at 15–16; Doc. 272 at 2.) Further, Defendant 

argues that, as an incarcerated person, “it is impossible . . . to follow the CDC’s 

recommendations to protect himself from exposure to [the virus].” (Doc. 270 at 16; see 

also Doc. 272 at 3.) In opposition, the Government argues that Defendant neither suffers 

from a terminal illness nor demonstrates that he suffers from a serious medical condition 

that substantially diminishes his ability to provide self-care within a correctional facility 

and from which he is not expected to recover. (Doc. 271 at 7, 9.) Moreover, the 

Government points to Defendant’s lack of evidence that he would be less likely to 

contract COVID-19 if released and the efforts of the Federal Bureau of Prisons (“BOP”) 

to protect the health of inmates and curtail the spread of the virus in its facilities, 

including its efforts in transferring vulnerable inmates to home confinement under its 

now broader statutory authority and in vaccinating its staff and inmates. (Id. at 3–5, 10.) 

Having considered Defendant’s age, medical conditions, the risk of a COVID-19 

infection while in BOP’s custody, and the guidance set forth in U.S.S.G. § 1B1.13, the 

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Court cannot conclude that the arguments presented by Defendant rise to the level of 

extraordinary and compelling circumstances meriting his early release. While the Court 

recognizes that some of Defendant’s health issues may increase his risk of suffering 

severe illness if he were to contract COVID-19,2 Defendant’s speculation that he may 

contract COVID-19 is insufficient to warrant compassionate release. See United States v. 

Pena, 2020 WL 7123025, at *3 (D. Ariz. Dec. 4, 2020) (recognizing “that the infection of 

any inmate is concerning,” but noting that “a general concern over contracting [COVID19] is insufficient legal cause for compassionate release”). Defendant discusses the risks 

that COVID-19 poses to vulnerable inmates under general conditions of confinement 

within detention facilities nationally (Doc. 270 at 10–14) and presents statistics regarding 

different prisons (Doc. 267 at 8–9), but he provides limited information about his 

conditions of confinement at the Giles W. Dalby Correctional Facility. Defendant alleges 

that other inmates “breath[e] around him,” that asymptomatic inmates go unnoticed due 

to a lack of “compound[-]wide testing,” and that common surfaces and other areas are 

cleaned only once a day, without disinfectants. (Id. at 7–8.) These allegations and 

Defendant’s discussion about general conditions of confinement inform the Court about 

nothing more than general threats to incarcerated persons and speculation as to whether

COVID-19 will spread at Defendant’s facility, whether he will contract it, and whether he 

will suffer a severe case. See United States v. Bolze, 2020 WL 6151561, at *11 (E.D. 

Tenn. Oct. 20, 2020), aff’d, 2021 WL 1978362 (6th Cir. Apr. 6, 2021) (finding that 

“speculation as to whether COVID-19 will spread through Defendant’s detention facility, 

whether Defendant will contract COVID-19, and whether he will develop serious 

complications, does not justify the extreme remedy of compassionate release,” even after 

considering Defendant’s argument “that some courts have granted compassionate release 

to inmates in facilities where there are no confirmed cases of COVID-19, perhaps in 

some circumstances due to a lack of adequate testing”) (internal quotations and 

alterations omitted). Further, Defendant’s most recent medical records reflect that he has 

2 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-withmedical-conditions.html. 

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received medical care, medication, and medical education from medical personnel at his 

facility (Doc. 267-1 at 11–16), providing no indication that Defendant will not receive 

adequate medical care while in custody. The Court finds that Defendant has not met his 

burden of showing extraordinary and compelling reasons warranting his early release. 

Even if Defendant had met his burden, the Court nonetheless finds that his early 

release is unwarranted because the factors set forth in 18 U.S.C. § 3553(a) and the danger 

Defendant poses to the public weigh against his release. The nature and circumstances of 

Defendant’s offenses were serious—via a conspiracy involving approximately 25 other 

individuals, Defendant led a scheme to defraud various financial institutions and to obtain 

money or other property from them by purchasing the stolen identities of numerous 

people, including their credit card account information, to manufacture counterfeit credit 

cards and use them to purchase items of value, all of which resulted in the loss of 

hundreds of thousands of dollars. (Doc. 112 at 9–13.) Moreover, Defendant did not just 

play a role in these offenses—he directed the activities of his co-conspirators in all 

respects of the scheme. (Id. at 10.) Particularly troubling is the fact that Defendant, 

shortly after his arrest and while in custody, instructed his wife to delete account 

information from his phone and laptop to destroy and conceal evidence of his offenses,

and he then followed up to confirm that the information had been deleted. (Id. at 13.)

Although Defendant admits that the nature and circumstances of his offenses 

qualified him for the sentence this Court imposed in 2017, he argues that “the sentencing 

purpose of just punishment does not warrant a sentence that includes exposure to a lifethreatening illness.” (Doc. 270 at 19–20.) Further, Defendant argues that the time he has 

already served is sufficient to satisfy the purposes of sentencing. (Id. at 19.) As noted 

above, Defendant’s custodial setting during this pandemic does not sufficiently justify his 

early release, see discussion supra p. 5–6, especially as progress within the federal prison 

system and in the community is being made with respect to COVID-19. Additionally, in 

imposing his sentence, the Court already departed—by 27 months—from the custodial 

sentence recommended by both U.S. Probation and the Government. (Doc. 208 at 17; 

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Doc. 207 at 13.) For these reasons, the Court finds that the remaining term of Defendant’s 

custodial sentence will continue to provide him with needed correctional treatment, 

remains suitably tailored to provide just punishment for his offenses, promotes respect for 

the law, and will deter him from future criminal conduct.

Finally, although the dangerousness finding does not bind this Court’s decision, 

see Aruda, 993 at 799, 802, the Court agrees with the Government’s assessment under 18 

U.S.C. § 3142(g) and cannot conclude that Defendant’s statements of remorse, efforts to 

educate and rehabilitate himself while incarcerated, plans to live in Mexico with his wife 

and help his mother, job offer, or any other grounds that he submits, mitigate his 

continuing danger to the public if released. (Doc. 267 at 9–11; Doc. 270 at 20–21; Doc. 

272 at 2–3.) The most significant factor leading the Court to conclude that Defendant 

remains a danger to the public is the nature and circumstances of his offenses. See

discussion supra p. 6. As previously mentioned, Defendant’s role in the conspiracy was 

not minor—he dealt with foreign suppliers, over the Internet, to obtain the stolen credit 

card data; directed the making of the counterfeit credit cards, including the details 

imprinted on them; and directed what merchandise should be purchased with the 

counterfeit credit cards, all to unlawfully enrich himself and his co-conspirators. 

(Doc.112 at 10–11; Doc. 213 at 5.) The Court notes that Defendant and his coconspirators committed the instant offenses while residing in Hermosillo, Sonora, Mexico 

(Doc. 112 at 9), a city that Defendant described as being “rampant” in the fraudulent 

credit card business (Doc. 213 at 8) and where he plans to live and work if released (Doc. 

267-1 at 22; Doc. 270 at 20–21; Doc. 270-5 at 2). The Court further notes that, during the 

time of the conspiracy, Defendant was employed (Doc. 213 at 12), and yet he nonetheless 

led this financial scheme. For these reasons, the Court is unconvinced that Defendant 

poses no financial danger to the public, especially now given the economic impacts 

caused by the pandemic. Unites States v. Fuller, 461 F. Supp. 3d 1046, 1054 (W.D. 

Wash. 2020) (noting, in a case where the defendant was also convicted of bank fraud and 

aggravated identity theft, that “[d]ue to the economic impacts of the COVID-19 

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pandemic, large segments of the public have recently suffered severe financial setbacks, 

unemployment, and other deprivations that may render them particularly vulnerable to 

those types of fraudulent schemes”).

Accordingly,

IT IS ORDERED that Defendant’s Amended Motion for Relief Under 18 U.S.C. 

§ 3582(c)(1)(A)(i) (Doc. 270) is denied.

Dated this 30th day of July, 2021.

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