UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. CANDELARIO MARTINEZ DURAN, Defendant

- Appellant. No. 21

- 4104 (D.C. No. 1:15

- CR

- 00027

- TS

- 2) (D. Utah)

_________________________________ ORDER AND JUDGMENT *

_________________ ________________ Before PHILLIPS , McHUGH , and ROSSMAN , Circuit Judges.

_________________________________ Candelario Martinez Duran appeals the district court’s denial of his motion for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). We affirm.
B ackground
Mr. Duran pleaded guilty to possessing methamphetamine with the intent to distribute it . H e received a sentence of 120 months ’ imprisonment . After serving more than six years of his sentence, he moved for compassionate release. He argued

* After examining the briefs and appellate record, this panel 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 wit hout oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 C ir. R. 32.1

. FILED United States Court of Appeals Tenth Circuit 

### September 23, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 12 that his age (at the time, 61) and several medical problems (hypertension, asthma, sleep apnea, prediabetes, and obesity) put him “at risk for subsequent COVID

- 19 exposure,” even though he had alrea dy contracted the virus and received a vaccine against it. R. vol. 1 at 30 (bold face omitted) . He also said that he had been rehabilitated, having “gained perspective into his thinking errors and behavior.” Id.
at 24. A court may reduce a sentence und er the relevant compassionate

- release provision if “ extraordinary and compelling reasons ” warrant the reduction ; the

“ reduction is consistent with applicable policy statements ” from the Sentencing Commission ; and after considering any applicable factors in 18 U.S.C. § 3553(a) , the
court determines that the particular circumstances of the case warrant a reduction. 1 § 3582(c)(1)(A)(i); see also United States v. Hald , 8 F.4th 932, 937

– 38 (10th Cir. 2021) , cert. denied , 142 S. Ct. 2742 (2022)

. The district court denied Mr. Duran’s motion for two alternative reasons. First, the court concluded that Mr. Duran did not show an extraordinary and compelling reason for a sentence reduction because he had been vaccinated against
COVID

- 19. Second, the cour t concluded that the relevant § 3553(a) factors showed

1 A district court has discretion to determine for itself whether extraordinary and compelling reasons exist. See United States v. Maumau , 993 F.3d 821, 832 (10th Cir. 2021). W hen ruling on a compassionate

- release motion filed by a defendant , such as Mr. Duran’s motion, a district court’s discretion is not currently limited by any Sentencing Commission policy statement. See United States v. Hald , 8 F.4th 932, 938 n.4 (10th Cir. 2021) , cert. denied , 142 S. Ct. 2742 (2022)

. Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 23 that Mr. Duran’s release would be inappropriate. Mr. Duran now argues that the district court erred in reaching both conclusions

. Discussion We review the denial of a compassionate

- release motion for an abuse of discretion. See United States v. Hemmelgarn , 15 F.4th 1027, 1031 (10th Cir. 2021)

. A district court abuses its discretion if it relies on an incorrect l egal conclusion or a clearly erroneous factual find ing

. I d. 1. Extraordinary and compelling reasons for a reduced sentence. We start with Mr. Duran’s challenge to the district court’s conclusion that he did not show an extraordinary and compelling reason for a reduced sentence. 2 The
court acknowledge d Mr. Duran’s argument that his age and medical conditions increased his risk of severe complications or death from COVID

- 19. It then recognized, however, that several courts have decid ed that a vaccinated defendant could not show an extraordinary and com pelling reason for early release “based on
COVID

- 19 concerns.” R. vol. 1 at 103 (internal quotation marks omitted). The district court agreed with those decisions, and it therefore concluded that Mr. Duran did not show an extraordinary and compelling reason for a shorter sentence. Mr. Duran argues that the court abused its discretion by failing to consider his personal risks and instead applying a categorical rule : tha t vaccination precludes the

2 The parties dispute whether Mr. Duran preserved this challenge in the district court. Resolving this dispute would not affect the outcome of this appeal, so we will assume the argument is preserved. Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 34 showing of an extraordinary and compelling reason for a reduced sentence related to
COVID

- 19

. Moreover, Mr. Duran says, the authority the court cited for this categorical rule is outdated because it did not account f or the appe arance of new virus variants and the reduced efficacy of vaccines over time. We see no abuse of discretion. The court expressly considered Mr. Duran’s personal risks. O ne significant factor affecting his risk of harm from COVID

- 19 , however, is his havi ng received a vaccine against it . And although Mr. Duran faults the district court for relying on decisions from an earlier stage of the pandemic, decisions issued after the district court’s ruling continue to hold that vaccination will generally prevent a showing of an extraordinary and compelling reason for release related to the pandemic. See , e.g. , United States v. Lemons , 15 F.4th 747, 751 (6th Cir. 2021) (agreeing “ that a defendant ’ s incarceration during the COVID

- 19 pandemic

— when the defendant has access to the COVID

- 19 vaccine

— does not present an ‘ extraordinary and compelling reason ’ warranting a sentence reduction ”)

. To be sure, courts have recognized that a defendant “ who can show that he is unable to receive or benefit from a vaccine still may ” qualify for compassionate release. United States v. Broadfield , 5 F.4th 801, 803 (7th Cir. 2021)

. Mr. Duran , though, did not show t hat his personal circumstances prevented him from benefi ting from the vaccine he received

. True, he claim ed that his vaccination did not eliminate all risk from COVID

- 19 , saying, for example , that he “can continue to face threats from COVID

- 19 despite already contracting it and [having] been given a vaccine. Many variants are making their way throughout the country.” R . vol. 1 at 30; Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 45 see also id. at 23

– 24 (asserting that “given the variant strains, and despite vaccination, his compromised health could still put him at risk”); id. at 25 ( asserting that “ the threat of variants and subsequent exposure still exist, given th e conditions in prison ” and that “[e] ven with vaccination, risks of infection still remain”). But hi s general, conclusory references to risks presented by virus variant s do not amount to a plausible claim that he di d not benefit from his vaccine. And so the district court did not abuse its discretion when it concluded that he failed to show an extraordinary or compelling circumstance for a reduced sentence. 2. The district court’s consideration of the § 3553(a) fact ors. Even if Mr. Duran could show an extraordinary and compelling reason for a reduced sentence, the district court concluded, the relevant § 3553(a) factors showed that a reduction was not appropriate. The court specifically cited the seriousness of
Mr. Duran’s offense, his criminal history, the need to deter Mr. Duran and others, and the need to protect the public. The court also commended Mr. Duran’s rehabilitation efforts. Mr. Duran contends that the court abused its discretion by “considering the § 3553(a) factors only as they related to [his] original sentencing.” Aplt. Opening Br. at 22 (underlin e omitted)

. Again we see no abuse of discretion. For starters, we note that the record refutes the premise that the court considered the § 3553(a) factor s “only as they related to Mr. Duran’s original sentencing,” id. (underlin e omitted) , for t he court expressly cited Mr. Duran’s rehabilitation efforts. Mr. Duran is correct, however, when he says that the court did not mention in its § 3553(a) discussion the facts Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 56 offered to show an extraordinary and compelling reason for a shorter sentence

— Mr. Duran’s age and medical problems against the backdrop of the pandemic . And as he says, “those facts are relevant to the § 3553(a) analysis. ” Hald , 8 F.4th at 947

. But when we read the court’s order in the context of the record and the parties’ arguments , we have no reason to think it ignored those facts when it considered the relevant § 3 5 53(a) factors. After all, the court expressly referenced those facts at least twice in its order. Besides , our cases do not require a court to mention every fact or argument bearing on its assessment of the § 3553(a) factors before denying compassionate release

. See Hald , 8 F.4th at 948

. T he “ judge need only set forth enough to satisfy the appellate court that she has considered the parties’ arguments and has a reasoned basis for exercising her own legal decisionmaking authority.” Id. (brackets and int ernal quotation marks omitted) ; see also Chavez

- Meza v. United
States , 138 S. Ct. 1959, 1965 (2018) (“ In some cases, it may be sufficient for purposes of appellate review that the judge simply relied upon the record, while making clear that he or she has c onsidered the parties ’ arguments and taken account of the § 3553(a) factors , among others .”). The district court did that here

. Conclusion The district court’s order is affirmed.

Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 6United States v. Duran , No. 21

- 4104
R OSSMAN , J., concurring.
I respectfully concur in the judgment but w ould affirm only because, under the standards governing our review, the district court did not abuse its discretion under
18 U.S.C. § 3553(a)

. I write separately to emphasize that resolving a motion under 18 U.S.C. § 3582(c)

— and particularly the inquiry in to whether extraordinary and compelling

reasons exist

— requires district court s to undertake “an individualized, case

- by

- case”
assessment. United States v. McGee , 992 F.3d 1035, 1047 (10th Cir. 2021)

. In my view, a district court does not satisfy its obligations under § 3582(c) by relying exclusively on a defendant’s vaccination status , or access to a vaccine, to determine what risks a defendant faces because of their pre - existing health conditions, and to decide whether those risks constitute extraordinary and compelling reasons warranting compassionate release. A categorical legal rule of this nature , adopted by
some courts but not ours , may be w hat the district court invoked here. See United States v. Hald , 8 F.4th 932, 936 n.2 (10 th Cir. 2021) (“As of oral argument in May 2021, all three men had either been vaccinated or been offered the opportunity to be vaccinated against COVID

- 19. Although we do not consider this development in resolving their appeals, there is certainly room fo r doubt that Defendants’ present circumstances would support a finding of ‘ extraordinary and compelling reasons. ’ ”). To be sure, whether a defendant has been vaccinated (and specifically against which variant) could inform the compassionate release calculus in the appropriate Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 72 case. But a blanket approach is at odds with the principles of individualized sentencing and is particularly ill

- suited to the ever - changing factual circumstances presented by the COVID

- 19 pandemic. Appellate Case: 21-4104 Document: 010110743728 Date Filed: 09/23/2022 Page: 8