UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

NELSON CARRALERO-ESCOBAR, 

 Defendant - Appellant. 

No. 20-2093 

(D.C. No. 1:19-CR-00404-JCH-1) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, MATHESON, and McHUGH, Circuit Judges. 

_________________________________ 

After COVID-19 spread across the country, defendant, Nelson CarraleroEscobar, moved to reduce his prison sentence under 18 U.S.C. § 3582(c)(1)(A), 

colloquially called the compassionate-release provision. The district court denied the 

motion, relying in part on the policy statement at United States Sentencing 

Guidelines Manual § 1B1.13 (U.S. Sent’g Comm’n 2018). Everyone now agrees that 

the policy statement did not control the court’s decision. But the court’s error in 

* 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 without 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 This order and judgment is not binding precedent, 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 Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 25, 2021

Christopher M. Wolpert 

Clerk of Court
2 

relying on the policy statement does not warrant reversal under plain-error review 

because the court gave a separate, valid reason for its ruling. And the court did not 

otherwise abuse its discretion when it denied defendant’s motion. So we affirm. 

I. Background 

Over the past twenty-five years, defendant has been convicted of several 

crimes arising out of ten prior cases. His prosecution in this case began when police 

officers, investigating a property crime, found a pistol in defendant’s pocket. Based 

on those events, he pleaded guilty to being a felon in possession of a firearm. See 

18 U.S.C. § 922(g)(1). He asked the court to release him until sentencing, citing 

serious health problems. The court denied release. At the March 2020 sentencing 

hearing, defense counsel again highlighted defendant’s deteriorating health. Noting 

defendant’s criminal history, the court considered a sentence at the high end of the 

advisory Sentencing Guidelines range of fifty-seven to seventy-one months. But 

after mentioning defendant’s health (including his appearance at sentencing in a 

wheelchair), it ultimately imposed fifty-seven months. 

Just over two months later, in May 2020, defendant moved to reduce his 

sentence under § 3582(c)(1)(A)(i). The motion focused on his age (at the time, 

sixty-five years old) and poor health, including his severe chronic obstructive 

pulmonary disease. He concluded that these factors made him unlikely to survive if 

he contracted COVID-19. His failing health, he argued, also prevented him from 

posing any risk to the community. 
3 

A three-step analysis governs motions under § 3582(c)(1)(A)(i). United States 

v. McGee, 992 F.3d 1035, 1042–43 (10th Cir. 2021). The first step requires the court 

to decide whether extraordinary and compelling reasons warrant a reduced sentence. 

Id. at 1042. The second step requires the court to decide whether a reduction is 

consistent with any applicable Sentencing Commission policy statements. Id. And 

the third step requires the court, after considering any applicable sentencing factors 

in 18 U.S.C. § 3553(a), to determine in its discretion whether a reduction authorized 

under the first two steps is warranted under the circumstances of the case. Id. 

Although the court agreed that defendant identified extraordinary and 

compelling reasons for his request, it denied his motion after finding that he “still 

poses a significant danger to the safety of the community and the § 3553(a) factors 

do not support his requested reduction in sentence.” R. vol. 1 at 63. 

II. Discussion 

Defendant raises two arguments on appeal. First, he contends that the district 

court erred when it applied the policy statement at § 1B1.13 to his motion. Second, 

he argues that the court abused its discretion when it found that he remained a danger 

to the community and that a reduced sentence was not warranted. 

A. Standards of Review 

We review de novo the scope of the district court’s authority under 

§ 3582(c)(1)(A). McGee, 992 F.3d at 1041. And we review its decision to deny a 

motion under that section for an abuse of discretion. See United States v. Battle, 

706 F.3d 1313, 1317 (10th Cir. 2013) (reviewing a decision under § 3582(c)(2)). 
4 

“A district court abuses its discretion when it relies on an incorrect conclusion of law 

or a clearly erroneous finding of fact.” Id.

B. The Policy Statement at § 1B1.13 

Congress has directed the Sentencing Commission to promulgate general 

policy statements about the appropriate use of sentence-modification provisions, 

including § 3582(c). 28 U.S.C. § 994(a)(2)(C). The Commission’s policy statement 

addressing sentence reductions under § 3582(c)(1)(A) is § 1B1.13. That policy 

statement’s most recent amendment took effect November 1, 2018. Reflecting the 

November 2018 version of § 3582(c)(1)(A), the current policy statement purports to 

apply only to motions made by “the Director of the Bureau of Prisons.” USSG 

§ 1B1.13. A mismatch emerged between § 1B1.13 and § 3582(c)(1)(A) when, in 

December 2018, Congress amended § 3582(c)(1)(A) to allow courts to act on 

motions not only from the Director of the Bureau of Prisons but also from 

defendants. See First Step Act of 2018, Pub. L. No. 115-391, § 603, 132 Stat. 5194, 

5239. This mismatch, in turn, raised a question: Does § 1B1.13, in its current form, 

apply to a defendant’s motion under § 3582(c)(1)(A)? We recently held that it does 

not. McGee, 992 F.3d at 1050. 

The district-court proceedings in this case occurred before we issued our 

opinion in McGee. The parties and the district court seem to have at least assumed 

that § 1B1.13 applied to defendant’s compassionate-release motion. Defendant’s 

motion argued that his release would be consistent with § 1B1.13. And the 

government affirmatively argued that § 1B1.13 applied to the motion. Although the 
5 

district court did not explicitly cite § 1B1.13 in denying defendant’s motion, its 

finding that defendant “still poses a significant danger to the safety of the 

community,” R. vol. 1 at 63, tracks a provision in the policy statement allowing relief 

only if the court finds that the “defendant is not a danger to the safety of any other 

person or to the community,” USSG § 1B1.13(2). 

The parties disagree about how defendant’s position in the district court should 

affect our review. Defendant argues that he preserved his appellate argument—that 

the policy statement does not apply to his motion—by moving for a reduced 

sentence. Not so. To preserve an issue for appeal, a party must alert the district 

court to that issue and seek a ruling. United States v. Ansberry, 976 F.3d 1108, 1124 

(10th Cir. 2020). By merely requesting compassionate release—in a motion that 

itself applied § 1B1.13—defendant did not alert the district court to the issue he now 

raises. And so we agree with the government that he is entitled at most to plain-error 

review on this issue.1

Under the plain-error standard, we will reverse if “(1) there is error; (2) that is 

plain; (3) that affects substantial rights, or in other words, affects the outcome of the 

proceeding; and (4) substantially affects the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir. 

2013). 

1

 Because we conclude that reversal is not warranted under plain-error review, 

we need not address the government’s argument that defendant invited the district 

court’s error and therefore waived all review of this issue. 

 
6 

Defendant has met the first two plain-error requirements. We recognize, as the 

government points out, that the district court did not expressly cite the policy 

statement at § 1B1.13 to deny defendant’s motion. But given the parties’ positions in 

the district court and the language in the court’s order, we conclude that defendant 

has sufficiently shown that the court understood the policy statement to govern its 

ruling. And under McGee, the error in that understanding is plain.2

 992 F.3d 

at 1050. 

But defendant cannot meet the third plain-error requirement, because the 

district court’s error did not affect the outcome of his motion. That is so because the 

district court expressly found that the § 3553(a) factors did not support defendant’s 

request, a finding that warranted denying the motion independent of any policy 

statement. See id. at 1042–43. 

Contrary to defendant’s argument, the error in this case is not analogous to a 

district court’s miscalculating the Sentencing Guidelines range before imposing a 

sentence. When a court miscalculates a Guidelines range to be higher than it should 

be, that error “most often will” suffice to show a reasonable probability that the 

outcome would have been different without the error. Molina-Martinez v. United 

States, 136 S. Ct. 1338, 1345 (2016). But that is because “the Guidelines are not 

only the starting point for most federal sentencing proceedings but also the lodestar.” 

2

 Although the district court ruled before we issued our opinion in McGee, we 

determine if its error is plain by examining the law at the time of the appeal, 

Henderson v. United States, 568 U.S. 266, 279 (2013). 
7 

Id. at 1346. “In the usual case, then, the systemic function of the selected Guidelines 

range will affect the sentence.” Id. In this case, by contrast, the district court’s error 

did not taint its ultimate ruling. Apart from its erroneous reliance on the policy 

statement, the court articulated a proper, independent reason to deny defendant’s 

motion—the § 3553(a) factors did not support a reduced sentence. So the court’s 

error in relying on the policy statement did not affect defendant’s substantial rights, 

and the error does not warrant reversal. 

B. The District Court’s Exercise of its Discretion 

Before reducing a sentence under § 3582(c)(1)(A), a court must consider any 

applicable § 3553(a) factors and determine in its discretion whether the 

circumstances warrant a reduction. McGee, 992 F.3d at 1042–43. Although 

§ 3582(c)(1)(A) requires a court to consider any applicable § 3553(a) factors, it does 

not incorporate § 3553(c)’s requirement that a court state “the reasons for its 

imposition of the particular sentence.” “This omission is significant because we have 

previously interpreted the meaning of both subsections, holding that § 3553(a) 

requires consideration of its factors, while § 3553(c) requires an explanation of the 

sentence.” United States v. Piper, 839 F.3d 1261, 1267 (10th Cir. 2016) (brackets 

and internal quotation marks omitted). And so we have “no basis” to require a 

district court “to address every nonfrivolous, material argument” a defendant presents 

in a § 3582(c)(1)(A) proceeding. Id. (internal quotation marks omitted) (discussing 

an identical consideration requirement in § 3582(c)(2)). 
8 

Defendant argues that the district court abused its discretion when it found that 

he still posed a danger to the community with his failing health. In his view, the 

court gave too much weight to his criminal history and “failed to appreciate how [his] 

physical and medical limitations lessened the risk of recidivism and mitigated any 

danger he might pose to the community.” Aplt. Opening Br. at 15. 

The record refutes defendant’s argument. Before denying defendant’s motion, 

the district court “looked at” the § 3553(a) factors, and one stood out—defendant’s 

history and characteristics. R. vol. 4 at 44. The court recognized defendant’s health 

problems, recalling that they existed at the original sentencing hearing. Noting that 

he had pleaded guilty to possessing a firearm, however, the court found that he 

“continues to pose a high risk of danger to the community.” Id. Although defendant 

insists that he “is far too old and far too sick to be a threat,” Aplt. Opening Br. at 9, 

the district court’s finding is sound: even a sick and feeble person can pose a serious 

risk with a firearm. The court did not abuse its discretion. 

III. Conclusion 

We affirm the district court’s order. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge