UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. NELSON CARRALER O-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 c ountry, defendant, Nelson CarraleroEscobar, moved to reduce his prison se ntence under 18 U.S.C. § 3582(c)(1)(A), colloquially called the compassionate-release pr ovision. 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 Co mm’n 2018). Everyone now agrees that the policy statement did not control the cour t’s decision. But the court’s error in

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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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

### June 25, 2021 Christopher M. Wolpert Clerk of Court2 relying on the policy statement does not wa rrant reversal under plain-error review because the court gave a separate, valid re ason for its ruling. And the court did not otherwise abuse its discretion when it deni ed defendant’s motion. So we affirm. I. Background Over the past twenty-five years, defendant has b een convicted of several crimes arising out of ten prior cases. Hi s prosecution in this case began when police officers, investigating a property crime, f ound a pistol in defenda nt’s pocket. Based on those events, he pleaded guilty to bei ng a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He asked the c ourt to release him until sentencing, citing serious health problems. The court denied release. At the March 2020 sentencing hearing, defense counsel agai n highlighted defendant’s de teriorating health. Noting defendant’s criminal history, the court c onsidered 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 (inc luding his appearance at sentencing in a wheelchair), it ultimately im posed 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 conc luded that these factors made him unlikely to survive if he contracted COVID-19. His failing hea lth, 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 extraordin ary and compelling reasons wa rrant a reduced sentence. Id. at 1042. The second step requires the court to decide whether a reduction is consistent with any applicable Se ntencing Commission policy statements. Id. And the third step requires the c ourt, after considering any a pplicable sentencing factors in 18 U.S.C. § 3553(a), to determine in it s discretion whether a reduction authorized under the first two steps is warranted under the circumstan ces of the case. Id. Although the court agreed that defe ndant 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 statem ent at § 1B1.13 to his motion. Second, he argues that the court abused its discreti on when it found that he remained a danger to the community and that a re duced sentence was not warranted. A. Standards of Review We review de novo the scope of th e 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 Ci r. 2013) (reviewing a deci sion 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 prom ulgate general policy statements about the appropriate use of sentence-modi fication provisions, including § 3582(c). 28 U.S. C. § 994(a)(2)(C). The Commission’s policy statement addressing sentence reducti ons under § 3582(c)(1)(A) is § 1B1.13. That policy statement’s most recent amendment took e ffect November 1, 2018. Reflecting the November 2018 version of § 3582(c)(1)(A), the current policy st atement purports to apply only to motions made by “the Direct or 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, § 60 3, 132 Stat. 5194, 5239. This mismatch, in turn, raised a ques tion: 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 cour t seem to have at least assumed that § 1B1.13 applied to defendant’s co mpassionate-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 the5 district court did not explicitly cite § 1B 1.13 in denying defendant’s motion, its finding that defendant “stil l poses a significant danger to the safety of the community,” R. vol. 1 at 63, tracks a provi sion in the policy stat ement allowing relief only if the court finds that th e “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 preser ve an issue for appeal, a pa rty 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—defenda nt did not alert the district court to the issue he now raises. And so we agree with the government that he is en titled at most to plain-error review on this issue. 1 Under the plain-error standard, we will revers e if “(1) there is error; (2) that is plain; (3) that affects substa ntial rights, or in other word s, 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 argum ent 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 de ny defendant’s motion. But gi ven the parties’ positions in the district court and the language in the c ourt’s order, we conc lude that defendant has sufficiently shown that the court unde rstood 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 moti on. That is so because the district court expressly foun d that the § 3553(a) factors did not support defendant’s request, a finding that warra nted denying the motion i ndependent of any policy

statement. See id. at 1042–43. Contrary to defendant’s argument, the e rror in this case is not analogous to a district court’s miscalculating the Senten cing Guidelines range before imposing a sentence. When a court miscalculates a Gu idelines 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 diffe rent without the error. Molina-Martinez v. United
States , 136 S. Ct. 1338, 1345 (2016). But that is because “the Gu idelines are not only the starting point for most federal senten cing proceedings but al so the lodestar.”

2 Although the district court ruled before we issued our opinion in McGee , we determine if its error is plain by examin ing 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 syst emic 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. Apar t 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 suppor t a reduced sentence. So the court’s error in relying on the polic y statement did not affect de fendant’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) fact ors 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 st ate “the reasons for its imposition of the particular se ntence.” “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). An d so we have “no basis” to require a district court “to address ev ery nonfrivolous, material argum ent” a defendant presents in a § 3582(c)(1)(A) proceeding. Id. (internal quotation mark s omitted) (discussing an identical consideration re quirement in § 3582(c)(2)).8 Defendant argues that the district court abused its discretion when it found that he still posed a danger to th e 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 recidivi sm and mitigated any danger he might pose to the commun ity.” 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 st ood 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 fir earm, 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 thr eat,” 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 cour t did not abuse its discretion. III. Conclusion We affirm the district court’s order.

Entered for the Court

Jerome A. Holmes Circuit Judge