United States v. Texeira-Nieves

United States Court of Appeals
For the First Circuit

No. 21-1034

UNITED STATES OF AMERICA,

Appellee,

v.

SAIEED JEAN TEXEIRA-NIEVES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges,
and McCafferty,* District Judge.

Eleonora C. Marranzini, Assistant Federal Public Defender,
with whom Eric Alexander Vos, Federal Public Defender, Franco L.
Pérez-Redondo, and Cherrelle Herbert, Assistant Federal Public
Defenders, were on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.

* Of the District of New Hampshire, sitting by designation.
January 12, 2022
 SELYA, Circuit Judge. Defendant-appellant Saieed Jean

Texeira-Nieves appeals the district court's denial of his motion

for compassionate release under 18 U.S.C. § 3582(c)(1)(A), as

amended by the First Step Act (FSA), Pub. L. No. 115-391, § 603(b),

132 Stat. 5194, 5239 (2018). Concluding, as we do, that the

district court's order was within the ambit of its discretion, we

affirm.

I

We briefly rehearse the relevant facts and travel of the

case. In 2018, Puerto Rico police arrested the defendant during

a traffic stop. He was driving a vehicle that contained a loaded

gun, thirty-one additional rounds of ammunition, and a satchel of

controlled substances. In an interview with federal agents, the

defendant admitted that he possessed the controlled substances

because he was in the business of selling drugs and that the

firearm was there for protection.

In due course, the defendant was charged in a five-count

federal indictment. He subsequently pleaded guilty to two counts:

possession of a firearm in furtherance of a drug trafficking crime,

see 18 U.S.C. § 924(c)(1)(A), and possession of controlled

substances with the intent to distribute them, see 21 U.S.C.

§ 841(a)(1), (b)(1)(D).1 The plea agreement confirmed that the

1The remaining counts were later dismissed as contemplated
in the plea agreement.

- 3 -
firearms charge carried with it a mandatory minimum prison term of

five years. With respect to the drug charge, the plea agreement

noted that the guideline sentencing range was zero to six months

of imprisonment. The probation department proceeded to prepare a

presentence investigation report (PSI Report) that reflected the

guideline calculations and ranges as adumbrated in the plea

agreement.

The district court convened the disposition hearing in

July of 2019. The court imposed a one day term of immurement on

the drug count and a consecutive sixty-month sentence on the

firearms count. The court also imposed concurrent terms of

supervised release. The defendant did not appeal.2 And according

to calculations by the Bureau of Prisons (BOP) — the defendant is

scheduled to be released on or about February 1, 2023.

The defendant, who is in his late twenties, has several

pre-existing medical conditions, including sickle cell disease.

His sickle cell anemia and complications stemming from that

disorder were documented in the PSI Report. In June of 2020 —

after the outbreak of the COVID-19 pandemic — the defendant

submitted alternative requests to the warden of the correctional

facility at which he was confined: he sought compassionate release

2Indeed, no appeal was permitted: the aggregate sentence
was within the parameters limned in the plea agreement and,
therefore, the waiver-of-appeal provision in the plea agreement
pretermitted the defendant's right to appeal.

- 4 -
pursuant to section 3582(c)(1)(A) or, in the alternative, transfer

to home confinement pursuant to the Coronavirus Aid, Relief, and

Economic Security (CARES) Act, Pub. L. 116-136, § 12003(b)(2), 134

Stat. 281, 516 (2020). His requests referred not only to his

sickle cell anemia, which — according to the Centers for Disease

Control and Prevention — presents a significantly increased risk

for severe illness from COVID-19, but also to other medical

conditions (such as thalassemia). The defendant did not receive

a response.

In October of 2020, the defendant moved for

compassionate release pursuant to the compassionate-release

statute. See 18 U.S.C. § 3582(c)(1)(A). In support, he argued

that his heightened risk of complications stemming from COVID-19,

given his pre-existing medical conditions, constituted an

"extraordinary and compelling" reason warranting a sentence

reduction. Id. § 3582(c)(1)(A)(i). He added that a reduction in

his sentence and conversion of his remaining time to supervised

release on home confinement would be a sufficient sentence in light

of the applicable sentencing factors. The defendant also described

the CARES Act and alleged certain considerations that might weigh

in favor of transferring him to home confinement pursuant to that

law. The government reasonably construed these arguments as an

alternative request for home confinement.

- 5 -
 In December of 2020, the district court denied the

defendant's motion on the papers. In its order, the court stated

that it adopted as its reasons for denial those provided by the

government in its opposition and sur-reply memoranda. The court

went on to state that the defendant had not demonstrated any

extraordinary or compelling reason to grant his request for

compassionate release, that the defendant was still a danger to

the community, and that the court did not have the authority to

order him to home confinement. This timely appeal followed.

II

Before granting a sentence reduction in response to a

prisoner-initiated motion for compassionate release alleging

extraordinary and compelling reasons, a district court must make

three findings. The court must find both that the defendant has

presented an "extraordinary and compelling" reason warranting a

sentence reduction, 18 U.S.C. § 3582(c)(1)(A)(i), and that "such

a reduction is consistent with applicable policy statements issued

by the Sentencing Commission," id. § 3582(c)(1)(A). Next, the

district court must consider any applicable section 3553(a)

factors, see id., and "determine whether, in its discretion, the

reduction . . . is warranted in whole or in part under the

particular circumstances of the case," United States v. Saccoccia,

10 F.4th 1, 4 (1st Cir. 2021) (alteration in original) (quoting

Dillon v. United States, 560 U.S. 817, 827 (2010)). The district

- 6 -
court is not required to address the section 3553(a) factors unless

it finds in favor of the movant on the other issues. Our review

is aided, though, when the district court takes the additional

step of making a section 3553(a) determination. See United States

v. Jones, 17 F.4th 371, 371 (2d Cir. 2021) (per curiam).

In this appeal, the defendant marshals three primary

arguments. First, he contends that the district court unduly

constrained the sweep of its discretion because it considered

itself bound by the current policy statement issued by the

Sentencing Commission. Second, he contends that the district court

abused its discretion by failing to offer an adequate explanation

for denying his motion. Third, he contends that the district court

erroneously concluded that it did not have the legal authority to

order him to serve the remainder of his sentence on home

confinement. After pausing to address a threshold issue, we

examine the defendant's trio of arguments one by one.

A

As an initial matter, the government asserts that the

defendant's compassionate-release motion was improperly before the

district court because the defendant failed to exhaust his

administrative remedies. Section 3582(c)(1)(A) provides in

relevant part that a defendant may move a district court for a

sentence reduction "after [he] has fully exhausted all

administrative rights to appeal a failure of the [BOP] to bring a

- 7 -
motion on [his] behalf or the lapse of 30 days from the receipt of

such a request by the warden of [his] facility, whichever is

earlier." 18 U.S.C. § 3582(c)(1)(A). Here, the government does

not dispute that the defendant asked the BOP for a sentence

reduction and waited the required amount of time before filing his

motion in the district court. Instead, the government alleges

that the facts and claims presented in the defendant's requests to

the warden differ in some respects from those limned in his

district court motion. These discrepancies, the government

suggests, require a finding that the defendant did not properly

exhaust his administrative remedies.

The question of whether and to what extent issue

exhaustion applies to judicial review of compassionate-release

motions is freighted with uncertainty — but we need not resolve

that question today. Cf. Privitera v. Curran (In re Curran), 855

F.3d 19, 22 (1st Cir. 2017) ("[C]ourts should not rush to decide

unsettled issues when the exigencies of a particular case do not

require such definitive measures."). Rather, we assume, favorably

to the defendant, that he has satisfied section 3582(c)(1)(A)'s

administrative exhaustion requirement.

To be sure, some district courts have questioned whether

the administrative exhaustion requirement for prisoner-initiated

compassionate-release motions is jurisdictional. See, e.g.,

United States v. Guzman Soto, No. 18-10086, 2020 WL 1905323, at *3

- 8 -
(D. Mass. Apr. 17, 2020). If the administrative exhaustion

requirement is of jurisdictional dimension, bypassing the issue

may not be an available option. See Royal Siam Corp. v. Chertoff,

484 F.3d 139, 143 (1st Cir. 2007) (explaining that "a federal court

ordinarily may not assume the existence of jurisdiction in order

to decide the merits of a case or controversy"). In our judgment,

however, this exhaustion requirement is not a jurisdictional

limitation: as several circuits previously have held, it is a

non-jurisdictional claim-processing rule. See United States v.

Saladino, 7 F.4th 120, 123 (2d Cir. 2021) (per curiam) (collecting

cases).

A rule is jurisdictional only if Congress has "clearly

state[d] that a prescription counts as jurisdictional," and "when

Congress does not rank a prescription as jurisdictional, courts

should treat the restriction as nonjurisdictional in character."

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1850 (2019) (quotations

and alterations omitted). The administrative exhaustion

requirement in section 3582(c)(1)(A) neither "speak[s] in

jurisdictional terms" nor "refer[s] in any way to the [court's]

jurisdiction." Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

394 (1982); see Fort Bend, 139 S. Ct. at 1846, 1850. Thus, there

is nothing resembling a jurisdictional defect here.

- 9 -
 B

On the merits, the defendant's lead argument relates to

the requirement of the compassionate-release statute that a

reduction be "consistent" with "applicable policy statements

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

Specifically, he argues that the district court mistakenly

considered itself bound by this requirement. He bases this claim

of error partially on the premise, not advanced below, that the

current policy statement is not an "applicable" policy statement

that should be regarded as binding a district court adjudicating

a prisoner-initiated motion for compassionate release.

We have encountered this argument before, see Saccoccia,

10 F.4th at 7-8, and briefly trace its contours. The FSA amended

the compassionate-release statute — which previously required such

motions to be initiated by the BOP — to allow for prisoner-

initiated motions. See Pub. L. No. 115-391, § 603(b), 132 Stat.

at 5239. The current policy statement (section 1B1.13) was crafted

by the Sentencing Commission before the passage of the FSA and

addresses the compassionate-release process as one requiring a

motion by the BOP. See USSG §1B1.13. The application notes to

the policy statement also provide categories of extraordinary and

compelling reasons, including a catch-all category of "[o]ther

[r]easons" "[a]s determined by the Director of the Bureau of

Prisons." Id. cmt. n.1(A)-(D) (delineating other categories

- 10 -
related to medical conditions, age, and family circumstances).

The Sentencing Commission has not had a quorum from the time the

FSA was passed and, therefore, has not been able to issue any

revised guidance. See Saccoccia, 10 F.4th at 7. For this reason,

the defendant says, the current policy statement is not an

"applicable" policy statement that should be construed to bind a

district court's consideration of a prisoner-initiated motion.

The overwhelming majority of courts of appeals have adopted this

view. See id. at 8 (collecting cases). But see United States v.

Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021) (determining that

current policy statement is still an "applicable policy statement"

for prisoner-initiated motions).

This issue — at least potentially — could have

significant ramifications in other cases. For example, if the

current policy statement does not apply, a district court is free

(within the usual constraints of statutory construction) to craft

its own definition of "extraordinary and compelling reasons." As

another example, if the policy statement does not apply, a district

court would not need to adhere to the policy statement's

requirement that the court may grant compassionate release based

on extraordinary and compelling reasons only if "the defendant is

not a danger to the safety of any other person or to the

- 11 -
community."3 USSG §1B1.13(1)(A), (2). With such ramifications in

mind, we previously have found it prudent to refrain from resolving

this issue when the circumstances of a particular case do not

demand such a resolution. See Saccoccia, 10 F.4th at 8.

We follow the same path today. The defendant's qualms

about the inapplicability of the policy statement were not raised

below and, in any event, this case does not require that we decide

the issue. Even if we assume (favorably to the defendant) that

the district court treated section 1B1.13 as mandatory and that,

in so doing, it committed error (or even plain error), the

defendant still would not prevail. We explain briefly.

A defendant who demonstrates both that extraordinary and

compelling reasons exist for a sentence reduction and that such a

reduction is consistent with the applicable policy statement must

clear yet another hurdle. He must persuade the district court

that the section 3553(a) factors weigh in favor of a sentence

reduction. See id. at 4 (explaining that court must consider

3The compassionate-release statute does not require a finding
that a defendant is not a danger to the community in order to grant
compassionate release based on an extraordinary and compelling
reason. See 18 U.S.C. § 3582(c)(1)(A)(i). But the statute does
require such a finding for compassionate release pursuant to
section 3582(c)(1)(A)(ii), which allows a district court to reduce
a sentence for some imprisoned persons at least seventy years of
age, who have served at least thirty years. See id.
§ 3582(c)(1)(A)(ii). This statutory provision expressly requires
a determination by the BOP that "the defendant is not a danger to
the safety of any other person or the community, as provided under
section 3142(g)." Id.

- 12 -
sentencing factors and determine whether reduction is "warranted

in whole or in part under the particular circumstances of the case"

(quoting Dillon, 560 U.S. at 827)). These issues need not be

considered in any particular order. See United States v. Jones,

980 F.3d 1098, 1116 (6th Cir. 2020) (Cook, J., concurring) ("No

feature of [section] 3582(c)(1)(A) precludes a court from tackling

the [section] 3553(a) factors first."). Thus, a district court's

decision to deny compassionate release may be affirmed solely on

the basis of its supportable determination that the section 3553(a)

factors weigh against the granting of such relief. See, e.g.,

Ward v. United States, 11 F.4th 354, 360 (5th Cir. 2021); United

States v. Ruffin, 978 F.3d 1000, 1008 (6th Cir. 2020); United

States v. Pawlowski, 967 F.3d 327, 330-31 (3d Cir. 2020); United

States v. Rodd, 966 F.3d 740, 747-48 (8th Cir. 2020). In other

words, a supportable determination that the balance of the section

3553(a) factors weighs against a sentence reduction constitutes an

independent reason to deny compassionate release. See United

States v. Canales-Ramos, 19 F.4th 561, 569 n.4 (1st Cir. 2021);

Saccoccia, 10 F.4th at 8; cf. United States v. Zayas-Ortiz, 808

F.3d 520, 523 (1st Cir. 2015) (noting that even when a defendant

is eligible for a section 3582(c) sentence reduction, a district

court may determine, based on the sentencing factors, that "a

reduction would be inappropriate" (quotations omitted)).

- 13 -
 This is such a case. The district court expressly found

that the defendant remained a threat to the community and cited to

section 3553(a). Its order also explicitly adopted "the reasons

indicated by the United States in its opposition and sur-reply."

These reasons included the government's position that the

sentencing factors disfavored a sentence reduction and outweighed

the defendant's medical concerns. Thus — assuming that the

district court did not abuse its discretion in calibrating the

section 3553(a) balance — there is no need for us to wade into the

debate over the applicability of the current policy statement.

C

This brings us to the district court's decision to deny

the defendant's motion based on the section 3553(a) factors. We

start with the elementary tenet that district courts possess

significant discretion in evaluating motions for compassionate

release. See Saccoccia, 10 F.4th at 4-5. Our review is solely

for abuse of that discretion. See Canales-Ramos, 19 F.4th at 564;

Saccoccia, 10 F.4th at 4-5. Under this respectful standard, "we

review the district court's answers to legal questions de novo,

factual findings for clear error, and judgment calls with some

deference to the district court's exercise of its discretion."

Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 92 (1st Cir. 2020).

As relevant here, the compassionate-release statute

provides that a district court "may" reduce a sentence "after

- 14 -
considering the factors set forth in section 3553(a) to the extent

that they are applicable." See 18 U.S.C. § 3582(c)(1)(A). A

district court's balancing of the section 3553(a) factors

represents a quintessential judgment call and, therefore, falls

into the last of the three buckets described in Akebia. See United

States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014). This

makes perfect sense: the district court is "in a superior position

to find facts and judge their import under [section] 3553(a) in

the individual case." Gall v. United States, 552 U.S. 38, 51

(2007) (quotations omitted).

To permit appellate review, we must be able to discern

to some extent a district court's reasoning. This does not mean,

however, that the district court must spell out the reasons for

denying a compassionate-release motion in granular detail. "The

appropriateness of brevity or length, conciseness or detail, when

to write, what to say, depends upon circumstances." Rita v. United

States, 551 U.S. 338, 356 (2007) (describing judicial opinion-

writing generally). A short, concise statement usually will

suffice. Cf. id. at 359 (concluding in the initial-sentencing

context that a district court need not provide an extensive

explanation for its sentencing decision when a "matter is

conceptually simple" and the "record makes clear that [it]

considered the evidence and arguments"). In some cases, the

district court may simply state that it has considered the parties'

- 15 -
arguments and then rely on the record in making its determination.

"The law leaves much, in this respect, to the judge's own

professional judgment." Id.

In reviewing the imposition of a sentence, we consider

the entire context and record. See Chavez-Meza v. United States,

138 S. Ct. 1959, 1967 (2018). So, too, we consider the entire

context and record in determining whether a district court's denial

of a compassionate-release motion allows for adequate appellate

review. See Jones, 980 F.3d at 1112; cf. Chavez-Meza, 138 S. Ct.

at 1967 (reviewing entire record in assessing sufficiency of

district court's explanation for sentence-modification decision).

With this preface, we turn to a consideration of whether

the district court abused its discretion in weighing the section

3553(a) factors. Section 3553(a) is "a tapestry of factors,

through which runs the thread of an overarching principle." United

States v. Rodríguez, 527 F.3d 221, 228 (1st Cir. 2008). This

overarching principle directs courts to ensure that a sentence is

"sufficient, but not greater than necessary." 18 U.S.C. § 3553(a).

Even though this principle was fashioned for use in the initial-

sentencing context, its spirit must guide a court tasked with

considering the sentencing factors in light of any form of

sentence-reduction motion (including a motion for compassionate

release).

- 16 -
 In effect, section 3553(a) "invite[s] the district court

to consider, broadly," United States v. Politano, 522 F.3d 69, 74

(1st Cir. 2008), information relevant to the "nature and

circumstances of the offense and the history and characteristics

of the defendant," 18 U.S.C. § 3553(a). It simultaneously invites

the court to consider matters like "the need for the sentence

imposed" to "reflect the seriousness of the offense," "to afford

adequate deterrence to criminal conduct," and "to protect the

public from further crimes of the defendant." Id.

Here, the context and record show that the district court

gave due consideration to the section 3553(a) factors. It

concluded — by adopting the government's arguments and reasons for

denial of the defendant's compassionate-release motion — that the

section 3553(a) factors did not weigh in favor of a sentence

reduction. The reasoning for this conclusion can easily be

discerned from the record, especially the parties' briefing and

the court's order. See United States v. Jiménez-Beltre, 440 F.3d

514, 519 (1st Cir. 2006) (en banc), abrogated on other grounds by

Rita, 551 U.S. 338 (explaining that a court's reasoning for its

sentence can "often be inferred by comparing what was argued by

the parties or contained in the pre-sentence report with what the

judge did").

The district court cited to section 3553(a) immediately

following its finding that the defendant posed a danger to the

- 17 -
community. This signifies that the court considered the offenses

of conviction and the defendant's history and characteristics — as

outlined in the government's briefing and chronicled in the PSI

Report — and that these data points informed the district court's

consideration of the sentencing factors. And we are confident

that the district court also weighed its finding that the defendant

continued to pose a danger to the community as part of its section

3553(a) analysis. There would have been no reason for the district

court to have cited those factors after its dangerousness finding

unless the finding had relevance to that analysis. The weight

that we accord this reference seems especially appropriate given

that the district court apparently adopted the government's view

that it need not reach the sentencing factors if it considered

dangerousness an absolute bar to relief under the policy

statement.4

An additional factor helps to tilt the balance. The

defendant's compassionate-release motion was decided by the same

judge who originally had sentenced him. When imposing a sentence,

a judge necessarily acquires an intimate knowledge of the offense

of conviction and the history and characteristics of the offender.

See United States v. Aponte-Guzmán, 696 F.3d 157, 161 (1st Cir.

4 We have no occasion to pass upon the propriety of relying
on a finding of dangerousness alone as an independently sufficient
reason to deny compassionate release pursuant to section
3582(c)(1)(A)(i).

- 18 -
2012) (affording "considerable measure of respect" to denial of

sentence-reduction motion by judge who imposed original sentence

and, thus, had "superior coign of vantage" and "hands-on

familiarity with the case"). This reservoir of knowledge does not

vanish into thin air when the judge later considers the offender's

motion for compassionate release.

Given the facts and circumstances of this case, we cannot

say that the district court abused its discretion in denying

compassionate release based on the section 3553(a) factors. As

the government argued below, the offenses were serious: the

defendant — an admitted drug-peddler who carried a firearm to

protect himself and his inventory — was arrested driving a car

while in possession of a firearm loaded with eleven rounds of .40

caliber ammunition, several additional rounds of ammunition, and

a satchel of drugs. What is more, the judge — after considering

the defendant's history and characteristics — determined that the

defendant continued to pose a danger to the community, and that

finding was not clearly erroneous.

The defendant counters that there are other reasons the

sentencing factors should weigh in favor of a sentence reduction.

He points to the effect of the pandemic on the conditions of

incarceration, which could not have been predicted at the time of

sentencing. He also points to aspects of his history, health, and

characteristics that, in his view, throw shade on the district

- 19 -
court's finding that he continues to pose a danger to the

community. But the defendant's arguments, along with the relevant

medical records and the PSI Report, were before the district court.

And where, as here, the district court weighs the relevant

considerations and makes a reasonable judgment call, deference is

due to its determination. See Saccoccia, 10 F.4th at 9 (noting

that "[m]erely raising potentially mitigating factors does not

guarantee a favorable decision" (alteration in original) (quoting

United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir.

2010))); see also United States v. Rivera-Morales, 961 F.3d 1, 21

(1st Cir. 2020) (explaining that the court of appeals "must accord

significant deference to the [district] court's informed

determination that the section 3553(a) factors justify the

sentence imposed").

D

In a related vein, the defendant contends that the

district court's sparse reasoning is itself an abuse of discretion.

The fact that we have been able to review the district court's

decision, see supra Part II(C), is a good indication that the

district court's order is not so inscrutable as to constitute an

abuse of discretion.

It is true, of course, that the district court's order

contains only minimal reasoning. A fuller explication of the

court's thinking would have been helpful. See Chavez-Meza, 138 S.

- 20 -
Ct. at 1967 ("Providing a more detailed statement of reasons often

serves a salutary purpose separate and apart from facilitating

appellate review." (quotations omitted)). In the circumstances of

this case, however, we deem the explanation adequate.

Critically, the district court's reasoning is

illuminated by what the order says, by the briefing, and by the

record as a whole. Though the district court's minimalistic

approach of merely adopting the government's reasons for denying

compassionate release could conceivably be inadequate in some

cases, cf. id. at 1967 (suggesting — with respect to motion for

sentence reduction — that "district court's use of a bare bones

form order," though sufficient based on circumstances at hand,

might "be inadequate" in other cases), we think that such an

approach was within the ambit of the court's discretion in this

case. As a denial of a sentence reduction by the same judge who

shortly before had imposed the defendant's sentence, the

consideration of the sentencing factors involved passing on much

the same information as at the initial sentencing. Any new

considerations brought forward by the defendant were relatively

uncomplicated matters. Thus, we reject the defendant's contention

that the explanation was so sparse as to constitute an abuse of

discretion.

- 21 -
 E

Finally, the defendant challenges the district court's

conclusion that it lacked the authority to order home confinement.

Because this challenge hinges on a question of law, our review is

de novo. See Akebia Therapeutics, 976 F.3d at 92.

The compassionate-release provision contemplates any

form of sentence reduction. See 18 U.S.C. § 3582(c)(1)(A)

(providing generally that district court "may reduce the term of

imprisonment"); see also Saccoccia, 10 F.4th at 4, n.2. In

addition, the statute specifically provides that a district court

may "impose a term of probation or supervised release with or

without conditions that does not exceed the unserved portion of

the original term of imprisonment." 18 U.S.C. § 3582(c)(1)(A).

Despite this wide sweep, though, the statute does not specifically

grant a district court authority to change the site of a

defendant's confinement. The statute's silence on this point

comports with the BOP's "plenary control . . . over the place of

the prisoner's imprisonment."5 Tapia v. United States, 564 U.S.

319, 331 (2011) (quotations omitted).

For the sake of completeness, we note that the CARES Act,
5

passed in the wake of the COVID-19 pandemic, extended the period
of home confinement that the BOP is statutorily authorized to order
pursuant to section 3624(c)(2). See Pub. L. 116-136,
§ 12003(b)(2), 134 Stat. at 516.

- 22 -
 We "must presume that a legislature says in a statute

what it means and means in a statute what it says." Ruiz v. Bally

Total Fitness Holding Corp., 496 F.3d 1, 8 (1st Cir. 2007) (quoting

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002)). "Unless

the statute means something other than what it says" — and we do

not think that it does — "the absence of" any reference to

modifying a defendant's location of confinement denotes that

section 3582(c)(1)(A) does not afford a district court the

authority to order a defendant to serve his unmodified sentence at

home.

In an effort to make an end run around the statutory

scheme, the defendant advances a different reading of the district

court's ruling. To lay the groundwork for this alternate reading,

the defendant notes that the district court could have reduced his

sentence to a term of supervised release and ordered home

confinement as a condition of supervised release. Building on

this foundation, he says that the district court's ruling

incorrectly assumed that the court did not have these powers. In

other words, he suggests that the district court must have thought

that it could not craft any sort of sentence modification

incorporating home confinement even if it granted the

compassionate-release motion.

This reading of the district court's ruling elevates

hope over reason. In the proceedings below, both parties

- 23 -
acknowledged that the district court could reduce a sentence to

time served, impose a term of supervised release equal to the

unserved portion of the term, and order home confinement as a

condition of supervised release. The district court flatly

rejected this alternative: it concluded that no sentence reduction

(let alone a reduction to time served) was warranted. Viewed

against this backdrop, the purport of the district court's

statement is clear as day: it believed that the duration of the

defendant's sentence should not be modified and that the court

lacked the authority to change his place of confinement.

The defendant has a fallback position. He argues that

the district court could have recommended that the BOP place him

in home confinement. But this argument was not advanced in the

court below, and a party who has not asked for specific relief in

the district court cannot secure that relief on appeal. See United

States v. Adams, 971 F.3d 22, 37 (1st Cir. 2020) (applying "general

rule that a party cannot ask the court of appeals for relief that

he did not seek in the district court"); Beaulieu v. IRS, 865 F.2d

1351, 1352 (1st Cir. 1989) ("It is a party's first obligation to

seek any relief that might fairly have been thought available in

the district court before seeking it on appeal."). Consequently,

we deem the argument waived.

- 24 -
 III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

— Concurring Opinion Follows —

- 25 -
 MCCAFFERTY, District Judge, concurring. I agree with

the majority that the district court's decision can be affirmed

based on the 18 U.S.C. § 3553(a) factors. I write separately to

express dismay that the government –- both before the district

court and on appeal -- repeatedly attempted to call into question

Texeira-Nieves's well-documented sickle cell anemia, with no

apparent factual basis to do so. The district court denied release

in a short order citing "the reasons indicated" by the government.

The government did not deserve such wholesale deference.

The record was undisputed that Texeira-Nieves suffered

from sickle cell anemia.6 First, Texeira-Nieves's Presentence

Investigation Report ("PSR") included the names of two doctors who

had treated him for sickle cell anemia. One of the doctors

certified that Texeira-Nieves had been her patient for several

years, and records indicated that prior to his arrest, Texeira-

Nieves saw her once a month for care related to his sickle cell

disease. Further, the PSR stated that in the two years prior to

his arrest, Texeira-Nieves had been hospitalized twice for sickle

cell anemia complications and had required blood transfusions and

6 Sickle cell anemia is the most severe form of sickle cell
disease, an umbrella term for a group of inherited red blood cell
disorders. Sickle Cell Disease (SCD), Centers for Disease Control
and Prevention, https://www.cdc.gov/ncbddd/sicklecell/facts.html
(last visited January 4, 2022).

- 26 -
intravenous medication. It also indicated that he had been

hospitalized more than 25 times since 2014, though it did not state

specifically whether those hospitalizations were related to sickle

cell disease.

In addition, Texeira-Nieves attached medical records

from 2018 to his October 2020 compassionate release motion.

These records stated that he had sickle cell anemia, and indicated

that he was "stable on treatment" yet "chronically ill." He also

attached a declaration from a doctor who had not evaluated him

specifically, but stated that, in general, preliminary data

revealed that the COVID-19 mortality rate for those with sickle

cell disease was twice that of the general population.

Despite this evidence, the government asserted in its

opposition brief before the district court that the defendant

"ha[d] not provided sufficient documentation or evidence that the

asserted medical condition is currently active and seriously

affecting his health," nor any evidence that his "ailments still

exist today." Given the chronic nature of sickle cell anemia (and,

if there were any doubt, defendant's medical records indicated he

was "chronically ill"), the government's assertions were spurious.

In response to the government's assertions, Texeira-

Nieves attached additional medical records to his reply. These

records indicated that while incarcerated in October 2020,

Texeira-Nieves "was found to be in sickle cell crisis" and was

- 27 -
admitted to an outside hospital.7 They also stated that while

incarcerated he continued to take medication to treat his sickle

cell disease. In addition to his sickle cell symptoms, the records

indicated that Texeira-Nieves needed hip surgery, experienced

"debilitating pain," and suffered from various additional medical

conditions.

Yet in the government's surreply, it again attempted to

cast doubt on Texeira-Nieves's sickle cell anemia. The government

acknowledged that Texeira-Nieves had provided "some medical

notes," but argued that the diagnoses in the medical records were

based only on Texeira-Nieves's own reports, and that "there [were]

no independent medical records corroborating Defendant's diagnoses

and/or that he currently suffers [from] those medical conditions

(except for hip pain)." The government's repeated assertion that

Texeira-Nieves did not suffer from sickle cell anemia was entirely

unfounded.

Even on appeal, the government has not relented. In its

brief to this court, it asserts:

As the government argued, and the district court agreed,
Texeira failed to adequately support that he had a sickle
cell disease condition. He initially provided old medical

7 "Sickle cell crisis" refers to the periodic episodes of pain
which are a major symptom of sickle cell anemia. Severe sickle
cell crises require hospitalization. Sickle cell anemia, The Mayo
Clinic, https://www.mayoclinic.org/diseases-conditions/sickle-
cell-anemia/symptoms-causes/syc-20355876 (last visited January 4,
2022).

- 28 -
 notes, which these [sic] did not clearly indicate a clear
diagnosis of sickle cell disease and reflected generally good
health. (ASA 48). In a subsequent reply, Texeira provided
additional medical records. (ASA 132). But the records again
did not reflect a clear diagnosis of sickle cell disease.
(Id.).

I am at a loss to understand how the government can argue in good

faith that a PSR containing uncontroverted evidence of Texeira-

Nieves's sickle cell anemia, combined with records from medical

providers he saw while incarcerated that confirm the same, is not

sufficient documentation of his chronic illness.

The district judge's order denying Texeira-Nieves's

compassionate release motion stated that the motion was "DENIED,

for the reasons indicated by the United States in its opposition

and sur-reply." The order went on to state that "Defendant

Texeira-Nieves ha[d] not shown any extraordinary or compelling

reason to grant his request for compassionate release."

If this court were to reach the issue of extraordinary

and compelling reasons, I would hold that the district court's

finding that Texeira-Nieves did not present extraordinary and

compelling reasons was premised on a clearly erroneous factual

finding. The district court based its denial of release on the

government's argument. The government's argument that Texeira-

Nieves had not shown he suffered from sickle cell anemia is not

only clearly erroneous based on reviewing the entire record, but

it lacks any supporting evidence whatsoever. See Pullman-Standard

- 29 -
v. Swift, 456 U.S. 273, 284 n.14 (1982) (citation omitted) ("A

finding is 'clearly erroneous' when although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed."). However, since the extraordinary and compelling

reasons issue need not be reached in this case, I concur with the

majority.

- 30 -