Case: 21-50310 Document: 00516233950 Page: 1 Date Filed: 03/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 10, 2022
No. 21-50310
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gabriel Perez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:07-CR-119-4
Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit
Judges.
Priscilla R. Owen, Chief Judge:
Gabriel Perez was convicted of conspiracy to possess with intent to
distribute more than five kilograms of cocaine and fifty grams or more of
crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).
He was sentenced to 240 months of imprisonment, to be followed by ten
years of supervised release. He appeals the district court’s denial of his
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No. 21-50310
motion for a reduced sentence under § 404 of the First Step Act of 20181 on
the ground that the district court did not adequately explain the reasons for
its decision. We order a limited remand to the district court.
I
The First Step Act “gives courts discretion to apply the Fair
Sentencing Act of 2010 to reduce a sentence for certain covered offenses.”2
Perez would be eligible for a discretionary reduction under the First Step Act
if: “(1) he committed a ‘covered offense’; (2) his sentence was not
previously imposed or reduced pursuant to the Fair Sentencing Act; and
(3) he did not previously file a motion under the First Step Act that was
denied on the merits.”3 Perez filed a motion seeking relief under the Act in
which he established his eligibility and cited his good conduct in prison. He
asserted that the 18 U.S.C. § 3553(a) factors warranted a sentence
reduction.4 He also argued in support of his motion that many inmates in his
unit had COVID-19, some had died of that virus, and that he had increased
susceptibility to COVID-19. The Government’s response focused almost
exclusively on the COVID-19 aspect of Perez’s argument. The Government
construed Perez’s motion as one for compassionate release under 18 U.S.C.
§ 3582. It argued that relief was not warranted because Perez had failed to
demonstrate that he was no longer a danger to the community and because
the § 3553(a) factors did not warrant a reduction. Perez asserted in his reply
that he sought relief only under the First Step Act and reiterated his
1
Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222.
2
United States v. Abdul-Ali, 19 F.4th 835, 837 (5th Cir. 2021).
3
Id. (quoting United States v. Batiste, 980 F.3d 466, 470 (5th Cir. 2020)).
4
See 18 U.S.C. § 3553(a) (listing various factors a district court may take into
consideration when sentencing).
2
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argument that the § 3553(a) factors warranted a reduction. He eschewed any
reliance on compassionate release as a basis for his motion.
The Government concedes that Perez is eligible for relief. Its only
argument before the district court relating to the First Step Act was that the
court should exercise its discretion by denying relief. The Government did,
however, make numerous arguments relating to compassionate relief under
§ 3582 including that relief would not be warranted under the applicable
policy statement for compassionate release motions, § 1B1.13.
The district court’s order—in its entirety—noted that the parties’
filings were before it and stated “[a]fter considering the applicable factors
provided in §404 [sic] and 18 U.S.C. § 3553(a) and the applicable policy
statements issued by the Sentencing Commission,” Perez’s motion is denied
“on its merits.” The Government contends that because of the relative
simplicity of this case, the district court adequately explained the basis for its
decision.5 It correctly notes that the court was not required to extensively
explain the reasons behind its decision or go into detail with regard to each
§ 3553(a) factor.6 Indeed, this court has never held that the district court
must address the § 3553(a) factors when ruling on First Step Act motions.7
Perez counters that although the district court was not required to
provide extensive detail, it was required to provide a specific factual
5
See Chavez-Meza v. United States., ___U.S.___, 138 S. Ct. 1959, 1967-68 (2018)
(“[G]iven the simplicity of this case . . . the judge’s explanation (minimal as it was) fell
within the scope of the lawful professional judgment that the law confers upon the
sentencing judge.”) (emphasis omitted) (citing Rita v. United States, 551 U.S. 338, 356
(2007)).
6
See United States v. Batiste, 980 F.3d 466, 479 (5th Cir. 2020); Abdul-Ali, 19 F.4th
at 838 & n.3; see also Chavez-Meza, 138 S. Ct. at 1967-68.
7
Abdul-Ali, 19 F.4th at 838 & n.3.
3
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explanation for its denial.8 Further, he argues that the basis of the district
court’s decision is unclear because of the reference to “applicable policy
statements.” Perez correctly points out that there are no applicable policy
statements with regard to his First Step Act motion, while there are
applicable statements for compassionate release motions.9 Perez argues that
the district court may have applied the wrong law in denying his motion.
II
We review the district court’s denial of Perez’s First Step Act motion
for abuse of discretion.10 Perez must show that the district court “made an
error of law or based its decision on a ‘clearly erroneous assessment of the
evidence.’”11
Although district courts need not always provide a detailed
explanation of why they have denied a motion, sometimes “review is
possible . . . only with a statement of reasons for the denial.”12 In Batiste and
Abdul-Ali, we held that review was possible in First Step Act cases when the
8
See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Jackson, 783 F.
App’x 438, 439 (5th Cir. 2019) (per curiam) (unpublished) (remanding for further
explanation regarding the district court’s “reasons for the denial”).
9
See U.S. Sent’g Guidelines Manual § 1B1.13.
10
Abdul-Ali, 19 F.4th at 837.
11
Id. (quoting United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011)).
12
See United States v. Burns, 853 F. App’x 993, 994 (5th Cir. 2021) (per curiam)
(unpublished) (“Without a hearing, the district court denied the motion in an order
without giving any reasons. Though district courts need not always explain why they have
denied a motion, meaningful review is possible here only with a statement of reasons for
the denial.”); United States v. Batiste, 980 F.3d 466, 479 (5th Cir. 2020) (“[I]t is not clear
whether the district court considered and implicitly rejected Batiste’s request for a
reduction of his term of supervised release, or merely overlooked it. Accordingly, we will
remand that issue to the district court for consideration and disposition.”); see also Chavez-
Meza v. United States, ___U.S.___, 138 S. Ct. 1959, 1967-68 (2018).
4
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“court relied on the defendant’s criminal history and role in the offense in
denying a reduction” even though the order itself was brief.13 But in Batiste,
we remanded in part because it was “not clear whether the district court
considered and implicitly rejected Batiste’s request for a reduction of his
term of supervised release, or merely overlooked it” in denying in part a First
Step Act motion.14
However, in two unpublished decisions this court was confronted
with an order worded very similar to the one before the court today. 15 We
held in Stewart and in Burns that the order did not provide enough
information from which it could be determined whether the district court
acted within its discretion. We ordered a limited remand.16 It is not clear
whether Stewart and Burns are consistent with our precedent regarding the
extent to which an order denying a First Step Act motion must specify the
reasons underpinning that decision. In any event, they are not precedential
decisions because they are unpublished.
In the present case, the district court’s order said that the court had
“consider[ed] the applicable factors provided in §404 [sic] and 18 U.S.C.
§ 3553(a),” which would have been a sufficient explanation for denying
Perez’s First Step Act motion. However, the district court’s additional
statement that it had considered “applicable policy statements issued by the
13
Batiste, 980 F.3d at 478 (citing United States v. Jackson, 945 F.3d 315, 331-32 (5th
Cir. 2019)); see also Abdul-Ali, 19 F.4th at 837-838 & n.3.
14
Batiste, 980 F.3d at 479.
15
See United States v. Stewart, 857 F. App’x 822, 823 (5th Cir. 2021) (unpublished)
(per curiam) (remanding an order identical to the one in this case); Burns, 853 F. App’x at
994 (same).
16
See Stewart, 857 F. App’x at 823; see also, e.g., Burns, 853 F. App’x at 994
(remanding another identical order).
5
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Sentencing Commission” indicates that the court may have erroneously
applied the compassionate release standard that requires review of policy
statements. Those policy statements are not applicable in this case because
Perez averred that he was not seeking compassionate release.
Under these circumstances, we seek clarification, and the statement
of reasons need not be extensively detailed. We leave that determination up
to the “professional judgment that the law confers upon the sentencing
judge.”17
III
The Government contends that we can assume that the district court
adequately considered and rejected Perez’s arguments and that we should
affirm. It is true we have held, in United States v. Evans, that when the
context, briefing, and record make clear that the § 3553(a) factors were at
issue and before the court, we may safely “assume that [the district court]
considered them.”18 It is also true that we relied on Evans in Batiste when
holding that the district court had done enough, in part, to explain its denial
of a First Step Act sentence reduction.19 The district court in the present
case was briefed on the § 3553(a) factors and stated that it had considered the
statute in its order.
With regard to our decision in Evans, we note that it was a
compassionate release case, not a First Step Act case. When deciding a
17
Chavez-Meza, 138 S. Ct. at 1967-68; cf. United States v. Fearce, 857 F. App’x 203,
204-05 (5th Cir. 2021) (per curiam) (unpublished) (affirming the district court’s order as
adequately reasoned because it briefly discussed “the facts of the case, the severity of the
offense, and the departure previously granted”).
18
United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009) (quoting United States
v. Clark, 346 F. App’x 428, 429 (11th Cir. 2009) (per curiam) (unpublished)).
19
Batiste, 980 F.3d at 479.
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compassionate release motion, the district court must consider the § 3553(a)
factors.20 That is not required for First Step Act motions.21 Second, Evans
held that the assumption that the district court adequately considered the
factors followed from the context of the case.22 Here, we have a statement
from the district court that it considered Sentencing Commission policy
statements that do not apply to the request for relief that is at issue.
In Batiste, the district court “focus[ed . . .] on the facts informing its
original sentencing decision[,] . . . and emphasize[d] that nothing in those
facts ha[d] changed.”23 The original sentencing process was a § 3553(a)
inquiry, and it was evident from the reference to the original proceeding that
the district court exercised discretion in denying relief in the subsequent
proceeding.24 We cited Evans in Batiste for the proposition that the district
court need not do more than had already been done—“that the district court
was not required to provide [further] reasons or explain its consideration of
the § 3553(a) factors.”25 Indeed, “the basis of the district court’s ruling
[w]as aptly recounted in its . . . [o]rder.”26 However, while the Batiste court
affirmed the portion of the order dealing with the § 3553(a) factors, it
remanded on the issue of the duration of supervised release because that issue
20
Evans, 587 F.3d at 673 (“Section 3582(c)(2) requires the court to consider the
factors in § 3553(a).”).
21
United States v. Abdul-Ali, 19 F.4th 835, 838 & n.3 (5th Cir. 2021).
22
See Evans, 587 F.3d at 673 (discussing that the factors were briefed and that the
court “presumably concluded that the § 3553(a) factors weigh[ed] in [the defendant’s]
favor” because the court granted partial relief when it was under “no obligation to”).
23
Batiste, 980 F.3d at 478 (emphasis omitted).
24
See 18 U.S.C. § 3553(a).
25
Batiste, 980 F.3d at 479.
26
Id.
7
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was never mentioned in the six-page order.27 Here, we have a reference to
inapplicable policy statements. An Evans-presumption that the court
adequately considered the § 3553(a) factors does not shed any light on why
the district court referred to inapplicable policy statements.28
* * *
The district court’s brief statement and reference to its consideration
of “the applicable policy statements” leave the grounds for its decision
unclear. We accordingly REMAND Perez’s case to the district court for
the limited purpose of allowing the district court to enter reasons for denying
Perez’s motion. We retain jurisdiction, as is customary for limited
remands.29
27
Id.
28
See United States v. Stewart, 857 F. App’x 822, 823 (5th Cir. 2021) (per curiam)
(unpublished).
29
See, e.g., United States v. Gomez, 905 F.3d 347, 354-56 (5th Cir. 2018).
8