United States v. Moreira

FILED
Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022
United Page:
States Court 1
of Appeals
Tenth Circuit

July 26, 2022
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3251
(D.C. No. 2:06-CR-20021-KHV-JPO-1)
HECTOR MOREIRA, (D. Kan.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

Mr. Hector Moreira, proceeding pro se, 1 appeals from the district court’s

dismissal of his compassionate release motion under 18 U.S.C.

§ 3582(c)(1)(A)(i). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1(a) and Tenth Circuit Rule 32.1(A). After examining the briefs
and appellate record, this panel has determined unanimously that oral argument
would not materially assist in the determination of this appeal. See F ED . R. A PP .
P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted
without oral argument.
1
Because Mr. Moreira appears pro se, we construe his filings liberally,
but do not act as his advocate. See United States v. Parker, 720 F.3d 781, 784 n.1
(10th Cir. 2013).
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I

At all material times, Mr. Moreira has been incarcerated at USP Terre

Haute in Indiana, a penal facility of the Federal Bureau of Prisons (“BOP”). In

2007, he was convicted of multiple violations of 21 U.S.C. § 841 and 18 U.S.C.

§ 2 for his role in a drug-trafficking conspiracy. Based on a total adjusted offense

level of 44 and a criminal history category of I, the U.S. Sentencing Guidelines

Manual (“U.S.S.G.” or “Guidelines”) imprisonment range for Mr. Moreira’s

crimes was life in prison. The district court sentenced Mr. Moreira to life in

prison. A panel of this Court affirmed his sentence on direct appeal. See United

States v. Moreira, 317 F. App’x 745 (10th Cir. 2008) (unpublished).

On July 3, 2020, Mr. Moreira petitioned the officials at USP Terre Haute to

place him in home confinement pursuant to the Coronavirus Aid, Relief, and

Economic Security (“CARES”) Act, Pub. L. No. 116-136, § 12003(b)(2), 134

Stat. 281, 516 (2020). R., Vol. IV, at 37 (Pet.’s Home Confinement Request,

dated July 3, 2020). The Warden denied his request on July 13, 2020, concluding

that Mr. Moreira did not meet the priority guidelines for a transfer to home

confinement. See id. (Resp. to Pet.’s Home Confinement Request, dated July 13,

2020). Although he was informed of his right to file an administrative appeal,

Mr. Moreira failed to do so.

However, on September 24, 2020, Mr. Moreira filed a so-called

compassionate release motion in federal district court under 18 U.S.C.

2
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§ 3582(c)(1)(A)(i), arguing that the COVID-19 pandemic necessitated a reduction

of his sentence. 2 See id. at 18 (Mot. Brought Under 18 U.S.C. § 3582(c)(1)(A)(i),

filed Sept. 24, 2020); see also United States v. Maumau, 993 F.3d 821, 824 (10th

Cir. 2021) (discussing the statutory provisions that “authorize defendants to file

their own motions for compassionate release”). Section 3582(c)(1)(A)(i) allows a

district court to modify a prisoner’s sentence if “extraordinary and compelling

reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Mr. Moreira

sought compassionate release in light of his life sentence, his hypertension

diagnosis, his increased risk of contracting COVID-19 at USP Terre Haute, his

rehabilitation efforts, and his desire to provide support to his “ailing” father. See

R., Vol. IV, at 25–34.

On November 25, 2020, the district court dismissed Mr. Moreira’s motion,

principally due to a purported lack of jurisdiction stemming from his apparent

failure to exhaust administrative remedies. 3 See id. at 120–21 (Dist. Ct.’s Order

2
The CARES Act expanded the power of the BOP to “place a prisoner
in home confinement” in light of the pandemic. See CARES Act, Pub. L. No.
116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020). But this relief is distinct from
that which a prisoner may secure through a motion for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(A), which involves a reduction in the
prisoner’s sentence. As applied here, that means the home confinement relief that
Mr. Moreira sought from the Warden in July 2020 cannot be equated with the
relief that he subsequently sought in September 2020 from the district court.
3
The compassionate release statute includes an exhaustion
requirement, specifying that “the court . . . may reduce the term of imprisonment”
(continued...)

3
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Dismissing Pet.’s Mot., dated Nov. 25, 2020). Additionally, the district court

thoroughly reviewed the merits of Mr. Moreira’s motion, individually addressing

the factors that he cited in support of his claim for relief—especially those factors

correlating with the criteria identified by the “Sentencing Commission [in its

Policy Statement, U.S.S.G. § 1B1.13] . . . that may constitute [extraordinary and

compelling] grounds for compassionate release.” Id. at 122–23. The district

court ultimately found that Mr. Moreira failed to show that “[his] factors, either

individually or collectively, establish extraordinary and compelling reasons for

release.” Id. at 129. Thus, the district court found that Mr. Moreira failed to put

forth “reasons that warrant his release under Section 3582(c)(1)(A),” and

concluded that dismissal was proper. Id. at 130.

Importantly, the district court did not stop there. Specifically, the court

concluded that even if Mr. Moreira had exhausted his administrative remedies and

“[e]ven if [Mr. Moreira’s] life sentence, his rehabilitation efforts, his father’s

failing health, the conditions at USP Terre Haute and the COVID-19 pandemic

were considered ‘extraordinary and compelling’ reasons for release [under the

3
(...continued)
under certain detailed circumstances either “upon motion of the defendant after
the defendant has fully exhausted all administrative rights to appeal a failure of
the [BOP] to bring a motion on the defendant’s behalf” or, alternatively, “the
lapse of 30 days from the receipt of such a request by the warden of the
defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A) (emphasis
added).

4
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criteria of § 1B1.13], the Court [still] would deny relief after considering the

various factors under 18 U.S.C. § 3553.” Id. at 129.

The court elaborated on its reasoning:

A sentence of time served, or approximately 13 years, is
inconsistent with the seriousness of defendant’s offense,
the need for deterrence and the need to protect the public.
Specifically, defendant committed a significant drug
trafficking offense. As part of the offense conduct,
defendant was responsible for 4.89 kilograms of actual
methamphetamine. He also possessed a firearm and was
a manager or supervisor in the criminal activity that
involved at least five participants. Defendant obstructed
justice by recklessly creating a substantial risk of death or
serious bodily injury to another person while fleeing from
a law enforcement officer. Defendant’s calculated offense
level was 44, which is greater than the maximum of 43
under the Sentencing Guidelines.

The Court recognizes that defendant has participated
in several BOP programs, including training as a plumber.
He apparently has made progress toward rehabilitation.
Even so, on balance, the factors under Section 3553(a) do
not support a reduced sentence.

Id. at 129–30 (citations omitted).

In sum, the court rested its denial of Mr. Moreira’s motion on separate and

independent grounds and concluded that, even assuming that Mr. Moreira were

otherwise eligible for relief, the court still would deny him compassionate release

because the balance of the § 3553(a) factors tilted against him. This appeal

followed.

5
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In his appellate briefing, Mr. Moreira acknowledges that the district court

denied relief based “on several independent reasons.” Aplt.’s Opening Br. at 3.

In that regard, he observed that “although [the court] based its decision on [Mr.]

Moreira’s failure to exhaust administrative remedies, it nonetheless conducted a

full evaluation of [Mr.] Moreira’s circumstances, including the § 3553(a) factors

and the [U.S.S.G.] § 1B1.13 policy statement.” Id. Attach. A.

Mr. Moreira contends that the court “abused its discretion,” when it

“dismissed [his] motion for lack of jurisdiction.” Id. Attach. B. More

specifically, he argues that he actually exhausted his administrative remedies. See

id. at 4. To that end, Mr. Moreira asserts that § 3582(c)(1)(A) requires only that

“thirty days pass[] from submission of [a home confinement] request to the

warden” before a district court may entertain a request for compassionate release.

Id. Attach. A. As such, Mr. Moreira argues that he exhausted his administrative

remedies because “the required thirty (30) days had elapsed when [he] filed his

pro-se motion.” Id.

Mr. Moreira further contends that the district court erred in its “procedural

decision denying him relief, based upon the use of the now defunct and

inapplicable” Guidelines Policy Statement—that is, U.S.S.G. § 1B1.13—which,

he says, “does not apply to motions filed by defendant[s] in a pro-se [sic]

capacity.” Id. at 2. Lastly, though he does not challenge in a specific or

meaningful manner the district court’s § 3553(a) analysis, Mr. Moreira concludes

6
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that considering his circumstances “individually or collectively,” “he is entitled to

‘compassionate release.’” Id. Attach. B.

II

“[U]nder the current statutory framework, a prisoner may move for

compassionate release ‘only if three requirements are met: (1) the district court

finds that extraordinary and compelling reasons warrant such a reduction; (2) the

district court finds that such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission; [4] and (3) the district court

considers the factors set forth in [18 U.S.C.] § 3553(a), to the extent that they are

4
By its plain terms, the Guidelines compassionate release Policy
Statement, § 1B1.13, prescribes the circumstances under which “[u]pon motion of
the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), the court
may reduce a term of imprisonment” of a prisoner, “if, after considering the
factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the
court determines that . . . extraordinary and compelling reasons warrant the
reduction.” U.S.S.G. § 1B1.13(1)(A). The commentary to this provision
identifies the following reasons that may constitute grounds for extraordinary and
compelling circumstances: (1) the defendant’s medical condition; (2) the
defendant’s age; (3) the defendant’s family circumstances; and (4) other
extraordinary and compelling reasons as determined by the Director of the Bureau
of Prisons. See U.S.S.G. § 1B1.13, cmt. n.1. Because the text literally speaks of
compassionate release motions filed by the BOP Director, a question arose in the
federal courts as to whether this Guidelines provision applies when, as here, the
compassionate release motion is filed by a prisoner. As discussed infra, the
district court answered that question in the affirmative, but subsequent binding
precedent in our circuit indicates that the court was mistaken.

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applicable. [5]’” United States v. Hemmelgarn, 15 F.4th 1027, 1029 (10th Cir.

2021) (quoting Maumau, 993 F.3d at 831).

“A district court ‘may deny compassionate-release motions when any of the

three prerequisites listed in § 3582(c)(1)(A) is lacking and do[es] not need to

address the others.’” Id. (alteration in original) (quoting United States v. McGee,

992 F.3d 1035, 1043 (10th Cir. 2021)). Stated otherwise, “[i]f the most

convenient way for the district court to dispose of a motion for compassionate

release is to reject it for failure to satisfy one of the steps, we see no benefit in

requiring it to make the useless gesture of determining whether one of the other

steps is satisfied.” United States v. Hald, 8 F.4th 932, 942–43 (10th Cir. 2021),

cert. denied, --- U.S. ----, 142 S. Ct. 2742 (2022).

5
18 U.S.C. § 3553(a) lists the following factors that a district court
should consider when determining the appropriate sentence for a defendant: (1)
“the nature and circumstances of the offense and the history and characteristics of
the defendant;” (2) “the need for the sentence imposed[ ] . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense[,] to afford adequate deterrence to criminal conduct[,]
to protect the public from further crimes of the defendant[,] and . . . to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner;” (3) “the kinds of sentences
available;” (4) “the kinds of sentence and the sentencing range established for[] . .
. the applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines[ ] . . . .;” (5) “any pertinent policy
statement” issued by the Sentencing Commission; (6) “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct; and” (7) “the need to provide restitution to
any victims of the offense.” 18 U.S.C. § 3553(a).

8
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“We review de novo whether a district court ‘possesse[s] jurisdiction to

modify [a] [d]efendant’s sentence’ under § 3582(c)(1)(A).” United States v.

Saldana, 807 F. App’x 816, 818 n.4 (10th Cir. 2020) (unpublished) (alterations in

original) (quoting United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997));

cf. United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013) (“The scope of

a district court’s authority in a []sentencing [modification] proceeding under

§ 3582(c)(2) is a question of law that we review de novo.” (alterations in original)

(quoting United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008))).

More generally, “[w]e review a district court’s order denying relief on a

§ 3582(c)(1)(A) motion for abuse of discretion.” Hemmelgarn, 15 F.4th at 1031;

see also United States v. Williams, 848 F. App’x 810, 812 (10th Cir. 2021)

(unpublished) (reviewing the denial of a sentence reduction under

§ 3582(c)(1)(A)(i) for abuse of discretion); Saldana, 807 F. App’x at 818 n.4

(“We review for abuse of discretion the district court’s decision to deny an

authorized sentence reduction.”); cf. United States v. Piper, 839 F.3d 1261, 1265

(10th Cir. 2016) (“We review for an abuse of discretion a district court’s decision

to deny a reduction of sentence under 18 U.S.C. § 3582(c)(2).” (quoting United

States v. Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012))). Under this standard,

“[a] district court abuses its discretion when it relies on an incorrect conclusion of

law or a clearly erroneous finding of fact.” Hemmelgarn, 15 F.4th at 1031

(quoting United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013)).

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But “[l]ike other errors, abuses of discretion may be harmless.” United

States v. Tony, 948 F.3d 1259, 1264 (10th Cir. 2020). Thus, “if we find an abuse

of discretion, we must determine whether the error was harmless” before we

reverse the district court’s disposition. United States v. Vaughn, 370 F.3d 1049,

1051 (10th Cir. 2004). “An error ‘is harmless unless it had a “substantial

influence” on the outcome or leaves one in “grave doubt” as to whether it had

such effect.’” Id. (quoting United States v. Cestnik, 36 F.3d 904, 910 (10th Cir.

1994)).

III

We agree with Mr. Moreira that the district court committed legal error by

finding that it did not have jurisdiction to review Mr. Moreira’s motion.

Furthermore, insofar as the district court concluded that U.S.S.G. § 1B1.13’s

criteria are applicable and binding—where Mr. Moreira and not the Director of

the BOP filed the compassionate release motion—we conclude that Mr. Moreira’s

suggestion of error also is on target. However, we ultimately conclude that these

two errors are harmless and uphold the district court’s judgment.

As Mr. Moreira recognizes, the district rested its decision on several

independent bases. More specifically, in addressing the exhaustion question and

the merits factors that a prisoner must satisfy to secure compassionate release, the

court reasoned that even assuming that Mr. Moreira had administratively

exhausted his claims and demonstrated extraordinary and compelling reasons

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under the criteria of U.S.S.G. § 1B1.13, the court still would deny his motion for

compassionate release “after considering the various factors under 18 U.S.C.

§ 3553(a).” R., Vol. IV, at 129. In other words, the district court correctly

perceived that § 3553(a) provides a separate and distinct basis for denying a

compassionate release motion and determined that, irrespective of whether Mr.

Moreira satisfied the other grounds for compassionate release, his motion was

appropriately denied because the balance of the § 3553(a) factors tilted against

him. Notably, Mr. Moreira does not find fault in any specific or meaningful way

with the district court’s § 3553(a) analysis. Accordingly, we conclude that this

analysis stands undisturbed and supports the court’s decision to deny Mr.

Moreira’s motion for compassionate release. This denial thus was not an abuse of

discretion.

A

In United States v. Hemmelgarn, a decision published after the district

court dismissed Mr. Moreira’s motion, we determined as a matter of first

impression that the exhaustion requirement found in § 3582(c)(1)(A) is not

“jurisdictional in nature.” 15 F.4th at 1030–31. Specifically, we

concluded—following our sister circuits who had previously looked into the

matter—that “§ 3582(c)(1)(A)’s exhaustion requirement is a claim-processing

rule.” Id. at 1031. Practically, this means that, if the government does not argue

exhaustion before the district court, that argument ordinarily is not

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preserved—regardless of whether a movant “failed to provide proof that he

exhausted his administrative remedies.” Id.; cf. Eberhart v. United States, 546

U.S. 12, 15 (2005) (explaining that claim-processing rules “may be ‘unalterable

on a party’s application’ but ‘can nonetheless be forfeited if the party asserting

the rule waits too long to raise the point’” (quoting Kontrick v. Ryan, 540 U.S.

443, 456 (2004))).

Put simply, the district court here committed legal error when it sua sponte

concluded that Mr. Moreira’s motion for compassionate release was subject to

dismissal for lack of jurisdiction because he allegedly failed to administratively

exhaust his remedies. Rather, the court should have inquired whether the

government sought to enforce the exhaustion rule. See Hemmelgarn, 15 F.4th at

1031 (“Even though [the movant] failed to provide proof that he exhausted his

administrative remedies [for purposes of § 3582(c)(1)(A)], the government did not

argue exhaustion on appeal. This argument is waived.”); cf. United States v.

Purify, No. 20-5075, 2021 WL 5758294, at *3 & n.2 (10th Cir. Dec. 3, 2021)

(unpublished) (concluding that the government did not waive its exhaustion

argument on appeal, because the government, at the “first opportunity” afforded

to it, “argued forcefully” that petitioner failed to exhaust his remedies under of

§ 3582(c)(1)(A)). 6

6
The government actually failed to present an exhaustion argument
before the district court. See R., Vol. IV, at 78–98 (Government’s Resp. to
(continued...)

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Furthermore, the district court committed another error—this one related to

whether Mr. Moreira had made a sufficient showing of extraordinary and

compelling reasons. In particular, the district court reasoned that, even though

Mr. Moreira moved for compassionate release—instead of the BOP Director—the

provisions of U.S.S.G. § 1B1.13 defined the relevant and controlling criteria for

determining whether his reasons for seeking relief were extraordinary and

compelling. In this regard, the court stated:

In December of 2018, the First Step Act amended Section
3582(c)(1)(A) to permit defendants (rather than only the BOP) to
file motions for compassionate release. The Sentencing
Commission’s policy statement, which was effective November
1, 2018, nonetheless remains the relevant policy statement in
determining whether “extraordinary and compelling reasons”
warrant defendant’s release. Unless the grounds for resentencing
fall within one of the specific categories that Congress has
authorized under Section 3582(c), the Court lacks jurisdiction to
consider defendant’s request.

R., Vol. IV, at 124 (citation omitted). Thus, the district court determined that,

even where the movant is a prisoner, as here, § 1B1.13’s criteria is applicable and

6
(...continued)
§ 3582 Mot., filed Oct. 26, 2020); id. at 84 & n.5 (the government conceding that
“it appears” that the exhaustion requirement “is met” in this case by virtue of the
Warden denying Mr. Moreira’s July 3, 2020, request for home confinement,
which the government characterizes as a request for “compassionate release”).
Thus, notwithstanding the fact that Mr. Moreira’s initial request submitted to the
Warden was related placement in home confinement—a substantially different
request than a motion for a reduction of sentence pursuant to § 3582(c)(1)(A),
see United States v. Springer, 820 F. App’x 788, 790–92 & n.5 (10th Cir. 2020)
(unpublished)—the government seemingly did not preserve an exhaustion
challenge.

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controlling in the assessment of whether the prisoner has shown extraordinary and

compelling reasons.

However, after the district court issued its order, we expressly ruled to the

contrary—first in our McGee decision, and thereafter in other binding precedent.

992 F.3d at 1050 (“We conclude instead, as have the Second, Fourth, Sixth, and

Seventh Circuits, that the Sentencing Commission’s existing policy statement is

applicable only to motions for sentence reductions filed by the Director of the

BOP, and not to motions filed directly by defendants.”); accord Maumau, 993

F.3d at 836–37; cf. Hald, 8 F.4th 938 n.4 (stating that “the district court’s

discretion is not restricted by any Sentencing Commission policy statements,” but

noting that “it would hardly be an abuse of discretion for a district court to look

to the present policy statement for guidance”). Accordingly, to the extent that the

district court deemed § 1B1.13’s criteria to be applicable and controlling in its

assessment of whether Mr. Moreira had offered extraordinary and compelling

reasons in support of his compassionate release motion—as Mr. Moreira

suggests—the court erred.

B

We nevertheless uphold the district court’s denial of Mr. Moreira’s motion

for compassionate release, regardless of the court’s errors in concluding that (1) it

lacked jurisdiction because of Mr. Moreira’s purported failure to exhaust and (2)

it was obliged to apply U.S.S.G. § 1B1.13’s criteria even though Mr.

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Moreira—not the BOP Director—was the movant. That is because these two

errors were harmless.

As Mr. Moreira himself recognizes, the district court denied him relief

based “on several independent reasons.” Aplt.’s Opening Br. at 3. Specifically,

the court reasoned that even assuming that Mr. Moreira had administratively

exhausted his claims and demonstrated extraordinary and compelling

reasons—under the criteria of U.S.S.G. § 1B1.13—it still would deny his motion

for compassionate release “after considering the various factors under 18 U.S.C.

§ 3553(a).” R., Vol. IV, at 129.

In particular, the district court explained that “[e]ven if [Mr. Moreira’s] life

sentence, his rehabilitation efforts, his father’s failing health, the conditions at

USP Terre Haute and the COVID-19 pandemic were considered ‘extraordinary

and compelling’ reasons for release, the Court would deny relief after considering

the various factors under 18 U.S.C. § 3553.” Id. Then tracking the § 3553(a)

factors, the court first stated that “[a] sentence of time served, or approximately

13 years, is inconsistent with the seriousness of [Mr. Moreira’s] offense, the need

for deterrence and the need to protect the public.” Id. at 129–30. The court

specifically observed that Mr. Moreira “committed a significant drug trafficking

offense” and “was responsible for 4.89 kilograms of actual methamphetamine.”

Id. at 130. Next, the court noted Mr. Moreira’s “possess[ion] of a firearm and

[his status as] a manager or supervisor in the criminal activity that involved at

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least five participants.” Id. The court additionally stated that Mr. Moreira

“obstructed justice by recklessly creating a substantial risk of death or serious

bodily injury to another person while fleeing from a law enforcement officer.” Id.

Lastly, the court recounted that Mr. Moreira’s calculated offense level was 44

“which is greater than the maximum of 43 under the Sentencing Guidelines.” Id.

In sum, the court reasoned that, even though Mr. Moreira “has participated in

several BOP programs” and “apparently has made progress toward

rehabilitation[,] . . . . on balance, the factors under Section 3553(a) do not support

a reduced sentence.” Id.

Mr. Moreira does not specifically or meaningfully find fault with the

district court’s § 3553(a) analysis. In particular, he does not dispute any of the

court’s factual findings concerning the circumstances of his crime, the sentence

imposed, or his calculated offense level. He does not even attempt to argue that

the court failed to consider or otherwise incorrectly applied the § 3553(a) factors.

See Aplt.’s Opening Br. Attach. B (explaining that the court “engaged in a[n]

analysis” that “consider[ed] all the aforementioned [§ 3553(a) factors] and the

need for deterrence, as well as the need to protect the public”). Indeed, Mr.

Moreira merely surmises that the court “failed to address and recognize the

significant strides and rehabilitative effort(s)” as outlined in “character letter(s)”

from BOP employees submitted on his behalf. Id. at 4. He also cursorily states

that at least five other inmates “who had . . . more serious and violent crime(s)

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were granted ‘compassionate release’” around the same time he submitted his

petition. Id. However, all of this is not enough for us to conclude that the district

court abused its discretion here in conducting its § 3553(a) analysis. See United

States v. Singer, 825 F.3d 1151, 1158 (10th Cir. 2016) (“[W]e will ‘find an abuse

of discretion only if the district court was arbitrary, capricious, whimsical, or

manifestly unreasonable when it weighed the permissible § 3553(a) factors.’”

(emphasis added) (alteration in original) (quoting United States v. Craig, 808 F.3d

1249, 1261 (10th Cir. 2015))).

As a panel of our Court most recently explained:

To the extent [movant] is arguing the district court should have
given more weight to her post-sentencing conduct, we reject this
argument. [Movant] maintains that since she has been serving
her custodial sentence, she has made significant efforts towards
self-improvement: for example, she has pursued vocational
training, drug education, and drug-abuse treatment. [Movant] is
correct that district courts generally may consider a defendant’s
post-sentencing rehabilitation under § 3553(a), but the “weighing
of the § 3553(a) factors is committed to the discretion of the
district court[.]” We conclude the district court did not abuse its
discretion by finding that, on balance, [movant’s] history and
characteristics weighed against a sentence reduction.

United States v. Setiyaningsih, No. 21-8093, 2022 WL 2160001, at *2 (10th Cir.

June 15, 2022) (unpublished) (citations omitted) (quoting Hald, 8 F.4th at 949).

In sum, as to the district court’s § 3553(a) analysis, Mr. Moreira offers no

specific or meaningful argument that the district court abused its discretion. And

Mr. Moreira has clearly acknowledged that the court’s § 3553(a) ruling provides

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Appellate Case: 20-3251 Document: 010110716016 Date Filed: 07/26/2022 Page: 18

an independent basis for denying his motion for compassionate release.

Accordingly, regardless of the court’s errors in concluding that it lacked

jurisdiction due to Mr. Moreira’s purported failure to exhaust administrative

remedies, and that it was obliged in this case involving a prisoner’s

compassionate release motion to apply U.S.S.G. § 1B1.13’s criteria, we uphold

the district court’s denial of Mr. Moreira’s motion for compassionate release

because the two errors are harmless. And the court did not abuse its discretion in

denying Mr. Moreira’s motion based on its application of the sentencing factors

of § 3553(a). IV

For the foregoing reasons, we AFFIRM the district court’s judgment.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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