United States v. Diaz

Case: 22-40044         Document: 00516641468             Page: 1      Date Filed: 02/10/2023




              United States Court of Appeals
                   for the Fifth Circuit
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                                                               February 10, 2023
                                        No. 22-40044                             Lyle W. Cayce
                                                                                      Clerk

   United States of America,

                                                                      Plaintiff—Appellee,

                                             versus

   Hugo Alfredo Diaz,

                                                                  Defendant—Appellant.


                      Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 7:07-CR-143-1


   Before Stewart, Dennis, and Southwick, Circuit Judges.
   Per Curiam:*
          Hugo Alfredo Diaz was sentenced to 30 years’ imprisonment after a
   jury convicted him of various drug and money laundering crimes that took
   place within a larger criminal conspiracy. Several years later, Diaz moved for
   and received a sentence reduction. He subsequently moved for a second
   sentence reduction, compassionate release, and appointment of counsel. The
   district court denied all three motions and this appeal ensued. Because Diaz



          *
              This opinion is not designated for publication. See 5th Cir. R. 47.5.
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   is ineligible for a second sentence reduction and the district court did not
   abuse its discretion in denying his motions for compassionate release and
   appointment of counsel, we AFFIRM.
                 I. FACTUAL & PROCEDURAL BACKGROUND
          In 2009, Diaz was sentenced to 360 months’ imprisonment, following
   his jury trial convictions for conspiracy to possess with intent to distribute
   more than five kilograms of cocaine, two counts of possession with intent to
   distribute more than five kilograms of cocaine, and conspiracy to engage in
   money laundering. This court affirmed his convictions and sentence on
   appeal. United States v. Diaz, 420 F. App’x 456, 458 (5th Cir. 2011) (per
   curiam) (unpublished). The district court later reduced his term of
   imprisonment to 292 months pursuant to Amendment 782 to the Sentencing
   Guidelines.
          In July 2019, pursuant to § 404 of the First Step Act (“FSA”) of 2018,
   Diaz moved for a second sentence reduction. Then in January 2021, he
   moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i),
   due to the COVID-19 pandemic, his underlying health conditions, and his
   “unusually long sentence.” In August 2021, he moved for an appointment of
   counsel to assist with his motions.
          The district court denied all three motions on January 6, 2022. With
   respect to Diaz’s motion for a sentence reduction pursuant to the FSA, the
   district court stated that it had already reduced his sentence in 2017 from 360
   months to 292 months and he had therefore already received the maximum
   reduction that he was permitted. As to his motion for compassionate release,
   the district court denied it on grounds that the COVID-19 pandemic did not
   warrant release from confinement in light of the development of vaccines and
   treatment options that had become available. In issuing its ruling, the district
   court noted that it had considered the 18 U.S.C. § 3553(a) factors and that all




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   of Diaz’s other grounds for release were meritless. It also denied his motion
   for appointment of counsel. Diaz appealed.
                          II. STANDARD OF REVIEW
          We review the denial of a sentence reduction pursuant to the FSA for
   abuse of discretion. United States v. Robinson, 980 F.3d 454, 458 (5th Cir.
   2020). Likewise, we review denials of § 3582(c)(1)(A)(i) compassionate
   release motions and motions to appoint counsel for abuse of discretion. See
   United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020) (§ 3582 motion);
   United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (appointment of
   counsel).
                                III. DISCUSSION
          A. Second Motion for Sentence Reduction
          On appeal, Diaz first argues that the district court abused its discretion
   in denying his motion for a second sentence reduction. His argument,
   however, is without merit. Under § 404 of the FSA, a defendant who was
   “convicted and sentenced for certain offenses involving cocaine base
   (‘crack’),” before the effective date of the Fair Sentencing Act of 2010, may
   be “resentenced as if the reduced statutory minimum penalties implemented
   by the Fair Sentencing Act were in place at the time the offenses were
   committed.” Robinson, 980 F.3d at 456. Because Diaz was convicted of a
   cocaine offense, however, and not an offense involving cocaine base or crack,
   he is ineligible for resentencing under the FSA. Id.; see also United States v.
   Urbina, 809 F. App’x 247, 247–48 (5th Cir. 2020) (per curiam)
   (unpublished) (holding that a defendant convicted of a cocaine offense is
   ineligible for relief under the FSA). Although the record reflects that the
   district court’s order mistakenly states that Diaz’s sentence was previously
   reduced once pursuant to § 404 of the FSA (as opposed to Amendment 782),
   Diaz is nevertheless ineligible for relief under the FSA. Id. Consequently, he




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   cannot make the required showing that the district court abused its discretion
   in denying him relief for which he is statutorily ineligible. See Robinson, 980
   F.3d at 459 (“It is the defendant’s burden to ‘show that the trial judge’s
   action amounted to an . . . abuse of discretion.’”). Accordingly, we hold that
   the district court did not abuse its discretion in denying Diaz’s motion for a
   sentence reduction under the FSA. Id.
          B. Motion for Compassionate Release
          Diaz next argues that he has shown extraordinary and compelling
   reasons for compassionate release because he is 68 years old, has several
   medical conditions that put him at high risk of dying if he contracts COVID-
   19, has a minimum risk of recidivism, has served more than 60 percent of his
   sentence, has exhibited excellent conduct in prison, and does not have a
   history of violence. Diaz further avers that the district court did not provide
   an adequate explanation for denying his motion on the merits. We disagree.
          Section 3582(c)(1)(A)(i) allows a district court to reduce a
   defendant’s sentence if, after considering any relevant § 3553(a) factors, it
   determines that “extraordinary and compelling reasons warrant such a
   reduction” and “a reduction is consistent with applicable policy statements
   issued by the Sentencing Commission.” See 18 U.S.C. § 3582(c)(1)(A)(i).
   The policy statement applicable to § 3582(c)(1)(A)(i), U.S.S.G. § 1B1.13,
   does not apply where, as here, the motion for compassionate release is filed
   by a prisoner. United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021). As
   a result, when addressing a prisoner-filed motion, a district court need only
   consider the extraordinary circumstances requirement of § 3582(c)(1)(A)(i),
   and the § 3553(a) sentencing factors. Id. at 393.
          The record reflects that Diaz asserted before the district court that he
   has hypertension, high cholesterol, kidney failure, “prostate complications,”
   and poor blood circulation. While the district court did not directly address




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   Diaz’s medical conditions, it reasoned that the COVID-19 pandemic did not
   warrant his release from confinement because of the availability of vaccines
   and treatment options. It also observed that the Bureau of Prisons had
   administered approximately 279,000 doses of the COVID-19 vaccine and
   was continuing to vaccinate federal inmates at the time of its denial order. Id.
          As we have recently explained, even where an inmate has chronic
   illnesses that place him at a higher risk of severe symptoms, “[f]ear of
   COVID doesn’t automatically entitle a prisoner to release.” United States v.
   Thompson, 984 F.3d 431, 435 (5th Cir.), cert. denied, 141 S. Ct. 2688 (2021).
   Moreover, prisoners that are successful in obtaining early release based on
   the COVID-19 pandemic have generally “already served the lion’s share of
   their sentences and presented multiple, severe, health concerns.” Id. at 434-
   35. Here, Diaz’s original 30-year sentence has already been reduced by more
   than 5 years and he has served only 14 years of his 24-year reduced sentence.
   Had Diaz not received that 5-year reduction, he would have served less than
   half of his sentence at the time he moved for a second sentence reduction.
   Even with the reduction, Diaz still has a decade left and thus, has not served
   the “lion’s share” of his reduced sentence. Id. at 434. Additionally, although
   he alleges that he suffers from kidney failure, 1 we agree with the district court
   that the availability of COVID-19 vaccines and treatment options decreases
   the risks associated with his condition.
          We are also unpersuaded by Diaz’s argument that the district court
   failed to adequately consider the § 3553(a) factors or explain why they
   weighed against granting his compassionate release motion. The district
   court judge that denied Diaz’s motion is the same judge who presided over
   his trial and sentencing. At sentencing, the court stated that it had considered


          1
              Diaz’s medical records are not included in the record on appeal.




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   the § 3553(a) factors but did not otherwise discuss them. The court did,
   however, adopt the PSR which states that Diaz was held accountable for
   approximately 290 kilograms of cocaine, assisted in money laundering nearly
   a million dollars, had a managerial or supervisory role in the underlying
   conspiracy offense, and had a prior state conviction for money laundering.
   Based on these details in the PSR, we can infer that the district court
   determined that the seriousness of Diaz’s offense weighed against granting
   compassionate release. See United States v. Perales, No. 21-10611, 2022 WL
   1978700, at *2 (5th Cir. June 6, 2022) (per curiam) (unpublished)
   (“[A]lthough the district court’s order does not detail the factual reasons for
   denying [the defendant’s] motion for compassionate release, the rationale for
   the court’s decision is adequately inferable when the order is considered
   together with the record from [the defendant’s] original sentencing record,
   particularly including the PSR and the sentencing hearing transcript.”); see
   also United States v. Gallegos, No. 21-50814, 2022 WL 2752601, at *1 (5th Cir.
   July 14, 2022) (per curiam) (unpublished) (holding district court did not
   abuse its discretion in denying a compassionate release motion when it
   “stated that it took into account the relevant § 3553(a) factors and the
   applicable policy statements before finding that a sentence reduction was not
   warranted”).
          For these reasons, we hold that the district court did not abuse its
   discretion in denying Diaz’s compassionate release motion. See Chambliss,
   948 F.3d at 693.
          C. Motion for Appointment of Counsel
          Finally, Diaz argues that the district court erred in denying his motion
   for the appointment of counsel. Again, we disagree. In United States v.
   Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008), this court concluded that even
   if a § 3582(c)(2) proceeding was collateral to the original criminal case, the




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   decision to appoint counsel is discretionary “in the interest of justice.” Id.
   We have since applied the interest-of-justice standard to deny pro se motions
   for the appointment of counsel on appeal from the denial of a § 3582(c)(1)(A)
   motion for compassionate release. See United States v. Chehab, No. 20-10855,
   2021 WL 5313619, at *2 (5th Cir. Nov. 15, 2021) (per curiam) (unpublished)
   (“[T]he interest of justice does not require the appointment of counsel
   here.”); United States v. Okpalobi, 831 F. App’x 715, 716-17 (5th Cir. 2020)
   (per curiam) (unpblished) (“[Defendant]’s motion to appoint counsel is
   denied because the interest of justice does not require the appointment of
   counsel here.” (citation omitted)). The compassionate release arguments at
   issue here are not factually complicated and Diaz has adequately presented
   them to the district court. In other words, the “interest of justice” does not
   require the appointment of counsel in this case. Accordingly, we conclude
   that the district court did not abuse its discretion in denying Diaz’s motion
   for appointment of counsel. See Nichols, 30 F.3d at 36.
                               IV. CONCLUSION
          For the foregoing reasons, we AFFIRM the district court’s order
   denying Diaz’s motions for a reduced sentence, compassionate release, and
   appointment of counsel.
          AFFIRMED.




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