United States v. McMaryion

Case: 21-50450 Document: 00516691774 Page: 1 Date Filed: 03/28/2023

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

FILED
March 28, 2023
No. 21-50450
Lyle W. Cayce
Clerk

United States of America,

Plaintiff—Appellee,

versus

Jeffrey Allan McMaryion,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-141-1

Before Higginbotham, Jones, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Jeffrey McMaryion, a federal prisoner, appeals the denial of his
motion for compassionate release under 18 U.S.C. § 3582(c)(1). We affirm.
I.
McMaryion pleaded guilty to conspiracy to possess with intent to
distribute 280 grams or more of a substance containing cocaine, in violation
of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). That offense, combined with
McMaryion’s extensive criminal history, generated a Guidelines range of 262
to 327 months in prison. The district court (Junell, J.) sentenced him at the
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No. 21-50450

bottom of that range to 262 months, plus 12 months for the revocation of a
previous supervised-release term, for a total prison term of 274 months.
McMaryion appealed, and we affirmed. See United States v. McMaryion, 583
F. App’x 399, 401 (5th Cir. 2014) (per curiam).
On November 16, 2020, McMaryion filed a motion for compassionate
release under 18 U.S.C. § 3582(c)(1). By the time McMaryion filed that
motion, the case had been transferred to Judge Counts. The Government
filed an opposition. Then Judge Counts denied the motion as follows: “After
considering the applicable factors provided in 18 U.S.C. § 3553(a) and the
applicable policy statements issued by the Sentencing Commission, the
Court DENIES the Defendant’s Motion on its merits.” ROA.631.
McMaryion again appealed. We review questions of law de novo and
the ultimate decision to deny compassionate release for abuse of discretion.
See United States v. Escajeda, 58 F.4th 184, 186 (5th Cir. 2023).
II.
The First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), allows
a prisoner to move for a sentence reduction under certain circumstances. The
one at issue here is colloquially called “compassionate release.” See United
States v. Shkambi, 993 F.3d 388, 390–92 (5th Cir. 2021) (describing the
history of compassionate release). As relevant here, a prisoner can move for
compassionate release when “extraordinary and compelling reasons
warrant” a reduction of his sentence. See 18 U.S.C. § 3582(c)(1)(A)(i). As
we recently explained, this statutory phrase requires a prisoner to show he
“face[s] some extraordinarily severe exigency, not foreseeable at the time of
sentencing, and unique to the life of the prisoner” that leads “irresistibly” to
the conclusion that this prisoner has a “singular” and “remarkable” need for
early release. See Escajeda, 58 F.4th at 186.

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McMaryion offers four reasons for his § 3582(c)(1) motion. The first
three are not cognizable bases for compassionate release. The fourth does not
have merit.
First, McMaryion raises substantive challenges to the legality of his
confinement. Specifically, McMaryion argues that his trial and appellate
counsel were ineffective and that the Government breached his plea
agreement. But because these claims are cognizable under 28 U.S.C. § 2255,
they are not cognizable under 18 U.S.C. § 3582(c). See Escajeda, 58 F.4th at
186–88.
Second, McMaryion argues that he should get a sentence reduction
because the First Step Act reduced the statutory minimums applicable to his
offenses. But Congress did not make those reductions retroactive. And a
prisoner may not leverage non-retroactive changes in criminal law to support
a compassionate release motion, because such changes are neither
extraordinary nor compelling. See, e.g., United States v. Jenkins, 50 F.4th
1185, 1198–1200 (D.C. Cir. 2022) (so holding); United States v. McCall, 56
F.4th 1048, 1065–66 (6th Cir. 2022) (en banc) (same). Rather, “in federal
sentencing the ordinary practice is to apply new penalties to defendants not
yet sentenced, while withholding that change from defendants already
sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012) (emphasis
added). This ordinary practice reflects a “presumption against retroactive
legislation” that is “deeply rooted in our jurisprudence” and that “embodies
a legal doctrine centuries older than our Republic.” Landgraf v. USI Film
Prods., 511 U.S. 244, 265 (1994). We may not usurp the legislative prerogative
and use 18 U.S.C. § 3582(c)(1) to create retroactivity that Congress did not.
See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“It is the
legislature, not the Court, which is to define a crime, and ordain its
punishment.”).

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Third, McMaryion briefly suggests that an amendment to the United
States Sentencing Guidelines favors his early release. McMaryion did not
adequately present this argument to the district court, however, so it is
forfeited. See Rollins v. Home Depot, 8 F.4th 393, 397–99 (5th Cir. 2021). And
in any event, changes to the Sentencing Guidelines can give rise to relief
under 18 U.S.C. § 3582(c)(2), not § 3582(c)(1). See United States v. Lyons, 25
F.4th 342, 344–46 (5th Cir. 2022) (describing review of a § 3582(c)(2)
motion).
McMaryion’s fourth and final argument is the only one that states a
possibly cognizable basis for compassionate release—namely, that COVID-
19 constitutes an “extraordinary and compelling” reason for his release. To
support this argument, McMaryion suggests that his prior COVID-19
infection and general ill health place him at greater risk from COVID-19
relative to the broader population.
We have said that a late-stage, terminal prognosis can constitute an
extraordinary and compelling basis for a § 3582(c)(1) motion. See United
States v. Chambliss, 948 F.3d 691, 692–93 (5th Cir. 2020). But it is the
actuality, not the risk, of terminal illness that makes a prisoner’s
circumstances extraordinary. We have repeatedly denied relief in cases
where prisoners sought compassionate release due to fear of communicable
disease, even when those prisoners were in poor health. See United States v.
Thompson, 984 F.3d 431, 432–34 (5th Cir. 2021) (denying relief to a
hypertensive stroke survivor concerned by COVID-19); United States v.
Rodriguez, 27 F.4th 1097, 1098–1100 (denying relief where COVID-19 fearing
movant suffered from heart failure). Our precedent thus compels denial of
McMaryion’s motion.

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III.
Separately, McMaryion argues that the district court committed
procedural error by perfunctorily denying his § 3582(c) motion. Even if the
district court committed procedural error, McMaryion would not be entitled
to a remand. That’s because a procedural error is by definition harmless
where, as here, the prisoner’s arguments fail on the merits. See Fed. R.
Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.”).
And in any event, the district court did not procedurally err. True, we
require that a district court provide a reason for its denial of a prisoner’s
compassionate release motion. See Chambliss, 948 F.3d at 693. Here, the
district court denied McMaryion’s motion “[a]fter considering the
applicable factors provided in 18 U.S.C. § 3553(a).” So the district court
provided a reason: it considered the § 3553(a) factors and found them
wanting. We’ve already determined that such reasoning suffices. See
Escajeda, 58 F.4th at 188 (upholding an identical order because the district
court “did not need to say more”).
The dissent highlights past occasions in which we required greater
explication when the district judge deciding a compassionate release motion
did not originally sentence the movant. See United States v. Sauseda, No. 21-
50210, 2022 WL 989371, at *2 (5th Cir. 2022) (per curiam). The Sauseda
panel based its judgment on perceived inability to impute reason for the
compassionate release decision from sentencing. See ibid. Another panel
relied on Sauseda to decide a similar case. See United States v. Suttle, No. 21-
50576, 2022 WL 1421164, at *1 (5th Cir. 2022) (per curiam). The dissent
suggests we extend Sauseda again and find that the district court procedurally
erred here too.
We decline to do so for three principal reasons.

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First, Sauseda is distinguishable. There the Government did not file a
response opposing the prisoner’s § 3582(c)(1) motion, so our court was
unsure what reasons informed or could have informed the district court’s
denial of the motion. See Sauseda, 2022 WL 989371, at *2. Here, the district
court ordered the Government to respond to McMaryion’s petition and
considered that response before denying relief.
Second, Sauseda and Suttle are non-binding, unpublished decisions.
See 5th Cir. R. 47.5. And they diverge from the bulk of our authorities
upholding succinct district court decisions on § 3582(c)(1) motions. We have
repeatedly affirmed on facts materially identical to this case. See United States
v. Shorter, 850 F. App’x 327, 328 (5th Cir. 2021) (per curiam) (affirming an
identical order where the issuing judge, the same judge as in McMaryion’s
case, was not the original sentencing judge); United States v. White, No. 21-
50943, 2022 WL 1699467, at *1 (5th Cir. 2022) (per curiam) (same); United
States v. Franco, No. 21-50041, 2022 WL 1316218, at *1 (5th Cir. 2022) (per
curiam) (same); United States v. Escobedo-Aragon, No. 22-50003, 2023 WL
130420, at *1 (5th Cir. 2023) (per curiam) (same). Each of these cases
featured a § 3582(c)(1) motion denial, phrased substantially the same as in
this case, issued by a judge who did not sentence the defendant originally. So,
if appeals to unpublished authority are persuasive, then the lion’s share
makes clear that on McMaryion’s exact facts, the district court did not err.*

* Our court has recognized this conflict in our unpublished opinions but has
deferred resolving it. See United States v. Handlon, 53 F.4th 348, 352 (5th Cir. 2022) (“We
need not resolve how Suttle and White should be reconciled because this case is more
extreme.”). The dissent notes that in some of these cases, the appellant did not challenge
the district judge’s explanation. But even if that’s so, the dissent does not (and cannot)
dispute that district courts routinely deny § 3582(c)(1) motions in brief orders, and we
routinely affirm them. To the extent we can infer anything from other defendants’ failures
to argue that a procedural error must be corrected even in the absence of a merits problem,

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Third, Chavez-Meza v. United States, 138 S. Ct. 1959 (2018), supports
our approach. In that case, the Supreme Court emphasized that context and
“circumstances” determine “the appropriateness of brevity” in § 3582(c)
orders. Id. at 1964 (quotation omitted). And it conspicuously refused to hold
that district courts must use the same procedural rigor in original sentencing
hearings and § 3582(c) orders. See id. at 1965 (“Even assuming (purely for
argument’s sake) district courts have equivalent duties when initially
sentencing a defendant and when later modifying the sentence . . . .”
(emphasis added)).
Here, the relevant “circumstances” are that McMaryion already
received a procedurally rigorous and proper sentencing hearing, and
afterwards he asked the district court to revisit it under § 3582(c). Further,
these “circumstances” are colored by vast discretion in ways that original
sentences are not. See 18 U.S.C. § 3582(c)(1)(A) (“the court . . . may reduce
the term of imprisonment” (emphasis added)); cf. 18 U.S.C. § 3553(a)
(“[t]he court shall impose a sentence” (emphasis added)). That’s precisely
why the Supreme Court has said the appropriate procedure in a § 3582(c)
proceeding at most reflects a “limited adjustment” not “a plenary
resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).
That statement in Dillon reflects an old determination in our law: that
procedural requirements attendant to legal decisions should vary with the
weight of the interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334
(1976). A defendant’s interest in his § 3582(c)(1) motion is far lower than his
interest in his plenary sentencing—especially when the absence of a second

it’s that most people recognize the harmless error rule that governs federal criminal
proceedings.

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or successive bar in § 3582(c)(1) may allow him to commandeer the attention
of a federal court by filing the same motion again and again.
Concepcion v. United States, 142 S. Ct. 2389 (2022), is not to the
contrary. In that case, the question was whether a federal judge could consider
intervening changes in facts and law in adjudicating a sentence-reduction
motion under § 404 of the First Step Act. See id. at 2396. Section 404 “allows
a district court to impose a reduced sentence ‘as if’ the revised penalties for
crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the
time the offense was committed.” Ibid. The district court thought it did not
have discretion under § 404 to consider any other changes to facts and law in
considering whether to reduce the defendant’s crack-cocaine sentence. See
ibid. The Court reversed and held that, in considering a § 404 motion, the
district court retained all the traditional discretion that federal judges have at
the original sentencing hearing to consider all available facts and law—
including intervening changes between the original sentencing hearing and
the § 404 motion. See id. at 2401–02, 2404.
The Concepcion Court referenced § 3582(c) only to say that Congress
knew how to limit district courts’ consideration of information when
Congress wanted. See id. at 2401. That’s because § 3582(c)(2) “expressly
cabin[s] district courts’ discretion by requiring courts to abide by the
Sentencing Commission’s policy statements.” Ibid.; see also 18 U.S.C. §
3582(c)(2) (authorizing a sentence reduction only “if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission”). Congress imposed no such limits in § 404. Further, the
Concepcion Court made express that a district court “may . . . dismiss
arguments that it does not find compelling without a detailed explanation”
and that “a brief statement of reasons” suffices for a decision on a First Step
Act motion. 142 S. Ct. at 2404.

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No one doubts that district courts enjoy wide discretion when
considering compassionate-release motions. That includes discretion to offer
lengthy explanations for denying relief under § 3582(c). The question here,
however, is not whether the district court could offer a lengthy explanation
after considering myriad factors—it’s whether the district court must.
Nothing in Concepcion or our precedent requires the second proposition. And
we can find nothing in § 3582(c) that suggests Congress required a lengthy
explanation by a district court denying a § 3582(c) motion. It would be
especially inappropriate to add procedural requirements to § 3582(c) where
Congress omitted them and also omitted number and timeliness limitations.
Cf. 28 U.S.C. § 2244(b), (d). The contrary view urged by our esteemed
colleague in dissent would impose endless procedural obligations on district
courts—including in cases, like this one, where the § 3582(c) motion is
undisputedly meritless.
We hold a district court may deny relief under § 3582(c) by stating
that the § 3553(a) factors do not favor relief, or alternatively, that the
movant’s proferred grounds for relief are not extraordinary and compelling.
The district court met that standard here.

AFFIRMED.

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Patrick E. Higginbotham, Circuit Judge, dissenting:
I would hold that the able district court insufficiently explained its
reasoning, a procedural error necessitating vacatur and remand, and would
not reach the merits of McMaryion’s motion.
I.
It is common ground that a district court, when denying a motion for
a sentence reduction, must articulate the reasons, and failing to do so is
error.1 The majority holds that the district court’s recital—“the applicable
factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements
issued by the Sentencing Commission”—sufficiently explains its denial of
McMaryion’s motion. I must disagree.
Beginning with the end, the majority writes: “Even if the district court
committed procedural error, McMaryion would not be entitled to a remand.
That’s because a procedural error is by definition harmless where, as here,
the prisoner’s arguments fail on the merits.”2 The majority here collapses a
district court’s duty to articulate its reasons and the merits of McMaryion’s
plea for a reduction. Simply put, it erases the obligation to articulate a court’s
reasons. In doing so, it fails to honor the distinct mission of articulation
whether in open court or in a filed order.
One’s right to a procedurally reasonable sentence—including the
adequacy of the explanation—is distinct from the right to a substantively

1
United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
2
Op. at 5 (citing FED. R. CRIM. P. 52(a)).

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reasonable sentence. As the Supreme Court has explained, an appellate court
“must first ensure that the district court committed no significant procedural
error, such as . . . failing to adequately explain the chosen sentence,” and only
once it has determined procedural soundness may it then “consider the
substantive reasonableness of the sentence imposed.”3 In other words, the
defendant has a right not only to a fair denial, but also an independent right to
know why.
The natural extension of the majority’s position makes this plain:
taken to its logical end, a defendant can never successfully vindicate the right
to a sufficient explanation if the outcome is substantively reasonable, as the
defendant could never make the requisite showing that the sentence would
be modified upon such a showing. This elides the obligation to explain and
would give rise to the sort of “absurd result[]” this Court aims to avoid,4
acutely in the criminal law arena.
This is no check the box exercise. A district court judge failing to
adequately explain what the judge found persuasive in sentencing and in
§ 3582(c) orders comes at a cost. First, their functional role: explanations are
required to animate the standard of review appellate courts apply to district
court orders of this genre. As the abuse-of-discretion standard “does not
preclude an appellate court’s correction of a district court’s legal or factual

3
Gall v. United States, 552 U.S. 38, 50 (2007) (emphasis added).
4
United States v. Holbrook, 499 F.3d 466, 469 n.2 (5th Cir. 2007) (citing United
States v. Austin, 479 F.3d 363, 368–69 (5th Cir. 2007)).

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error,”5 the error must be discernable or “identifiable” for review.6 Second,
explanations serve systemic aims such as “promot[ing] the perception of fair
sentencing.”7 As the Supreme Court has stated, “[c]onfidence in a judge’s
use of reason underlies the public’s trust in the judicial institution,” and “[a]
public statement of those reasons helps provide the public with the assurance
that creates trust,”8 this with the Supreme Court’s further guidance that the
degree and depth of the articulation required depends “upon the
circumstances of the particular case.”9 In sum, to deprive the relevant
entities of vital information as to the denial of any incarcerated individual’s
§ 3582(c) motion creates a harm in its own right that stifles a more complete
understanding of an ever-evolving criminal justice landscape that is rightly
subject to ongoing adjustments.

5
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 n.2 (2014).
6
United States v. Sauseda, No. 21-50210, 2022 WL 989371, at *1 (5th Cir. Apr. 1,
2022) (unpublished) (per curiam).
7
United States v. Mondragon-Santiago, 564 F.3d 357, 362 (5th Cir. 2009) (quoting
Gall, 552 U.S. at 50). This provision was also enacted: “to inform the defendant and the
public of the reasons why the offender is subject to that particular guideline and in order to
guide probation officers and prison officials to develop a program to meet his needs”; to
“provide[] information to criminal justice researchers evaluating the effectiveness of
various sentencing practices in achieving their stated purposes”; and to “assist[] the
sentencing commission in its continuous reexamination of its guidelines and policy
statements.” S. REP. NO. 98-225, at 80 (1983). See also United States v. Molina, 356 F.3d
269, 277 (2d Cir. 2004) (discussing these policy rationales).
8
Chavez-Meza v. United States, 138 S. Ct. 1959, 1964 (2018) (emphasis added)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
9
Id. at 1965.

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II.
Tucked away at the end of the opinion, the majority questions the
procedural requirements for adjudicating § 3852(c) motions, asserting that
the Supreme Court did not expressly hold that a district court is obligated to
use “the same procedural rigor in original sentencing hearings and § 3582(c)
orders.”10 I do not suggest that, upon a motion for compassionate release, the
district court must engage in a “plenary resentencing proceeding”11 such as
an in-person hearing. It is rather that a defendant is entitled to an adequate
explanation, in some form or fashion, as to why his motion was denied.
Recent Supreme Court precedent dictates this conclusion. In
Concepcion v. United States, the Supreme Court directly tied sentencing
jurisprudence to deciding § 3582(c)(2) motions, noting that “under the
Court’s sentencing jurisprudence, [] when deciding a First Step Act motion,
district courts bear the standard obligation to explain their decisions and
demonstrate that they considered the parties’ arguments.”12 Further, citing
to Rita—a sentencing case—the High Court repeated that a district court
must “articulate . . . a brief statement of reasons” and that “[n]othing in the
First Step Act contravenes th[is] background principle[].” 13 In other words,
the Supreme Court has made clear that the “procedural rigor” in denying

10
Op. at 7 (citing Chavez-Meza, 138 S. Ct. at 1965).
11
Dillon v. United States, 560 U.S. 817, 826 (2010).
12
142 S. Ct. 2389, 2404 (2022) (emphasis added).
13
Id. (citing Rita, 551 U.S. at 356).

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§ 3582(c) motions includes a requirement that the district court sufficiently
explain itself, whether in an order or at a hearing.
This Court has held as much. Three years ago, this Court made clear
that in denying § 3582(c) orders, “the district court must provide specific
factual reasons, including but not limited to due consideration of the § 3553(a)
factors, for its decision.”14 Then last year, we affirmed in published
precedent a denial where “[t]he district court sufficiently stated its reasons for
denying compassionate release and did not clearly err in assessing the evidence
when weighing the § 3553(a) sentencing factors,” evaluating each right
separately.15 Additional unpublished opinions have assumed such
“procedural rigor” when evaluating a district court’s denial of a motion for
compassionate release.16
In sum, a defendant has the procedural right to a sufficient explanation
of a denial for compassionate release, whether it takes the form of a statement
in open court or an issued order—nothing more, nothing less.

14
Chambliss, 948 F.3d at 693 (footnote omitted) (emphasis added).
15
United States v. Rollins, 53 F.4th 353, 359 (5th Cir. 2022)
16
See, e.g., United States v. Yrdanoff, No. 22-10484, 2022 WL 17713067, at *1 (5th
Cir. Dec. 14, 2022) (unpublished) (evaluating the sufficiency of the district court’s
articulation based on Chambliss); United States v. Maldonado, No. 21-30188, 2022 WL
565618, at *1 (5th Cir. Feb. 24, 2022) (unpublished) (per curiam) (same); United States v.
Viator, No. 20-11235, 2022 WL 256345, at *1 (5th Cir. Jan. 26, 2022) (unpublished) (per
curiam) (same); United States v. Thompson, No. 21-40169, 2021 WL 5021973, at *1 (5th Cir.
Oct. 28, 2021) (unpublished) (per curiam) (same).

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III.
Having established the procedural requirement of a sufficient
explanation, we turn to the order at issue. The majority holds that the district
court’s explanation was sufficient. I disagree.
It is true that this Court has upheld such perfunctory orders at least
once in a published case in response to a motion filed under § 3582(c).17 And,
in Chavez-Meza, the Supreme Court observed that “[i]n some cases, it may
be sufficient for purposes of appellate review that the judge simply relied
upon the record, while making clear that he or she has considered the parties’
arguments and taken account of the § 3553(a) factors.”18 Yet, affirming such
a terse order is appropriate only when the district judge has already offered
explanation in the original sentencing decision sufficient for appellate courts
to undertake effective and thoughtful review of the denial, brevity in its order
notwithstanding.19
In United States v. Sauseda, an unpublished decision, we vacated an
identically barren order where the sentencing district court judge was not the

17
Op. at 5 (citing United States v. Escajeda, 58 F.4th 184, 188 (5th Cir. 2023)).
18
Chavez-Meza, 138 S. Ct. at 1965 (emphasis added).
19
For example, in Escajeda, District Judge Counts—the judge here—sentenced the
defendant and decided his motion for a sentence reduction. And at sentencing, the able
judge went to great lengths to explain the defendant’s sentencing, detailing his extensive
criminal history as justifying a Guidelines sentence. See Sentencing Transcript at 4–10,
United States v. Escajeda, No. 18-CR-239 (W.D. Tex. May 16, 2019) (Dkt. No. 55).
Accordingly, this Court could clearly discern the judge’s reasoning for denying the
reduction despite an identically barren order denying a motion for a reduction in sentence.

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same judge who denied the defendant’s motion to reduce his sentence.20 The
Court reasoned that because the judge deciding the § 3582(c) motion had not
sentenced the defendant, absent additional information in the § 3582(c)
denial, this Court could not reasonably discern the judge’s reasons for the
denial.21
The majority cuts Sauseda at the pass, holding that it should not be
extended and adopted into published precedent for three reasons: (1) it is
distinguishable;22 (2) it and one follow-on case23 stand opposed to “the lion’s
share” of other unpublished cases that purportedly take an opposing view;24
and (3) the Supreme Court’s decision in Chavez-Meza forecloses Sauseda.25
None persuade.
A.
The majority distinguishes Sauseda, observing that “[t]here[,] the
Government did not file a response,” whereas “[h]ere, the district court
ordered the Government to respond to McMaryion’s petition and
considered that response before denying relief.”26 This interpretation fails to
engage the record.

20
See generally Sauseda, 2022 WL 989371.
21
See id. at *2–3.
22
Op. at 6.
23
United States v. Suttle, No. 21-50576, 2022 WL 1421164 (5th Cir. 2022)
(unpublished) (per curiam).
24
Op. at 6.
25
Id. at 7.
26
Id. at 6.

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McMaryion pled guilty in 2013 and judgment against him was entered
in November of that year.27 His petition for certiorari was denied in March
2015.28 In July 2018, he moved to unseal a search warrant that produced the
evidence in the case.29 It was denied as moot two months later.30 In December
2018, McMaryion moved to compel the Government to produce documents,
which the Court also denied as moot several months later after the
Government furnished the records in question.31
By contrast, McMaryion’s motion for compassionate release 32
merited a detailed response. It is axiomatic that “[d]istrict judges control
their dockets by setting and enforcing adherence to reasonable deadlines.” 33
So the able district judge filed a 2-sentence order requiring the Government

27
See Judgment in a Criminal Case, United States v. McMaryion, No. 13-CR-141-1
(W.D. Tex. Nov. 14, 2013) (Dkt. No. 127).
28
Notice, United States v. McMaryion, No. 13-CR-141-1 (W.D. Tex. Mar. 3, 2015)
(Dkt. No. 150).
29
Motion, United States v. McMaryion, No. 13-CR-141-1 (W.D. Tex. July 3, 2018)
(Dkt. No. 165).
30
Order Regarding Search Warrant, United States v. McMaryion, No. 13-CR-141-1
(W.D. Tex. Sept. 14, 2018) (Dkt. No. 166).
31
Petitioner’s Motion for Issuance of Show Cause Order, United States v.
McMaryion, No. 13-CR-141-1 (W.D. Tex. Dec. 11, 2018) (Dkt. No. 167); Order Mooting
Petitioner’s Motion to Compel, United States v. McMaryion, No. 13-CR-141-1 (W.D. Tex.
Mar. 5, 2019) (Dkt. No. 169).
32
Motion, United States v. McMaryion, No. 13-CR-141-1 (W.D. Tex. Nov. 16, 2020)
(Dkt. No. 170).
33
Ward v. CNH Am., L.L.C., Ind., 534 F. App’x 240, 242 (5th Cir. 2013)
(unpublished) (per curiam), as revised (July 23, 2013) (citing S&W Enters., L.L.C. v.
SouthTrust Bank of Ala., NA, 315 F.3d 533, 537 (5th Cir. 2003)).

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No. 21-50450

to respond,34 which it may not have otherwise done in light of the action’s
then history. In other words, that one of McMaryion’s previous filings
neither warranted nor received the Government’s attention and the other
simply remained pending on the docket suggests that Judge Count’s order
was, at best, administrative, ensuring that the Government weighed in as
appropriate and that the motion did not languish.
And respond the Government did: over 240 pages, inclusive of
exhibits.35 The Government put forward multiple arguments as to why the
district court should have denied McMaryion’s motion. 36 Yet the judge’s
ultimate decision did not point to any one argument as persuasive, betraying
the fact that while the court had ample evidence before it, the explanation
was insufficient. In sum, the procedural posture of this action with its order
to respond and voluminous response does not bear on the sufficiency of the
explanation at issue.
B.
The lynchpin of the majority’s argument is that Sauseda and Suttle are
wrong and ought not be extended. These “non-binding, unpublished
decisions,” the majority contends, “diverge from the bulk of our authorities
upholding succinct district court decisions on § 3582(c)(1) motions. . . . So,

34
Order to File Response, United States v. McMaryion, No. 13-CR-141-1 (W.D.
Tex. Nov. 20, 2020) (Dkt. No. 171).
35
Government’s Response to Defendant’s Sentence-Reduction Motion, United
States v. McMaryion, No. 13-CR-141-1 (W.D. Tex. Dec. 28, 2020) (Dkt. No. 173) (filed
under seal).
36
See id.

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if appeals to unpublished authority are persuasive, then the lion’s share
makes clear that on McMaryion’s exact facts, the district court did not err.”37
The number of unpublished opinions here matters not. The
persuasive force of unpublished opinions aside, looking to the underlying
facts in the purported “lion’s share” finds the majority of such cases is no
cohesive pride, but rather a distinct species.
The four cases in question are: United States v. Shorter, 850 F. App’x
327, 328 (5th Cir. 2021) (unpublished) (per curiam); United States v. White,
No. 21-50943, 2022 WL 1699467, at *1 (5th Cir. 2022) (unpublished) (per
curiam); United States v. Franco, No. 21-50041, 2022 WL 1316218, at *1 (5th
Cir. May 3, 2022) (unpublished) (per curiam); United States v. Escobedo-
Aragon, No. 22-50003, 2023 WL 130420, at *1 (5th Cir. Jan. 9, 2023)
(unpublished) (per curiam).
In United States v. White, this Court affirmed an identically barren
order denying a motion for compassionate release, but as noted in the
opinion, “White’s opening brief raises no challenges to the district court’s
analysis, and he has thus abandoned such arguments.” 38 In United States v.
Franco, this Court again affirmed an identical order where the defendant’s
argument rested on whether “the district court abused its discretion by
treating U.S.S.G. § 1B1.13 as binding” as well as if it “fail[ed] to consider
factors showing that he is not a danger to the community.” 39 Said differently,

37
Op. at 6.
38
White, 2022 WL 1699467, at *1.
39
2022 WL 1316218, at *1.

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the Franco defendant simply did not bring a claim based on the adequacy of
the district court’s explanation.40 Neither did the defendant in Escobedo-
Aragon. There, the challenge to the order was that it “failed to address or
resolve his challenge to the erroneous career offender designation” because
“it is the duty of the district court to address all claims in a motion.”41 Not
so. As the Supreme Court stated in Concepcion, “[t]he First Step Act does
not ‘require courts to expressly rebut each argument’ made by the parties.”42
Thus, Escobedo-Aragon does not address the issue now before this Court.
This leaves Shorter, a case parallel to this action where the defendant
challenged as “ad hoc” a similarly barren order denying a sentence
reduction43 that was affirmed as sufficient.44 Shorter must give way to
Sauseda, as it failed to engage the importance of a handoff to another judge—
the crucial question at issue—rendering it minimally persuasive, if at all.45
Sauseda not only analyzed the subject at issue, but did so persuasively46:

40
See id.
41
Brief for Appellant at 2–3, Escobedo-Aragon, 2023 WL 130420 (Dkt. No. 12)
(emphasis added).
42
Concepcion, 142 S. Ct. at 2404 (quoting United States v. Maxwell, 991 F.3d 685,
694 (6th Cir. 2021)).
43
See Brief for Appellant at 11–13, Shorter, 850 F. App’x 327 (Dkt. No. 18).
44
See generally 850 F. App’x 327.
45
See, e.g., United States v. Rodriguez-Bernal, 783 F.3d 1002, 1008 (5th Cir. 2015)
(holding that “[u]npublished cases are not binding precedent” and that “there is little
persuasive value to [] pronouncement[s] [where] there was no accompanying analysis”).
Indeed, to the extent the other above-mentioned unpublished cases are applicable, they
similarly do not grapple with this question.
46
Cf. United States v. Narvaez, 452 F. App’x 488, 493 (5th Cir. 2011) (unpublished)
(per curiam) (describing an unpublished opinion as “persuasive” because “it represents a

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No. 21-50450

absent a specific jurist’s discussion at sentencing and against a barren denial,
“nothing in the record on appeal [would] illumine how the district court
determined that [the] motion should be denied other than the bare
conclusions of the order.”47
This design creates an easily applicable framework. Where a
sentencing judge has articulated the considerations animating the sentence
and then denies a motion for a sentence reduction, we would uphold orders
as terse as the one now before us because, “when the order is considered
together with the record,” our appellate review would not be frustrated and
the values of articulation would have been served.48 Conversely, where the
judge deciding the motion for a reduction was not the initial sentencing judge
and decides the motion on the papers, we would require more than an
isolated reference to § 3553, as “the original sentencing transcript [would]
not reflect the latter judge’s factual reasons for their § 3582(c)(1)(A)
decision.”49 Failing to erect such a framework inappropriately nullifies a
defendant’s distinct right to a procedurally reasonable denial.

reasoned analysis of a similar factual pattern”); Brewster v. Dretke, 587 F.3d 764, 768 n.1
(5th Cir. 2009) (stating similarly).
47
Sauseda, 2022 WL 989371, at *2; see also Suttle, 2022 WL 1421164, at *1 (relying
upon Sauseda to hold an identical order insufficient). As Suttle noted, “[a]lthough Sauseda
is not ‘controlling precedent,’ it ‘may be [cited as] persuasive authority.’” 2022 WL
1421164, at *1 (quoting Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006)).
48
United States v. Perales, No. 21-10611, 2022 WL 1978700, at *2 (5th Cir. June 6,
2022) (unpublished) (per curiam).
49
United States v. Jones, 980 F.3d 1098, 1113–14 (6th Cir. 2020).

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C.
Finally, the majority contends that Chavez-Meza “supports [its]
approach.”50 Once more, I disagree.
In Chavez-Meza, the Supreme Court discussed at length the district
court’s reasoning for imposing the initial sentence:
At petitioner’s original sentencing, he sought a variance from
the Guidelines range (135 to 168 months) on the ground that
his history and family circumstances warranted a lower
sentence. The judge denied his request. In doing so, the judge
noted that he had “consulted the sentencing factors of 18
U.S.C. 3553(a)(1).” He explained that the “reason the
guideline sentence is high in this case, even the low end of 135
months, is because of the [drug] quantity.” He pointed out that
petitioner had “distributed 1.7 kilograms of actual
methamphetamine,” a “significant quantity.” And he said that
“one of the other reasons that the penalty is severe in this case
is because of methamphetamine.” He elaborated this latter
point by stating that he had “been doing this a long time, and
from what [he] gather[ed] and what [he had] seen,
methamphetamine, it destroys individual lives, it destroys
families, it can destroy communities.”51
The Supreme Court emphasized that the judge adjudicating the motion “was
the same judge who had sentenced petitioner originally.”52 Given the district
court’s original discussion at sentencing, the Supreme Court continued, “it
is unsurprising that the judge considered a sentence somewhat higher than

50
Op. at 7.
51
Chavez-Mesa, 138 S. Ct. at 1966–67 (record citation omitted).
52
Id. at 1967 (emphasis added).

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the bottom of the reduced range to be appropriate.”53 Indeed, the High Court
explained, the order was permissible despite its concision because, after the
district court’s lengthy discussion on the topic, appellate review was already
possible: “there was not much else for the judge to say.”54 As the initial and
subsequent sentencing judge here are not the same, Chavez-Meza is
inappropriately extended to the case before us, and the majority’s omission
of this crucial part of “the relevant ‘circumstances’” at issue in Chavez-Meza
betrays its application here.55
Nowhere is this principle more evident than in United States v.
Montoya-Ortiz,56 overlooked by the majority. There, a defendant was
sentenced in 1992 by District Judge Benton.57 The case was then reassigned
to multiple district judges for resolution of post-sentencing matters.58 By
2019, when the defendant moved for a reduction in sentence, the case had
been again re-assigned to District Judge Counts, who heard the motion. 59
Judge Counts issued a “fifteen-page order” engaging with and responding to

53
Id.
54
Id. (emphasis added).
55
Op. at 7.
56
No. 21-50326, 2022 WL 2526449 (5th Cir. July 7, 2022) (unpublished) (per
curiam).
57
See generally United States v. Reymundo Montoya-Ortiz, No. 91-CR-95-DC-2
(W.D. Tex.) (docket).
58
See generally id.
59
See generally id. See also Order, United States v. Reymundo Montoya-Ortiz, No. 91-
CR-95-DC-2 (W.D. Tex. July 2, 2020) (Dkt. No. 152) (denying defendant’s motion).

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the defendant’s various arguments, ultimately denying it.60 Following that
denial, the defendant again moved for a reduction, prompting a “perfunctory
one-page” order by Judge Counts.61 That “the district judge who denied
Montoya-Ortiz’s motion is not the same one who sentenced him,” we said,
“counsel[ed] against imputing any findings to the district court.”62 In fact,
the panel said in no uncertain terms that given this posture, “[t]aken alone,
the perfunctory one-page order on appeal would not be enough to avoid
[remand].”63 But given the depth of the district judge’s earlier denial, which
“considered the propriety of reducing his sentence in light of the case’s
posture,” affirmance was appropriate.64 Montoya-Ortiz makes clear, then,
that the specific district judge’s thinking must somehow be on clear display—
be it in the initial sentence or via a prior order denying a reduction in
sentence—otherwise remand is required.65

60
Montoya-Ortiz, 2022 WL 2526449, at *3; see also Order, United States v.
Reymundo Montoya-Ortiz, No. 91-CR-95-DC-2 (W.D. Tex. July 2, 2020) (Dkt. No. 152)
(denying defendant’s motion).
61
Montoya-Ortiz, 2022 WL 2526449, at *3; see also Order, United States v.
Reymundo Montoya-Ortiz, No. 91-CR-95-DC-2 (W.D. Tex. Mar. 18, 2020) (Dkt. No. 155)
(denying defendant’s motion).
62
Montoya-Ortiz, 2022 WL 2526449, at *3.
63
Id. (emphasis added).
64
Id.
65
Montoya-Ortiz similarly undermines the majority’s argument that the same
procedural rigors accompanying an initial sentencing need not accompany a § 3582(c)
order, as that opinion notes: “Only once the court has explained the basis for its decision may
we defer to its exercise of discretion.” Id. at *2 (emphasis added).

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*****
As Sauseda, Shorter, and Suttle make clear, this Court has not yet had
an opportunity to harmonize our unpublished opinions on this subject. 66
Today, we do so. In this concerto, to this ear, the majority is off-key.67
With respect, I must DISSENT.68

66
See United States v. Handlon, 53 F.4th 348, 352 (5th Cir. 2022).
67
“To be clear, [I] do not question the competency or the integrity of the district
court.” United States v. Johnson, 648 F.3d 273, 280 (5th Cir. 2011). To the contrary, I tread
lightly here, keenly aware that the tasks of a United States District Judge—which include
but are not limited to managing hefty dockets and presiding over complex trials—demand
a much wider skill set under far greater time pressure than we who sit remotely with time
to pontificate aided by many clerks and professional staff.
68
This Court’s recent decision in United States v. Pina does not compel a contrary
conclusion. In that case, we affirmed a second denial of a motion for compassionate release
which itself relied on the initial denial of an analogous motion. United States v. Pina, No.
21-50983, 2023 WL 1990533, at *1 (5th Cir. Feb. 14, 2023). This implicit acceptance of the
sufficiency of the first denial rests only on the fact that the defendant did not challenge it,
not on its merits.

25