Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 21-3155 (D.C. No. 2:14-CR-20046-JWL-TJJ-1) JOHN HERNANDEZ, (D. Kan.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, BRISCOE, and MATHESON, Circuit Judges. _________________________________ Defendant John Hernandez appeals from the district court’s denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I Hernandez is a native and citizen of Belize. In 2014, he pled guilty to distribution of methamphetamine and unlawful reentry after a prior aggravated felony * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 2 conviction. The district court sentenced him to 108 months’ imprisonment on the distribution conviction and 48 months’ imprisonment on the unlawful reentry conviction, with the terms to be served concurrently. The district court also ordered Hernandez to serve a three-year term of supervised release following the conclusion of his terms of imprisonment. In June 2021, Hernandez filed several pro se motions seeking immediate compassionate release under § 3582(c)(1)(A)(i). Hernandez noted in his motions that his projected release date was August 31, 2022. He argued, however, that the risk he would contract COVID-19 in prison amounted to an extraordinary and compelling circumstance justifying early release because he suffered from heart disease1 and this condition placed him at greater risk of serious illness or death from COVID-19. Hernandez urged the court to exercise its discretion to order his release upon consideration of the 18 U.S.C. § 3553(a) factors. The district court denied the motions. Hernandez now appeals from the district court’s decision. II “[T]he plain language” of § 3582(c)(1)(A)(i) “creates a three-step test.” United States v. Hald, 8 F.4th 932, 937 (10th Cir. 2021) (internal quotation marks omitted). “At step one a district court must find whether extraordinary and compelling reasons warrant a sentence reduction.” Id. at 938 (ellipsis and internal quotation marks omitted). “At step two a district court must find whether such 1 According to Hernandez’s motions, he “received (4) stents in [his] arteries on 12/7/2015.” ROA, Vol. I at 68. 2 Appellate Case: 21-3155 Document: 010110691432 Date Filed: 06/01/2022 Page: 3 reduction is consistent with applicable policy statements issued by the Sentencing Commission.”2 Id. (ellipsis and internal quotation marks omitted). “At step three § 3582(c)(1)(A) instructs …
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