United States of America v. Guillermo Salazar-Velasquez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-7427
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GUILLERMO SALAZAR-VELASQUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:08-cr-00904-RMG-1)
Submitted: August 18, 2023 Decided: August 30, 2023
Before WILKINSON and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Guillermo Salazar-Velasquez, Appellant Pro Se. Emily Evans Limehouse, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Guillermo Salazar-Velasquez appeals from the district court’s order denying his
motion for compassionate release. On appeal, he asserts that the district court did not
adequately consider and address the reasons he presented for release. We affirm.
We review a district court’s ruling on a motion for compassionate release for abuse
of discretion. United States v. High, 997 F.3d 181, 185 (4th Cir. 2021). “A district court
abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially
recognized factors constraining its exercise of discretion, relies on erroneous factual or
legal premises, or commits an error of law.” United States v. Jenkins, 22 F.4th 162, 167
(4th Cir. 2021) (internal quotation marks omitted).
District courts may reduce a term of imprisonment if “extraordinary and compelling
reasons warrant such a reduction” upon a motion of the Director of the Bureau of Prisons
(BOP) or upon a motion of the defendant after he has exhausted his administrative remedies
with the BOP. 18 U.S.C. § 3582(c)(1)(A)(i). If a court finds that extraordinary and
compelling reasons exist, it must then consider the § 3553(a) factors “to the extent that they
are applicable.” Id. § 3582(c)(1)(A). Finally, a court may grant a reduction only if it is
“consistent with applicable policy statements issued by the Sentencing Commission.” Id.
“As of now, there is no Sentencing Commission policy statement ‘applicable’ to [a
defendant’s] compassionate-release motion[],” as opposed to such a motion brought by the
BOP. United States v. McCoy, 981 F.3d 271, 283 (4th Cir. 2020). Thus, currently, courts
may consider any extraordinary and compelling reasons for release that a defendant raises.
Id. at 284.

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When deciding a compassionate release motion, “district courts bear the standard
obligation to explain their decisions and demonstrate that they considered the parties’
arguments.” Concepcion v. United States, 142 S. Ct. 2389, 2404 (2022) (addressing, in
context of motion under § 404 of First Step Act, whether courts may consider intervening
changes of law or fact in exercising discretion to reduce a sentence). However, it is
well-established that a district court is not required to expressly acknowledge and address
every argument offered in support of a motion for compassionate release. High, 997 F.3d
at 188-89. Rather, “just how much of an explanation is required depends upon the narrow
circumstances of the particular case.” Jenkins, 22 F.4th at 170. Ultimately, a court’s
explanation is sufficient if it demonstrates that the court “was aware of the arguments,
considered the relevant sentencing factors, and had an ‘intuitive reason’ for” denying the
motion. High, 997 F.3d at 191 (quoting Chavez-Meza v. United States, 138 S. Ct. 1959,
1967 (2018)); see Concepcion, 142 S. Ct. at 2404 (noting court is not “required to articulate
anything more than a brief statement of reasons” when denying First Step Act motion and
must only “make clear that it reasoned through the parties’ arguments” (cleaned up)).
Here, the district court’s brief discussion adequately demonstrated that it considered
Salazar-Velasquez’s arguments. Regarding Salazar-Velasquez’s contentions of ineffective
assistance, prosecutorial misconduct, and Sentencing Guidelines errors during his criminal
proceeding, “a compassionate release motion cannot be used to challenge the validity of a
defendant’s conviction or sentence.” United States v. Ferguson, 55 F.4th 262, 272 (4th
Cir. 2022), petition for cert. filed (June 16, 2023). Because these claims were frivolous,

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the district court did not err in failing to provide a detailed explanation of its rejection of
them.
Turning to Salazar-Velasquez’s claims regarding his personal circumstances—age,
medical conditions, risk of COVID complications—the district court considered these in
Salazar-Velasquez’s prior compassionate release motion, and Salazar-Velasquez fails to
explain how his circumstances have changed, with the exception of his vaccination.
However, Salazar-Velasquez does not explain how his vaccination strengthens his motion
or provides an extraordinary or compelling reason for his release. As such, the district
court did not err in providing only a brief discussion of these factors, and the district court’s
failure to consider Salazar-Velasquez’s vaccination was, at most, harmless error.
Next, Salazar-Velasquez relies on amendments to BOP regulations and the
Sentencing Guidelines. Even assuming Salazar-Velasquez is entitled to earlier release
under the new BOP regulations, he fails to argue how the new regulations, presumably
applicable to the entire prison population, would establish an extraordinary and compelling
reason for his compassionate release. In any event, Salazar-Velasquez is free to apply to
the BOP for relief.
In addition, the district court did not abuse its discretion in failing to consider
potential Guidelines amendments that had not been either adopted or enacted at the time of
its decision. After the effective date of the amendments, Salazar-Velasquez is free to apply
again for compassionate release under the new standards. Further, even assuming the
district court erred in some manner in finding that there was no extraordinary and
compelling reason for Salazar-Velasquez’s release, Salazar-Velasquez does not challenge

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the district court’s separate determination that the 18 U.S.C. § 3553 factors weigh against
his release.
Finally, Salazar-Velasquez requests permission to file an untimely 28 U.S.C. § 2255
motion. However, a motion for compassionate release is not the proper filing to seek this
relief. The proper procedure would be to file a § 2255 motion and seek equitable tolling
in that proceeding. Moreover, while Salazar-Velasquez asserts that his attorney’s and the
Government’s alleged misconduct caused his default and that he is now barred from filing
a motion, such is insufficient to qualify as an extraordinary and compelling reason for
release. See Ferguson, 55 F.4th at 271.
Accordingly, we grant Salazar-Velasquez’s motions to supplement and amend his
informal brief and affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED

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