USA v. Alexander Ros Lazo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13508
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER ROS LAZO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20536-JEM-1
____________________
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2 Opinion of the Court 22-13508
Before R OSENBAUM , BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Alexander Lazo appeals the district court’s denial of his
motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A).
He argues that the district court erred in determining that (1) he
failed to show extraordinary and compelling reasons for his
compassionate release, and (2) compassionate release was
inappropriate because he posed a danger to the community.1 After
review, we affirm.
I. Background
In 2018, Lazo pleaded guilty, pursuant to a written plea
agreement, to conspiracy to commit heath care and wire fraud in
violation of 18 U.S.C. § 1349, and he received a sentence of 87
1
We note that the district court denied Lazo’s motion for compassionate
release on September 23, 2022, and Lazo did not file a notice of appeal until
October 14, 2022, which is outside the 14-day window for filing a timely notice
of appeal under Federal Rule of Criminal Procedure 4(b). However, in its brief
on appeal, the government affirmatively waives any challenge to the
timeliness of the appeal. See United States v. Lopez, 562 F.3d 1309, 1311–13 (11th
Cir. 2009) (explaining that the deadline for criminal appeals is not jurisdictional
and may be waived by the government).
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22-13508 Opinion of the Court 3
months’ imprisonment.2 Lazo began serving his sentence in May
2021.3
In February 2022, Lazo filed a motion for compassionate
release and requested that he be resentenced to home
confinement, arguing that he suffered from medical conditions that
placed him at high risk for serious illness from COVID-19,
including diabetes, high blood pressure, asthma, obesity,
polycythemia vera (a rare blood disorder), and an abnormal lymph
node in his abdomen. He asserted that his primary care physician
recommended that he not be vaccinated for COVID-19 due to his
health conditions. Thus, he maintained that the “unparalleled
health crisis” caused by the global COVID-19 pandemic coupled
with his high risk constituted extraordinary and compelling reasons
for compassionate release under the “other reasons” catch-all
provision set forth in U.S.S.G. § 1B1.13(1)(D). Additionally, he
2 The conspiracy involved submitting false and fraudulent claims to Medicare
for services that were either not rendered, medically unnecessary, or not
eligible for Medicare reimbursement. In exchange for Lazo’s guilty plea to the
conspiracy count, the remaining counts for healthcare fraud (4 counts),
conspiracy to defraud the United States and pay and receive health care
kickbacks, and payment of bribes and kickbacks in connection with a federal
health care program (2 counts) were dismissed.
3 Lazo’s wife also pleaded guilty to conspiracy to commit healthcare and wire
fraud, and she was sentenced to 24 months’ imprisonment. However, because
Lazo and his wife were the primary caregivers to their elderly parents, the
district court staggered their sentences, and Lazo’s wife served her sentence
first, at which point Lazo then had to self-surrender in May 2021.
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4 Opinion of the Court 22-13508
asserted that the 18 U.S.C. § 3553(a) factors supported his request.
The government opposed the motion.
The district court denied the motion, concluding that Lazo
did not show extraordinary and compelling reasons as his prison
medical records showed that his medical conditions were being
monitored and treated by the prison and those conditions did not
substantially diminish his ability to provide-self care in prison.
Furthermore, the district court concluded that even if
extraordinary and compelling reasons were present,
compassionate release was not warranted because Lazo posed a
danger to the community given the nature of his offense. The
district court noted that Lazo had played a role in an “elaborate and
sophisticated multi-million-dollar health care fraud scheme that
spanned nearly a decade” and that his crime “greatly impacted the
public’s most vulnerable.” Lazo appealed.
II. Discussion
Lazo argues that in light of his various medical conditions,
the district court erred in concluding that he failed to establish
extraordinary and compelling reasons for compassionate release.
He maintains that “his high susceptibility to COVID-19 falls within
the purview of [the] catchall” provision in U.S.S.G. 1B1.13,
application note (1)(D). Additionally, he argues that the district
court abused its discretion in finding that he posed a danger to the
community—a conclusion which he contends is undermined
significantly by the fact that the district court allowed him to stay
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22-13508 Opinion of the Court 5
out of custody for over two years after sentencing before self-
surrendering.
We review de novo whether a defendant is eligible for an
18 U.S.C. § 3582(c) sentence reduction. United States v. Bryant, 996
F.3d 1243, 1251 (11th Cir. 2021). We review a district court’s denial
of a movant’s § 3582(c)(1)(A) motion for abuse of discretion. United
States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021).
Generally, a court “may not modify a term of imprisonment
once it has been imposed.” 18 U.S.C. § 3582(c). Section
3582(c)(1)(A), however, provides the following limited exception:
the court, upon motion of the Director of the [BOP],
or upon motion of the defendant after the defendant
has fully exhausted all administrative rights . . . may
reduce the term of imprisonment . . ., after
considering the factors set forth in section 3553(a) to
the extent that they are applicable, if it finds that . . .
extraordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent
with applicable policy statements issued by the
Sentencing Commission.
Id. § 3582(c)(1)(A). Thus, under § 3582(c)(1)(A), the district court
may reduce a movant’s imprisonment term if: (1) there are
“extraordinary and compelling reasons” for doing so,
(2) the factors listed in 18 U.S.C. § 3553(a) favor doing so, and
(3) doing so is consistent with the policy statements in U.S.S.G.
§ 1B1.13. United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir.
2021). If the district court finds against the movant on any one of
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6 Opinion of the Court 22-13508
these requirements, it cannot grant relief, and need not analyze the
other requirements. United States v. Giron, 15 F.4th 1343, 1347–48
(11th Cir. 2021); Tinker, 14 F.4th at 1237–38 (explaining that
“nothing on the face of 18 U.S.C. § 3582(c)(1)(A) requires a court to
conduct the compassionate-release analysis in any particular
order”).
When the district court ruled on Lazo’s motion in
September 2022, the Sentencing Commission defined
“extraordinary and compelling reasons” for purposes of
§ 3582(c)(1)(A) in Application Note 1 to U.S.S.G. § 1B1.13.4
Pursuant to this definition, there were four circumstances under
which “extraordinary and compelling reasons exist[ed],” including
as relevant here, that: (A) the defendant suffers from (i) “a terminal
4 Notably, while this appeal was pending, the United States Sentencing
Commission amended § 1B1.13 and added new grounds that constitute
extraordinary and compelling reasons for compassionate release, which took
effect in November 2023. See U.S.S.G. § 1B1.13(b) (2023). One of these new
grounds is that the movant has health risk factors that place him “at increased
risk of suffering severe medical complications or death as a result of exposure
to [an] ongoing outbreak of infectious disease” and “such risk cannot be
adequately mitigated in a timely manner.” Id. § 1B1.13(b)(1)(D). We note,
however, that these substantive changes to § 1B1.13 do not apply
retroactively, and the parties do not argue otherwise. See United States v.
Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011) (explaining that only “clarifying”
amendments are given retroactive effect on appeal; “substantive”
amendments are “not applied retroactively”); United States v. Summers, 176
F.3d 1328, 1331 (11th Cir. 1999) (“[A]lteration of actual Guideline language
strongly suggests that a substantive change was being made.”). Therefore, we
focus on the version of U.S.S.G. 1B1.13 that was in effect at the time the district
court rendered its decision. Jerchower, 631 F.3d at 1184.
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22-13508 Opinion of the Court 7
illness,” or (ii) a permanent health condition “that substantially
diminish the ability of the defendant to provide self-care within the
environment of a correctional facility and from which he or she is
not expected to recover”; or (D) there exist “other” extraordinary
and compelling reasons “[a]s determined by the Director of the
Bureau of Prisons.” U.S.S.G. § 1B1.13 cmt. n.1 (A), (D). We held
in Bryant that “district courts are bound by the Commission’s
definition of ‘extraordinary and compelling reasons’ found in
[§] 1B1.13,” and that Application Note 1(D) “[did] not grant
discretion to courts to develop ‘other reasons’ that might justify a
reduction in a defendant’s sentence.” Bryant, 996 F.3d at 1248,
1262–65.
Lazo was eligible for compassionate release only if he
showed that he had a terminal illness or that the medical conditions
substantially diminished his ability to provide self-care while in
prison. U.S.S.G. § 1B1.13 cmt. n.1(A). He failed to show either.
Although he argues that his medical conditions place him at severe
risk from COVID-19, his medical records show that his conditions
are being treated and are manageable in prison. We have upheld
denials of similar motions for compassionate release where an
inmate’s medical conditions are manageable in prison, even when
those conditions may place an inmate at an increased risk from
COVID-19. See Giron, 15 F.4th at 1346 (holding that the district
court did not err in denying compassionate release to an inmate
with high cholesterol, high blood pressure, and coronary artery
disease even though inmate was at increased risk from COVID-19
because his conditions were manageable in prison); United States v.
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8 Opinion of the Court 22-13508
Harris, 989 F.3d 908, 912 (11th Cir. 2021) (holding that the district
court did not abuse its discretion by denying compassionate release
to an inmate with hypertension despite the increased risk of death
or severe medical complications from COVID-19). Moreover,
Lazo made no allegation that any of his medical conditions
interfered with his ability to provide self-care. Thus, he did not
satisfy § 1B1.13 cmt. (n.1)(A).
Finally, although Lazo asserts that the district court had the
discretion under subsection (D) to determine that his
circumstances qualified as “other” extraordinary and compelling
reasons, his argument is foreclosed by our decision in Bryant. 996
F.3d at 1248, 1262–65.5
Accordingly, we affirm the district court’s denial of Lazo’s
motion for compassionate release.
AFFIRMED.
5 Because we conclude that Lazo failed to establish extraordinary and
compelling reasons for compassionate release, we do not reach his argument
that the district court abused its discretion in determining that his request was
not supported by the § 3553(a) factors because he posed a danger to the
community. See Tinker, 14 F.4th at 1237–38 (“Because all three conditions—
i.e., support in the § 3553(a) factors, extraordinary and compelling reasons, and
adherence to § 1B1.13’s policy statement—are necessary, the absence of even
one would foreclose a sentence reduction.”).
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