FILED
                                                                    United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                      Tenth Circuit

                              FOR THE TENTH CIRCUIT                        April 26, 2021
                          _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                      No. 21-3024
                                                 (D.C. No. 6:17-CR-10157-EFM-1)
    JULIAN LOPEZ, JR.,                                       (D. Kan.)

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT *
                          _________________________________

Before MORITZ, BALDOCK, and EID, Circuit Judges. **
                  _________________________________

         Defendant-Appellant Julian Lopez filed a motion for compassionate release in

the district of Kansas under 18 U.S.C. § 3582(c)(1). Lopez, who is incarcerated for

possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C.

§.924(c), requested early release from prison to take care of his ailing father. The

district court denied the motion, finding Lopez failed to present “an extraordinary and




*
 This order and judgment is not binding precedent, except under the doctrines of law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.
**
   After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
compelling reason warranting release.” This appeal followed. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

      We review the district court’s denial of a motion for compassionate release for

an abuse of discretion. See United States v. Piper, 

, 1265 (10th Cir.

2016). The district court may grant a motion for a reduction of sentence if it (1) finds

that an extraordinary and compelling reason warrants such a reduction, (2) finds that

such a reduction is consistent with the applicable policy statements issued by the

Sentencing Commission, and (3) considers the factors set forth in 18 U.S.C. § 3353(a),

to the extent they are applicable. United States v. McGee, No. 20-5047, 

, at *5 (10th Cir. Mar. 29, 2021).

      Here, Lopez moved for a sentence reduction to care for his ailing father, who is

82 years old, has high blood pressure, had a stroke, is battling prostate cancer, recently

fractured a hip, and needs assisted living but cannot afford it. Lopez contends his

mother, who is 72, is not healthy enough to care for his father. Lopez also suggests

that his sister cannot care for his parents because she has her own family to care for

and does not live nearby. The district court determined these circumstances do not

constitute an extraordinary and compelling reason warranting early release.

      On appeal, Lopez argues the district court erred in denying his motion solely

because his asserted “extraordinary and compelling reason” warranting release does

not fall within policy statements issued by the Sentencing Commission. While we

agree this would be error, see McGee, 

at *8 (explaining that district

courts have the authority to determine for themselves what constitutes “extraordinary

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and compelling reasons”), Lopez misconstrues the district court’s order. Although the

district court acknowledged the policy statements issued by the Sentencing

Commission, it did not solely rely upon them in finding Lopez failed to present an

extraordinary and compelling reason warranting early release.

      The district court recognized that “family circumstances can sometimes

establish an extraordinary and compelling reason warranting release.” Quoting the

application note to U.S.S.G. § 1B1.13, however, the court explained that “family

circumstances” typically warrant early release where (1) the caregiver of a defendant’s

minor child is incapacitated or dies, or (2) the defendant’s spouse becomes

incapacitated and the defendant would be the only available caregiver. The court found

that neither of these situations apply, as Lopez’s father is neither Lopez’s spouse nor

the caretaker of his children. But the court did not stop there. Instead, it went on to

explain that “even if [it] was inclined to find that caring for an incapacitated parent

was an extraordinary reason, [Lopez] fails to demonstrate . . . that he is the only

potential caregiver.” The district court reasoned that Lopez’s mom and sister are both

available to help care for his father. The court thus concluded that Lopez’s “assertion

that his father needs additional caregiver help does not constitute an extraordinary and

compelling reason warranting release.”

      The district court was well within its discretion to deny Lopez’s motion for a

sentence reduction. In making its decision, the court did not rely upon an incorrect

conclusion of law or a clearly erroneous finding of fact. See United States v. Williams,

No. 2021-3001, WL 1148456, at *2 (10th Cir. Mar. 25, 2021). Contrary to Lopez’s

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suggestion, the court did not misconstrue its authority to reduce Lopez’s sentence. The

court simply determined that Lopez did not present an extraordinary and compelling

reason warranting early release. Accordingly, we affirm.


                                           Entered for the Court


                                           Bobby R. Baldock
                                           Circuit Judge




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