Case: 19-50305     Document: 00515554176          Page: 1    Date Filed: 09/04/2020




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

                                                                               FILED
                                                                        September 4, 2020
                                   No. 19-50305
                                                                          Lyle W. Cayce
                                                                               Clerk
   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Mario Gonzalez,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 1:14-CR-292-4


   Before BARKSDALE, Elrod, and Ho, Circuit Judges.
   Per Curiam:*
          Mario Gonzalez appeals the district court’s denial of his motion for
   reduction of sentence (commonly known as a motion for compassionate
   release) under the First Step Act. The district court found “no compelling
   or extraordinary reasons that warrant a reduction,” and so it denied the




          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-50305        Document: 00515554176             Page: 2      Date Filed: 09/04/2020




                                         No. 19-50305


   motion.     Because the district court did not abuse its discretion in its
   determination, we AFFIRM.

                                              I.
           Gonzalez is currently serving a 235-month sentence for conspiracy to
   possess cocaine with an intent to distribute. Gonzalez seeks relief from this
   sentence through a motion for reduction of sentence under 18 U.S.C.
   § 3582(c)(1)(A) because “[h]e is currently on dialysis.”                         Section
   3582(c)(1)(A)(i) allows a federal court to reduce a term of imprisonment if it
   finds that “extraordinary and compelling reasons warrant such a reduction.”
           The district court denied the motion because it found “no compelling
   or extraordinary reasons that warrant a reduction.” 1 The court determined
   that Gonzalez’s dialysis did not, by itself, warrant early release. Gonzalez
   now appeals that denial, asserting that the district court erred by treating
   United States Sentencing Guidelines § 1B1.13 as binding. In lieu of filing an
   appellee’s brief, the government responded by moving to dismiss or
   summarily affirm. We review the district court’s decision to deny a motion
   for reduction of sentence for abuse of discretion. United States v. Hernandez,
   

, 712 (5th Cir. 2011).

                                              II.
           Gonzalez contends that the district court erred in denying his motion
   for compassionate release. Particularly, Gonzalez complains that the district


           1
             Gonzalez filed his § 3582 motion on March 15, 2019. The district court denied
   the motion on March 21, 2019. In that six-day interval, and for reasons that do not appear
   in the record, the government did not file a response. Because the case is easily resolved
   on the merits, we need not determine whether the case should be dismissed on procedural
   grounds based on the government’s alternative argument on appeal. The procedural
   requirements of § 3582 are mandatory but not jurisdictional. United States v. Franco, No.
   20-60473, at 3 (5th Cir. Sept. 03, 2020).




                                               2
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                                          No. 19-50305


   court erred in its use of Guideline § 1B1.13 to reach this decision. A review
   of the record belies this complaint. While the district court did cite to and
   quote Guideline § 1B1.13, it relied on its own judgment in denying
   Gonzalez’s motion: “The Court finds no compelling or extraordinary
   reasons that warrant a reduction.” Contrary to Gonzalez’s contention, there
   is no indication in the district court’s order that it treated U.S.S.G. § 1B1.13
   “as the dispositive boundary of what may be judicially determined to be
   extraordinary and compelling reasons for a sentence reduction for medical
   reasons.” Rather, the order’s reference to the Guidelines should be fairly
   read as one step in the district court’s own determination of whether
   extraordinary and compelling reasons warrant a reduction of Gonzalez’s
   sentence. The district court was free to determine that Gonzalez’s need for
   dialysis, without more, was not an extraordinary and compelling reason for
   compassionate release. 2        

(“[T]he decision
   whether to ultimately grant a modification is left to the sound discretion of
   the trial court.”). Gonzalez has not demonstrated that the district court
   abused its discretion in making this determination. 3



           2
              Gonzalez’s motion for reduction of sentence does not explain why Gonzalez’s
   situation is extraordinary and compelling. The motion says simply: “Gonzalez meets the
   criterias [sic] for serious medical conditions of § 571.64(b) pursuant to 18 U.S.C. § 3582.
   He is currently on dialysis.” Gonzalez provides nothing in his brief that would allow this
   court to determine that the district court abused its discretion in deciding that no
   extraordinary and compelling reason was present in this case.
           3
            Gonzalez further contends that the district court abused its discretion in denying
   Gonzalez’s motion without a hearing, but this contention lacks merit. An evidentiary
   hearing is simply not required on a § 3582(c)(2) motion. United States v. Rendon, 807
   F.Appx 418, 420 (5th Cir. 2020) (“[A]n evidentiary hearing is generally only required in a
   § 3582(c)(2) proceeding if a factual dispute exists.”) Gonzalez’s brief does not indicate
   what evidence Gonzalez would have presented in an evidentiary hearing or what credibility
   determination the district court needed to resolve in that hearing. There is simply no basis
   to conclude that the district court abused its discretion.




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                                          No. 19-50305


                                      *        *         *
           The judgment of the district court is AFFIRMED.




           Furthermore, because we are not disturbing the district court’s order, Gonzalez’s
   motion to instruct the district court to appoint counsel for him on remand is MOOT.




                                               4