United States v. Andre Brown

Opinion

FILED

NOT FOR PUBLICATION

FEB 11 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10031

Plaintiff-Appellee, D.C. Nos. 3:17-cr-00104-SI-1 3:17-cr-00104-SI

v.

ANDRE MITCHELL BROWN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Submitted February 9, 2022** San Francisco, California

Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,*** District Judge.

Andre Brown sought compassionate release pursuant to 18 U.S.C.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

***

The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation.

§ 3582(c)(1)(A)(i), citing asthma and a COVID-19 diagnosis. Relying solely on the factors in 18 U.S.C. § 3553(a), the district court denied the motion, reasoning that Brown had not yet completed the Residential Drug Abuse Treatment Program (“RDAP”), had a history of violent offenses, and had only served about 22% of her sentence. Reviewing the district court’s decision for abuse of discretion, see United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (per curiam), we affirm.

A district court may base its denial of a motion for compassionate release solely on the § 3553(a) factors. See United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021). And, Tapia v. United States, which precludes sentencing courts from “imposing or lengthening a prison term to promote an offender’s rehabilitation,” 564 U.S. 319, 332 (2011), does not bar courts from considering programs like RDAP in deciding whether to reduce a sentence, see United States v. Navarro, 800 F.3d 1104, 1112 (9th Cir. 2015). Moreover, the district court’s factual finding that Brown had not yet completed the RDAP program was not clearly erroneous.

AFFIRMED.