United States v. Dennis Duarte

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2022
• Docket: 21-10148
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10148

Plaintiff-Appellee, D.C. Nos. 1:15-cr-00633-JMS-1 v. 1:15-cr-00633-JMS

DENNIS DUARTE, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, Chief District Judge, Presiding

Submitted February 17, 2022** Honolulu, Hawaii

Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.

Defendant-Appellant Dennis Duarte appeals the denial of his motion for

compassionate release. He contends the district court erred on two grounds: (1) it

abused its discretion in finding that the risk of infection with COVID-19 did not

present an “extraordinary and compelling reason[]” for his release under 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). § 3582(c)(1)(A)(i), and (2) in making this finding, its reliance on guidance from the

Center for Disease Control (CDC) constituted impermissible delegation under

United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (per curiam). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

In deciding whether to grant a defendant’s motion for compassionate release

under 18 U.S.C. § 3582(c)(1)(A)(i), we “consider (1) whether ‘extraordinary and

compelling reasons warrant such a reduction’; and (2) ‘the [sentencing] factors set

forth in [§] 3553(a) to the extent that they are applicable.’” United States v. Keller,

2 F.4th 1278, 1283–84 (9th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). Each

step of this analysis qualifies as an independent ground to deny a motion for

compassionate release. See id. at 1284 (“[A] district court that properly denies

compassionate release need not evaluate each step.”).

The district court denied Duarte’s motion based on both steps. However, on

appeal, Duarte challenges only the district court’s “extraordinary and compelling

reasons” analysis. Regarding the § 3553(a) analysis, Duarte merely contends these

statutory factors do not provide an independent ground for relief when the district

court has already conducted an “extraordinary and compelling reasons” inquiry. In

support, he cites United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (per

curiam), where we remanded even though the district court had found that the

§ 3553(a) factors weighed against release. But in Aruda “[w]e offer[ed] no views as

2 to the merits” of the defendant’s motion for compassionate release. Id. Instead, we

remanded because the district court had treated an inapplicable sentencing guideline

as binding. Id. Here, the district court made no such error.

Because the district court’s § 3553(a) analysis, which Duarte did not

challenge, provides an independent ground to deny Duarte’s motion for

compassionate release, we affirm on that basis and do not address Duarte’s

arguments related to the district court’s extraordinary-and-compelling-reasons

analysis. See Keller, 2 F.4th at 1284; Freedom From Religion Found., Inc. v. Chino

Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (per

curiam) (issues not raised on appeal are waived).

AFFIRMED.