United States v. Jose Abundiz

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2021
• Docket: 20-30171
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30171

Plaintiff-Appellee, D.C. No. 1:16-cr-02066-RMP-1

v.

JOSE ALBERTO ABUNDIZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Jose Alberto Abundiz appeals pro se from the district court’s order denying

his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) and his

motion for appointment of counsel. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

* 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). As an initial matter, the government contends that venue was improper in the

district court. We disagree. In light of Abundiz’s pro se status and the arguments

raised in his motion, the court permissibly construed his motion as a request for

compassionate release under 18 U.S.C. § 3582(c)(1)(A). Accordingly, his motion

was properly filed in the Eastern District of Washington, where he was sentenced.

We also conclude that the court did not err by denying Abundiz’s motion to

appoint counsel. Abundiz does not have a Sixth Amendment right to counsel on a

§ 3582(c) motion, see United States v. Townsend, 98 F.3d 510, 512-13 (9th Cir.

1996), and the district court reasonably denied appointment given the nature and

brevity of Abundiz’s request.

Turning to the merits of his motion, Abundiz contends that the district court

erred by treating U.S.S.G. § 1B1.13 as an applicable policy statement and abused

its discretion in concluding that the 18 U.S.C. § 3553(a) factors did not support

relief. We need not reach the § 1B1.13 question because the court did not abuse its

discretion in denying Abundiz’s motion under § 3553(a), which provides an

independent basis to affirm. See United States v. Keller, 2 F.4th 1278, 1284 (9th

Cir. 2021). The record reflects that the court considered Abundiz’s medical

condition and arguments for release, but reasonably concluded that the § 3553(a)

factors, including Abundiz’s history and characteristics and the need for

deterrence, did not warrant compassionate release.

2 20-30171 Finally, the district court did not err by denying Abundiz’s motion with

prejudice. Contrary to Abundiz’s assertion, the denial with prejudice does not

preclude him from filing another motion under § 3582(c)(1)(A) should his

circumstances change.

AFFIRMED.

3 20-30171