United States v. Kenneth Gordon

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10168

Plaintiff-Appellee, D.C. No. 1:11-cr-00479-JMS-1

v.

KENNETH SCOTT GORDON, AKA Sticks, MEMORANDUM*

Defendant-Appellant.

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

Submitted July 12, 2022**

Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.

Kenneth Scott Gordon appeals from the district court’s order denying his

motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). We have

jurisdiction under 28 U.S.C. § 1291. Reviewing for abuse of discretion, see United

States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021), 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). Gordon contends that the district court erred because it considered his

medical conditions individually, rather than in the aggregate, when it determined

he had not demonstrated the required extraordinary and compelling reasons for

relief. This argument is not supported by the record, which shows that the court

considered each of Gordon’s claimed medical conditions and agreed that several of

them increased his risk from COVID-19. The court did not abuse its discretion in

concluding that, notwithstanding Gordon’s risk factors and age, his recovery from

a prior COVID-19 infection and subsequent vaccination counseled against granting

compassionate release. See United States v. Robertson, 895 F.3d 1206, 1213 (9th

Cir. 2018) (district court abuses its discretion only if its decision is illogical,

implausible, or without support in the record). Having properly concluded that

Gordon had failed to demonstrate extraordinary and compelling reasons, the court

was not required to determine whether compassionate release was consistent with

the applicable 18 U.S.C. § 3553(a) factors. See Keller, 2 F.4th at 1284. Nor has

Gordon shown that the Bureau of Prisons’ decision to transfer him temporarily to

home confinement means that the district court abused its discretion by declining

to grant permanent compassionate release.

AFFIRMED.

2 21-10168