United States v. Luke Warner

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10433

Plaintiff-Appellee, D.C. No. 1:14-cr-00688-HG-1

v. MEMORANDUM* LUKE WARNER, AKA Lucky,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Submitted June 21, 2021**

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.

Luke Warner 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, and we vacate and remand for the district court to

reconsider Warner’s motion.

* 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 a preliminary matter, we exercise our discretion under Federal Rule of

Appellate Procedure 4(c)(1)(B) and accept Warner’s declaration, accompanied by

outgoing mail receipts, that he deposited his notice of appeal with the prison

authorities 12 days after entry of the district court’s order. We accordingly reject

the government’s argument that Warner’s notice of appeal was untimely. See Fed.

R. App. P. 4(b)(1)(A), (c)1).

Turning to the merits, the district court concluded that Warner had not

shown “extraordinary and compelling” reasons warranting his release. 18 U.S.C.

§ 3582(c)(1)(A)(i). It appears that in doing so, the district court may have treated

U.S.S.G. § 1B1.13 as binding. After the district court’s decision, we held that “the

current version of U.S.S.G. § 1B1.13 is not an applicable policy statement for

§ 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d

797, 802 (9th Cir. 2021) (internal quotation marks and alterations omitted). “The

Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district

court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are

not binding.” Id.

In light of our intervening decision in Aruda, we vacate and remand so that

the district court can reassess Warner’s motion for compassionate release under the

standard set forth there. We offer no views as to the merits of Warner’s

§ 3582(c)(1)(A)(i) motion, and we leave it to the district court to consider his new

2 20-10433 allegation that he has since contracted COVID-19.

In light of this disposition, we do not reach Warner’s remaining contentions.

Warner’s motions to file an untimely, oversized reply brief and exhibits

under seal are granted. The Clerk will file under seal the reply brief and exhibits at

Docket Entry No. 33.

Warner’s motion for service of filings is granted. The Clerk will serve on

appellant a copy of appellant’s filings at Docket Entry Nos. 31 and 33.

Warner’s motions to submit supplemental information, and all other pending

motions, are denied. The motions and attachments at Docket Entry Nos. 12 and 39

will remain under seal.

VACATED AND REMANDED.

3 20-10433