United States v. Rodney Joseph, Jr.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10359

Plaintiff-Appellee, D.C. No. 1:06-cr-00080-SOM-BMK-2 v.

RODNEY JOSEPH, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Rodney Joseph, Jr., appeals pro se 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 affirm.

Joseph challenges the district court’s factual findings and conclusion that he

* 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). failed to demonstrate extraordinary and compelling reasons for compassionate

release. However, Joseph has not shown that any of the court’s factual findings

was clearly erroneous or that the court abused its discretion by denying relief. See

United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (stating standard of

review). The court considered Joseph’s medical conditions and the risks posed by

COVID-19, but reasonably denied relief based on Joseph’s age, the low incidence

of infection and high rate of vaccination at his facility, his decision to decline

vaccination, and his “statutorily mandated life sentence for crimes of violence.”

Joseph’s argument that he was denied effective assistance of counsel at the

hearing on his motion for compassionate release is also unavailing. Because there

is no Sixth Amendment right to counsel for a § 3582(c) motion, see United States

v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996), Joseph cannot state a claim for

ineffective assistance, see Coleman v. Thompson, 501 U.S. 722, 752-53 (1991).

We do not consider arguments and evidence asserted by Joseph on appeal

that he did not raise before the district court. See Padgett v. Wright, 587 F.3d 983,

985 n.2 (9th Cir. 2009). Joseph remains free to raise those arguments in any

subsequent compassionate release motion before the district court.

AFFIRMED.

2 21-10359