United States v. Terry Keehn, II

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 28, 2024
• Docket: 23-30031
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-30031

Plaintiff-Appellee, D.C. Nos. 3:16-cr-00004-TMB-1 v. 3:16-cr-00004-TMB

TERRY LEE KEEHN II, AKA Terry Keehn, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Submitted May 23, 2024** Anchorage, Alaska

Before: BYBEE, FRIEDLAND, and MILLER, Circuit Judges.

Terry Lee Keehn pleaded guilty to possession of a controlled substance with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). He was

sentenced to 140 months of imprisonment. Keehn appeals from the district court’s

denial of his motion for compassionate release under 18 U.S.C. § 3582(c). We

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

“A district court’s ruling on a compassionate release motion under

§ 3582(c)(1) is reviewed for abuse of discretion.” United States v. Wright, 46 F.4th

938, 944 (9th Cir. 2022).

1. The district court’s analysis was consistent with our decision in United

States v. Aruda, 993 F.3d 797 (9th Cir. 2021). Interpreting the version of U.S.S.G.

§ 1B1.13 then in effect, we held in Aruda that courts may “consider any

extraordinary and compelling reason for release that a defendant might raise.” 993

F.3d at 801 (quoting United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020));

see U.S.S.G. § 1B1.13(b) (amended Nov. 1, 2023) (restricting “[e]xtraordinary and

compelling reasons” to the enumerated “circumstances or a combination thereof”).

Here, the court thoroughly considered all the reasons for release that Keehn raised,

including his medical conditions and his concerns about his medical treatment.

Keehn argues that the district court improperly required him to show that he

suffered from a medical condition that did not exist at the time of sentencing.

Although the court observed that Keehn had not established “any other condition

not contemplated at the time of his sentencing that might seriously jeopardize his

health,” that statement, read in context, was intended simply as a description of the

evidence presented, not as a requirement for compassionate release.

2. The district court reasonably found that Keehn’s medical conditions and

2 medical care were not “extraordinary and compelling reasons warrant[ing] . . . a

[sentence] reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). The court did not abuse its

discretion when it relied on Bureau of Prisons medical records to conclude that the

Bureau adequately treated Keehn’s documented health problems and adequately

responded to his COVID-19 diagnosis. Furthermore, a “sentencing judge has broad

discretion to decide for himself not only the relevance but also the reliability of the

sentencing information.” United States v. Morgan, 595 F.2d 1134, 1138 (9th Cir.

1979). Thus, the court was not required to more fully credit an expert report from

Dr. Ogur, who had never personally examined Keehn and who set forth a series of

undiagnosed conditions he might have. Despite Dr. Ogur’s conclusion that

Keehn’s medical care was “substandard in failing to properly diagnose his episode

of chest pain and his worsening shortness of breath,” Keehn had not experienced

documented chest pain since April 2021 or any shortness of breath since April

2022. In fact, Keehn’s most recent medical record stated that “[a]ll chronic care

clinic issues were discussed at length . . . [and Keehn] appears to be doing fairly

well clinically.” It therefore was not an abuse of discretion for the court to

conclude that Keehn’s medical conditions did not constitute extraordinary and

compelling reasons warranting early release.

AFFIRMED.