United States v. Vera Kuzmenko

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10391

Plaintiff-Appellee, D.C. No. 2:11-cr-00210-JAM-1 v.

VERA KUZMENKO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted August 4, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Vera Kuzmenko appeals from the district court’s order denying her 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.

* 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). We review § 3582(c)(1) sentence reduction decisions for abuse of discretion.

United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021). The district court abuses

its discretion only if its decision is illogical, implausible, or without support in the

record. United States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018).

Kuzmenko contends that she qualifies for compassionate release because her

health conditions, e.g., obesity, hypertension, and sleep apnea, put her at an

increased risk of severe complications or death if she contracts COVID-19. In

assessing a § 3582(c)(1)(A)(i) motion, courts consider (1) whether “extraordinary

and compelling reasons warrant such a [sentence] reduction”; and (2) “the factors

set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C. §

3582(c)(1)(A)(i).

Here, the district court conducted a complete review of Kuzmenko’s motion

on the merits, specifically considering the scope of the harm caused by Kuzmenko

and that she has only served 60 months of her 168-month prison sentence, and

concluded that reducing her sentence “would undermine the 18 U.S.C. § 3553[(a)]

sentencing factors by minimizing the original sentence’s deterrent effect and failing

to protect the public from the possibility of further crimes by [Kuzmenko].” See

United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (district court need not

make “an explicit ‘extraordinary and compelling’ finding before denying the [§

2 3582(c)(1)(A)(i)] motion on account of the § 3553(a) factors” (emphasis in

original)). Accordingly, there was no abuse of discretion.

AFFIRMED.