United States v. Pablo Rivera

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 28 2021
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 20-10214

                Plaintiff-Appellee,             D.C. No. 1:17-cr-00301-SOM-1

 v.
                                                MEMORANDUM*
PABLO M. RIVERA,

                Defendant-Appellant.

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

                            Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

      Pablo M. Rivera 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 affirm.

      Rivera contends that he is entitled to compassionate release and that the



      *
             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).
district court concluded otherwise based on an improper weighing of the 18 U.S.C.

§ 3553(a) sentencing factors. The district court did not abuse its discretion.1 The

record2 belies Rivera’s contention that the district court treated as dispositive the

length of time that Rivera has served in custody. While the court noted how much

time remained on Rivera’s sentence, it also considered the conditions at Rivera’s

prison, Rivera’s medical conditions and other mitigating arguments, and the

§ 3553(a) sentencing factors. Having considered all of this information, it did not

abuse its discretion in concluding that relief was unwarranted in light of the serious

nature of the offense, and the need to deter and protect the public. See 18 U.S.C.

§ 3582(c)(1)(A) (district court may consider the § 3553(a) factors on a motion for

compassionate release); see also 18 U.S.C. § 3553(a)(2)(A)-(C). Moreover,

contrary to Rivera’s argument, the court did not rely on any clearly erroneous facts.

See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) (“A finding is

clearly erroneous if it is illogical, implausible, or without support in the record.”).

      Because the record belies Rivera’s argument that the district court relied on


1
  The denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) is
reviewed for abuse of discretion. See United States v. Dunn, 728 F.3d 1151, 1155
(9th Cir. 2013). The parties agree that the abuse of discretion standard also applies
to denials under § 3582(c)(1)(A)(i), which we accept for purposes of this appeal.
2
  We have confined our review to the record before the district court. See Rudin v.
Myles, 781 F.3d 1043, 1057 n.18 (9th Cir. 2014). Even if we were to consider the
new information presented by Rivera on appeal, it would not affect the outcome of
this case.

                                           2                                     20-10214
U.S.S.G. § 1B1.13 to deny relief, we do not reach Rivera’s arguments concerning

that guideline.

      To the extent Rivera argues that his continued incarceration violates the

Eighth Amendment, and assuming without deciding that this claim may be brought

under § 3582(c)(1)(A), Rivera has not shown that his sentence is “grossly

disproportionate” to his offense. See United States v. Harris, 154 F.3d 1082, 1084

(9th Cir. 1998).

      AFFIRMED.




                                         3                                   20-10214
United States v. Pablo Rivera

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