NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-10176
20-10393
Plaintiff-Appellee,
D.C. No. 2:10-cr-00464-KHV-1
v.
GINO CARLUCCI, AKA Gene David MEMORANDUM*
Odice,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Kathryn H. Vratil, District Judge, Presiding**
Submitted May 18, 2021***
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
In these companion appeals, Gino Carlucci appeals pro se from the district
court’s orders denying his motions for compassionate release under 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathryn H. Vratil, Senior United States District Judge
for the District of Kansas, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 3582(c)(1)(A)(i). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In Appeal No. 20-10176, Carlucci contends that the district court erred by
dismissing his first compassionate release motion for failure to exhaust before
permitting him to file a reply, and by denying his subsequent motion for leave to
amend. Any error was harmless, however, because the court’s dismissal was
without prejudice to Carlucci filing another motion for compassionate release
following exhaustion of his administrative remedies, which Carlucci did.
In Appeal No. 20-10393, Carlucci challenges the district court’s denial of his
second motion for compassionate release.1 The district court explained that
compassionate release was not warranted because Carlucci’s concerns about the
danger of contracting COVID-19 in prison had been adequately addressed by his
transfer to home confinement by the Bureau of Prisons.2 The court also explained
that Carlucci’s assertion that he would have more work opportunities if he were not
on home confinement was not an “extraordinary and compelling” reason to reduce
his sentence. See 18 U.S.C.§ 3582(c)(1)(A)(i). The record supports the district
1
Because Appeal No. 20-10176 was pending when Carlucci filed his second
compassionate release motion, the district court correctly held that it lacked
jurisdiction to grant the motion. See Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (per curiam). However, it had authority to deny the
motion. See Fed. R. Crim. P. 37(a)(2).
2
We agree with the parties, and the district court, that Carlucci’s transfer to home
confinement does not moot his appeals because his motions sought a reduction in
his sentence to time-served.
2 20-10176 & 20-10393
court’s conclusions, and it did not abuse its discretion by denying relief. See
United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021). Moreover, contrary to
Carlucci’s contention, the district judge, who was assigned pursuant to a certificate
of necessity and imposed Carlucci’s original sentence, had authority to decide his
motions for compassionate release. See 28 U.S.C. §§ 292(d) and 296.
AFFIRMED.
3 20-10176 & 20-10393