NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10148
Plaintiff-Appellee, D.C. Nos.
1:15-cr-00633-JMS-1
v. 1:15-cr-00633-JMS
DENNIS DUARTE,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief District Judge, Presiding
Submitted February 17, 2022**
Honolulu, Hawaii
Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.
Defendant-Appellant Dennis Duarte appeals the denial of his motion for
compassionate release. He contends the district court erred on two grounds: (1) it
abused its discretion in finding that the risk of infection with COVID-19 did not
present an “extraordinary and compelling reason[]” for his 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 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), and (2) in making this finding, its reliance on guidance from the
Center for Disease Control (CDC) constituted impermissible delegation under
United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (per curiam). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
In deciding whether to grant a defendant’s motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A)(i), we “consider (1) whether ‘extraordinary and
compelling reasons warrant such a reduction’; and (2) ‘the [sentencing] factors set
forth in [§] 3553(a) to the extent that they are applicable.’” United States v. Keller,
2 F.4th 1278, 1283–84 (9th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). Each
step of this analysis qualifies as an independent ground to deny a motion for
compassionate release. See id. at 1284 (“[A] district court that properly denies
compassionate release need not evaluate each step.”).
The district court denied Duarte’s motion based on both steps. However, on
appeal, Duarte challenges only the district court’s “extraordinary and compelling
reasons” analysis. Regarding the § 3553(a) analysis, Duarte merely contends these
statutory factors do not provide an independent ground for relief when the district
court has already conducted an “extraordinary and compelling reasons” inquiry. In
support, he cites United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (per
curiam), where we remanded even though the district court had found that the
§ 3553(a) factors weighed against release. But in Aruda “[w]e offer[ed] no views as
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to the merits” of the defendant’s motion for compassionate release. Id. Instead, we
remanded because the district court had treated an inapplicable sentencing guideline
as binding. Id. Here, the district court made no such error.
Because the district court’s § 3553(a) analysis, which Duarte did not
challenge, provides an independent ground to deny Duarte’s motion for
compassionate release, we affirm on that basis and do not address Duarte’s
arguments related to the district court’s extraordinary-and-compelling-reasons
analysis. See Keller, 2 F.4th at 1284; Freedom From Religion Found., Inc. v. Chino
Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (per
curiam) (issues not raised on appeal are waived).
AFFIRMED.
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