United States v. Malia Arciero ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10177
Plaintiff-Appellee, D.C. No. 1:13-cr-01036-SOM-1
v. MEMORANDUM*
MALIA ARCIERO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Malia Arciero appeals pro se from the district court’s orders denying her
motions for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and for
reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, the district court did not err by finding that Arciero’s motion to
*
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).
reconsider was untimely as to the court’s previous orders denying Arciero’s post-
judgment motions for an order directing the government to produce purported
Brady material and for recusal. The reconsideration motion, filed on June 14,
2021, was filed more than two months after the entry of these orders, and the
district court did not abuse its discretion by denying the motion as untimely under
the applicable federal and local rules. See United States v. Warren, 601 F.2d 471,
474 (9th Cir. 1979) (“Only in rare cases will we question the exercise of discretion
in connection with the application of local rules.”). Accordingly, we decline to
consider Arciero’s other allegations of error by the district court with regard to the
Brady and recusal orders.
Second, the district court did not abuse its discretion by denying Arciero’s
motions for compassionate release and for reconsideration of the district court’s
denial of compassionate release. See United States v. Aruda, 993 F.3d 797, 799
(9th Cir. 2021). The record reflects that the district court considered Arciero’s
chronic medical conditions, lack of violent history, and efforts at post-sentencing
rehabilitation, but concluded that she had not established extraordinary and
compelling circumstances warranting relief, given her relatively young age, the
low infection rate at her facility, and her inconsistent explanations for why she
declined to be vaccinated. The court also found that a reduced sentence was not
warranted under the 18 U.S.C. § 3553(a) sentencing factors, including the
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seriousness of the underlying conviction, Arciero’s history of untruthfulness to the
court regarding her allegations of abuse by a government agent, and the fact that
she had only served about half of her sentence. Finally, the court concluded that
Arciero’s request for reconsideration was not accompanied by any new evidence.
The district court’s conclusions are supported by the record, and it did not abuse its
discretion in denying Arciero’s motions. See United States v. Robertson, 895 F.3d
1206, 1213 (9th Cir. 2018) (district court abuses its discretion only if its decision is
illogical, implausible, or without support in the record).
AFFIRMED.
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