United States v. Kenneth Gordon ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10168
Plaintiff-Appellee, D.C. No. 1:11-cr-00479-JMS-1
v.
KENNETH SCOTT GORDON, AKA Sticks, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted July 12, 2022**
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
Kenneth Scott Gordon 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. Reviewing for abuse of discretion, see United
States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021), 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).
Gordon contends that the district court erred because it considered his
medical conditions individually, rather than in the aggregate, when it determined
he had not demonstrated the required extraordinary and compelling reasons for
relief. This argument is not supported by the record, which shows that the court
considered each of Gordon’s claimed medical conditions and agreed that several of
them increased his risk from COVID-19. The court did not abuse its discretion in
concluding that, notwithstanding Gordon’s risk factors and age, his recovery from
a prior COVID-19 infection and subsequent vaccination counseled against granting
compassionate release. 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). Having properly concluded that
Gordon had failed to demonstrate extraordinary and compelling reasons, the court
was not required to determine whether compassionate release was consistent with
the applicable 18 U.S.C. § 3553(a) factors. See Keller, 2 F.4th at 1284. Nor has
Gordon shown that the Bureau of Prisons’ decision to transfer him temporarily to
home confinement means that the district court abused its discretion by declining
to grant permanent compassionate release.
AFFIRMED.
2 21-10168