United States v. Timothy Mortensen ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10172
Plaintiff-Appellee, D.C. No. 2:11-cr-00095-JAD-
CWH-1
v.
TIMOTHY LOREN MORTENSEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Timothy Loren Mortensen 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.
The district court assumed that Mortensen had exhausted the administrative
*
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).
process with regard to his motion and denied the motion on the merits, concluding
that Mortensen’s reasons for seeking release were “neither extraordinary nor
compelling” and that a reduction was not warranted under the 18 U.S.C. § 3553(a)
sentencing factors. Mortensen contends that the district court abused its discretion
by ignoring his risk of serious illness or death from COVID-19, and by erroneously
finding that he remained a danger to the community.
The district court did not abuse its discretion.1 The record reflects that the
district court considered Mortensen’s health conditions, but concluded they did not
constitute an “extraordinary and compelling reason” for reducing his sentence.
The court also went on to find that a reduction was “independently unwarranted
under the applicable § 3553(a) factors.” See U.S.S.G. § 1B1.13 (district court
should consider the applicable § 3553(a) factors in determining whether to grant a
sentence reduction under § 3582(c)(1)(A)). Turning to those factors, the district
court acknowledged Mortensen’s commendable conduct in prison but stated that
his lack of criminal history had already been accounted for in the substantial
downward variance he received at the original sentencing. After considering the
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). We accept for purposes of this appeal the parties’ assertion that
the abuse of discretion standard also applies to denials under 18 U.S.C.
§ 3582(c)(1)(A)(i). However, even under de novo review, we would conclude that
the district court reasonably denied Mortensen’s motion after balancing the
mitigating and aggravating factors.
2 20-10172
other § 3553(a) factors, particularly the nature and circumstances of Mortensen’s
offense, the court concluded that reducing his sentence by an additional year was
not warranted.
The court did not clearly err in finding that Mortensen’s offense conduct
“suggests that he remains a danger to the community,” 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.”), and did not abuse its
discretion in denying Mortensen a sentence reduction
AFFIRMED.
3 20-10172