United States v. Brandon Ball ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        JAN 25 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    21-10120
    Plaintiff-Appellee,             D.C. No.
    2:18-cr-01420-SPL-2
    v.
    BRANDON TREVOR BALL,                            MEMORANDUM*
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Steven Paul Logan, District Judge, Presiding
    Submitted January 11, 2022**
    San Francisco, California
    Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
    Brandon Ball appeals the denial of his compassionate release motion. A court
    may reduce a sentence, after considering the sentencing factors in 
    18 U.S.C. § 3553
    (a), if it finds that extraordinary and compelling reasons warrant a reduction.
    
    18 U.S.C. § 3582
    (c)(1)(A)(i). Ball argues the court misapplied this standard. We
    *
    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).
    have jurisdiction under 
    28 U.S.C. § 1291
     and affirm.
    Ball “organized telemarketing rooms . . . where interstate telephone calls were
    placed purporting to offer an investment opportunity. The calls targeted senior
    citizens.” A magistrate judge detained Ball pretrial, noting in part that his “repeated
    and significant gambling . . . demonstrates that [he] is not a stable individual.” Ball
    pleaded guilty to one count of Mail Fraud in Connection with Telemarketing, 
    18 U.S.C. § 1341.1
    Ball filed a motion for compassionate release under 
    18 U.S.C. § 3582
    (c)(1)(A)(i). Ball is morbidly obese, which the CDC recognized creates a
    higher risk for severe COVID-19 infection. The government agreed that as a result,
    Ball “demonstrated an ‘extraordinary and compelling reason’ making him eligible
    for compassionate release.” The government conceded that Ball “meets the requisite
    threshold condition for the Court to apply its discretion and weigh danger and the
    sentencing factors.”
    The government argued that Ball’s “remote history . . . presents a more than
    de minimis level of physical danger,” and that Ball presents an economic danger
    based on “the very recent and multi-year felonious activity” of the instant offense.
    Ball argued that 
    18 U.S.C. § 3582
    (c)(1)(A) does not require a dangerousness
    1
    Ball was sentenced to sixty months in prison and ordered to pay $2,704,325.00 in
    restitution. His scheduled release date is January 28, 2023.
    2
    analysis under 
    18 U.S.C. § 3142
    (g). He also argued that because he has not received
    any disciplinary infractions while incarcerated, and because his offense was non-
    violent, he does not pose a danger to the community.
    The district court applied a four-factor test created to determine, in the bail
    hearing context, whether to grant temporary pretrial release under 
    18 U.S.C. § 3142
    (i) during the pandemic. Courts evaluate “the original grounds for . . . pretrial
    detention;” “the specificity of the . . . COVID-19 concerns;” “the extent to which the
    proposed release plan is tailored to mitigate or exacerbate other COVID-19 risks to
    the defendant;” and “the likelihood that the defendant’s proposed release would
    increase COVID-19 risks to others.” United States v. Steinbart, No. CR-20-004850-
    01-PHX-SPL, 
    2020 WL 7123027
    , at *3 (D. Ariz. Dec. 4, 2020) (quoting United
    States v. Terrone, 
    454 F. Supp. 3d 1009
    , 1022 (D. Nev. 2020)). The district court
    found that “[b]ecause [Ball] has already contracted the COVID-19 virus, he is
    unlikely to contract or spread COVID-19 again, at least any time soon,” and that
    Ball “has not shown a susceptibility to COVID-19 reinfection.” The court also found
    that Ball “is a danger to the community” based on the instant offense, his prior false
    reporting conviction, his gambling addiction, and his “history generally.”
    “Weighing the fact that [Ball] is an economic danger to the community together with
    the fact that he has not shown a susceptibility to COVID-19 reinfection,” the court
    did not find an extraordinary and compelling reason to grant compassionate release.
    3
    This court reviews Ҥ 3582(c)(1) sentence reduction decisions for abuse of
    discretion.” United States v. Aruda, 
    993 F.3d 797
    , 799 (9th Cir. 2021). “A district
    court may abuse its discretion if it does not apply the correct law or of it rests its
    decision on a clearly erroneous finding of material fact.” 
    Id.
     (quoting United States
    v. Dunn, 
    728 F.3d 1151
    , 1155 (9th Cir. 2013)).
    The district court abused its discretion by applying an incorrect legal standard.
    See Bateman v. U.S. Postal Serv., 
    231 F.3d 1220
    , 1224 (9th Cir. 2000) (finding that
    the district court “abused its discretion by omitting the correct legal standard
    altogether”). The four-factor test governs the temporary release of a person whose
    “pretrial detention was warranted on the grounds that no condition or combination
    of conditions would reasonably assure defendant is not a flight risk and/or not pose
    a risk of harm to others.” Terrone, 454 F. Supp. 3d at 1022. The test does not apply
    to a motion for the modification of a sentence.
    But as the government argued, the district court’s dangerousness finding
    makes the court’s error harmless.2 See United States v. Olano, 
    507 U.S. 725
    , 734
    (1993) (noting that an error “must have affected the outcome of the district court
    proceedings”).    “[D]anger [to the community] may, at least in some cases,
    2
    Because we find the dangerousness analysis sufficient for denying compassionate
    release, we do not reach the other alleged abuses of discretion regarding the district
    court’s conflation of the two steps of 
    18 U.S.C. § 3582
    (c)(1)(A)(i), or its findings on
    COVID-19 reinfection.
    4
    encompass pecuniary or economic harm.” United States v. Reynolds, 
    956 F.2d 192
    ,
    192 (9th Cir. 1992). Though the court did not “mention[] ‘§ 3553(a),’ it may be
    clear from the court’s experience and consideration of the record that the factors
    were properly taken into account.” United States v. Trujillo, 
    713 F.3d 1003
    , 1009
    (9th Cir. 2013). The court noted its receipt of the parties’ filings, which discussed
    § 3553(a). See United States v. Carty, 
    520 F.3d 984
    , 992–93 (9th Cir. 2008) (en
    banc). The court stated that Ball “is serving a 60-month sentence [for] leading a
    telemarketing operation that defrauded elderly consumers of over a million dollars.”
    This reference considers “the nature and circumstances of the offense,” 
    18 U.S.C. § 3553
    (a)(1), “the need for the sentence imposed . . . to reflect the seriousness of the
    offense, to promote respect for the law, and to provide just punishment for the
    offense,” 
    id.
     § 3553(a)(2)(A), and “the need for the sentence imposed . . . to afford
    adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B). The court explicitly
    considered Ball’s “history and characteristics,” id. § 3553(a)(1), noting Ball “has a
    prior false reporting conviction and has an admitted gambling addiction.”
    Considering Ball’s charges and history, the court found him “a danger to the
    community,” reflecting “the need for the sentence imposed . . . to protect the public
    from further crimes of the defendant,” id. § 3553(a)(2)(C).
    AFFIRMED.
    5