USA V. OMAR BUTT, No. 21-10044 (9th Cir. 2021)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 19 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 21-10044 D.C. No. 2:12-cr-00083-APG-GWF-1 v. MEMORANDUM* OMAR BUTT, Defendant-Appellant. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Submitted November 8, 2021** Before: CANBY, TASHIMA, and MILLER, Circuit Judges. Omar Butt appeals pro se 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. Butt challenges the district court’s conclusion that he did not demonstrate * 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). extraordinary and compelling reasons warranting his release. The district court did not abuse its discretion. See United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021). The record does not support Butt’s claim that the court treated § 1B1.13 as a binding policy statement. See Aruda, 993 F.3d at 802 (“The Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.”). Though the court cited § 1B1.13, it did not limit its review to the statements provided in that provision. Rather, the court concluded that release was unwarranted because Butt’s risk of reinfection with COVID-19 was low, his release could pose risks to himself and others, and his facility was adequately caring for him and containing the spread of COVID-19. These conclusions were not illogical, implausible, or without support in the record. See United States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018). Moreover, the court considered Butt’s arguments and adequately explained its reasons for denying relief. See Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 (2018). We do not consider Butt’s allegation of sentencing error because, even assuming it is cognizable in a compassionate release proceeding, it is raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 2 21-10044
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