USA V. LUIS HERRERA, SR., No. 22-10064 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 22 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 22-10064 D.C. No. 2:07-cr-00186-RCJ-LRL-1 v. LUIS FERMIN HERRERA Sr., MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. Luis Fermin Herrera Sr. 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). Herrera contends that the district court abused its discretion by concluding that his medical conditions and need to help his wife care for their daughter did not constitute extraordinary and compelling reasons for relief. We disagree. The court reasonably concluded that Herrera’s health concerns were mitigated by his vaccination. Contrary to Herrera’s argument, the court did not rely on clearly erroneous facts regarding the effectiveness of COVID-19 vaccines. The court also permissibly treated U.S.S.G. § 1B1.13 as persuasive authority when it determined that Herrera’s family situation did not constitute an extraordinary and compelling basis for release. See United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021). On this record, the court did not abuse its discretion in denying Herrera’s motion. See United States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018) (stating that a district court abuses its discretion only if its decision is illogical, implausible, or not supported by the record). AFFIRMED. 2 22-10064
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