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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Cenobio Humberto HERRERA, Sr., aka Bert Herrera, aka Cenobio Herrera Lanz, aka Cenobio Humberto Lanz, Defendant-Appellant.

No. 20-50213

Decided: June 29, 2021

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges. Tracy L. Wilkison, Assistant U.S. Attorney, Bram M. Alden, Shawn Jeffery Nelson, Assistant U.S. Attorney, DOJ - Office of the U.S. Attorney, Los Angeles, CA, Morgan Jared Cohen, Assistant U.S. Attorney, DOJ-USAO, Los Angeles, CA, for Plaintiff-Appellee Brianna Fuller Mircheff, Assistant Federal Public Defender, FPDCA - Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant


Cenobio Humberto 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. We review for abuse of discretion, see United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021), and we affirm.

Contrary to Herrera's arguments, the district court did not rely on any clearly erroneous material facts. Although the district court repeated a calculation error from the presentence report regarding the amount of drugs involved in Herrera's offense, the mistake was of no consequence because even the correct amount would have triggered the maximum offense level in the Guidelines, which was the concern of the court. The district court also accurately stated that Herrera's sister received a similar sentence, even if the Bureau of Prisons (“BOP”) had subsequently transferred her to home confinement. See United States v. Earl, 729 F.3d 1064, 1066 (9th Cir. 2013) (observing that a defendant “remains in BOP's legal custody” while on home confinement).

The district court considered Herrera's age and medical conditions and did not abuse its discretion in concluding that the 18 U.S.C. § 3553(a) sentencing factors weighed against release. See 18 U.S.C. § 3582(c)(1)(A) (district court must consider the applicable § 3553(a) sentencing factors on a motion for compassionate release); United States v. Robertson, 895 F.3d 1206, 1213 (9th Cir. 2018) (a district court abuses its discretion only if its decision is illogical, implausible, or without support in the record).


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