United States of America v. LUIS FERMIN HERRERA Sr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS FERMIN HERRERA Sr.,
Defendant-Appellant.
No. 22-10064
D.C. No. 2:07-cr-00186-RCJ-LRL-1
MEMORANDUM*
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).
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-10064
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.

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