United States of America v. John Penitani

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PENITANI,
Defendant-Appellant.
No. 22-10248
D.C. Nos. 1:13-cr-00514-SOM-3
1:13-cr-00653-SOM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
John Penitani appeals pro se from the district court’s order denying his
second 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.
Penitani argues that he is entitled to compassionate release due to (1) his
* 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
JUL 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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medical conditions and the COVID-19 pandemic, (2) misconduct of prior counsel
in connection with his 28 U.S.C. § 2255 motion, (3) the denial of proper medical
and dental care, and (4) the Bureau of Prisons’ failure to consider him for low
security status and to calculate his earned time credits. The district court did not
abuse its discretion in rejecting these arguments. See United States v. Aruda, 993
F.3d 797, 799 (9th Cir. 2021). The court acknowledged Penitani’s medical
conditions but reasonably concluded that any increased risk was mitigated by his
recovery from COVID-19, his vaccination, and the low incidence of COVID-19 at
his facility. In addition, the record supports the court’s determination that
Penitani’s remaining arguments were unsupported, were the subject of other
pending actions, or did not otherwise justify release. Finally, the court reasonably
concluded that the 18 U.S.C. § 3553(a) factors weighed against release given
Penitani’s history of violence and the need to protect the public. The court fully
considered Penitani’s arguments and circumstances, and its analysis was logical
and supported by the record. See United States v. Robertson, 895 F.3d 1206, 1213
(9th Cir. 2018) (district court abuses its discretion only where its decision is
illogical, implausible, or without support in the record).
Penitani’s motions for an injunction “releasing [him] to the clean sober
house” and a sentence reduction, and any other pending requests, are denied.
AFFIRMED.

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