United States of America v. Gloudina Maria Robbertse

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GLOUDINA MARIA ROBBERTSE,
Defendant-Appellant.
No. 20-30264
D.C. No. 1:18-cr-00281-DCN-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Gloudina Maria Robbertse appeals from the district court’s order denying
her 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 vacate and remand.
Robbertse contends that the district court erred under United States v. Aruda,
993 F.3d 797, 802 (9th Cir. 2021), by relying on U.S.S.G. § 1B1.13 to evaluate
* 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
SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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whether she had demonstrated the required extraordinary and compelling reasons
for compassionate release. The district court declined to decide if § 1B1.13 was
binding because, in its view, Robbertse’s motion sought relief under Application
Note 1(A) to § 1B1.13. However, Robbertse did not cite the Guideline in her
motion, and Application Note 1 contains requirements that are not mandatory after
Aruda. See U.S.S.G. § 1B1.13 n.1(A) (requiring defendant to have a “terminal
illness” or a “serious physical or medical condition . . . that substantially
diminishes the ability of the defendant to provide self-care within the environment
of a correctional facility”). It is unclear to what extent the district court applied
those requirements in concluding that Robbertse’s release would not be
“compatible with the policies of the U.S. Sentencing Commission.” Furthermore,
contrary to the government’s argument, the district court did not conclude that the
18 U.S.C. § 3553(a) factors did not support relief; instead, it referred only to the
risk Robbertse poses to the community, which is a consideration specified in the
Guideline. See U.S.S.G. § 1B1.13(2); Aruda, 993 F.3d at 799.
Given these indicia that the district court placed improper weight on
§ 1B1.13, we vacate its order and remand to permit the district court to reassess
Robbertse’s motion under the standard set forth in Aruda. See Aruda, 993 F.3d at
802. On remand, the district court should also address Robbertse’s argument that,
given how infectious diseases like COVID-19 spread in a carceral setting, she is

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being forced to choose between risking serious illness or death from COVID-19
and refraining from taking the immunosuppressants that she needs to treat her
autoimmune disorders.
VACATED and REMANDED.

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