United States of America v. Edgar Viloria Udarbe

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGAR VILORIA UDARBE,
Defendant-Appellant.
No. 21-10062
D.C. No. 1:17-cr-00322-LEK-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Edgar Viloria Udarbe 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, and we vacate and remand.
Udarbe contends that the district court did not fully recognize its discretion
* 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

-- 1 of 2 --

2 20-10062
to grant him relief because it incorrectly believed it was constrained by U.S.S.G.
§ 1B1.13. In United States v. Aruda, 993 F.3d 797 (9th Cir. 2021), which we
decided after the district court denied Udarbe’s motion, we held that “U.S.S.G.
§ 1B1.13 is not an applicable policy statement for 18 U.S.C. § 3582(c)(1)(A)(i)
motions filed by a defendant.” Id. at 802. Thus, a district court may not treat
§ 1B1.13 as binding in assessing a compassionate release motion brought by a
prisoner. See id. Here, the district court treated § 1B1.13 as applicable, and
explained that, in keeping with the Guideline, Udarbe needed to show that he had a
serious medical condition that diminished his ability to provide self-care in a
correctional facility. See U.S.S.G. § 1B1.13 cmt. n.1(A)(ii). While the court
ultimately determined that Udarbe did not have sufficient risk factors to indicate
that he would suffer a severe case of COVID-19 if he were to become reinfected
with it, we cannot discern to what degree that determination was affected by the
court’s application of § 1B1.13. Accordingly, we vacate the district court’s order
and remand so that the district court can assess Udarbe’s motion under the standard
set forth in Aruda. We offer no views as to the merits of Udarbe’s motion.
In light of this disposition, we do not reach Udarbe’s remaining arguments.
Udarbe’s motion for judicial notice is denied without prejudice to renewal in
the district court.
VACATED and REMANDED.

-- 2 of 2 --