United States of America v. CENOBIO HUMBERTO HERRERA, Sr., AKA Bert Herrera, AKA Cenobio Herrera Lanz, AKA…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE 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
D.C. No. 2:02-cr-00531-RSWL-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
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,
* 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
JUN 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-50213
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).
AFFIRMED.

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