United States v. Edward Stain ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10154
Plaintiff-Appellee, D.C. Nos.
2:02-cr-00201-LRH-NJK-4
v. 2:02-cr-00201-LRH-NJK
EDWARD STAIN,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted February 9, 2022
San Francisco, California
Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,*** District
Judge.
Seventeen years into his 44-year sentence, Edward Stain sought release under
18 U.S.C. § 3582(c)(1)(A), citing the First Step Act’s elimination of the previously
mandatory 25-year consecutive “stacking” provision relating to 18 U.S.C. § 924(c)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
convictions. The district court concluded that Stain had not presented extraordinary
and compelling reasons for sentence modification and, even if he had, the 18 U.S.C.
§ 3553(a) factors did not warrant modification. Reviewing for abuse of discretion,
see United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (per curiam), we
affirm.
1. A district court may deny a motion for compassionate release based solely
on its analysis of the § 3553(a) factors. See United States v. Keller, 2 F.4th 1278,
1284 (9th Cir. 2021). Although the court should normally explain its acceptance or
rejection of any “specific, nonfrivolous argument,” it “need not tick off each of the
§ 3553(a) factors,” nor “articulate in a vacuum how each § 3553(a) factor influences
its determination of an appropriate sentence.” United States v. Carty, 520 F.3d 984,
992–93 (9th Cir. 2008). The district judge here, who had imposed the original
sentence, recognized his obligation to review the § 3553(a) factors and considered
the disparity between Stain’s original sentence and the one he could receive had the
crimes been committed after the adoption of the First Step Act. But he ultimately
concluded that the seriousness of the crimes and the potential danger to the
community on release outweighed Stain’s arguments in favor of modification.
Although the district court could have provided more explanation for its weighing
2
of the § 3553(a) factors, it did not abuse its discretion in rejecting release.1
2. The district court also did not abuse its discretion by leaving a substantively
unreasonable sentence in place. See United States v. Ressam, 679 F.3d 1069, 1097
(9th Cir. 2012). We previously affirmed that sentence, see United States v. Stain,
272 F. App’x 618, 621 (9th Cir. 2008), and the First Step Act is not retroactive, see
Pub. L. 115–391, 132 Stat. 5194, 5222 (2018).
AFFIRMED.
1
Because we conclude that the district court did not abuse its discretion on
these grounds, we need not consider whether it erred in concluding that there were
not extraordinary and compelling reasons for relief.
3