United States v. Howard Cotterman ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-10371
21-10040
Plaintiff-Appellee,
D.C. No.
v. 4:07-cr-01207-RCC-CRP-1
HOWARD WESLEY COTTERMAN,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
In these consolidated appeals, Howard Wesley Cotterman appeals pro se
from the district court’s orders denying his motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A)(i), and motion for reconsideration. We have
*
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). Although Cotterman was
notified by the court that his reply brief was untimely, it has been filed and we
have considered it.
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cotterman contends that the district court should have granted him
compassionate release in light of his age, medical conditions, good behavior while
incarcerated, remorse, release plans, amount of time served, poor medical care in
prison, and the need to avoid unwarranted sentencing disparities. He further
argues that the district court misconstrued his arguments, ignored mitigating
evidence, and relied on clearly erroneous facts in denying his motion. We
disagree. The district court acknowledged Cotterman’s arguments, but concluded
that the 18 U.S.C. § 3553(a) factors, particularly the nature and circumstances of
the offense and Cotterman’s criminal history, did not support Cotterman’s release.
Because the record supports the court’s conclusion, it did not abuse its discretion
by denying relief under § 3553(a), which alone supports affirming the district
court’s order. See United States v. Keller, 2 F.4th 1278, 1281, 1284 (9th Cir. 2021)
(stating standard of review and explaining that the district court can deny a
compassionate release motion based solely on the § 3553(a) factors); 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). Cotterman has not shown that any factual errors made by the court in
assessing his criminal history would have affected the court’s conclusion that
reducing his sentence from 35 to 12 years would not satisfy the § 3553(a) factors.
2 20-10371 & 21-10040
See United States v. Medina, 524 F.3d 974, 984-85 (9th Cir. 2008) (district court’s
factual errors are harmless if they do not affect the ultimate conclusion).
The record also does not support Cotterman’s argument that the district court
erred in denying his motion for reconsideration. The court considered Cotterman’s
purportedly new evidence and did not abuse its discretion in concluding that it did
not outweigh the court’s concerns about the seriousness of his offense and need to
protect the community. See United States v. Lopez-Cruz, 730 F.3d 803, 811 (9th
Cir. 2013) (stating standard of review). Moreover, the court did not abuse its
discretion by declining to order an evidentiary hearing or a psychological
evaluation because, as the district court observed, the evidence Cotterman sought
to develop would not have affected the court’s decision to deny relief. See United
States v. Cook, 808 F.3d 1195, 1201 (9th Cir. 2015).
Finally, the district court did not err by denying as moot his pro se motions
for compassionate release after Cotterman filed a counseled motion “amending and
supplementing” the earlier pro se filings, nor does the record support Cotterman’s
claims of prosecutorial misconduct, even assuming those claims can be raised in
these proceedings.
AFFIRMED.
3 20-10371 & 21-10040