United States v. Jon Decano ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 21-10099
21-10100
Plaintiff-Appellee,
D.C. Nos. 1:14-cr-00469-HG-1
v. 1:07-cr-00608-HG-1
JON DECANO, AKA Jon Darren
Maglangit, AKA Jon Maglangit, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
In these consolidated appeals, Jon Decano 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 affirm.
The district court concluded that, notwithstanding Decano’s asthma, he was
*
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).
not entitled to compassionate release because he was 50 years old, he had already
contracted and recovered from COVID-19, and he had been fully vaccinated
against further infection. It further concluded that the 18 U.S.C. § 3553(a) factors
did not support relief because 57 months remained on Decano’s sentence and the
nature and circumstances of his offense, as well as his history and characteristics,
supported his 164-month sentence. The district court did not abuse its discretion in
denying Decano’s motion. See United States v. Aruda, 993 F.3d 797, 799 (9th Cir.
2021).
While we agree with Decano that the district court erroneously treated
U.S.S.G. § 1B1.13 as binding, see Aruda, 993 F.3d at 802, we conclude that any
error was harmless in light of the court’s conclusion that the § 3553(a) factors did
not support his release. Contrary to Decano’s argument that § 3582(c)(1)(A) calls
for a “holistic inquiry,” we have explained that compassionate release motions
involve “a sequential step-by-step analysis” and a court denying relief may
consider only one of the steps. See United States v. Keller, 2 F.4th 1278, 1284 (9th
Cir. 2021). Here, though the court erred in step one of the analysis, it did not abuse
its discretion at step two. Nor are we persuaded that the court’s consideration of
dangerousness under § 1B1.13(2) “drove its assessment of § 3553(a)’s factors.”
To the contrary, the court made clear that the § 3553(a) factors alone did not
support relief because Decano’s “immediate release would not adequately reflect
2 21-10099 & 21-10100
the seriousness of the offense, would not properly deter similar criminal conduct,
and would not protect the public.” See 18 U.S.C. § 3553(a)(2)(A)-(C). The district
court’s application of the § 3553(a) factors in this case was reasonable and
consistent with the language of the statute. We need not decide whether the district
court should have more fully considered Decano’s argument regarding changes to
the applicable mandatory minimum under the First Step Act because it did not
affect the court’s § 3553(a) conclusion. Finally, the record demonstrates that the
district court considered Decano’s remaining arguments, including his argument
that his sentence should be lowered, but was not persuaded that anything less than
the current sentence was appropriate.
Decano’s motion for judicial notice is denied.
AFFIRMED.
3 21-10099 & 21-10100