United States v. Brandi Dvorak ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30005
Plaintiff-Appellee, D.C. No. 9:16-cr-00002-DLC-1
v.
BRANDI LYNN DVORAK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Brandi Lynn Dvorak appeals pro se from the district court’s order denying
her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) and for a
sentence reduction under the First Step Act of 2018. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
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).
The district court assumed Dvorak had exhausted the administrative process
with regard to her motion and denied the motion on the merits. Dvorak contends
that the district court erred because (1) she is a first-time offender with no prior
convictions for a violent crime, and (2) she is eligible for a sentence reduction
under the First Step Act.
The district court did not abuse its discretion by denying Dvorak’s motion
for compassionate release.1 The district court reasonably concluded that Dvorak
had not demonstrated “extraordinary and compelling reasons” to warrant a
sentence reduction notwithstanding the medical and personal developments that
arose after her sentencing. See 18 U.S.C. § 3582(c)(1)(A)(i); U.S.S.G.
§ 1B1.13(1)(A).
The district court also did not err in declining to reduce Dvorak’s sentence
under the section of the First Step Act that made certain portions of the Fair
Sentencing Act retroactive. That section applies only to offenders convicted of
crack cocaine offenses, see First Step Act § 404; United States v. Kelley, 962 F.3d
470, 472 (9th Cir. 2020), and Dvorak’s conviction involved methamphetamine.
AFFIRMED.
1
The denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) is
reviewed for abuse of discretion. See United States v. Dunn, 728 F.3d 1151, 1155
(9th Cir. 2013). We accept for purposes of this appeal the government’s
undisputed assertion that the abuse of discretion standard also applies to denials
under 18 U.S.C. § 3582(c)(1)(A). However, even under de novo review, the
district court’s denial of Dvorak’s motion was reasonable.
2 20-30005