United States v. Bobby Ricks, Jr. ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10278
Plaintiff-Appellee, D.C. No. 1:15-cr-00132-SOM-1
v.
BOBBY RICKS, Jr., AKA Ace, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Bobby Ricks, Jr., appeals from the district court’s order denying his second
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, see United
States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021), 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).
Ricks contends that the district court abused its discretion by placing
“inordinate weight” on his failure to get vaccinated against COVID-19 vaccine and
allowing that consideration to outweigh all other factors. The record does not
support Ricks’s argument. Although the court treated Ricks’s failure to request the
vaccine as a reason weighing against relief, it also denied relief because the risk to
Ricks from COVID-19 was mitigated by his age of 48, the fact that he did not have
a severe case of COVID-19 when he previously contracted it, and the high rate of
vaccination and low rate of COVID-19 in Ricks’s prison. The court additionally
considered that Ricks had served just 38% of his sentence at the time he filed his
motion. On this record, we cannot say that the court placed improper weight on
Ricks’s vaccination status. That some district courts may treat vaccination status
as a neutral factor does not mean, as Ricks argues, that the court’s treatment of that
factor here was unreasonable. See id. at 1284 (highlighting “the deference we must
afford the district court when it makes these discretionary [compassionate release]
decisions”).
AFFIRMED.
2 21-10278