United States v. Hernan Gomez-Gutierrez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30192
Plaintiff-Appellee, D.C. No. 1:13-cr-00123-DCN-1
v.
HERNAN GOMEZ-GUTIERREZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Hernan Gomez-Gutierrez 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 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).
In the district court, the government argued that Gomez-Gutierrez’s motion
should be denied because he had not exhausted his administrative remedies as
§ 3582(c)(1)(A) requires. The district court assumed, without deciding, that
Gomez-Gutierrez had exhausted and denied his motion on the merits. After the
district court’s decision, we held that the exhaustion requirement “is mandatory
and must be enforced when properly raised by the government.” United States v.
Keller, 2 F.4th 1278, 1282 (9th Cir. 2021). In light of this authority, and Gomez-
Gutierrez’s concession on appeal that he did not exhaust his administrative
remedies, we affirm the district court’s denial of Gomez-Gutierrez’s motion. We
do not reach Gomez-Gutierrez’s remaining arguments. See id. at 1283 n.2.
This disposition is without prejudice to Gomez-Gutierrez filing a new
motion for compassionate release in the district court after he exhausts his
administrative remedies.
AFFIRMED.
2 21-30192