The opinion
FILED
NOT FOR PUBLICATION
FEB 11 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10031
Plaintiff-Appellee, D.C. Nos. 3:17-cr-00104-SI-1
3:17-cr-00104-SI
v.
ANDRE MITCHELL BROWN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted February 9, 2022**
San Francisco, California
Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,*** District
Judge.
Andre Brown sought compassionate release pursuant to 18 U.S.C.
*
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 Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
§ 3582(c)(1)(A)(i), citing asthma and a COVID-19 diagnosis. Relying solely on the
factors in 18 U.S.C. § 3553(a), the district court denied the motion, reasoning that
Brown had not yet completed the Residential Drug Abuse Treatment Program
(“RDAP”), had a history of violent offenses, and had only served about 22% of her
sentence. Reviewing the district court’s decision for abuse of discretion, see United
States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (per curiam), we affirm.
A district court may base its denial of a motion for compassionate release
solely on the § 3553(a) factors. See United States v. Keller, 2 F.4th 1278, 1284 (9th
Cir. 2021). And, Tapia v. United States, which precludes sentencing courts from
“imposing or lengthening a prison term to promote an offender’s rehabilitation,” 564
U.S. 319, 332 (2011), does not bar courts from considering programs like RDAP in
deciding whether to reduce a sentence, see United States v. Navarro, 800 F.3d 1104,
1112 (9th Cir. 2015). Moreover, the district court’s factual finding that Brown had
not yet completed the RDAP program was not clearly erroneous.
AFFIRMED.
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