NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

MARK A. RICHARDS,

Defendant

- Appellant. No. 23

- 2868

D.C. No.
2:18

- cr

- 00039

- MCE

- 1

MEMORANDUM *

Appeal from the United States District Court
for the Eastern District of California Morrison C. England

, Jr.

, District Judge , Presiding

Submitted May 15, 2024 **

San Francisco

, California

Before: S.R. THOMAS, CALLAHAN, and SANCHEZ, Circuit Judges

.

Defendant

- Appellant Mark A. Richards appeals the district court’s denial of

his motion for compassionate relief . Richards pleaded guilty to advertising child

pornography i n violation of 18 U.S.C. § 2551(d) , and was sentenced to 210 months

* 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). 

# FILED

MAY 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

imprisonment. After serving approximately thirty percent of his sentence,

Richards moved for compassionate release based on his terminal diagnosis of end

stage kidney disease. We have jurisdiction under 28 U.S.C. § 1291, and w e affirm.

The district court’s discretion to grant or deny a motion for compassionate

release “is controlled by three substantive considerations” :

First, the district court must determine whether extraordinary and compelling
reasons warrant a sentence reduction. Second, the court must evaluate whether a reduction would be consistent with applicable policy statements issued by the Sentencing Commission. Third, the court must consider and weigh the factors set forth in 18 U.S.C. § 3553(a) to decide whether the requested sentence reduction is warranted under the particular circumstances
of the case.

United States v. Wright , 46 F.4th 938, 94 5 (9th Cir. 2022) (cleaned up) ; see 18

U.S.C. § 3582(c)(1)(A). A court “may deny compassionate release if a defendant

fails to satisfy any of these grounds.” Wright, 46 F.4th at 945. We review the

d istrict court’s d enial of a motion for compassionate release for an abuse of

discretion

. Id. at 944.

The district court did not abuse its discretion in denying Richards’s motion

for compassionate release. The court acknowledged his end

- stage renal disease as

a terminal illness, but found that his medical condition did not constitute an

“extraordinary and compelling reason” to justify release because Richards suffered

from many of the same ailments at his sentencing, which the court knew “would

likely deteriorate over time” and considered in its original sentencing.3

E ven if Richards’s terminal medical condition constitute s an “ extraordinary

and compelling reason,” we find no abuse of discretion in the district court’s

application of the § 3553(a) factors to determine that Richards’s particular

circumstances did not warrant a reduction in sentence

. See id. at 94 5. T he district

court considered the “utmost seriousness” of his offense, th e small fraction of his

210

- month custodial sentence he had served, and the danger Richards posed to the

community and the need to protect the public

. The court emphasized the public

safety factor, observing that Richards is technologically sophisticated and capable

of reoffending even in his poor health

, and has demonstrated a willingn ess to do so

in the past even while under federal investigation

. On this record, we cannot

conclude that the district court’s discretionary determination was illogical,

implausible, or without support in inferences that may be drawn from the record.

See United States v. Hinkson , 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)

.

AFFIRMED.