United States of America v. Mark Faaita

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK FAAITA,
Defendant-Appellant.
No. 20-10380
D.C. No.
1:14-cr-00913-LEK-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted May 12, 2021**
San Francisco, California
Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.
Mark Faaita appeals from the district court’s order denying his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The district court
denied the motion based on its determination that Faaita posed “a danger to the
safety of any other person or to the community” under U.S. Sentencing Guidelines
* 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 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Manual (“U.S.S.G.”) § 1B1.13(2). “This dangerousness finding is not statutorily
required under 18 U.S.C. § 3582(c)(1)(A)(i), but is part of the Sentencing
Commission’s policy statement in U.S.S.G. § 1B1.13(2).” United States v. Aruda,
993 F.3d 797, 799 (9th Cir. 2021) (per curiam).
After the district court’s decision, we held that “the current version of
U.S.S.G. § 1B1.13 is not an ‘applicable policy statement[ ]’ for 18 U.S.C.
§ 3582(c)(1)(A) motions filed by a defendant.” Id. at 802. “The Sentencing
Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s
discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not
binding.” Id.
In light of our intervening decision in Aruda, we vacate and remand so that
the district court can reassess Faaita’s motion for compassionate release under the
standard set forth there. We offer no views as to the merits of Faaita’s
§ 3582(c)(1)(A)(i) motion.
Faaita’s motion to expedite is denied as moot.
VACATED AND REMANDED.

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