United States of America v. Douglas Von Brunner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS VON BRUNNER,
Defendant-Appellant.
No. 20-50242
D.C. No. 2:17-cr-00763-PA-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Douglas Von Brunner appeals from the district court’s order denying his
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. Aruda, 993 F.3d 797, 799 (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).
FILED
DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Brunner contends that the district court erred by treating U.S.S.G.
§ 1B1.13 as a binding policy statement. We need not decide this issue because the
district court made clear that, even if Brunner had shown extraordinary and
compelling reasons for release under § 1B1.13, it would deny relief under 18
U.S.C. § 3553(a). See United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021)
(district court can deny compassionate release on the basis of the § 3553(a) factors
alone). Contrary to Brunner’s contention, the court did not abuse its discretion in
reaching this conclusion. Though the court incorporated its § 3553(a) analysis
from Brunner’s original sentencing, it considered and applied the factors anew to
reasonably conclude that release was unwarranted in light of the time remaining on
Brunner’s sentence, his criminal history, the need to protect the public, and the
need to avoid unwarranted sentencing disparities. Moreover, the court considered
Brunner’s mitigating arguments and adequately explained its decision to deny his
motion. See Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 (2018). Finally,
the court did not rely on any clearly erroneous facts. See United States v. Graf,
610 F.3d 1148, 1157 (9th Cir. 2010) (“A finding is clearly erroneous if it is
illogical, implausible, or without support in the record.”).
We decide this case without reference to the documents at issue in the
parties’ motions to supplement the record. Accordingly, the motions are denied.
The Clerk will strike the exhibits (Docket Entry No. 26-3) to appellee’s motion to

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supplement the record.
AFFIRMED.

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