United States of America v. Kyle Cross

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KYLE CROSS,
Defendant-Appellant.
No. 20-10259
D.C. No. 1:18-cr-00065-HG-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Kyle Cross 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, and we vacate and remand.
Cross primarily contends that the district court applied the wrong legal
* 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
JUN 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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standard by deferring to U.S.S.G. § 1B1.13 as an applicable policy statement.
After the district court’s decision denying relief and the parties’ briefing on appeal,
this court held that the current version of U.S.S.G. § 1B1.13 is not binding as
applied to § 3582(c)(1)(A) motions brought by prisoners. See United States v.
Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (“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.”). Because
it is unclear whether the district court treated U.S.S.G. § 1B1.13 as binding in this
case, we vacate and remand so that the district court can reassess Cross’s motion
for compassionate release under the standard set forth in Aruda. See id.
We offer no views as to the merits of Cross’s § 3582(c)(1)(A)(i) motion, and
we need not reach his remaining arguments on appeal.
VACATED and REMANDED.

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