United States of America v. Roy Allen Green

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROY ALLEN GREEN,
Defendant-Appellant.
No. 22-10102
D.C. No. 1:00-cr-05339-JLT-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, District Judge, Presiding
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
Roy Allen Green appeals pro se 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 affirm.
Green argues that the district court erred in denying his motion because it
* 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
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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did not consider his age, rehabilitation, or alternatives to immediate release. He
also argues that the court should not have considered his vaccination status because
vaccination does not prevent all COVID-19 infections and the Bureau of Prisons
has refused to provide him a second booster shot and is not adequately treating his
underlying conditions. Finally, he argues that he received ineffective assistance of
counsel in connection with his compassionate release motion and that this
circumstance, in combination with the change to 18 U.S.C. § 924(c)’s stacking
provision under the First Step Act, justifies compassionate release. Having
considered these arguments, we see no basis to conclude that the district court
abused its discretion in denying relief. See United States v. Keller, 2 F.4th 1278,
1281 (9th Cir. 2021) (stating standard of review).
The record reflects that the court considered all of Green’s arguments,
including those concerning his age, medical conditions, rehabilitation, and recent
changes in sentencing law. It did not abuse its discretion by concluding that, given
the substantial time remaining on Green’s sentence and his vaccination against
COVID-19, none justified compassionate release. The record does not support
Green’s claim that he has been denied a second booster or that he is otherwise
receiving substandard care. Lastly, Green’s claim that he received ineffective
assistance of counsel is unavailing because he is not entitled to counsel in
§ 3582(c) proceedings. See United States v. Townsend, 98 F.3d 510, 512-13 (9th
Cir. 1996). In any event, he has not shown that counsel’s representation was

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deficient.
Green’s motion to grant his appeal is denied.
AFFIRMED.

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