United States of America v. Jose Alberto Abundiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ALBERTO ABUNDIZ,
Defendant-Appellant.
No. 20-30171
D.C. No. 1:16-cr-02066-RMP-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Jose Alberto Abundiz appeals pro se from the district court’s order denying
his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) and his
motion for appointment of counsel. We have jurisdiction under 28 U.S.C. § 1291,
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
AUG 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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As an initial matter, the government contends that venue was improper in the
district court. We disagree. In light of Abundiz’s pro se status and the arguments
raised in his motion, the court permissibly construed his motion as a request for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). Accordingly, his motion
was properly filed in the Eastern District of Washington, where he was sentenced.
We also conclude that the court did not err by denying Abundiz’s motion to
appoint counsel. Abundiz does not have a Sixth Amendment right to counsel on a
§ 3582(c) motion, see United States v. Townsend, 98 F.3d 510, 512-13 (9th Cir.
1996), and the district court reasonably denied appointment given the nature and
brevity of Abundiz’s request.
Turning to the merits of his motion, Abundiz contends that the district court
erred by treating U.S.S.G. § 1B1.13 as an applicable policy statement and abused
its discretion in concluding that the 18 U.S.C. § 3553(a) factors did not support
relief. We need not reach the § 1B1.13 question because the court did not abuse its
discretion in denying Abundiz’s motion under § 3553(a), which provides an
independent basis to affirm. See United States v. Keller, 2 F.4th 1278, 1284 (9th
Cir. 2021). The record reflects that the court considered Abundiz’s medical
condition and arguments for release, but reasonably concluded that the § 3553(a)
factors, including Abundiz’s history and characteristics and the need for
deterrence, did not warrant compassionate release.

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Finally, the district court did not err by denying Abundiz’s motion with
prejudice. Contrary to Abundiz’s assertion, the denial with prejudice does not
preclude him from filing another motion under § 3582(c)(1)(A) should his
circumstances change.
AFFIRMED.

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