Opinion
21-50170 21-50171
09-16-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CLIFFORD MICHAEL OLIVER, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CLIFFORD MICHAEL OLIVER, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted September 1, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court Nos. 8:06-cr-00143-SB-2, 8:06-cr-00143-SB, 2:89-cr-00169-SB-2 for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding
Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Clifford Michael Oliver appeals the district court's denial of his compassionate release motion, pursuant to 18 U.S.C. § 3582(c)(1). "[W]e review § 3582(c)(1) sentence reduction decisions for abuse of discretion." United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (per curiam). Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Oliver contends that the district court misconstrued and failed to consider his argument that the Bureau of Prisons' ("BOP") inadequate medical care constitutes an extraordinary and compelling reason justifying compassionate release. The Government counters that the alleged inadequacy of an inmate's medical care cannot serve as an extraordinary and compelling reason for compassionate release and must instead be raised in an Eighth Amendment conditions of confinement claim. The Government raises this argument for the first time on appeal, and we thus find that it is forfeited. See United States v. Valdez-Novoa, 780 F.3d 906, 914 (9th Cir. 2015) ("Issues not presented to the district court cannot generally be raised for the first time on appeal." (quoting United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994)).
Nevertheless, the district court clearly considered Oliver's adequacy of care argument, even if it only addressed the contention briefly. The court provided an accurate synopsis of Oliver's assertion but explicitly found that Oliver had not shown that the BOP is unable or unwilling to provide him with adequate care and treatment to address his medical conditions. While the district court did not explain which of the BOP's actions it found to constitute adequate treatment, the court's "explanation communicates that [Oliver's] arguments ha[d] been heard[.]" United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008).
Moreover, the district court made a "reasoned decision." Id. Specifically, the court distinguished United States v. Ricks, No. 1:17-cr-00134-JMS-TAB, 2021 WL 1575950 (S.D. Ind. Apr. 22, 2021), the only case upon which Oliver relied in support of his adequacy of care assertion. The Ricks Court was particularly concerned with that defendant's "deteriorating medical condition" which "limit[ed] his ability to provide self-care in the prison environment" and resulted in three hospitalizations in three months. Id. at *4-5. The district court contrasted the Ricks defendant with Oliver, whose condition appears stable. The court also noted that the condition that caused Oliver's stroke was likely exacerbated by his medication nonadherence, over which the BOP has no control. While Oliver faults the district court for blaming him for causing his own stroke, Oliver's failure to adhere to his prescribed treatments undermines his assertion that the BOP's inadequate medical care is an extraordinary and compelling reason for release.
Nor was the district court's conclusion "(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record." United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (internal quotation marks omitted). The record supports a finding that the BOP was adequately managing Oliver's symptoms as they were understood at the time. For example, Oliver was treated for high blood pressure on the day of his stroke because he reported that he had not taken his hypertension medication in at least six months, and his symptoms were relieved by the treatment. Likewise, Oliver tested negatively for stroke at the hospital but responded positively to hypermagnesemia medication. When Oliver suggested that he may have suffered a stroke, the certified physician assistant evaluating him requested MRIs of his brain and spine.
The delay between the request for the MRIs and when the brain MRI occurred is concerning. However, Oliver did not complain of stroke symptoms at the various clinical encounters he had between the request and examination. Similarly, while the BOP staff should have followed up with Oliver regarding his MRI results of their own volition, a nurse practitioner reviewed the results with him only a few weeks after he requested a consultation. Furthermore, the BOP's failure to provide five of the eight treatments recommended by Dr. Hinman, who has not evaluated Oliver or his imaging studies, is distinguishable from the cases on which Oliver relies on appeal because Oliver's health has not deteriorated due to the alleged deficiency in care. See Ricks, 2021 WL 1575950, at *4-5; United States v. Smith, 464 F.Supp.3d 1009, 1019-20 (N.D. Iowa 2020) (finding the BOP failed to diagnose or treat defendant's cancer for over a year, cancer progressed to "advanced stages" despite finally receiving treatment, and defendant required assistance to walk and needed an inhaler several times per day). Accordingly, even if other courts may have found differently, the district court did not abuse its discretion in determining that the BOP's medical care has been adequate and thus is not an extraordinary and compelling reason for compassionate release. See United States v. Cherer, 513 F.3d 1150, 1162 (9th Cir. 2008) (Noonan, J., concurring in part and dissenting in part) ("The reviewing court will reverse [a sentencing decision] only for abuse of discretion, not for disagreement with the district court's considered conclusion." (citing Gall v. United States, 552 U.S. 38, 51 (2007))).
2. Oliver also contends that the district court misconstrued and failed to consider his reasons for declining the COVID-19 vaccine, which the court improperly treated as dispositive in declining his motion for compassionate release. The court did neither of these things. It accurately summarized Oliver's reasons for rejecting the vaccine. The court also discussed United States v. Lum, No. 18-CR-00073-DKW-1, 2021 WL 358373 (D. Haw. Feb. 2, 2021), the only case upon which Oliver relied in support of his assertion that refusing the vaccine should not preclude him from relief. The district court thus "heard" Oliver's argument. Carty, 520 F.3d at 992.
Nor did the court treat Oliver's decision not to get vaccinated as determinative. The court explicitly stated that declining to be vaccinated might not constitute a per se disqualification in all circumstances. Moreover, the court considered that COVID-19 was not widespread in Oliver's facility at the time and that the proliferation of the vaccine was expected to reduce the spread of the virus. The court concluded that both these points weakened Oliver's assertion that he faced a substantial and unavoidable risk of infection.
Regardless, the court's determination that Oliver's risk of contracting COVID-19 in conjunction with his medical conditions did not constitute an extraordinary and compelling circumstance for release was a "reasoned decision." Carty, 520 F.3d at 992. The court distinguished Oliver from the defendant in Lum, who had agreed to accept the vaccine if and when it was offered again. It also cited United States v. Gonzalez Zambrano, No. 18-CR-2002-CJW-MAR, 2021 WL 248592, at *5 (N.D. Iowa Jan. 25, 2021), which cautioned against incentivizing inmates to "manufacture extraordinary and compelling circumstances for compassionate release by unreasonably refusing the health care afforded to them." Given that Oliver's nonadherence to his medication likely contributed to his stroke, it was not illogical, implausible or without support in the record, Hinkson, 585 F.3d at 1262, for the court to determine that Oliver's reasons for refusing the vaccine were not satisfactory or nonmanipulable.
AFFIRMED.
The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation.