Opinion
21-30279
11-09-2022
UNITED STATES, Plaintiff-Appellee, v. JOSE ANTONIO VILLALBA, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted November 7, 2022 Portland, Oregon
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
On Appeal from the United States District Court for the District of Oregon D.C. No. 3:13-CR-00524-BR The Hon. Anna J. Brown, Senior District Judge, Presiding
Before: BUMATAY and SANCHEZ, Circuit Judges, and BAKER, International Trade Judge.
MEMORANDUM [*]
Jose Antonio Villalba 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. Reviewing for an abuse of discretion, see United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021), we affirm.
1. The district court did not abuse its discretion by rejecting Villalba's claim that his medical conditions, which put him at heightened risk of COVID-19 complications, constituted an extraordinary and compelling circumstance warranting compassionate release. Villalba asserts that the district court erroneously applied a "blanket rule" that fully vaccinated inmates cannot establish extraordinary and compelling circumstances due to COVID-19 risks. But the record reflects that the district court considered the totality of Villalba's circumstances, including his age and medical conditions, the emergence of the delta variant, the vaccination rates and prevalence of COVID-19 infections among inmates and staff at the detention facility, and the vaccination rate in Mexico (where he sought to be released). Because the district court considered Villalba's vaccination status along with his individual risk factors, we find it did not apply a blanket rule.
2. We do not address Villalba's additional argument that he was entitled to compassionate release because he had not received a COVID-19 booster dose. Villalba first made this argument in his reply brief in district court and the district court did not address it. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) ("The district court need not consider arguments raised for the first time in a reply brief."). Because the argument was not properly raised before the district court, it is forfeited. Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1007 (9th Cir. 2008).
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.