FILED

NOT FOR PUBLICATION

DEC 10 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10411

Plaintiff-Appellee, D.C. No. 4:05-cr-00567-JSW-1 v.

SHAUN ROBERTS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 17, 2021 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

Shaun Roberts appeals the district court’s denial of his motion under 18

U.S.C. § 3582(c)(1)(A)(i) for reduction of sentence and compassionate release

pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. He is

serving a 67-year sentence on multiple counts of armed robbery and use of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. firearm during a crime of violence. The district court denied his motion, holding

that even if there were extraordinary and compelling reasons, the motion would

have to be denied because Roberts is a danger to the community under 18 U.S.C. §

3142(g).

The district court appears to have viewed the provision of the U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13, which requires

consideration of Section 3142(g), to be a binding policy statement. The court

therefore did not analyze the factors in 18 U.S.C. § 3553(a), although Section

3582(c)(1)(A) calls for such review. Nor did the court weigh Roberts’s risk of

severe illness from COVID-19 against the other Section 3553(a) factors.

Since the district court’s decision, however, this court has held that U.S.S.G.

§ 1B1.13 is not a binding policy statement for purposes of a Section 3582(c)(1)(A)

motion. United States v. Aruda, 993 F.3d 797, 798 (9th Cir. 2021).

We therefore VACATE the district court’s order and REMAND for

consideration of Roberts’ contentions and application of the appropriate factors.

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