NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 21 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50154

Plaintiff-Appellee, D.C. No. 2:18-cr-00224-DOC-1 v.

DAVID MATTHEW READ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted March 9, 2022 Pasadena, California

Before: BERZON, TALLMAN, and FRIEDLAND, Circuit Judges.

David Matthew Read appeals the district court’s order denying her1 motion

for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Read pleaded guilty

to conspiracy to commit access device fraud, use of unauthorized access devices,

and aggravated identity theft. She is serving a 70-month custodial sentence at

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Read is a transgender woman. We refer to Read using the pronouns with which she identifies. Federal Correctional Institution Phoenix. Read argues that extraordinary and

compelling reasons warrant a reduced sentence because her HIV diagnosis puts her

at severe risk from Covid-19 disease and the Bureau of Prisons cannot control the

spread of the virus in FCI Phoenix. Additionally, Read asserts she demonstrated

strong efforts towards rehabilitation. We have jurisdiction under 28 U.S.C. § 1291

to review the district court’s order denying compassionate release. We affirm.

As a preliminary matter, we agree with Read and the government that the

district court erred in treating as binding the policy statement contained in U.S.S.G.

§ 1B1.13 when it evaluated whether Read had demonstrated an “extraordinary and

compelling reason[]” for her release under 18 U.S.C. § 3582(c)(1). Our recent

decision in United States v. Aruda holds that § 1B1.13 is not an “applicable policy

statement” that district courts must consider under 18 U.S.C. § 3582(c)(1)(A) for

defendant-filed motions for compassionate release. 993 F.3d 797, 802 (9th Cir.

2021) (per curiam). The district court erred in this respect, but it also ruled on an

alternative ground by balancing the 18 U.S.C. § 3553(a) factors, consistent with

the compassionate release statutory framework. See 18 U.S.C. § 3582(c)(1)(A);

United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (per curiam). This is a

legally sufficient, independent basis to affirm the district court’s order. See Keller,

2 F.4th at 1284 (“[A] district court that properly denies compassionate release need

not evaluate each step [under § 3582(c)(1)(A)].”); see also United States v.

2 Feingold, 454 F.3d 1001, 1014 (9th Cir. 2006). We therefore hold that the Aruda

error was harmless.

Contrary to Read’s contentions, the district court acted well within its

discretion and did not err in analyzing the § 3553(a) factors, even assuming she

had demonstrated an extraordinary and compelling reason for a sentence

modification.2 The court discussed the compassionate release framework and

correctly applied the law as it pertains to § 3553(a). The court expressed its

concern with Read’s behavior while incarcerated and the fact that she was not

deterred from committing additional crimes after her prior 37-month federal

sentence.3 The district court explained that Read had violated the terms of her

previous supervised release by continuing to commit crimes, including embezzling

$7,300 from a local church and stealing donation checks from an animal rescue

organization. Additionally, BOP continued to designate Read with a “high risk”

recidivism level. And at the time of the district court’s order, Read had served less

2 Read did not raise and therefore forfeited any argument that the district court erred by not considering her medical condition as part of the § 3553(a) analysis. See Fed. R. App. P. 28(a)(8)(A); McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009). 3 The record shows that Read’s “continuous crime spree,” as the district court termed it, included defrauding an elderly woman while on supervised release. Moreover, Read absconded from pretrial supervision and continued with the fraudulent scheme, using another victim’s credit card to make nearly $30,000 in fraudulent purchases. While under indictment in the present case, Read also may have committed additional crimes.

3 than half of her 70-month sentence. Balanced against these factors, which the

court determined not to be outweighed, the district court also considered Read’s

rehabilitation efforts, “acknowledg[ing] that [she] has committed herself to self-

development and personal growth by taking courses and participating in a job fair

program,” and noted that Read had proposed a plan for her transition back into

society.

In sum, the district court did not abuse its discretion in reaching the

reasonable conclusion that the § 3553(a) factors weighed against Read’s release.

See Keller, 2 F.4th at 1284 (recognizing the deference we must give the district

court when making these discretionary decisions); cf. Chavez-Meza v. United

States, 138 S. Ct. 1959, 1965–68 (2018); United States v. Wilson, 8 F.4th 970,

976–77 (9th Cir. 2021) (per curiam) (“[A] minimal explanation is adequate in light

of the deference due to the judge’s professional judgment and the context of a

particular case.”).

AFFIRMED.

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