NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10257

Plaintiff-Appellee, D.C. No. 2:08-cr-00064-JCM-EJY-1 v.

STEVEN GRIMM, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted June 6, 2023** San Francisco, California

Before: MILLER and KOH, Circuit Judges, and CHRISTENSEN,*** District Judge.

Defendant-Appellant Steven Grimm appeals the district court’s decision

denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).

* 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). *** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing for abuse of

discretion, see United States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021) (per

curiam), we affirm.

The district court did not plainly err by evaluating Grimm’s motion under

the standard set forth in 18 U.S.C. § 3582(c)(1)(A)(i). Where a party fails to raise

an issue before the district court, we review for plain error. United States v. Yijun

Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). “An error is plain if it is clear or

obvious under current law.” United States v. De La Fuente, 353 F.3d 766, 769 (9th

Cir. 2003). Grimm argues for the first time on appeal that, because he has

religious objections to receiving any of the available COVID-19 vaccinations, the

district court should have applied the burden-shifting tests set forth under the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§§ 2000cc to 2000cc-5; the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. §§ 2000bb to 2000bb-4; and/or the Free Exercise Clause of the First

Amendment. Grimm did not identify any cases in which a court at any level

applied the standards set forth under RLUIPA, RFRA, or the Free Exercise Clause

of the First Amendment in the context of a motion for compassionate release

pursuant to 18 U.S.C. § 3582(c)(1)(A). Because the error Grimm alleges was not

“clear or obvious under current law,” the alleged error cannot be plain. De La

Fuente, 353 F.3d at 769.

2 The district court did not abuse its discretion in concluding that Grimm

failed to establish “extraordinary and compelling reasons” warranting a sentence

reduction under § 3582(c)(1)(A)(i). The record supports the district court’s finding

that “Grimm’s underlying health conditions, unvaccinated status, and mere

potential for a COVID reinfection do not present an extraordinary and compelling

reason to grant compassionate release” in light of Grimm’s previous infection with

COVID-19 while incarcerated, the Bureau of Prisons’s risk mitigation efforts, and

the fact that there were no positive cases among inmates at Grimm’s facility at the

time he filed his motion.

AFFIRMED.

3