United States of America v. Daniel A. Nix

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL A. NIX,
Defendant-Appellant.
No. 21-30085
D.C. No. 2:17-cr-00105-RSL-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Daniel A. Nix appeals pro se from the district court’s order denying his
motion for reconsideration of its order denying as unexhausted Nix’s motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
* 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).
FILED
OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-30085
Nix contends that the district court erred in treating his claim regarding his
age and vulnerability to COVID-19 as unexhausted, and in finding that his
partner’s health crisis was not an extraordinary and compelling reason to grant
compassionate release. The government counters that the district court should
have treated both of Nix’s claims as unexhausted and, in any event, did not err in
denying Nix’s motion on the merits. We need not address whether Nix properly
exhausted both of his claims because, even if he did, the district court did not abuse
its discretion in denying relief. See United States v. Keller, 2 F.4th 1278, 1281,
1283 (9th Cir. 2021) (stating standard of review and explaining that the district
court’s error in failing to dismiss for lack of exhaustion was harmless because the
court denied the motion on other grounds). The court properly treated U.S.S.G.
§ 1B1.13 as persuasive but not binding. See United States v. Aruda, 993 F.3d 797,
802 (9th Cir. 2021). Moreover, it did not abuse its discretion in concluding that the
availability of other caretakers for Nix’s partner undermined Nix’s arguments for
release, and that the 18 U.S.C. § 3553(a) factors did not support compassionate
release.
AFFIRMED.

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