United States of America v. Craig William Nitsche, Ii

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRAIG WILLIAM NITSCHE, II,
Defendant-Appellant.
No. 21-10104
D.C. No. 3:18-cr-00378-RS-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Craig William Nitsche, II, 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 abuse of discretion, see United
States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021), 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
NOV 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-10104
Nitsche contends that the district court applied the wrong legal standard
because it treated U.S.S.G. § 1B1.13 as binding. See Aruda, 993 F.3d at 802
(§ 1B1.13 is not binding on judicial review of § 3582(c)(1)(A) motions filed by
defendants). This argument is belied by the district court’s order, in which the
court acknowledged the “growing chorus” of cases holding that § 1B1.13 is not
binding and stated its assumption that it could consider “broader and more flexible
grounds for finding extraordinary and compelling reasons” for release than those
listed in § 1B1.13. Against this backdrop, we conclude that the court’s limited
discussion of § 1B1.13 and the danger Nitsche’s release would pose to the
community under 18 U.S.C § 3142(g) reflects its permissible reliance on the
Guideline as guidance. See Aruda, 993 F.3d at 802 (“The Sentencing
Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s
discretion for § 3582(c)(1)(A) motions filed by a defendant[.]”).
Contrary to Nitsche’s remaining argument, the district court’s generalized
statements about the risk to inmates as vaccination rates increase were not clearly
erroneous. See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) (“A
finding is clearly erroneous if it is illogical, implausible, or without support in the
record.”).
AFFIRMED.

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