NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 17 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-10104

Plaintiff-Appellee, D.C. No. 3:18-cr-00378-RS-1 v.

MEMORANDUM* CRAIG WILLIAM NITSCHE, II,

Defendant-Appellant.

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).

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.

2 21-10104