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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. David Allen MARKILLIE, Defendant-Appellant.

No. 20-10292

Decided: January 27, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Beverly K. Anderson, Esquire, Assistant U.S. Attorney, USTU- Office of the US Attorney, Tucson, AZ, for Plaintiff-Appellee M. Edith Cunningham, Christina Woehr, Assistant Federal Public Defender, FPDAZ - Federal Public Defender's Office, Tucson, AZ, for Defendant-Appellant


The clerk order at Docket Entry No. 35 is vacated. Appellee's motion to consolidate is denied. This case will proceed separately from Appeal No. 20-10151.

In this appeal, David Allen Markillie appeals from the district court's order denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Markillie argues that the district court improperly relied on U.S.S.G. § 1B1.13 when denying his motion for compassionate release. We need not determine whether, as Markillie contends, that Guideline applies only to § 3582(c)(1)(A) motions brought by the Director of the Bureau of Prisons. Regardless of the applicability of U.S.S.G. § 1B1.13, the district court properly denied the motion on the basis of statutory factors set forth in § 3582(c)(1)(A)(i) and 18 U.S.C. § 3553(a). The district court concluded that a reduced sentence was not appropriate in light of the nature and circumstances of the offense and the need to protect the public, as well as Markillie's failure to show extraordinary and compelling reasons. See 18 U.S.C. § 3582(c)(1)(A)(i) (compassionate release may be granted if “extraordinary and compelling reasons,” and the § 3553(a) sentencing factors, warrant it); see also 18 U.S.C. § 3553(a)(1), (a)(2)(C). Furthermore, the district court addressed Markillie's arguments, adequately explained its decision to deny relief, and did not make any clearly erroneous factual findings.

Markillie's motion to expedite is denied as moot.


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