NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30256
Plaintiff-Appellee, D.C. Nos.
2:16-cr-00007-RSM-1
v. 2:16-cr-00007-RSM
LONNIE EUGENE LILLARD,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Submitted June 9, 2022**
Portland, Oregon
Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District
Judge.
Lonnie Eugene Lillard appeals from the district court’s order denying his
motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The
*
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 John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
district court had jurisdiction to deny Lillard’s motion under Federal Rule of
Criminal Procedure 37(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. We review the district court’s decision not to consider Lillard’s
“addendum/supplement” to his motion for abuse of discretion. Bonin v. Calderon,
59 F.3d 815, 845 (9th Cir. 1995). The district court did not abuse its discretion
because Lillard’s amendment raised a claim he had not administratively exhausted
and to which the government had no opportunity to respond. See id. (futility of
amendment and prejudice to opposing party among factors that may justify denial
of leave to amend).
2. We also review the district court’s denial of Lillard’s compassionate
release motion for abuse of discretion. See United States v. Keller, 2 F.4th 1278,
1281 (9th Cir. 2021) (per curiam). The court did not rely on U.S.S.G. § 1B1.13 in
violation of United States v. Aruda, 993 F.3d 797 (9th Cir. 2021). Aruda held that
when ruling on a § 3582(c)(1)(A) motion filed by a defendant, district courts may
consider U.S.S.G. § 1B1.13, but may not treat that policy statement as binding. Id.
at 802. The district court here concluded, after examining Lillard’s asserted bases
for release, that Lillard’s motion was actually “a collateral challenge to his
conviction” and thus “procedurally improper.” In doing so, the court agreed with
United States v. Handerhan, 789 F. App’x 924 (3d Cir. 2019), in which the Third
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Circuit concluded “that § 3582(c)(1)(A) provides a mechanism to seek a reduction
in the term of a sentence, not to challenge its validity,” because “neither the statute
nor its policy statement provide for release on the basis of arguments . . . that were
or could have been raised on direct appeal or in a § 2255 motion.” Id. at 926. To
the extent that the district court considered U.S.S.G. § 1B1.13, it did so only for the
purpose of determining whether § 3582(c)(1)(A) authorizes collateral challenges to
a conviction. The court did not apply the policy statement to determine whether a
valid motion for compassionate release should be granted, and it therefore did not
run afoul of Aruda.
3. Finally, we review the district court’s denial of Lillard’s reconsideration
motion for abuse of discretion. See United States v. Lopez-Cruz, 730 F.3d 803, 811
(9th Cir. 2013). Ordinarily, reconsideration is warranted only for “a manifest error
of law, newly discovered evidence, an intervening change in the law, or any other
extraordinary circumstance.” Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
2001). The intervening case law Lillard identified neither was binding on the
district court nor warranted relief, as it merely supported his non-meritorious
argument that the court had improperly relied on U.S.S.G. § 1B1.13 in denying his
original motion. The court also did not commit a manifest error of law by not
considering COVID-19 under the § 3553(a) factors, as it did not reach the question
of whether those factors warranted relief.
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AFFIRMED.
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