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Friday, September 2nd, 2022

In a motion for Compassionate Release, “a district court does not have discretion to consider new evidence . . . attacking the validity of the underlying conviction” in weighing “the 18 U.S.C. § 3553(a) factors.” United States v. Amato (Victor Orena), No. 21-2747, __ F.4th ____ (2d Cir. June 15, amended Aug. 31, 2022) (per curiam) (C.J.J.’s Pooler, Sack, and Nathan).

(The opinion in this case was originally issued on June 15 2022, and published at 37 F.4th 58, but was withdrawn and “this amended opinion [was issued] in its place”). See ECF No. 85, Opinion of Aug. 31, 2022  (“Op.”)  at 3 n.1.

Appellant Victor Orena appealed the district court’s denial of his motion to reduce his life-sentence, pursuant to 18 U.S.C. § 3582(c)(1), “colloquially known as the ‘compassionate release’ provision,” which “permits a district court to reduce a previously imposed sentence ‘after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that … extraordinary and compelling reasons warrant such a reduction.” Op. at 2-3 (alterations in original)..

Orena argued primarily that the district court erred in denying his § 3582(c) motion “by refusing to consider new evidence that he says calls into question the validity of his conviction.” …

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Monday, January 10th, 2022

“We can do that. We don’t even have to have a reason.”

Today’s Second Circuit summary order in United States v. Foskey, No. 21-149-cr, brings to mind a Caddyshack line that I think of often (quoted above). In Foskey, the Circuit upheld the district court’s denial of a motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). Before the Circuit, the defendant argued that the district court had abused its discretion in denying his motion, failing to follow United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), and failing to sufficiently explain its denial of release. Before the district court, the government had argued that Brooker was wrongly decided and that the district court should not follow it. The district court denied the defendant’s release motion in docket entry orders that did not make clear what legal standard it applied or whether it followed Brooker.

But, per the Circuit, “the district court made no mention …

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Categories: 3582(c)(1)(A), compassionate release

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Friday, July 16th, 2021

Second Circuit holds there is no right to counsel on an appeal from a compassionate release motion, but an appeal is not frivolous unless it “lacks an arguable basis in law or fact.”

In United States v. Fleming, No.  20-1776 (2d Cir. July 14) an appeal from a denial of compassionate release, the Second Circuit granted a motion to be relieved filed by counsel , but denied the government’s motion for summary affirmance on the ground that the appeal was not frivolous. The motion was an Anders motion filed on the ground that there was no non-frivolous legal argument to be made that the district court abused its discretion under the Brooker standard in denying the motion, where it weighed the factors on the record and concluded that the defendant’s age and health condition (45 years old with asthma) in the context of a Covid-19 outbreak weighed only slightly in favor of release, but was outweighed by the  3553(a) factors, specifically the defendant’s record of violent crime, danger to the community, and protection of the public, and the fact that he had …

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Categories: compassionate release, right to counsel on appeal, summary affirmance

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