Archive | summary affirmance

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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Monday, August 23rd, 2010

You See Davis

United States v. Bonilla, No. 09-1799-cr (2d Cir. August 13, 2010) (Miner, Cabranes, Wesley, CJJ)

Five months ago, in United States v. Davis, a Second Circuit panel denied the government’s motion for summary affirmance in a criminal case. Davis held that summary affirmance is a “rare exception” that should only be granted where the issues raised by the appellant are truly frivolous. It also noted that summary affirmance in criminal cases is “particularly perilous.” See, An Exercise in Frivolity, posted March 20, 2010.

Here, with Davis’ ink barely dry, a different panel granted a motion for summary affirmance in a criminal case.


Angel Bonilla pled guilty to illegal reentry, and had a past conviction for felony assault, which triggered the 16-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii). At offense level 21 and criminal history category IV, he faced a Guideline sentencing range of 57 to 71 months.

At sentencing, he …

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Categories: summary affirmance, Uncategorized

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