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(The opinion in this case was originally issued on June 15 2022, and published at 37 F.4th 58, but was withdrawn and “this amended opinion [was issued] in its place”).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.” Op.  at 3.

The district court assumed  that Orena’s medical conditions demonstrated an extraordinary and compelling reason, but denied the motion based on the weight of the §3553(a) factors. The issue for the Circuit, therefore, was whether the district court was required to consider Orena’s evidence challenging his convictions in weighing the § 3553(a) factors. Op. at 3, 8-9.

The Circuit said that it did not address the question whether “the district court had discretion to consider [Orena’s] new evidence as establishing an extraordinary and compelling reason for his release.” Op. at 8-9 n.3.

I. Background

Orena has been imprisoned since the early 1990s, serving a mandatory life sentence for convictions for racketeering and murder in aid of racketeering (among other convictions). He was allegedly the acting boss of the Colombo organized crime family, at some point. And the trial evidence “centered on an internecine war in the early 1990s…[that] resulted in multiple assassinations and attempted assassinations[.]” Op. at 4.

After his conviction was affirmed in 1994, Orena sought post-conviction relief through various motions including petitions under 28 U.S.C. § 2255. He contended he wasn’t responsible for either “the internecine war nor the murder that formed the basis of his murder in aid of racketeering conviction[,]” he said.  Op. at 5. Rather, “the Government covered up that a Colombo Family member, who served as a confidential FBI informant, and an FBI special agent secretly conspired to instigate the war and to commit the murder.” Op. at 5.  Orena has a § 2255 petition pending before the district court raising these issues. Op. at 5-6.

In July 2021, Orena filed a motion for compassionate release, relying on his “myriad” medical conditions “and the exculpatory and impeachment evidence he says was wrongfully withheld.” Op. at 6.  (He also presented  mitigating factors such as “the BOP’s determination that he poses a ‘minimum’ risk for violence.”). Op. at 8.

The Government “conceded that Orena’s medical conditions arguably met the threshold requirement of an extraordinary and compelling reason,” for compassionate release. But it claimed that the § 3553(a) factors weighed against reducing the life sentence.  Op. at 6.

“The district court assumed that Orena had demonstrated an extraordinary and compelling reason for release in light of the Government’s concession[.]” Op. at 8-9  n.2.

But it found that the § 3553(a) factors “supported his continued imprisonment” and declined to reduce the sentence.  Op. at 6-7.

In doing so, the court “refused to consider Orena’s new evidence and assumed the legitimacy of Orena’s convictions and the accuracy of the [Presentence Investigation Report (‘PSR’)].” Op. at 7  (brackets in original; internal quotation marks omitted).

II. The Circuit holds that, in a motion for compassionate release, the district court “does not have discretion to consider” a movant’s attack on the validity of the conviction in its balancing of the § 3553(a) factors. (Op. at 3).

“Orena primarily contend[ed] that the district court erred by assuming the PSR’s accuracy and refusing to weigh his new evidence as part of the § 3553(a) factors.” Op. at 8-9. The Circuit “disagree[d].”  Op. at 9.

It reasoned that § 3582(c)(1)(A) directs the district court to “consider[ ] the factors set forth in section 3553(a)[,]” which provides “[f]actors to be considered in imposing a sentence.” Op. at 9 (emphasis in original)  (quoting 18 U.S.C. § 3553(a)). “To impose a sentence,” the Circuit reasoned, “there must necessarily be a valid conviction.” Op. at 9. “If a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to 28 U.S.C. § 2255, which imposes particular procedural limitations.” Op. at 9.

So, “arguments challenging the validity of an underlying conviction cannot be raised in a § 3582 motion as part of the § 3553(a) sentencing factors. Rather, such arguments are properly raised on direct appeal or collateral review pursuant to 28 U.S.C. § 2255” (or, in rare cases, under § 2241). Op. at 9 & n.3 (emphasis added)..

The district court, therefore, properly declined to weigh Orena’s attack on his underlying conviction “in its balancing of the § 3553(a) factors when considering Orena’s § 3582(c)(1)(A) motion.” Op. at 10 (The Circuit did note that Orena actually has a pending 2255 motion, saying that “the merits” of his claims of innocence “will be determined if and when Orena litigates his pending successive habeas petition.”).  Op. at 10.

The Circuit also rejected Orena’s argument “that the district court should have placed greater weight on his health conditions[,]” declining to “require that a particular factor be given determinative or dispositive weight.” Op. at 11. It also concluded that the district court “did not assume that defendants sentenced to life imprisonment for violent conduct are ineligible for a sentence reduction[.]” Op. at 11.


Professor Douglas Berman’s Blog criticizes this opinion saying that “the Second Circuit … expressly invents another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.” The Professor points out  that “there is no express text in § 3582(c)(1)(A) that would seem clearly to bar this kind of evidence and argument, and …  there is text in § 3553(a) that would seem potentially to invite this kind of evidence and argument,” such as  “‘promot[ing] respect for the law'” or “‘avoid[ing] unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.'” See

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