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 only served 25 months of a 65-month sentence. The defendant filed his own pro se brief and the government moved for summary affirmance.
The Court of Appeals held that the defendant had no constitutional or statutory right to counsel on appeal from the denial of a compassionate release motion, even where counsel had been appointed in the district court, and therefore an Anders motion was not necessary. It held that a motion pursuant to Rule of Appellate Procedure 27 was sufficient to be relieved, but did not state what the standard would be for granting such a motion. Rule 27 is simply the general motions rule and specifies no grounds for being relieved as counsel. Because the Anders motion filed met the basic requirements of a motion under Rule 27 – i.e., it stated with particularity the grounds for the motion, the relief sought, and the legal argument to support it – the Court of Appeals granted the motion.
It went on, however, to deny the government’s motion for summary affirmance on the ground that the appeal was not frivolous, the very ground set forth for the motion that it granted. Stating that the appeal faced an “uphill battle” given the district court’s broad discretion on compassionate release motions, the Court of Appeals ruled that unless the appeal “lacks an arguable basis either in law or in fact,” it is not patently frivolous. The Court applied this standard from United States v. Davis, 598 F.3d 10, 13 (2d Cir. 2010) a case in which an appeal was filed arguing that a Guidelines sentence was unreasonable and the government asked for summary affirmance instead of a decision on the merits. This standard for a non-frivolous appeal appears to broader than the traditional Anders standard, which applies if there is no non-frivolous legal argument to be made. Anders v. United States, 386 U.S. 738, 745 (1967).
**It is not clear what the standard is for making a motion to be relieved under Rule 27. The Anders motion made here met the standard for Rule 27 but the appeal was not frivolous enough to meet the standard of frivolous for summary affirmance. It seems that the standard for filing such a motion should still be the standard used to file an Anders motion.