20-1776-cr United States v. Fleming

In the United States Court of Appeals for the Second Circuit

August Term, 2020 No. 20-1776-cr

UNITED STATES OF AMERICA, Appellee,

v.

WARREN FLEMING, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of New York. No. 1:18-cr-197-1 — Kiyo A. Matsumoto, Judge.

SUBMITTED: JUNE 25, 2021 DECIDED: JULY 14, 2021

Before: LEVAL, CABRANES, and NARDINI, Circuit Judges.

Attorney Colleen Cassidy moves pursuant to Anders v. California,

(1967), to be relieved as counsel to Defendant-Appellant Warren Fleming in his appeal from a final order entered on June 1, 2020, in the United States District Court for the Eastern District of New York (Kiyo A. Matsumoto, J.), denying Fleming’s motion for compassionate release pursuant to

(c)(1)(A). Because a defendant has no constitutional or statutory right to assistance of counsel on a compassionate release motion or an appeal from the denial of such a motion, we hold that an attorney seeking to be relieved before us in that context need not file a motion and brief that comply with the requirements of Anders, 386 U.S. at 744–45. Instead, counsel’s motion to be relieved must adhere to Rule 27 of the Federal Rules of Appellate Procedure and Local Rule 27.1 by stating with particularity the grounds for the motion, the relief requested, and the legal argument supporting that request, as well as attaching an affidavit indicating that counsel has advised the defendant of the process for obtaining court-appointed counsel or proceeding pro se. Because Cassidy’s motion complied with the requirements of Rule 27, we GRANT her motion to withdraw as Fleming’s counsel. In addition, the Government moves for summary affirmance of the district court’s decision on the grounds that Fleming’s motion presents no non-frivolous issues on appeal. We disagree, and therefore DENY the Government’s motion for summary affirmance.

Elizabeth L. Macchiaverna, Kayla Bensing, Assistant United States Attorneys, for Jacquelyn M. Kasulis, Acting United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee

Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, New York, for Defendant- Appellant

2 WILLIAM J. NARDINI, Circuit Judge:

On May 26, 2020, Defendant-Appellant Warren Fleming filed a motion for

compassionate release pursuant to the First Step Act,

(c)(1)(A),

seeking relief from the 65-month prison sentence imposed by the United States

District Court for the Eastern District of New York (Kiyo A. Matsumoto, J.)

following his conviction of possession with intent to distribute cocaine base and

use of a firearm during a drug trafficking crime. 1 Fleming argued that his risk of

contracting COVID-19 in his facility, FCI Danbury, and a heightened risk of

complications if he were to contract the virus due to asthma, constituted

extraordinary and compelling reasons justifying modification of his original

sentence. The district court denied Fleming’s motion. See United States v. Fleming,

No. 18-CR-197,

(E.D.N.Y. June 1, 2020), reconsideration denied,

(E.D.N.Y. Sept. 11, 2020). The district court found that the added

risk of asthma-related complications if Fleming were to contract COVID-19

1 See

(a)(1) and 841(b)(1)(C);

(c)(1)(A)(i).

3 “weigh[ed] only slightly in favor of modifying [his] sentence,” while Fleming’s

history of committing increasingly violent crimes over nearly three decades

“weigh[ed] heavily against modifying the sentence” given the need to ensure the

“protection of the public at large.”

at *3–4. Fleming appealed.

Fleming’s counsel, Colleen Cassidy of the Federal Defenders of New York,

moved pursuant to Anders v. California,

(1967), to be relieved from

representing Fleming on appeal. Cassidy submitted a brief accompanying her

Anders motion explaining that she could make “no reasonable argument that the

court abused its broad discretion under [the First Step Act]” because “the district

court understood its discretion and properly exercised it.” Anders Br. at 7–9.

Cassidy acknowledged that the district court, in assessing whether Fleming was

“a danger to the safety of the community,” considered the United States

Sentencing Guideline (“U.S.S.G.”) § 1B1.13 policy statement, which this Court has

since held to be inapplicable in United States v. Brooker,

(2d Cir.

2020). Anders Br. at 10. But Cassidy explained that the district court also relied on

(a), whose “factors equally required the court to consider

4 protection of the public,” such that there was “no basis to conclude that the court’s

reasoning [would] have been any different if it had only considered the § 3553(a)

factors and not that Guideline policy statement.” Anders Br. at 10. 2 The

Government moved for summary affirmance.

For the reasons stated below, we grant Cassidy’s motion to withdraw as

counsel and deny the Government’s motion for summary affirmance. We write to

clarify that an attorney who moves to be relieved from representing a client who

appeals the denial of a motion for compassionate release need not comply with the

requirements applicable to motions made under Anders. Those procedures are not

required because a defendant filing a compassionate release motion or appealing

from the denial of such a motion has no constitutional or statutory right to the

assistance of counsel.

2 The district court also focused on U.S.S.G. § 1B1.13 in finding that Fleming could continue to provide self-care for his asthma in prison. Fleming,

, at *3. In Brooker, we held that § 1B1.13 does not apply to motions for compassionate release because “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them.”

.

5 I

In Anders, the Supreme Court held that the “constitutional requirement of

substantial equality and fair process” requires a defendant’s attorney to “support

his client’s appeal to the best of his ability,” and if filing an appeal would be wholly

frivolous, to accompany a request to withdraw as counsel with “a brief referring

to anything in the record that might arguably support the appeal.”

;

cf. Local Rule 4.1(b) (requiring defense counsel seeking to withdraw on the ground

that an appeal presents no non-frivolous issues to file an Anders motion and brief).

Furnished with his counsel’s Anders brief, the defendant may then “raise any

points that he chooses” in a pro se appellate brief.

. The Anders

procedure thereby aims to secure an indigent defendant “the same rights and

opportunities on appeal” as those enjoyed by defendants who can afford private

representation.

.

Yet “Anders did not set down an independent constitutional command that

all lawyers, in all proceedings, must follow these particular procedures.

Rather, Anders established a prophylactic framework that is relevant when, and

6 only when, a litigant has a previously established constitutional right to counsel.”

Pennsylvania v. Finley,

, 554–55 (1987). That constitutional right is

rooted in the Sixth Amendment, which provides that “the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence,” including on direct

appeal from a criminal conviction. U.S. Const. amend. VI; see Douglas v. California,

(1963). But “the right to appointed counsel extends to the first

appeal of right, and no further.” Finley,

. As restated in Rule 44(a) of

the Federal Rules of Criminal Procedure, a defendant is entitled to court-

appointed counsel “at every stage of the proceeding from initial appearance

through appeal.”

The statutory right to appointed counsel on appeal is similarly confined to

direct appeals. The Criminal Justice Act of 1964 (the “CJA”),

Stat. 552–54, guarantees criminal defendants the assistance of counsel “at every

stage of the proceedings from [an] initial appearance before the United States

magistrate judge or the court through appeal, including ancillary matters

appropriate to the proceedings.” 18 U.S.C. § 3006A(c). The “ancillary matters”

7 described in § 3006A(c) are “those involved ‘in defending the principal criminal

charge’” including “trial and direct appeals,” but do not extend to “collateral

attacks upon a judgment.” United States v. Reddick,

(2d Cir. 1995)

(quoting Miranda v. United States,

, 404–05 (2d Cir. 1972)). We have

therefore declined to require the appointment of counsel under the CJA when a

defendant has filed a motion for sentence reduction pursuant to

(c)(2) based on subsequent changes in the Sentencing Guidelines.

.

“And every federal court of appeals to address the issue has agreed that there is

no constitutional (or statutory) right to appointed counsel in § 3582(c)

proceedings.” United States v. Manso-Zamora,

(6th Cir. 2021). 3

Because a defendant has no right to the assistance of counsel in filing a

motion for compassionate release or appealing from the denial of such a motion,

3See United States v. Blake,

(7th Cir. 2021); United States v. Meeks,

(8th Cir. 2020); United States v. Garcia,

(5th Cir. 2012); United States v. Webb,

, 795–96 (11th Cir. 2009); United States v. Legree,

(4th Cir. 2000); United States v. Townsend,

(9th Cir. 1996). In United States v. Johnson, Nos. 15-6413/16-5346,

, at *3 (6th Cir. 2016), the Sixth Circuit similarly observed (without deciding) that there has been no historical right to counsel in proceedings under § 3582(c)(2).

8 an attorney seeking to withdraw before us need not file an Anders brief pursuant

to Local Rule 4.1(b). That rule applies only when counsel “seeks to withdraw from

representing a defendant on appeal”—that is, on a direct appeal. So, too, Local

Rule 4.1(d)—which establishes the procedures for withdrawing on grounds other

than frivolousness—is limited by its terms to representation “on appeal.” We

understand the term “appeal” in Local Rules 4.1(b) and (d) to refer to a criminal

defendant’s first appeal as of right, in line with our longstanding construction of

the same term in 18 U.S.C. § 3006A(c). See Reddick, 53 F.3d at 464–65; see also Buckeye

Check Cashing, Inc. v. Cardegna,

, 448 n.3 (2006) (confirming textual

interpretation based on “the use of the [same] word . . . elsewhere in the United

States Code”). Compassionate release motions fall outside that definition, and

therefore neither Local Rule 4.1(b) nor Local Rule 4.1(d) governs on an appeal from

such a motion.

Instead, a motion to withdraw as counsel in an appeal from postjudgment

proceedings such as a compassionate release motion must comply with Rule 27 of

the Federal Rules of Appellate Procedure and Local Rule 27.1. Federal Rule

9 27(a)(2)(A) requires a motion to “state with particularity the grounds for the

motion, the relief sought, and the legal argument necessary to support it.” In this

context, unlike that of an Anders motion, Rule 27(a)(2)(C)(i) of the Federal Rules of

Appellate Procedure directs that “[a] separate brief supporting or responding to a

motion must not be filed.” Counsel therefore must place her arguments in the

document identified as the motion, rather than filing a separate brief. Counsel

must also file an affidavit accompanying the motion, see Fed. R. App. P.

27(a)(2)(B)(i), confirming that she has advised the defendant that the options

available to him are to (1) obtain other counsel if he is able to do so, (2) represent

himself (if the court allows it), or (3) if he cannot afford to retain private counsel,

apply to the court to appoint counsel for him. 4 If the defendant has indicated that

4The appointment of CJA counsel at this stage rests in the court’s sole discretion. See 18 U.S.C. § 3006A(a)(2); Blake,

(“[J]udges have discretion to recruit and sometimes appoint counsel for prisoners seeking post-judgment benefits, but prisoners do not have a constitutional or statutory entitlement to appointed counsel.” (citation omitted)).

10 he wishes to continue pro se, counsel should further indicate in her affidavit that

she has advised the defendant in writing of any filing and briefing deadlines. 5

We grant Cassidy’s motion to be relieved as counsel because her motion and

brief substantially complied with the requirements of Rule 27. Cassidy stated the

specific grounds for her motion to withdraw. Further, Cassidy submitted an

affidavit indicating that she had provided written notice to Fleming of his right to

retain or seek appointment of alternate counsel, as well as the deadline for his

opening brief should he desire to proceed pro se. 6

II

The Government’s motion for summary affirmance is denied. “Summary

affirmance of a district court’s decision in place of full merits briefing . . . is, and

should be treated as, a rare exception to the completion of the appeal process. It is

5In that circumstance, the defendant should be afforded sufficient time to prepare and file a pro se appellate brief.

6Fleming’s pro se response confirms that Cassidy advised him of his right to request appointed counsel or to proceed pro se, and that she informed him of the filing deadline for his response.

11 a short-cut and, in light of the liberty and property rights involved, one that is

available only if an appeal is truly frivolous.” United States v. Davis,

(2d Cir. 2010) (quotation marks omitted). Even where “the correct resolution of an

appeal seems obvious,” we will not summarily affirm unless the claim presented

“lacks an arguable basis either in law or in fact.”

at 13–14 (quotation marks

omitted). That is not the case here. While Fleming’s appeal may face an uphill

battle given the broad discretion district courts exercise in considering motions for

compassionate release, see Brooker,

, and that § 3553(a) provided an

independent basis for the district court’s decision, see Fleming,

,

at *3–4, we are not satisfied that Fleming’s appeal is so patently frivolous as to

warrant affirmance without the benefit of full briefing.

***

In sum, we hold that an attorney seeking to withdraw from representation

of a defendant appealing from denial of a motion for a sentence reduction

pursuant to

(c)(1)(A) need not comply with the requirements

applicable to motions made under Anders. Instead, an attorney submitting a

12 motion to be relieved as counsel at this stage must comply with Rule 27 of the

Federal Rules of Appellate Procedure and Local Rule 27.1. Because Cassidy’s

motion substantially complied with the requirements of Rule 27, we GRANT

Cassidy’s motion to withdraw as Fleming’s counsel. We DENY the Government’s

motion for summary affirmance. Fleming’s appeal, which he has elected to pursue

pro se, will be heard by a panel of this Court in due course.

13