20-3156-cr United States v. Cummings

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 13th day of September, two thousand twenty-one. 4 5 PRESENT: JOHN M. WALKER, JR., 6 GUIDO CALABRESI, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 20-3156-cr 15 16 JOHN CUMMINGS, 17 18 Defendant-Appellant. 19 ------------------------------------------------------------------ 1 FOR DEFENDANT-APPELLANT: Jarrod W. Smith, Jarrod W. 2 Smith, Esq., P.L.L.C., Jordan,

5 FOR APPELLEE: Carla B. Freedman, Thomas R. 6 Sutcliffe, Assistant United 7 States Attorneys, for Antoinette 8 T. Bacon, Acting United States 9 Attorney for the Northern 10 District of New York, 11 Syracuse, NY

12 Appeal from an order of the United States District Court for the Northern

13 District of New York (Norman A. Mordue, Judge).

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

15 AND DECREED that the judgment of the District Court is AFFIRMED.

16 John Cummings appeals from an August 31, 2020 order of the District

17 Court (Mordue, J.) denying his renewed motion for a reduction in sentence

18 pursuant to

(c)(1)(A). In 2019 the District Court sentenced

19 Cummings to 87 months in prison for participating in both a narcotics conspiracy

20 and an international money laundering conspiracy. On June 15, 2020,

21 Cummings moved for compassionate release pursuant to 18 U.S.C.

22 § 3582(c)(1)(A), arguing that his sentence should be reduced because his medical

2 1 conditions put him at a higher risk of severe illness or death from COVID-19.

2 The District Court denied the motion. On August 26, 2020, Cummings filed the

3 renewed motion for compassionate release that is the subject of this appeal, and

4 which the District Court also denied. 1 We assume the parties’ familiarity with

5 the underlying facts and prior record of proceedings, to which we refer only as

6 necessary to explain our decision to affirm.

7 Before reducing a defendant’s term of imprisonment under the relevant

8 compassionate release provision,

(c)(1)(A), a district court must

9 “find[] that . . . extraordinary and compelling reasons warrant such a reduction,”

10

(c)(1)(A)(i). Even if “extraordinary and compelling”

11 circumstances exist, a district court may not reduce a defendant’s sentence before

12 considering “the factors set forth in section 3553(a) to the extent that they are

1 Cummings’s motion was styled as both a renewed motion for compassionate release and a motion for reconsideration of the District Court’s prior order denying compassionate release. On appeal, the parties appear to focus on the District Court’s denial of the renewed motion. To the extent that Cummings appeals the denial of his motion for reconsideration, we find no error in the District Court’s decision. “A district court’s denial of reconsideration is . . . reviewed for abuse of discretion.” United States v. Moreno,

, 78 n.4 (2d Cir. 2015). Here, the District Court denied the motion for reconsideration after finding that Cummings had not presented any new evidence to justify compassionate release. The District Court’s decision therefore fell within the range of permissible decisions.

3 1 applicable.”

§ 3582(c)(1)(A). “We typically review the denial of a motion

2 for a discretionary sentence reduction for abuse of discretion.” United States v.

3 Holloway,

(2d Cir. 2020).

4 In evaluating Cummings’s renewed motion, the District Court

5 incorporated by reference its prior decision denying his first motion for

6 compassionate release on the ground that Cummings’s “medical situation did

7 not warrant compassionate release, based on his age, health, and the absence of

8 COVID-19 cases at his facility, FCI Allenwood.” Supp. App’x 51. The District

9 Court next turned to the Section 3553(a) factors. Acknowledging that

10 Cummings had completed “many educational courses and maintained

11 employment while in prison,” the District Court nonetheless held that the

12 balance of the Section 3553(a) factors weighed against release given the serious

13 nature of Cummings’s offense—“distribut[ing] . . . massive quantities of

14 synthetic drugs”—and the fact that Cummings had two prior felony convictions,

15 most recently in 2015 for criminal possession of a narcotic. App’x 5.

16 On appeal, Cummings argues that the District Court failed to recognize

17 that he suffers from chronic conditions that place him at a higher risk of death

4 1 from COVID-19, and that it also failed to consider the Section 3553(a) factors in

2 evaluating his motion. Neither of these arguments finds support in the record:

3 the District Court explicitly discussed both Cummings’s medical history and the

4 Section 3553(a) factors. Cummings also asserts that he is not a danger to the

5 community, noting that his offenses were non-violent and that he has completed

6 multiple educational courses while incarcerated. While we commend

7 Cummings for his efforts at self-improvement while incarcerated, we conclude

8 that the District Court did not abuse its discretion when it considered these

9 points and still found that the Section 3553(a) factors weighed against release.

10 Finally, Cummings asserts that he is needed at home to support his mother

11 and family in light of his father’s recent passing. Although the District Court

12 expressed sympathy for Cummings’s desire to help his family, it concluded that

13 these circumstances did not qualify as an extraordinary and compelling reason

14 for release under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13, the

15 policy statement that used to limit the factors courts could consider in granting a

16 reduction in sentence. We recently held that courts are not bound by the factors

17 listed in U.S.S.G. § 1B1.13 in evaluating a defendant’s motion. See United States

5 1 v. Brooker,

(2d Cir. 2020). While the District Court rejected

2 Cummings’s argument in light of U.S.S.G. § 1B1.13, it also rested its denial on the

3 factors set forth in Section 3553(a) weighing against Cummings. That was an

4 adequate independent basis for the decision, and, as mentioned earlier, the

5 District Court did not abuse its discretion in arriving at that basis.

6 We have considered Cummings’s remaining arguments and conclude that

7 they are without merit. For the foregoing reasons, the judgment of the District

8 Court is AFFIRMED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk of Court

6