21-273-cr United States v. Marlon Clenista

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2021

(Argued: February 3, 2022 Decided: February 25, 2022)

Docket No. 21-273-cr

UNITED STATES OF AMERICA,

Appellee,

v.

GILBERTO HALVON, also known as Jona, JAMES CORCIA, JOHN B CANARIA, AUGUST CASTILLO, KERWIN LACSON, MONARCH TABOR, LORENA MARQUEZ, also known as Enna,

Defendants,

MARLON CLENISTA,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Before: CABRANES, LYNCH, and CHIN, Circuit Judges.

Appeal from an order entered in the United States District Court for

the Southern District of New York (Kaplan, J.) denying defendant-appellant's

motion for a sentence reduction under

(c)(1). The district court

found that the

(a) factors weighed against reduction of

defendant-appellant's mandatory minimum sentence.

AFFIRMED.

MITZI S. STEINER, Assistant United States Attorney (David Abramowicz, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

ELIZABETH D. FEMIA (Ira M. Feinberg and Charles Barrera Moore, on the brief), Hogan Lovells US LLP, New York, New York, for Defendant- Appellant.

2 PER CURIAM:

Pursuant to

(c)(1) as modified by the First Step Act,

Stat. 5194 (Dec. 21, 2018), a district court may reduce a

term of imprisonment upon motion by a defendant. Commonly referred to as

the "compassionate release" provision, § 3582(c)(1) permits a district court to

reduce a term of imprisonment if, "after considering the factors set forth in [

(a)] to the extent that they are applicable, [it] finds that . . .

extraordinary and compelling reasons warrant such a reduction."

(c)(1)(A)(i). In this case, defendant-appellant Marlon Clenista appeals

from an order of the district court (Kaplan, J.) entered January 26, 2021, denying

his motion for compassionate release. Clenista contends principally that the

district court erred in failing to consider the § 3553(a) sentencing factors as they

existed at the time of his motion, that is, that the district failed to consider post-

sentencing changes in circumstances.

This case poses the threshold question of whether defendants who

received a mandatory minimum sentence are eligible for a sentence reduction

under § 3582(c)(1). We hold that they are. Because the district court did not

3 abuse its discretion in denying Clenista's motion for compassionate release,

however, we affirm.

BACKGROUND

On June 6, 2016, Clenista pleaded guilty to one count of conspiracy

to distribute and possess with intent to distribute 500 or more grams of

methamphetamine, in violation of

, 841(a)(1), and 841(b)(1)(A).

At the time of the offense, Clenista was on supervised release for another federal

methamphetamine-distribution conviction. On September 14, 2016, the district

court adopted the Probation Department's calculation of Clenista's applicable

Guidelines range and sentenced him to the mandatory minimum term of

imprisonment of 120 months, followed by a five-year term of supervised release.

Clenista moved for compassionate release in the district court on

December 4, 2020, after receiving no reply to a letter seeking such relief that he

apparently mailed to the prison warden on July 19, 2020. 1 By order entered

January 26, 2021, the district court denied Clenista's motion. The district court

assumed without deciding that Clenista had shown extraordinary and

1 A factual dispute arose before the district court as to whether Clenista actually submitted the letter to the warden, but the district court did not deny Clenista's motion because of failure to exhaust. The Government does not raise this issue on appeal. 4 compelling circumstances, but ultimately determined that the § 3553(a) factors

weighed against granting compassionate release. This appeal followed.

DISCUSSION

We review the denial of a motion for compassionate release for

abuse of discretion and underlying matters of statutory interpretation de novo.

See United States v. Moore,

(2d Cir. 2020). A district court has

broad discretion when considering a motion for compassionate release. See

United States v. Brooker,

(2d Cir. 2020). Mere disagreement with

"how the district court balanced the § 3553(a) factors" therefore is not a sufficient

ground for finding an abuse of discretion. United States v. Chambliss,

(5th Cir. 2020). Instead, a district court abuses its discretion if it bases its

ruling "on an erroneous view of the law or on a clearly erroneous assessment of

the evidence, or render[s] a decision that cannot be located within the range of

permissible decisions." United States v. Borden,

(2d Cir. 2009)

(quoting In re Sims,

(2d Cir. 2008)). Clenista argues that the

district court abused its discretion by failing to consider changed circumstances

5 in its § 3553(a) analysis. We are not persuaded and thus affirm the district

court's denial of the motion.

I.

(c)(1) and Mandatory Minimum Sentences

As a threshold matter, this case implicates the question of whether a

district court is barred from reducing a sentence pursuant to a compassionate

release motion when a defendant received the mandatory minimum sentence.

The district court did not deny the motion on this basis, and Clenista and the

Government both acknowledge that United States v. Brooker implicitly held that

such defendants may be eligible for compassionate release.

. As

this Court has not clearly spoken on the issue, we address it now.

In Brooker, defendant-appellant Jeremy Zullo received separate ten-

year and five-year mandatory minimum sentences.

The district court denied

Zullo's motion for compassionate release and he appealed. We vacated the

district court's order and remanded to permit the district court to properly

exercise its full discretion.

. Our decision thus implicitly recognized

that a mandatory minimum sentence could be reduced by a compassionate

release motion. We now explicitly hold that a mandatory minimum sentence

6 does not preclude a district court from reducing a term of imprisonment on a

motion for compassionate release.

Multiple other circuits have reached the same conclusion implicitly.

See, e.g., United States v. Owens,

(6th Cir. 2021) (reversing the district

court's order denying compassionate release and remanding to the district court

where defendant was originally sentenced to the mandatory minimum); see also

United States v. Black,

(7th Cir. 2021) (vacating and remanding in

the same situation). This conclusion also follows from the language of

§ 3582(c)(1)(A). There is no indication in the statutory text that compassionate

release is not available to inmates sentenced to mandatory minimum terms.

Instead, § 3582(c)(1)(A) broadly permits a district court to "reduce the term of

imprisonment" once certain conditions are met.

(c)(1)(A). The

broad language in § 3582(c)(1)(A) reflects the intention behind the

compassionate release mechanism, which was first introduced in the Sentencing

Reform Act of 1984,

Stat. 1837 (Oct. 12, 1984). The Senate

Judiciary Committee report on the Sentencing Reform Act explained that

compassionate release would address "unusual cases in which an eventual

reduction in the length of a term of imprisonment is justified by changed

7 circumstances," and it did not limit such unusual cases to non-mandatory

minimum terms. S. Rep. No. 98-225,

, at *55 (1983).

II. The

(a) Sentencing Factors

Section 3553(a) lists numerous factors that a court shall consider

when imposing a sentence. Contrary to Clenista's assertions, nothing in the

record indicates that the district court failed to consider changed circumstances

in its § 3553(a) analysis. A district court is presumed to have "considered all

relevant § 3553(a) factors and arguments" unless the record suggests otherwise.

United States v. Rosa,

(2d Cir. 2020). Nothing in the record

rebuts this presumption. The briefing before the district court addressed at

length post-sentencing changes in Clenista's circumstances. Furthermore, in its

order denying compassionate release, the district court discussed the risk of

COVID-19 in United States Penitentiary Lompoc, Clenista's facility at the time of

his motion, as well as Clenista's medical history and age, factors involving

circumstances that had changed since the date of his sentencing.

When reviewing a motion for a sentence modification, a district

court need only "adequately explain the chosen sentence to allow for meaningful

appellate review." Chavez-Meza v. United States,

(2019). It is

8 true that the district court emphasized "[Clenista's] substantial criminal history,

the fact that this [was] his second conviction for distributing or conspiring to

distribute methamphetamine, and his audacity in committing this offense while

still on supervised release," App’x 239-40, sentencing considerations that had not

changed since his original sentence. That the district court gave greater weight

to those unchanged factors than to the changed circumstances on which Clenista

relies does not mean that the court failed to consider the latter. We cannot

"assume a failure of consideration simply because a district court fail[ed] to . . .

discuss" a given factor. United States v. Verkhoglyad,

(2d Cir.

2008). Nor can we require "that a particular factor be given determinative or

dispositive weight," even when a motion for compassionate release coincides

with a change in circumstances like COVID-19. Id (internal quotation marks

omitted); see also United States v. Jones,

(2d Cir. 2021) (rejecting

defendant's argument that the district court should have "rebalanced [the

§ 3553(a)] factors in light of the pandemic"). Thus, the district court did not

abuse its discretion when it placed weight on "[t]he need to recognize the

seriousness of [Clenista's] offense, to provide a just punishment, to protect the

9 public from further such activity by [Clenista], and [his] characteristics." App’x

240. 2

Finally, although Clenista does not contest the issue, we note that

the district court did not err in denying Clenista's compassionate release motion

"in sole reliance on the applicable § 3553(a) sentencing factors" rather than also

determining whether Clenista had shown extraordinary and compelling

reasons. United States v. Keitt,

(2d Cir. 2021). Such a process

satisfies the requirements of § 3582(c)(1)(A) and conforms with our precedent.

Id.; Jones,

.

CONCLUSION

For the reasons stated above, the district court's order denying

compassionate release is AFFIRMED.

2 On January 31, 2022, Clenista filed a motion requesting that we take judicial notice of certain COVID-19 conditions in Federal Correctional Institution Herlong, where Clenista is incarcerated. Dkt. No. 70. We have discretion to determine whether to take judicial notice of documents that are not part of the record on appeal. Dixon v. von Blanckensee,

(2d Cir. 2021). As the COVID-19 circumstances at Clenista's current place of incarceration are not relevant to whether the district court abused its discretion as to the § 3553(a) factors in denying Clenista's motion at an earlier time when he was incarcerated at a different institution, we decline to take judicial notice and Clenista's motion is denied. 10