21-1055 United States v. Roper

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 “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of March, two thousand twenty-two.

PRESENT: Dennis Jacobs, Richard C. Wesley, Steven J. Menashi, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-1055

COREY ROPER,

Defendant-Appellant,

DAVID HIGHTOWER, AKA HAZE, TREMAIN MOORE, AKA TREY DUB, NASHEAN FOLDS, GREGORY LUCK, ANTWONE WASHINGTON, TERRELL CLARKE, AKA FAMOUS, AKA FAMAZ,

Defendants.

____________________________________

For Defendant-Appellant: Karloff Cylton Commissiong, Adams & Commissiong LLP, New York, NY.

For Appellee: Lara Pomerantz, Amanda Houle, Stephen J. Ritchin, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from an order of the United States District Court for the Southern

District of New York (Buchwald, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the final order of the district court is AFFIRMED.

Defendant-Appellant Corey Roper was sentenced to 156 months’

imprisonment on August 7, 2019, for sex trafficking of children by force, fraud, or

coercion in violation of

. Eighteen months later, he moved in the

2 district court for a sentence reduction under

(c)(1)(A). On April 5,

2021, the district court entered a final order denying Roper’s motion, prompting

his appeal. We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal.

In his motion for compassionate release, Roper asserted that he suffers from

“Pulmonary [and] Mental Health Disorder” and that those conditions were

“controlled by ... many medications,” including asthma inhalers and Mistazapine.

App’x 178. Because of the conditions, Roper argued, COVID-19 was an

“extraordinary and compelling reason[]” to grant him a sentence reduction.

(c)(1)(A)(i). According to Roper, COVID-19 posed a heightened

danger to an asthmatic like himself, and the lockdowns imposed on the prison

contributed to his “beginning to feel extremely stressed and depressed.” App’x

175-77. The district court denied Roper’s motion. It found that Roper failed to

show “extraordinary and compelling reasons” for release. Additionally, the

district court held that “even if … Roper had demonstrated extraordinary and

compelling reasons to support his release, the application of the factors set forth

in

(a) counsels against release.”

.

3 On appeal, Roper argues that the district court failed fully to consider

Roper’s history and characteristics when it analyzed the

(a) factors.

We disagree. A district court’s denial of a motion for a discretionary sentence

reduction is reviewed for abuse of discretion. United States v. Jones,

,

374 (2d Cir. 2021). “A district court has abused its discretion if it has (1) based its

ruling on an erroneous view of the law, (2) made a clearly erroneous assessment

of the evidence, or (3) rendered a decision that cannot be located within the range

of permissible decisions.” United States v. Keitt,

, 71 (2d Cir. 2021)

(quoting United States v. Saladino,

, 122 (2d Cir. 2021)).

The district court did not abuse its discretion in denying Roper’s motion

based on the § 3553(a) factors. The district court expressly noted “the nature and

circumstances of the offense” and “the need … to protect the public from further

crimes of the defendant.”

(a)(1), (a)(2). In connection with those

factors, the district court considered that Roper’s crimes “arose from his affiliation

with the so-called Snow Gang, whose members engaged in myriad violent

criminal activities,” and that Roper himself was “actively involved” with “the sex

trafficking of young women.” App’x 213. The district court noted that, at the initial

4 sentencing, it considered the “harm, both physical and psychological, that …

Roper inflicted on his victims,” as well as Roper’s apparent failure to “develop[] a

respect for the law.”

(quoting Sentencing Tr. 27, United States v. Roper, No. 1:16-

CR-00505 (S.D.N.Y. Aug. 7, 2019), ECF No. 184).

Roper’s argument that the district court “fail[ed] to meaningfully consider

Roper’s history and characteristics”—in particular, his “lack of youthful

guidance,” Appellant’s Br. 11—is unconvincing. “We have declined to insist that

the district court address every argument the defendant has made or discuss every

§ 3553(a) factor individually.” United States v. Rosa,

, 119 (2d Cir. 2020)

(internal quotation marks omitted). Accordingly, we “presume[] that the

sentencing judge has considered all relevant § 3553(a) factors and arguments

unless the record suggests otherwise.” Id. at 118.

In this case, “[t]he record … demonstrates that the district court was well

aware” of those circumstances because Roper had raised those issues before the

same district court in his initial sentencing. Keitt, 21 F.4th at 72. “Indeed, it would

have been most unusual if the district court’s analysis of the § 3553(a) factors had

been markedly different after such a short period of time.” Id. Because Roper has

5 not shown that the district court failed to consider any of the § 3553(a) factors or

that the district court’s weighing of those factors was erroneous, he has not shown

that the district court’s judgment was either procedurally or substantively

unreasonable.

Roper separately argues that the district court erred when it found that he

failed to show “extraordinary and compelling reasons” for release. We need not

consider this issue because it makes no difference to the disposition of this case.

“Even if ‘extraordinary and compelling’ circumstances exist, … the court must also

consider ‘the factors set forth in section 3553(a) to the extent that they are

applicable’ before it can reduce the defendant’s sentence.” United States v. Jones,

, 374 (2d Cir. 2021) (quoting

(c)(1)(A)). In other words,

“extraordinary and compelling reasons are necessary—but not sufficient—for a

defendant to obtain relief under § 3582(c)(1)(A).” Id. Because the district court

independently determined that Roper did not merit relief under the § 3553(a)

factors, any error as to whether Roper showed “extraordinary and compelling

reasons” for release was harmless.

6 Roper’s remaining arguments are without merit. Accordingly, we AFFIRM

the judgment of the district court.

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

7