20-3276-cv (L) United States v. Jacques

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 28th of March, two thousand twenty-two.

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

UNITED STATES OF AMERICA, Appellee,

v. No. 20-3276, 21-1277

GARY JACQUES, Defendant-Appellant.

____________________________________

For Appellee: David C. James, Ryan C. Harris, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

For Defendant-Appellant: Gary Jacques, pro se, Joint Base MDL, NJ.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Gershon, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Gary Jacques, proceeding pro se, appeals two district

court orders denying his motions for compassionate release under

(c)(1)(A)(i) entered on September 9, 2020, and April 27, 2021, by the U.S.

District Court for the Eastern District of New York (Gershon, J.). In his first motion,

Jacques asserted that his health conditions (including an overweight body mass

index, acid reflux disease, and sinusitis treated with corticosteroids) combined

with the COVID-19 pandemic placed him at a high risk of contracting and

experiencing severe illness from COVID-19 in prison; that he had demonstrated

2 rehabilitation; and that he was “actually innocen[t]” of the crimes, raising defects

in the indictment, evidentiary sufficiency issues, and other errors in the criminal

judgment. App’x 14-18. Jacques’s second motion renewed the first two of those

arguments and additionally reported that he had contracted COVID-19 and

related pneumonia, received inadequate treatment, and continued to experience

symptoms. The district court denied both motions because it found that Jacques

had not shown “extraordinary and compelling reasons” for relief.

(c)(1)(A)(i). We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal.

“We review the denial of a motion for compassionate release for abuse of

discretion, which incorporates de novo review with respect to questions of

statutory interpretation.” United States v. Saladino,

(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,

(2d Cir. 2021) (quoting

Saladino,

).

3 A district court “may reduce” a defendant’s term of imprisonment “after

considering the factors set forth in [

(a)]” if it finds that

“extraordinary and compelling reasons warrant such a reduction” and “that such

a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.”

(c)(1)(A). The defendant bears the

burden of showing that the circumstances warrant a sentence reduction. See United

States v. Jones,

(2d Cir. 2021); United States v. Butler,

(2d Cir. 1992) (“If the defendant seeks decreased punishment, he or she has

the burden of showing that the circumstances warrant that decrease.”).

I

When it denied the first compassionate release motion, the district court said

that it was bound by U.S. Sentencing Guidelines Manual § 1B1.13 in determining

whether there were extraordinary and compelling reasons for relief. We

subsequently held in United States v. Brooker,

(2d Cir. 2020),

that § 1B1.13 applies only to motions for compassionate release filed by the Bureau

of Prisons. Thus, contrary to the district court’s view, it had discretion “to consider

the full slate of extraordinary and compelling reasons that an imprisoned person

4 might bring before [it] in motions for compassionate release.” Id. at 237. The only

limitation is that “[r]ehabilitation … alone shall not be considered an extraordinary

and compelling reason.”

(t).

Nonetheless, the error was harmless because it is clear from the record that

the district court would reach the same decision on remand. See United States v.

Mason,

(2d Cir. 2012) (“Where we identify procedural error in a

sentence, but the record indicates clearly that the district court would have

imposed the same sentence in any event, the error may be deemed harmless,

avoiding the need to vacate the sentence and to remand the case for

resentencing.”) (quoting United States v. Jass,

(2d Cir. 2009)). The

district court applied the correct standard in denying Jacques’s subsequent

compassionate release motion, in which Jacques presented the same claims of

medical vulnerability and rehabilitation and offered more evidence of prison

conditions creating a risk of exposure to COVID-19.

While the earlier motion raised claims regarding the validity of Jacques’s

conviction and sentence that were not renewed in the latter motion, those

arguments were not a proper basis for a § 3582(c)(1)(A) motion in any event. See

5 United States v. Fine,

(8th Cir. 2020) (explaining that because

“[a] federal inmate generally must challenge a sentence through a § 2255 motion

… a post-judgment motion that fits the description of a motion to vacate, set aside,

or correct a sentence should be treated as a § 2255 motion”). This view has been

summarily adopted in other circuits. See United States v. Musgraves,

, 13 (7th Cir. 2021) (“Compassionate release is a mechanism for inmates to seek

a sentence reduction for compelling reasons, not for remedying potential errors in

a conviction.”); United States v. Henderson,

, 469 (3d Cir. 2021) (“A

previously rejected claim of sentencing error could never qualify as an

‘extraordinary and compelling reason’ for compassionate release.”); United States

v. Miller,

, 950 (5th Cir. 2021). Permitting Jacques to make actual

innocence arguments in this manner would enable him to pursue habeas relief

through a compassionate release motion and thereby evade the procedural

limitations on bringing habeas claims. Jacques’s arguments as to the validity of his

conviction therefore do not provide a ground for remanding to the district court.

II

The district court did not abuse its discretion in denying Jacques’s second

6 motion for compassionate release. His objection that the district court considered

inadmissible evidence is misplaced; the Federal Rules of Evidence do not apply to

“miscellaneous proceedings such as … sentencing.” Fed. R. Evid. 1101(d)(3). The

district court was not required to hold an evidentiary hearing. See United States v.

Smith,

(2d Cir. 2020) (“[A] district court is not categorically

required to hold a hearing at which the defendant is present before denying a

motion for a sentence reduction.”).

Nor did the district court err in evaluating the evidence. To show an abuse

of discretion, Jacques must demonstrate that the district court “made a clearly

erroneous assessment of the evidence.” Saladino,

(quoting Warren v.

Pataki,

(2d Cir. 2016)); see also Jones,

(“If the

defendant seeks decreased punishment, he or she has the burden of showing that

the circumstances warrant that decrease.”) (quoting United States v. Butler,

(2d Cir. 1992)). In this case, the district court concluded that Jacques’s

health conditions do not present extraordinary and compelling reasons for release

in light of his prior COVID-19 infection and vaccination. The district court

acknowledged Jacques’s claimed preexisting conditions and the CDC’s opinion

7 that two of those conditions (being overweight and using a corticosteroid) may

increase his risk of severe illness from COVID-19, and it determined that these

factors did not rise to the level of extraordinary and compelling circumstances.

Jacques has not shown that determination to be an abuse of discretion.

Finally, there is no reason to conclude that the district court failed to

consider Jacques’s proffered bases for release—including the evidence of

rehabilitation it did not explicitly discuss—in the aggregate or that it failed to

consider a sentence reduction short of immediate release. “A reviewing court

entertains a strong presumption that the sentencing judge has considered all

arguments properly presented to her, unless the record clearly suggests

otherwise.” United States v. Cossey,

(2d Cir. 2011) (internal quotation

marks omitted). The record shows that the district court acknowledged all of

Jacques’s proffered bases for relief and stated the correct legal standard. Jacques

offers no basis for suggesting that the district court’s decision reflects improper

bias. See Chen v. Chen Qualified Settlement Fund,

(2d Cir. 2009)

(“[A]dverse rulings, without more, will rarely suffice to provide a reasonable basis

for questioning a judge’s impartiality.”).

8 We have considered Jacques’s remaining arguments, which we conclude are

without merit. Accordingly, we AFFIRM the judgment of the district court.

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

9