21-1258-cr United States of America v. Nolasco

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 18th day of April, two thousand twenty-two. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 BARRINGTON D. PARKER, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 21-1258-cr 18 19 JUAN BONILLA, AKA A.D.A. PINTO, DOMINGO 20 FERNANDEZ, YOEL PICHARDO, AKA YOEL ALBERTO 21 PICHARDO GONZALEZ, AKA YOEL ALBERTO 22 GONZALEZ PICHARDO, NASSIR MATEO, JOSE 23 ENCARNACION, SANDY BEATO, JUAN ESPINAL, 24 GABRIEL CANO-MARTINEZ, ELOYS FERNANDEZ, 25 AKA CHAMBOA, PEDRO FERNANDEZ, AKA EL 26 MONO, YUDRIS FERNANDEZ, AKA GUDRIS, JAVIER 27 HERNANDEZ, AKA ROOKIE, LUIS PEREZ, RANDALL 28 MARTINEZ, AKA RANDALL, AKA JOSE RODRIGUEZ, 29 WILTON ROSARIO, AKA WINSTON ROSARIO, HENRY 30 FIORENTINO, FRANCISCO PRADO, AKA EL VIEJO, 31 AKA FNU LNU, MARCOS RODRIGUEZ, AKA 32 MARKITO, EMMANUEL TAVAREZ, JOSE ANTONIO 1 LOPEZ SANTIAGO, AKA AMARANTE, MIGUEL 2 TAVARES, AKA LEPIDO, NOLBERTO MOREL, AKA 3 BOONIE, JOSE TEJADA, 4 5 Defendants, 6 7 v. 8 9 NELSON NOLASCO, AKA MENOR, AKA ANGEL 10 SOTO-CABAN, 11 12 Defendant-Appellant. 13 _____________________________________ 14 15 For Appellee: DAVID KESSLER, Assistant United States Attorney, 16 (Susan Corkery & Alexander A. Solomon, Assistant 17 United States Attorneys, on the brief), for Breon Peace, 18 United States Attorney for the Eastern District of New 19 York, Brooklyn, NY. 20 21 For Defendant-Appellant: ANDREW J. FRISCH, Attorney at Law, New York, NY. 22 23 Appeal from an order of the United States District Court for the Eastern District of New

24 York (Glasser, J.).

25 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

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

27 Defendant-Appellant Nelson Nolasco (“Nolasco”) appeals the district court’s April 12,

28 2021 order denying his motion to reduce his sentence pursuant to

(c)(1)(A)

29 (commonly referred to as “compassionate release”). In 2011, Nolasco pled guilty to: (1) Hobbs

30 Act robbery conspiracy,

(a); (2) conspiracy to distribute heroin, cocaine, MDMA,

31 and marijuana,

(a)(1), (b)(1)(A)(i), (b)(1)(A)(ii)(II), (b)(1)(C), (b)(1)(D), and

32 846; and (3) brandishing and discharging a firearm in furtherance of robbery and drug trafficking,

33

(c)(1)(A)(i)–(iii). In 2016, after considering Nolasco’s history and the

34 seriousness of his violent criminal activity—including multiple robberies and shootings, and an

2 1 execution-style murder—the district court sentenced him to 420 months’ imprisonment. On

2 February 25, 2021, Nolasco, moving pro se, requested that the district court issue an order of

3 compassionate release under § 3582(c)(1)(A)(i). The district court denied the motion. Nolasco,

4 now represented by counsel, appeals from the denial of the motion, arguing that the district court

5 erred by refusing his request for compassionate release without first appointing him counsel sua

6 sponte. We assume the parties’ familiarity with the underlying facts, the procedural history of

7 the case, and the issues on appeal.

8 * * *

9 We review for abuse of discretion a petitioner’s claim that the district court erred in denying

10 a motion for compassionate release pursuant to § 3582(c)(1)(A). See United States v. Saladino,

11

(2d Cir. 2021) (per curiam) (also reviewing questions of statutory interpretation

12 de novo). The district court has “broad discretion” when considering such motions. United

13 States v. Clenista,

(2d Cir. 2022) (per curiam). The district court abuses its

14 discretion if it “(1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous

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

16 permissible decisions.” Warren v. Pataki,

(2d Cir. 2016) (citation omitted).

17 Under § 3582(c)(1)(A)(i), as amended by the First Step Act of 2018,

§ 603(b),

, 5239–41, the district court “may reduce a term of imprisonment upon

19 motion by a defendant. . . . if, ‘after considering the factors set forth in

(a) to the

20 extent that they are applicable, it finds that . . . extraordinary and compelling reasons warrant such

21 a reduction.’” Clenista,

(brackets omitted) (quoting

(c)(1)(A));

22 see

(a) (listing factors for consideration, such as the “nature and circumstances

23 of the offense and the history and characteristics of the defendant” and the “need for the sentence

3 1 imposed”). In his motion for compassionate release, Nolasco argued, among other things, that

2 his early release is justified because of his general health concerns stemming from the COVID-19

3 pandemic (made worse by the fact that he is “slightly overweight”) and the “psychological stress”

4 resulting from his incarceration. App’x 252. The district court, after considering Nolasco’s

5 motion and the violent nature of his crimes, denied the motion, concluding that, “[n]ot only is there

6 no showing of any extraordinary or compelling circumstance to warrant a moment of consideration

7 of his petition, but the complete application of

(a) to his record would compel

8 that it be DENIED . . . .” App’x 263–64.

9 Nolasco principally argues on appeal that the district court abused its discretion by not

10 appointing him counsel sua sponte to assist him in moving for compassionate release. We

11 disagree. A “defendant has no right to the assistance of counsel in filing a motion for

12 compassionate release [under § 3582].” United States v. Fleming,

(2d Cir.

13 2021). As such, the “provision of counsel for such motions should rest in the discretion of the

14 district court.” United States v. Reddick,

(2d Cir. 1995). And when

15 considering a motion for compassionate release, the “apparent merits of the motion” are a

16 “significant factor in the exercise of that discretion.”

at 465 n.2; see also United States v.

17 Myers,

(2d Cir. 2013) (summary order).

18 Here, the district court did not abuse its discretion by not appointing counsel sua sponte.

19 At the start, the merits of Nolasco’s claim strongly disfavor compassionate release. Nolasco, who

20 is represented by counsel on this appeal, does not challenge the Government’s assertion, both

21 below and on appeal, that his medical records show that he is generally in good health and is not

22 subject to any of the comorbidities for COVID-19 identified by the Centers for Disease Control

23 and Prevention. See Note (1)(A), U.S.S.G. § 1B1.13. Further, the serious and violent nature of

4 1 Nolasco’s crimes, the significant amount of time remaining on his sentence, and his repeated

2 disciplinary infractions while incarcerated strongly suggest that he is not an ideal candidate for

3 compassionate release at this time. See

(a); see also United States v. Jones, 17

, 375 (2d Cir. 2021) (per curiam) (affirming the district court’s denial of a

5 § 3582(c)(1)(A) motion where petitioner’s offense conduct was “very serious”); United States v.

6 Prada,

, 35 (2d Cir. 2021) (summary order) (holding that the district court did not

7 abuse its discretion in denying a § 3582(c)(1)(A) motion based, in part, on the petitioner’s

8 disciplinary infraction while incarcerated). Indeed, we can discern no error, much less an abuse

9 of discretion, in the district court’s conclusions that (1) Nolasco failed to show extraordinary and

10 compelling circumstances warranting compassionate release, and (2) the § 3553(a) factors do not

11 favor his early release.

12 In arguing that the district court abused its discretion, Nolasco cites to cases where district

13 courts in this Circuit used their discretionary authority to appoint counsel to assist defendants

14 moving for compassionate release. See, e.g., United States v. Torres-Nunez, No. 87-CR-00419-

15 DC-16,

, at *1–2 (S.D.N.Y. Apr. 28, 2021) (Chin, J., sitting by designation)

16 (appointing counsel to assist defendant in moving for compassionate release, then granting

17 defendant’s request for release); United States v. Garcia, No. 09-CR-330(KAM),

1616914, at *1 (E.D.N.Y. Apr. 26, 2021) (appointing counsel to assist defendant in moving for

19 compassionate release, but ultimately denying the motion). But here, unlike the cases Nolasco

20 cites, the apparent merits of his motion strongly disfavor compassionate release, and the district

21 court’s decision not to appoint counsel sua sponte is certainly within the range of permissible

22 decisions. Warren,

. The district court did not abuse its discretion merely

5 1 because other courts have appointed counsel in arguably similar situations. 1

2 * * *

3 We have considered Nolasco’s remaining arguments and find them to be without merit.

4 Accordingly, we AFFIRM the order of the district court.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court

1 Nolasco further claims that he was unable to adequately represent himself pro se because he is primarily a Spanish speaker. According to Nolasco, he was assisted by a fellow inmate who translated and typed the § 3582 motion on Nolasco’s behalf. He asserts that this further impeded his ability to adequately represent himself when moving for compassionate release. But Nolasco, who is represented by counsel on this appeal, does not identify any particular ways in which his motion was lacking because it was prepared with the assistance of another inmate, as opposed to solely by himself. Indeed, his motion included personalized arguments (e.g., noting his extradition from Spain and requesting deportation to the Dominican Republic, see App’x 252–53), showing at a minimum his direct involvement in the process. This, coupled with the merits of his motion, do not suggest that the district court abused its discretion by not appointing him counsel.

6