21-913 United States v. Eric Cherry

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 TO 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 April, two thousand twenty-two.

PRESENT: RICHARD J. SULLIVAN, STEVEN J. MENASHI, BETH ROBINSON, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-913

ERIC CHERRY,

Defendant-Appellant.*

* The Clerk of Court is respectfully directed to amend the caption as reflected above. FOR DEFENDANT-APPELLANT: GLENN A. GARBER, Glenn A. Garber, P.C., New York, NY.

FOR APPELLEE: PETER J. DAVIS (Stephen J. Ritchin, on the brief), 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 (Colleen McMahon, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court entered on

March 31, 2021, is AFFIRMED.

Defendant-Appellant Eric Cherry appeals from the district court’s denial of

his motion for compassionate release under

(c)(1)(A)(i), as

amended by the First Step Act of 2018,

In 2019, Cherry pleaded guilty to brandishing a firearm during and in

relation to a Hobbs Act robbery, in violation of

(c)(1)(A)(i)–(ii),

based on his firing a shot during a gunpoint robbery of a jewelry store through a

glass exterior door and into a crowded street. In advance of his sentencing,

Cherry submitted a mitigation report to the district court, addressing how it

2 should deal with his various medical issues, including a rare and extreme form of

ulcerative colitis. In this report, Cherry identified the Federal Medical Centers at

Devens (“FMC Devens”) and Butner (“FMC Butner”), Bureau of Prisons (“BOP”)

facilities in Massachusetts and North Carolina, respectively, as “facilities where

[his] medical . . . treatment would be most responsive to his urgent needs.”

Sealed App’x at 592. At Cherry’s July 2020 sentencing, the district court imposed

the mandatory minimum term of eighty-four months’ imprisonment, to be

followed by two years’ supervised release. The district court also recommended

that the BOP designate Cherry to an FMC – specifically, FMC Butner – within 10

days of sentencing.

BOP did just that, initially designating Cherry to FMC Butner and

subsequently redesignating him to FMC Devens – the very facilities he requested

in his sentencing submission. However, Cherry has remained at the Brooklyn

Hospital Center at least through the date of the district-court decision below – “in

part because his medical condition made it at times difficult for him to be moved,

and in part because his counsel prevailed on BOP officials not to move him”

during the pendency of his “request . . . that [he] be allowed to serve his sentence

on home confinement.” App’x at 71.

3 On February 11, 2021, after exhausting his administrative remedies, Cherry

filed in the district court a motion for compassionate release, requesting that he be

released from BOP custody to home confinement in light of his medical condition.

Having served about twenty-eight months of his eighty-four-month term of

imprisonment, Cherry argued that his unique and grave medical condition

constituted an “extraordinary and compelling” circumstance warranting

compassionate release.

The district court denied Cherry’s motion on March 31, 2021, holding that

even if his medical condition constituted an extraordinary circumstance, the BOP

was able to properly care for him at FMC Devens, and that a reduction of his

sentence would be inconsistent with the objectives of sentencing as set forth in

(a). We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal.

We review a district court’s denial of a motion for compassionate release for

abuse of discretion. See United States v. Keitt,

(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

4 decisions.”

(quoting United States v. Saladino,

(2d Cir. 2021)).

A factual assessment is clearly erroneous only if, after reviewing the entirety of the

evidence, we are “left with the definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City,

(1985) (quoting

United States v. U.S. Gypsum Co.,

(1948)).

First, Cherry contends that the district court erred by failing to find that

extraordinary and compelling reasons justified his release. But section 3582(c)

permits a district court to reduce a sentence only if, “after considering the factors

set forth in section 3553(a),” it “finds that extraordinary and compelling reasons

warrant such a reduction.”

(c)(1)(A) (emphasis added). Thus,

as we have explained, a finding that the section 3553(a) factors disfavor early

release is independently sufficient to deny a compassionate-release motion,

regardless of the presence of any “extraordinary and compelling reasons that

might (in other circumstances) justify a sentence reduction.” Keitt,

.

Here, the district court’s denial of Cherry’s motion was based on its

assessment of the section 3553(a) factors, focusing primarily on the gravity of

Cherry’s offense and his history of violent criminal conduct. Compare

(a) (enumerating such factors), with App’x at 73–74 (finding that Cherry had

5 “committed a dangerous and brazen offense” and that the “robbery [for which he

was convicted] was not a one-off affair”). While Cherry may disagree with how

the district court balanced the section 3553(a) factors, “[t]he weight to be afforded

any [section] 3553(a) factor is a matter firmly committed to the discretion of the

sentencing judge.” Keitt,

(quoting United States v. Verkhoglyad,

(2d Cir. 2008)).

In sum, the district court’s determination that the section 3553(a) factors

compelled a denial of Cherry’s motion lies well within the scope of its “reasoned

exercise of discretion,” to which “we must defer heavily.” United States v. Cavera,

(2d Cir. 2008) (en banc); see also United States v. Smith,

, 110–11 (2d Cir. 2020) (extending similar deference on review of a district

court’s assessment that the section 3553(a) factors required denying a motion to

reduce sentence under the First Step Act); United States v. Seshan,

,

801 (2d Cir. 2021) (“We apply the same deference to the district court’s denial of a

compassionate release motion based on . . . the [section] 3553(a) factors as we do

when reviewing a district court’s [original] imposition of sentence based on . . .

th[ose] factors.” (citing Smith,

)). We therefore conclude that the

6 district court did not abuse its discretion by denying Cherry’s motion for

compassionate release based on its assessment of the section 3553(a) factors.

Second, Cherry contends that the district court erred in finding that BOP can

effectively care for him at FMC Devens. But to the extent that this issue is relevant

to whether Cherry established “extraordinary and compelling” circumstances

warranting compassionate release, this contention is moot. Because the district

court properly treated the section 3553(a) factors as an independently sufficient

ground on which to deny Cherry’s compassionate-release motion, it was not also

required to “determine whether the defendant has shown extraordinary and

compelling reasons that might (in other circumstances) justify a sentence

reduction.” Keitt,

.

And to the extent that the quality of medical care available at FMC Devens

is relevant to one of the section 3553(a) factors – which requires the district court

to consider the need “to provide the defendant with needed . . . medical care . . .

in the most effective manner,”

(a)(2)(D) – the district court

considered this factor in making its determination. Cherry nevertheless insists

that the district court overlooked key evidence concerning the capacity of FMC

Devens to address his medical needs. But that contention is contradicted by the

7 record. As noted above, Cherry’s own presentencing submissions stated

explicitly that FMC Devens would be able to provide him with appropriate care.

In attempting to argue otherwise now, Cherry relies primarily on a letter

submitted to the district court by Dr. Andras Fenyves, his doctor at the Brooklyn

Hospital Center, expressing concern that “[t]he complex level of care we provided

to [Cherry] may not be available in a prison hospital that is equipped to treat more

routine cases.” Sealed App’x at 45. But the response letter submitted by Dr.

Ramzi Khazen, the Medical Officer of FMC Devens, clearly rebuts that aspersion.

Specifically, Dr. Khazen detailed both FMC Devens’s internal capacities for

treating inmates as or more “severely impaired” than Cherry, as well as its

“routine[]” policy of sending inmates to be seen at “some of the best hospitals in

the country.”

at 47–48.

While Dr. Fenyves asserted in his reply letter that he still was not

“convince[d]” or “reassure[d]” that Cherry could be “effectively managed” at

FMC Devens, his only explanation was that the doctors at the Brooklyn Hospital

Center were already “deeply involved and familiar with Mr. Cherry’s medical

history.”

. But that explanation is belied by the facts that Brooklyn

Hospital Center had previously seen fit to transfer Cherry out to other hospitals

8 within New York, and that BOP had already arranged to have Cherry’s complete

medical files sent from the Brooklyn Hospital Center to FMC Devens and to have

doctors at the two facilities coordinate on his care. In short, Cherry has not

offered any basis for questioning the ability of the doctors at FMC Devens to care

for Cherry at that facility.

Based on the record before it at the time, it was not improper for the district

court to credit and to rely on Dr. Khazen’s detailed assessment in concluding that

FMC Devens is capable of managing Cherry’s condition. See 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.”).

We have considered Cherry’s remaining arguments and find them to be

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

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

9