21-1746-cr United States v. Patel

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 24th day of May, two thousand twenty-two.

PRESENT: REENA RAGGI, SUSAN L. CARNEY, MYRNA PÉREZ, Circuit Judges. _____________________________________________

United States of America,

Appellee,

v. 21-1746

Sahil Patel, AKA Sealed Defendant 1,

Defendant-Appellant.

___________________________________________

FOR DEFENDANT-APPELLANT: Sahil Patel, pro se, Welch, WV.

FOR APPELLEE: Andrew C. Adams, Danielle R. Sassoon, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY. Appeal from the United States District Court for the Southern District of New York

(Hellerstein, J.).

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

DECREED that the March 3, 2021 and July 9, 2021 orders of the district court are AFFIRMED.

In 2015, Appellant Sahil Patel was sentenced to a 175-month prison term after pleading

guilty to (1) conspiring to commit extortion, see

; (2) conspiring to impersonate

a federal officer, see

§ 371; (3) conspiring to commit wire fraud, see id. § 1349; and

(4) aggravated identity theft, see id. §§ 1028A, 2. In 2021, proceeding pro se, he moved for

compassionate release pursuant to

(c)(1), based on his medical conditions and

the ongoing COVID-19 pandemic. The district court denied release, and Patel moved for

reconsideration, raising new claims related to his family circumstances. The district court denied

reconsideration. Patel now appeals. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal, and refer to them only as

necessary to explain our decision. 1

As a preliminary matter, we liberally construe Patel’s notice of appeal and brief as

challenging both the district court’s March 3, 2021 order denying compassionate release and its

July 9, 2021 order denying reconsideration. See Shrader v. CSX Transp., Inc.,

(2d Cir. 1995). We review for abuse of discretion both the denial of a motion for compassionate

release and the denial of a motion for reconsideration. United States v. Holloway,

(2d Cir. 2020); United States v. Moreno,

, 78 n.4 (2d Cir. 2015). “A district court

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

1 Patel also moves to seal a supplemental appendix he filed in this Court. Upon due consideration, that motion is GRANTED.

2 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 United States v. Saladino,

(2d Cir. 2021)).

To reduce a defendant’s term of imprisonment under § 3582(c)(1), a district court must

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

(c)(1)(A)(i). The district court did not abuse its discretion in concluding that Patel’s

medical concerns did not amount to extraordinary and compelling reasons for his release. The

district court accurately discussed the medical record before it, including Patel’s claim that he had

recovered from an asymptomatic case of COVID-19—a fact that counseled against a finding that

Patel was at particular risk of severe illness from that virus, notwithstanding the statistical

association between hypertension (with which he has been diagnosed) and severe illness from

COVID-19. The district court did not mention Patel’s general allegation that he had experienced

blood clots, but Patel has abandoned that issue by failing to raise it in his appellate briefing. See

United States v. Greer,

(2d Cir. 2002) (explaining that failure to include

argument in appellate brief waives argument on appeal).

In order to obtain reconsideration, a movant must “point to controlling decisions or data

that the court overlooked—matters, in other words, that might reasonably be expected to alter the

conclusion reached by the court.” See Shrader,

; see also United States v. McCoy,

(2d Cir. 2021) (“A motion for [reconsideration], while proper for calling to the

court’s attention controlling decisions or data the court has overlooked, is inappropriate for the

presentation of new facts or contentions, or for an attempt to reargue old ones.”). In his

reconsideration motion, Patel did not identify any new or overlooked evidence or decisions

relevant to his fear of consequences from COVID-19. To the contrary, because Patel has now

3 been vaccinated, any risk of severe illness from COVID-19 has been substantially decreased. See

Interim Clinical Considerations for Use of COVID-19 Vaccines Currently Approved or Authorized

in the United States, Centers for Disease Control and Prevention,

https://www.cdc.gov/vaccines/covid-19/clinical-considerations/interim-considerations-us.html

(last visited May 17, 2022) (FDA-authorized COVID-19 vaccines “are effective in preventing

serious outcomes of” COVID-19); United States v. Broadfield,

(7th Cir. 2021)

(“[F]or the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude

that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.”).

The district court also reasonably concluded that the new issues raised in Patel’s

reconsideration motion—his father’s death and his mother’s declining health—did not amount to

extraordinary and compelling reasons that could authorize the district court to consider in its

discretion whether, in light of the § 3553(a) factors, his release was warranted. As to his father’s

death, the district court reasonably concluded that the inability to participate in funeral rites was

not an unusual consequence of incarceration. As to his mother’s declining health, Patel argues

that the district court should have considered his sister unavailable as a caregiver because of the

burden of her other family responsibilities, but he does not point to any evidence that the district

court mischaracterized or overlooked in concluding otherwise. 2 The district court’s ruling was

thus “within the range of permissible decisions.” Keitt,

(internal quotation marks

omitted).

2 We do not read the district court’s decision as having mistakenly treated the commentary to United States Sentencing Guidelines § 1B1.13 as binding. See United States v. Brooker,

(2d Cir. 2020) (holding that district courts may consider “the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them” where, as here, the motion was brought directly by an inmate).

4 We have considered all of Patel’s remaining arguments and find in them no basis for

reversal. Accordingly, we AFFIRM the orders of the district court. In addition, Patel’s motion

to seal docket no. 57 in this case (No. 21-1746) is GRANTED.

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

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