21-1773 United States v. Hunter

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 June, two thousand twenty-two.

Present: ROSEMARY S. POOLER, ROBERT D. SACK, ALISON J. NATHAN, Circuit Judges.

UNITED STATES OF AMERICA,

Appellee, 21-1773 v.

TYRONE HUNTER,

Defendant-Appellant. *

For Appellee: Anna L. Karamigios, Assistant United States Attorney (Kevin Trowel, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York.

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. For Defendant-Appellant: Gary S. Villanueva, New York, New York.

Appeal from the United States District Court for the Eastern District of New York

(Donnelly, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order entered on July 7, 2021, is AFFIRMED.

Tyrone Hunter appeals an order denying his motion for a reduced sentenced under

(c)(1)(A) entered by the United States District Court for the Eastern District of

New York (Donnelly, J.). Hunter is serving a mandatory life sentence for one count of murder in

aid of racketeering in violation of

(a)(1). That conviction followed a four-week

trial at which the Government introduced extensive evidence of Hunter’s involvement in a

violent drug trafficking organization called “the Family” in East New York, Brooklyn. The jury

found Hunter guilty of conspiring to murder Eric Clemons in aid of racketeering, murdering

Clemons in aid of racketeering, conspiring to distribute cocaine and cocaine base, and using a

firearm in furtherance of a conspiracy to distribute. United States v. Hunter, No. 05-CR-188

(JG),

, at *2 (E.D.N.Y. Jan. 31, 2008). He was also convicted of racketeering

and conspiracy to racketeer, for which the jury found predicate acts including the attempted

murder of Alan Goines, conspiracy to murder Goines, the murder of Todd Carson, the murder of

Clemons, and the conspiracy to rob and robbery of Tacuma Kinsey. Jury Verdict, No. 05-CR-

188, ECF No. 167 (E.D.N.Y. Feb. 6, 2007).

Following the verdict, Judge Gleeson granted Hunter’s motions to acquit him of several

counts of conviction on statute-of-limitations grounds, ordered a new trial on several counts, and

sustained Hunter’s conviction for Clemons’s murder. Hunter,

, at *19. At

sentencing, Judge Gleeson noted that Hunter had a difficult upbringing and had “made a real

2 effort to turn [his] back on a life” of crime, but that he must be “held accountable for

unforgivable, unspeakable acts of criminal behavior.” Def. App. at 138–140. In imposing the

mandatory life sentence, Judge Gleeson was “emphatic . . . that life in prison is appropriate.”

. This Court affirmed Hunter’s conviction and life sentence on direct appeal. United

States v. Hunter,

(2d Cir. 2010).

On March 8, 2021, Hunter moved pro se to reduce his sentence under

(c)(1)(A). That motion, also termed a compassionate-release motion, was supplemented

by court-appointed counsel. The district court in a thorough memorandum decision denied

Hunter’s motion, concluding both that no extraordinary and compelling reason warranted

Hunter’s release and that no such reason would outweigh the

(a) factors that

support his continued imprisonment. Unsealed Gov’t App. (“SGA”) at 7–10.

Under

(c)(1)(A), a district court “may reduce” a defendant’s term of

imprisonment “after considering the factors set forth in section 3553(a) to the extent that they are

applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”

The statute imposes three independent, necessary requirements for release: exhaustion of

remedies, existence of an extraordinary and compelling reason for sentence reduction, and that

the § 3553(a) factors warrant reduction. United States v. Keitt,

, 71 (2d Cir. 2021)

(per curiam). If any one requirement is not satisfied, the district court may deny the motion

without considering the remaining requirements.

at 72–73; see also United States v. Jones,

, 374–75 (2d Cir. 2021) (per curiam) (encouraging district courts to consider all

three requirements, as the court did in this case, to aid our appellate review). In considering

these requirements, district courts have broad discretion. United States v. Brooker,

,

237–38 (2d Cir. 2020). This Court reviews the district court’s denial of Hunter’s motion for

3 abuse of discretion, meaning that we must affirm unless the district court “based its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a

decision that cannot be located within the range of permissible decisions.” United States v.

Borden,

(2d Cir. 2009) (quoting Sims v. Blot,

(2d Cir.

2008)). 1

The Court concludes that the district court acted well within its discretion in denying

Hunter’s motion. First, the district court concluded that no extraordinary and compelling reason

supported Hunter’s release. It explained that even with his underlying medical conditions,

Hunter was adequately protected against the COVID-19 pandemic with two doses of the Pfizer-

BioNTech vaccine. SGA at 8 & n.9. Hunter only briefly addresses this finding in a footnote.

Hunter Br. at 26 n.4. Hunter’s argument is unavailing. The district court’s assessment of the

effectiveness of the vaccine at the time the order issued in July 2021 was not erroneous. See

Jones, 17 F.4th at 375 (concluding that the district court did not abuse its discretion in denying a

motion based on low COVID-19 case counts when the order was issued). And notwithstanding

Hunter’s well-taken concern about the risks posed by new variants of the virus, the vaccine

remains a highly effective means of preventing the most severe effects of COVID-19. See, e.g.,

United States v. Herring, No. 10 CR 391-67 (CM),

, at *3 (S.D.N.Y. Mar. 4,

2022); United States v. Hawkins, No. 3:08-CR-61 (AWT),

, at *2 (D. Conn.

Apr. 20, 2022). The Court may therefore affirm the district court’s order on the lack of an

extraordinary and compelling reason alone.

1 That Hunter received a mandatory minimum sentence of life imprisonment does not preclude him from relief under § 3582. See United States v. Halvon,

, 570 (2d Cir. 2022) (per curiam). 4 Second, even if the Court were to consider Hunter’s arguments about the district court’s

treatment of the § 3553(a) factors, we would still find no abuse of discretion. Relying on Judge

Gleeson’s findings at sentencing, the district court echoed that Hunter’s crimes were

“unforgiveable [and] unspeakable,” and found that continued imprisonment reflected the

seriousness of the conduct and provided just punishment. SGA at 10 (quoting Def. App. at

140). 2 Contrary to Hunter’s claims, the district court weighed these aggravating factors against

the mitigating factors, including the evidence that Hunter was a good father, that he had

rehabilitated, and that letters filed to the court demonstrated strong support for him. The district

court further addressed Hunter’s claim that his mandatory life sentence was unjust and explained

that his sentence was harsher than some co-conspirators’ because he did not cooperate with the

Government or accept responsibility. This careful consideration of the relevant facts provides

this Court no basis to second-guess the district court’s determination that the § 3553(a) factors

weigh against Hunter’s release. See United States v. Pope,

, 246–47 (2d Cir. 2009).

That remains true even if the district court did not expressly address every argument Hunter

raised or “discuss every § 3553(a) factor individually.” United States v. Rosa,

, 119

(2d Cir. 2020) (quoting United States v. Villafuerte,

(2d Cir. 2007)).

Hunter’s last argument is that the district court improperly relied on acquitted conduct in

its consideration of the seriousness of his crimes, noting that the jury acquitted him of the murder

of Goines. That assertion is contradicted by the district court twice noting that though the jury

convicted Hunter of conspiracy to murder Goines and attempted murder of Goines, it acquitted

2 The district court incorrectly stated that Hunter had served thirteen years of his sentence, rather than the correct sixteen years, presumably because it did not account for Hunter’s time served before Judge Gleeson imposed sentence. We find this minor factual error to be harmless. 5 him of the murder of Goines. SGA at 2 n.1, 3 n.2. Accordingly, we find no abuse of discretion

by the district court.

* * *

We have considered Hunter’s remaining arguments and find in them no basis for reversal.

We therefore AFFIRM the July 7, 2021 order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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