21-476-cr United States v. Rios

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 18th day of October, two thousand twenty-two.

PRESENT:

ROSEMARY S. POOLER, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________________

UNITED STATES OF AMERICA, Appellee,

v. No. 21-476

ORLANDO RIOS, AKA FIFO, Defendant-Appellant. ∗

___________________________________________

∗ The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR DEFENDANT-APPELLANT: Orlando Rios, pro se, FCI Fort Dix Correctional Institute, Joint Base MDL, NJ.

FOR APPELLEE: Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.

Appeal from an order of the United States District Court for the Western

District of New York (Frank P. Geraci, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Defendant-Appellant Orlando Rios, proceeding pro se, appeals from the

district court’s order denying his motion for a sentence reduction pursuant to

(c)(1)(A). On September 11, 2017, Rios pleaded guilty to

conspiracy to distribute one kilogram or more of heroin, in violation of

(a)(1), 841(b)(1)(A), 846. That offense carried a mandatory minimum term

of ten years’ imprisonment, and the district court calculated a Sentencing

Guidelines range of 262 to 327 months’ imprisonment. The district court then

2 imposed a sentence of 188 months’ imprisonment, to be followed by five years’

supervised release.

On August 21, 2020, having served approximately 63 of his 188 months’

term of imprisonment, Rios moved for compassionate release pursuant to the First

Step Act of 2018. Under this statute, courts may, in their discretion, grant a

sentence reduction if, “after considering the [applicable] factors set forth in [18

U.S.C. §] 3553(a),” the court finds that “extraordinary and compelling reasons

warrant such a reduction.”

(c)(1)(A)(i). Section 3553(a) lists

several factors a court must consider when imposing a sentence, including “the

nature and circumstances of the offense and the history and characteristics of the

defendant,” as well as the need for the sentence “to reflect the seriousness of the

offense,” “to promote respect for the law,” “to provide just punishment for the

offense,” “to afford adequate deterrence to criminal conduct,” “to protect the

public from further crimes of the defendant,” and “to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.”

§ 3553(a)(1), (a)(2)(A)–(C), (a)(6). A court may deny a

motion for compassionate release if it determines that a defendant has failed to

make the requisite showing regarding extraordinary and compelling reasons or

3 that the section 3553(a) factors, on balance, do not warrant a sentence reduction.

See United States v. Keitt,

(2d Cir. 2021).

In denying Rios’s motion, the district court assumed that Rios’s medical

history and the harsh pandemic-related conditions under which Rios was serving

his sentence constituted extraordinary and compelling reasons for compassionate

release. The district court nonetheless concluded that a sentence reduction would

be inconsistent with the factors set forth in section 3553(a), considering the

seriousness of Rios’s offense and his extensive criminal history. This appeal

followed. 1

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

discretion.” United States v. Saladino,

(2d Cir. 2021). “[A] district

court has abused its discretion if it [has] 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) (internal quotation marks omitted).

1 While Rios’s Notice of Appeal was untimely, see Fed. R. App. P. 4(b)(1)(A), the government has expressly and affirmatively waived any “argument that the appeal is untimely.” Government Br. at 1–2 n.2. Since “Federal Rule of Appellate Procedure 4(b), which governs the time to appeal from a criminal judgment,” is “not jurisdictional and . . . therefore capable of forfeiture by the government,” United States v. Frias,

(2d Cir. 2008) (emphasis added), we give effect to the government’s waiver and proceed to the merits of Rios’s argument. 4 “Mere disagreement with how the district court balanced the [section] 3553(a)

factors therefore is not a sufficient ground for finding an abuse of discretion.”

United States v. Halvon,

(2d Cir. 2022) (internal quotation marks

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

procedural history, and issues on appeal.

Rios contends that the district court abused its discretion when it (1) relied

on putatively incorrect and incomplete information concerning COVID-19 at FCI

Fort Dix, the prison where he was then serving his sentence; (2) improperly

balanced the section 3553(a) factors; and (3) failed to consider a sentence reduction

less favorable than time served. We address each argument in turn.

First, Rios argues that the district court relied on information concerning the

prevalence of COVID-19 at Fort Dix that was both inaccurate and incomplete.

But beyond that conclusory assertion, Rios does not cite to anything relied on by

the district court to support his assertion. 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.”). Instead,

Rios’s argument hinges on information that, by his own admission, was

disseminated “subsequent to [the district court’s decision],” Rios Br. at 8, and

5 therefore was not available to the district court at the time it ruled on his motion.

The district court’s inability to know this information cannot be considered error.

Moreover, the district court assumed for the sake of argument that there were

hundreds of active COVID-19 cases among inmates at Fort Dix and expressly

acknowledged that Rios’s risk of exposure to COVID-19 was substantially greater

in prison than it would be if he were released. The district court’s decision to

deny Rios’s motion turned not on a misunderstanding of the heightened risk of

exposure facing Rios at Fort Dix, but rather on its determination that the section

3553(a) factors outweighed those risks.

Second, Rios argues that the district court abused its discretion by focusing

too intently on the seriousness of his offense, while failing to give sufficient weight

to his medical conditions and rehabilitative efforts. But while we, like the district

court, applaud the positive steps Rios has taken while in prison, we cannot say

that the district court improperly exercised its broad discretion in denying release

to a defendant with a lengthy criminal record who served just 63 months of a 188-

month sentence, which itself was already 70 months below the bottom of the

applicable Guidelines range. See United States v. Verkhoglyad,

(2d

Cir. 2008) (explaining that “the weight . . . afforded [to] any [section] 3553(a) factor

6 is a matter firmly committed to the discretion of the sentencing judge” (internal

quotation marks omitted)); Halvon,

(finding no abuse of discretion

in the denial of compassionate release where, as here, the district court

emphasized the seriousness of offense, the need to provide just punishment, and

the need to protect the public from further criminal conduct by the defendant).

Finally, Rios argues that the district court erred by considering his motion

for compassionate release in an all-or-nothing fashion, without recognizing the

possibility of granting a sentence reduction less favorable than time served. But

Rios points to nothing in the district court’s order that suggests a failure to

consider a lesser reduction in sentence. Moreover, it bears noting that Rios

himself requested that the court order his immediate release – without ever raising

the prospect of a more modest sentence reduction. Given the record before it, the

district court did not err in failing to sua sponte address and reject a request that

was never made.

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

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

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

7