23-6063-cr US v. Dixon

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 22nd day of February, two thousand twenty-four.

PRESENT: DENNIS JACOBS, DENNY CHIN, ALISON J. NATHAN, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. No. 23-6063

David Dixon,

Defendant-Appellant. _____________________________________ FOR DEFENDANT-APPELLANT: JAY S. OVSIOVITCH, Federal Public Defender’s Office, Western District of New York, Rochester, NY.

FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorneys, for Trini E. Ross, United States Attorney for the Western District of New York, New York, NY.

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

District of New York (Siragusa, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Defendant-Appellant David Dixon appeals from the district court’s order,

entered on January 3, 2023, denying his motion for compassionate release

pursuant to the First Step Act,

(c)(1)(A). Dixon filed his motion pro

se on February 25, 2022, and his motion was supplemented by counsel on August

15, 2022. Dixon is serving a sentence for his 2021 guilty plea to a two-count

Information charging him with possessing cocaine with intent to distribute, in

violation of

(a)(1) and (b)(1)(C), and being a convicted felon in

2 possession of a firearm and ammunition, in violation of

(g)(1) and

924(a)(2). Dixon was sentenced to 70 months’ imprisonment, and a three-year

term of supervised release on each count to run concurrently. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on

appeal, to which we refer only as necessary to explain our decision to affirm.

(c)(1)(A), as amended by the First Step Act, establishes

“three requirements that must be satisfied before a court can grant” a motion for

compassionate release: (1) exhaustion of administrative remedies, “absent waiver

or forfeiture by the government,” (2) consideration of the

(a)

factors “to the extent that they are applicable,” 1 and (3) a determination that the

defendant’s “circumstances are indeed ‘extraordinary and compelling.’” United

States v. Keitt,

(2d Cir. 2021) (quoting

(c)(1)(A), (i)).

1 The Government argues that Dixon failed to challenge the district court’s determination that he did not satisfy the § 3553(a) factors, which constitutes waiver of the argument. Dixon argues, in reply, that the § 3553(a) factors were necessarily addressed because one of those factors requires that the defendant be provided with needed medical care in the most effective manner. See

(a)(2)(D). Even if Dixon has not waived his § 3553(a) argument, the district court did not abuse its discretion in concluding Dixon did not satisfy the § 3553(a) factors due to the “seriousness of the instant offense, [Dixon’s] prior criminal history . . . , and the fact that he filed [his] application after completing less than one-third of his sentence.” App’x at 146.

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

discretion[.]” United States v. Halvon,

(2d Cir. 2022). Because “[a]

district court has broad discretion when considering a motion for compassionate

release,” a district court abuses its discretion only when it “bases its ruling ‘on an

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

render[s] a decision that cannot be located within the range of permissible

decisions.’”

(alteration in original) (quoting United States v. Borden,

(2d Cir. 2009)).

On appeal, Dixon argues that he demonstrated extraordinary and

compelling reasons for compassionate release based on his serious physical and

medical conditions. These medical conditions include asthma and diabetes, and

Dixon also argues that his risk of contracting COVID-19 in light of these medical

conditions presents an extraordinary and compelling circumstance. Moreover,

Dixon claims he cannot provide the self-care necessary to manage his ulcerative

colitis, because he has been hospitalized twice for the condition, has developed

sepsis from delays in receiving appropriate medical care for the condition, and has

not been provided a low fiber diet to lessen his symptoms. Finally, Dixon claims

4 that the district court drew erroneous conclusions from Dr. Amy Kossoff’s report,

which reviewed his medical records and supported his compassionate release

motion.

The district court did not abuse its discretion when it denied Dixon’s

compassionate release motion. The district court surveyed all the available

medical evidence and the arguments made before it, and made an individualized

assessment based on Dixon’s medical conditions. The district court found that

Dixon is vaccinated against COVID-19, that he previously contracted COVID-19,

and that nothing suggests his asthma and/or diabetes are causing him significant

difficulties. As to his ulcerative colitis, the district court recognized that although

Dixon “may not have always received the optimal treatment for such condition,”

his colitis “appears generally-well managed and stable” and his subsequent

treatments have been “generally effective” in treating his condition. App’x at 143–

44.

Dixon’s additional challenge to the district court’s lack of reliance on Dr.

Kossoff’s report amounts to a reasonable disagreement about the evidence before

the district court—not an abuse of discretion.

5 * * *

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

without merit. For the foregoing reasons, the order of the district court is

AFFIRMED.

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

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