22-1821-cr United States v. Wang

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 2nd day of April, two thousand twenty-four.

PRESENT: EUNICE C. LEE, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. 22-1821

Yong Wang,

Defendant-Appellant. _____________________________________

FOR DEFENDANT-APPELLANT: Yong Wang, pro se, Big Spring, TX.

FOR APPELLEE: Matthew J. King, Nathan Rehn, 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 (Paul G. Gardephe, J.).

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

DECREED that the order denying compassionate release is AFFIRMED.

In 2013, Appellant Yong Wang pleaded guilty to advertising child pornography in

violation of

(d)(1), and in 2014 he was sentenced to 210 months’ imprisonment.

In 2021, Wang moved for compassionate release under

(c)(1)(A), asserting that

his family needed him to provide care, that he had been rehabilitated in prison, and that, despite

his counsel’s advice, he had been unaware at the time of his offense that his conduct was illegal.

The district court denied relief, reasoning that the § 3553(a) factors weighed against release

because Wang’s crime was serious, he remained a danger to the community, and principles of

general deterrence counseled against release. He had also not shown extraordinary and

compelling reasons that would justify a reduction in his sentence. Wang appealed.

We assume the parties’ familiarity with the remaining facts, procedural history, and

issues on appeal.

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

United States v. Halvon,

, 569 (2d Cir. 2022) (per curiam). A district court abuses

its discretion if its ruling is based “on an erroneous view of the law or on a clearly erroneous

assessment of the evidence,” or if it “cannot be located within the range of permissible

decisions.” United States v. Borden,

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

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(2d Cir. 2008)). Because a defendant cannot obtain compassionate release

without both extraordinary and compelling circumstances and a favorable assessment of the

§ 3553(a) sentencing factors, see

(c)(1)(A), a failure on either requires us to

affirm. See Halvon, 26 F.4th at 571. Wang’s primary argument on appeal is that the court failed

to fully account for his parents’ caretaking needs. But that argument goes to extraordinary and

compelling circumstances, not the § 3553(a) factors. Even if, in light of Wang’s pro se status,

we were to excuse his forfeiture of his challenge to the district court’s reliance on the § 3553(a)

factors, LoSacco v. City of Middletown,

, 92–93 (2d Cir. 1995), we would conclude

on the merits that the district court did not abuse its discretion in deciding that they weighed

against relief. Wang’s crime—advertising child pornography in violation of

(d)(1)—was serious. The district court reasoned that his sentence was needed to reflect

the severity of his conduct, to deter others, and to protect the public. See

(a)(2)(A)–(C). The district court’s reasonable assessment of the § 3553(a) factors is

enough to affirm here. See Halvon, 26 F.4th at 571. Thus, on this record, the district court did

not abuse its discretion in declining to reduce Wang’s sentence. See Borden,

.

We have considered Wang’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court denying compassionate release.

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

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