United States v. Marlon Clenista ( 2022 )

21-273-cr
United States v. Marlon Clenista
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2021
(Argued: February 3, 2022 Decided: February 25, 2022)
Docket No. 21-273-cr
UNITED STATES OF AMERICA,
Appellee,
v.
GILBERTO HALVON, also known as Jona, JAMES CORCIA, JOHN B CANARIA,
AUGUST CASTILLO, KERWIN LACSON, MONARCH TABOR, LORENA MARQUEZ,
also known as Enna,
Defendants,
MARLON CLENISTA,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
CABRANES, LYNCH, and CHIN, Circuit Judges.
Appeal from an order entered in the United States District Court for
the Southern District of New York (Kaplan, J.) denying defendant-appellant's
motion for a sentence reduction under 18 U.S.C. § 3582(c)(1). The district court
found that the 18 U.S.C. § 3553(a) factors weighed against reduction of
defendant-appellant's mandatory minimum sentence.
AFFIRMED.
MITZI S. STEINER, Assistant United States Attorney
(David Abramowicz, Assistant United States
Attorney, on the brief), for Audrey Strauss, United
States Attorney for the Southern District of New
York, New York, New York, for Appellee.
ELIZABETH D. FEMIA (Ira M. Feinberg and Charles
Barrera Moore, on the brief), Hogan Lovells US
LLP, New York, New York, for Defendant-
Appellant.
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PER CURIAM:
Pursuant to 18 U.S.C. § 3582(c)(1) as modified by the First Step Act,
Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), a district court may reduce a
term of imprisonment upon motion by a defendant. Commonly referred to as
the "compassionate release" provision, § 3582(c)(1) permits a district court to
reduce a term of imprisonment if, "after considering the factors set forth in [18
U.S.C. § 3553(a)] to the extent that they are applicable, [it] finds that . . .
extraordinary and compelling reasons warrant such a reduction." 18 U.S.C.
§ 3582(c)(1)(A)(i). In this case, defendant-appellant Marlon Clenista appeals
from an order of the district court (Kaplan, J.) entered January 26, 2021, denying
his motion for compassionate release. Clenista contends principally that the
district court erred in failing to consider the § 3553(a) sentencing factors as they
existed at the time of his motion, that is, that the district failed to consider post-
sentencing changes in circumstances.
This case poses the threshold question of whether defendants who
received a mandatory minimum sentence are eligible for a sentence reduction
under § 3582(c)(1). We hold that they are. Because the district court did not
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abuse its discretion in denying Clenista's motion for compassionate release,
however, we affirm.
BACKGROUND
On June 6, 2016, Clenista pleaded guilty to one count of conspiracy
to distribute and possess with intent to distribute 500 or more grams of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).
At the time of the offense, Clenista was on supervised release for another federal
methamphetamine-distribution conviction. On September 14, 2016, the district
court adopted the Probation Department's calculation of Clenista's applicable
Guidelines range and sentenced him to the mandatory minimum term of
imprisonment of 120 months, followed by a five-year term of supervised release.
Clenista moved for compassionate release in the district court on
December 4, 2020, after receiving no reply to a letter seeking such relief that he
apparently mailed to the prison warden on July 19, 2020. 1 By order entered
January 26, 2021, the district court denied Clenista's motion. The district court
assumed without deciding that Clenista had shown extraordinary and
1 A factual dispute arose before the district court as to whether Clenista actually
submitted the letter to the warden, but the district court did not deny Clenista's motion
because of failure to exhaust. The Government does not raise this issue on appeal.
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compelling circumstances, but ultimately determined that the § 3553(a) factors
weighed against granting compassionate release. This appeal followed.
DISCUSSION
We review the denial of a motion for compassionate release for
abuse of discretion and underlying matters of statutory interpretation de novo.
See United States v. Moore, 975 F.3d 84, 88-89 (2d Cir. 2020). A district court has
broad discretion when considering a motion for compassionate release. See
United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020). Mere disagreement with
"how the district court balanced the § 3553(a) factors" therefore is not a sufficient
ground for finding an abuse of discretion. United States v. Chambliss, 948 F.3d
691, 694 (5th Cir. 2020). Instead, a district court abuses its discretion if 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." United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009)
(quoting In re Sims, 534 F.3d 117, 132 (2d Cir. 2008)). Clenista argues that the
district court abused its discretion by failing to consider changed circumstances
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in its § 3553(a) analysis. We are not persuaded and thus affirm the district
court's denial of the motion.
I. 18 U.S.C. § 3582(c)(1) and Mandatory Minimum Sentences
As a threshold matter, this case implicates the question of whether a
district court is barred from reducing a sentence pursuant to a compassionate
release motion when a defendant received the mandatory minimum sentence.
The district court did not deny the motion on this basis, and Clenista and the
Government both acknowledge that United States v. Brooker implicitly held that
such defendants may be eligible for compassionate release. 976 F.3d at 230. As
this Court has not clearly spoken on the issue, we address it now.
In Brooker, defendant-appellant Jeremy Zullo received separate ten-
year and five-year mandatory minimum sentences. Id. The district court denied
Zullo's motion for compassionate release and he appealed. We vacated the
district court's order and remanded to permit the district court to properly
exercise its full discretion. Id. at 237. Our decision thus implicitly recognized
that a mandatory minimum sentence could be reduced by a compassionate
release motion. We now explicitly hold that a mandatory minimum sentence
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does not preclude a district court from reducing a term of imprisonment on a
motion for compassionate release.
Multiple other circuits have reached the same conclusion implicitly.
See, e.g., United States v. Owens, 996 F.3d 755 (6th Cir. 2021) (reversing the district
court's order denying compassionate release and remanding to the district court
where defendant was originally sentenced to the mandatory minimum); see also
United States v. Black, 999 F.3d 1071 (7th Cir. 2021) (vacating and remanding in
the same situation). This conclusion also follows from the language of
§ 3582(c)(1)(A). There is no indication in the statutory text that compassionate
release is not available to inmates sentenced to mandatory minimum terms.
Instead, § 3582(c)(1)(A) broadly permits a district court to "reduce the term of
imprisonment" once certain conditions are met. 18 U.S.C. § 3582(c)(1)(A). The
broad language in § 3582(c)(1)(A) reflects the intention behind the
compassionate release mechanism, which was first introduced in the Sentencing
Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (Oct. 12, 1984). The Senate
Judiciary Committee report on the Sentencing Reform Act explained that
compassionate release would address "unusual cases in which an eventual
reduction in the length of a term of imprisonment is justified by changed
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circumstances," and it did not limit such unusual cases to non-mandatory
minimum terms. S. Rep. No. 98-225, 1983 WL 25404, at *55 (1983).
II. The 18 U.S.C. § 3553(a) Sentencing Factors
Section 3553(a) lists numerous factors that a court shall consider
when imposing a sentence. Contrary to Clenista's assertions, nothing in the
record indicates that the district court failed to consider changed circumstances
in its § 3553(a) analysis. A district court is presumed to have "considered all
relevant § 3553(a) factors and arguments" unless the record suggests otherwise.
United States v. Rosa, 957 F.3d 113, 118 (2d Cir. 2020). Nothing in the record
rebuts this presumption. The briefing before the district court addressed at
length post-sentencing changes in Clenista's circumstances. Furthermore, in its
order denying compassionate release, the district court discussed the risk of
COVID-19 in United States Penitentiary Lompoc, Clenista's facility at the time of
his motion, as well as Clenista's medical history and age, factors involving
circumstances that had changed since the date of his sentencing.
When reviewing a motion for a sentence modification, a district
court need only "adequately explain the chosen sentence to allow for meaningful
appellate review." Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 (2019). It is
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true that the district court emphasized "[Clenista's] substantial criminal history,
the fact that this [was] his second conviction for distributing or conspiring to
distribute methamphetamine, and his audacity in committing this offense while
still on supervised release," App’x 239-40, sentencing considerations that had not
changed since his original sentence. That the district court gave greater weight
to those unchanged factors than to the changed circumstances on which Clenista
relies does not mean that the court failed to consider the latter. We cannot
"assume a failure of consideration simply because a district court fail[ed] to . . .
discuss" a given factor. United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir.
2008). Nor can we require "that a particular factor be given determinative or
dispositive weight," even when a motion for compassionate release coincides
with a change in circumstances like COVID-19. Id (internal quotation marks
omitted); see also United States v. Jones, 17 F.4th 371, 375 (2d Cir. 2021) (rejecting
defendant's argument that the district court should have "rebalanced [the
§ 3553(a)] factors in light of the pandemic"). Thus, the district court did not
abuse its discretion when it placed weight on "[t]he need to recognize the
seriousness of [Clenista's] offense, to provide a just punishment, to protect the
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public from further such activity by [Clenista], and [his] characteristics." App’x
240. 2
Finally, although Clenista does not contest the issue, we note that
the district court did not err in denying Clenista's compassionate release motion
"in sole reliance on the applicable § 3553(a) sentencing factors" rather than also
determining whether Clenista had shown extraordinary and compelling
reasons. United States v. Keitt, 21 F.4th 67, 73 (2d Cir. 2021). Such a process
satisfies the requirements of § 3582(c)(1)(A) and conforms with our precedent.
Id.; Jones, 17 F.4th at 374.
CONCLUSION
For the reasons stated above, the district court's order denying
compassionate release is AFFIRMED.
2 On January 31, 2022, Clenista filed a motion requesting that we take judicial
notice of certain COVID-19 conditions in Federal Correctional Institution Herlong,
where Clenista is incarcerated. Dkt. No. 70. We have discretion to determine whether
to take judicial notice of documents that are not part of the record on appeal. Dixon v.
von Blanckensee, 994 F.3d 95, 102 (2d Cir. 2021). As the COVID-19 circumstances at
Clenista's current place of incarceration are not relevant to whether the district court
abused its discretion as to the § 3553(a) factors in denying Clenista's motion at an
earlier time when he was incarcerated at a different institution, we decline to take
judicial notice and Clenista's motion is denied.
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