20

- 484 United States v. Holmes 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 TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 7 t h day of J u n e , two thousand twenty

- one. 3 4 PRESENT: AMALYA L. KEARSE, 5 GERARD E. LYNCH, 6 RICHARD J. SULLIVAN , 7 Circuit Judges

. 8

_____________________________________ 9 10 U NITED S TATES OF A MERICA , 11 12 Appellee , 13 14

v. No. 20

- 484 15 16 S HARIF H OLMES , 17 18 Defendant

- Appellant

. 19

_____________________________________ 20 212 FOR APPELLANT: B RUCE R OBERT B RYAN , Bryan Law 1 Firm , Manlius, NY. 2 3 FOR APPELLEE: D EVON L ASH , Assistant United States 4 Attorney (Kevin Trowel, Assistant 5 United States Attorney, on the brief ), 6 for Mark J. Lesko, Acting United 7 States Attorney for the Eastern 8 District of New York. 9 Appeal from the United States District Court for the Eastern District of New 10
York (Carol Bagley Amon, Judge ). 11

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 12
ADJUDGED, AND D ECREED that the judgment of the district court is 13

AFFIRMED. 14

Defendant

- Appellant Sharif Holmes

– who is currently serving a 180

- month 15

sentence b ased on his conviction for being a felon in possession of a firearm in 16
violation of 18 U.S.C. § 924 (a)(2) and for possession of a firearm in a school zone 17
in violation of 18 U.S.C. § 924(a)(4)

– appeals from a January 16, 2020 order of the 18

United States District Court for the Eastern District of New York (Amon, J .), 19
denying his motion for compassionate release pur suant to 18 U.S.C. 20
§ 3582(c)(1)(A). We assume the parties ’ familiarity with the facts, procedural 21
history, and issues on appeal, to which we refer only as necessary to explain our 22

decision. 233 Where a district court denies a motion for reduction of a sente nce, we 1
typically review that denial for abuse of discretion; where the “ court premise [ s ] its 2
decision entirely on statutory interpretation,” we review de novo. United States v. 3
Holloway , 956 F.3d 660, 664 (2d Cir. 2020). 4

In November 2019, Holmes filed a pro se motion for compassionate release 5
under 18 U.S.C. § 3582(c)(1)(A). H e a sserted that he had an “extraordinary and 6
compelling reason” for a sentence reduction because the government had 7
effectively “dup ed ” him into pleading guilty. The district court denied Holmes’s 8
motion, determining that his argument was “not a basis for compassionate 9

release” under Section 1B1.13 of the United States Sentencing Guidelines Manual 10
(“Guideline § 1B1.13”) , and further finding that he still posed “a danger to the 11
safety of any other person or to the community

. ” App’x at 261

– 62. 12
After the district court denied Holmes’s motion for compassionate release, 13

this Court issued its decision in United States v. Brooker (Zullo) , 976 F.3d 228 (2d Cir. 14
2020). There, we held that Guideline § 1B1.13 remains “applicable” only to 15

motions for compassionate release made by the Director of the Bureau of Prisons ; 16
for motions made by prisoners pursuant to the First Step Act of 2018, Pub. L. 115

- 17
391, 132 Stat. 5194, we concluded that nothing “ in the now

- outdated version of 184 Guideline § 1B1.13 limits the district court’s discretion .” Id. at 235

– 37 (punctuation 1
omitted)

. After Zullo , a d istrict court may entertain a prisoner’s motion for 2

compas sionate release under the First Step Act, and may grant it if (1) there are 3
“extraordinary and compelling reasons” warranting compassionate release and 4
(2) the factors set forth in 18 U.S.C. § 3553(a) do not counsel against such release. 5
We have not requi red district courts to a nswer these questions sequentially, as 6

each is committed to the court’s discretion. See , e.g. , United States v. Robinson , 2021 7
WL 2153708, at *1 (2d Cir. May 27, 2021) (summary order) (holding that a district 8

court’s “reasonable evaluation of the Section 3553(a) factors is an alternative and 9
independent basis for denial of compassionate release”). 10
On appeal, Holmes argues that the court abused its discretion when it relied 11

on Guideline § 1B1.13 to deny his motion. Bu t while the district court ’s reliance 12
on the policy statement in Guideline § 1B1.13 wa s e rroneous in light of Zullo , s ee 13

976 F.3d at 237 , the court also provided another ground for denying Holmes’s 14

motion which rendered that misstep irrelevant. After explaining that it considered 15
“the intent of the First Step Act, the Guidelines, and 18 U.S.C. § 3553(a),” App’x at 16

259, the district court went on to discuss the danger that Holmes presented to the 17
community. In particular, the court emphasized Holmes’s “very serious criminal 185 record,” the seriousness of his most recent offense

– which involved his 1
“possession of a [loaded] nine

- millimeter Kel Tech firearm”

– and his “even more 2
serious uncharged criminal conduct,” which included a 1996 murder and an 3
attempt to obstruct justice by threatening a government witness before sentencing. 4

Id. at 262. The district court also considered Holmes’s more recent conduct in 5
prison before concluding that Holmes still posed a dange r to the community and 6
“that a reduction under the First Step Act is not warranted at this time.” Id. at 259, 7

262. 8
Although Holmes makes much of the fact that, in its analysis, the district 9
court specifically referred to 18 U.S.C. § 3142(g)

– the statuto ry provision that must 10

be considered under Guideline § 1B1.13(2)

– there can be no doubt that the court’s 11
findings applied with equal force to the § 3553(a) factors relevant at step two of 12

the Zullo analysis

. S i g ni fic an t ly, both statutory provisions direct courts to 13

consider, as r elevant, “the nature and circumstances” of a defendant’s offense, 14

compare 18 U.S.C. § 3142(g)(1) with id. § 3553(a)(1) , and the danger that the 15

individual poses to others , compare 18 U.S.C. § 3142(g)(4) (listing “the nature and 16
seriousness of the danger to any person or community that would be posed by the 17
person’s release”) with id. § 3553(a)(2)(C) (noting “the need for the sentence 186 imposed

. . . to protect the public from further crimes of the defendant ”). 1
To be sure, § 3553(a) provides a broader list of factors for courts to consider 2
than § 3142(g). But there is no reason to think that the district court overlooked 3
the § 3553(a) factors in denying Holmes’s motion for compassionate release. To 4

the co ntrary, § 3553(a) is directly referenced in the First Step Act and was explicitly 5
mentioned in the district court’s January 2020 order. Any doubt on this score is 6
eliminated by the district court’s subsequent order issued in August 2020, in which 7

the cour t denied a second motion for compassionate release filed by Holmes in 8

June. 1 In that order, the court provided several reasons for denying Holmes’s 9
second motion, including an express consideration of the applicable § 3553(a) 10

factors. See D . Ct. Dkt

. No . 86, at 8

– 10. The district court then referred to the 11
findings in its January 2020 order and recounted the exact facts discussed in that 12
order, including Holmes’s “very serious criminal record” and “even more serious 13
uncharged criminal conduct.” 2 Id. 14

1 Holmes’s second motion for compassionate release asserted that the risks of the COVID

- 19 pandemic constituted an “extraordinary and compelling reason” to reduce his sentence. See D

. Ct. Dkt . No. 83.

2 Although the district court’s August 2020 order “postdated

– and therefore was not part of

– the record submitted on appeal ,” we may still “ take judicial notice of it.” See Anderson v. Rochester

Genesee Reg'l Transp. Auth

. , 337 F.3d 201, 205 n.4 (2d Cir. 2003); id . at 205

– 06 (taking judicial noti ce of the existence of (1) a district court’s order that issued after a party in the case had filed a notice of appeal, and (2) certain judicial actions taken therein); New York ex rel. Spitzer v. Operation Rescue Nat'l , 273 F.3d 184, 199 (2d Cir. 2001) (t aking judicial notice of the existence of (1) a district court’s7 Based on this record, we cannot say that the district court abused its 1
discretion in denying Holmes’s request for compassionate release in January 2020. 2
Accordingly, the judgment of the district court is AFFIRMED

. 3

FOR THE COURT: 4 Catherine O'Hagan Wolf e, Clerk of Court 5 6 7 8

opinion that was not otherwise before the Court on appeal, and (2) judicial findings within that opinion).