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- 1524

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United States v. Hime



## 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 NO TATION “ 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, 1
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2

New York, on the 2 7 t h d a y of O c t o b e r , two thousand twenty

- two

. 3

4

PRESENT: 5

6

AMA L YA L. KEARSE, 7

MICHAEL H. PARK, 8 MYRNA PÉREZ, 9
Circuit Judges. 10

_____________________________________ 11

12

United States of America

, 13

14
Appellee

, 15

16

v. 21

- 1524 17

18
Brian Hime, 19

20
Defendan t

- Ap pellant

, 21

22
Christopher Scott, AKA Peanut, Nicholas 23
VanValkenburgh, AKA Woody, AKA Wood, 24

AKA Woodcock, 25

26
Defendants

. 27

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_____________________________________ 29

30

31

32FOR DEFENDANT

- APPELLANT: Brian Hime

, pro se
, 1

Bradford

, PA

. 2

3

FOR APPELLEE: Nicolas Commandeur, 4
Thomas R. Sutcliffe, 5

Assistant United States 6
Attorney s, of counsel, for 7
Carla B. Freedman, United 8
States Attorney for the 9

Northern District of New 10
York, Syracuse , NY

. 11

12

13

Appeal from a n order of the United States District Court for the Northern District of New 14

York ( McAvoy

, J

. ). 15

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 16

DECREED that the order of the district court is AFFIRMED

. 17

Brian Hime pleaded guilty to offenses arising out of a drug

- trafficking conspiracy . In 18

2014, he was sentenced to a mandatory minimum of 240 month s’ imprisonment. 19

Hime moved in 2021 for compassionate release under 18 U.S.C. § 3582(c)(1)(A) . The 20

district court denied the motion because, among other reasons, the 18 U.S.C. § 3553(a) factors 21

weighed against reducing Hime’s sentence

. Hime appeals, pr oceeding pro se

. We assume the 22

parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues on 23

appeal. 24

“ We typically review the denial of a motion for a discretionary sentence reduction for abuse 25

of discretion.” U nited States v. Holloway , 956 F.3d 660, 664 (2d Cir. 2020). A district court 26

abuses its discretion if its ruling is based “on an erroneous view of the law or on a clearly erroneous 27

assessment of the evidence, ” or if it has “ rendered a decision that cannot be located within the 28

range of permissible decisions.” United States v. Borden , 564 F.3d 100, 104 (2d Cir. 2009). 293 “[O]nce we are sure that the sentence resulted from the reasoned exercise of discretion, we must 1

defer heavi ly to the expertise of district judges.” United States v. Cavera , 550 F.3d 180, 193 (2d 2

Cir. 2008) (en banc)

. 3

Section 3582(c)(1)(A) provides that a district court “may reduce” a defendant’s “ term of 4

imprisonment

. . . after considering the factors set fo rth in s ection 3553(a),” if it finds that 5

“extraordinary and compelling reasons warrant such a reduction” and “that such a reduction is 6

consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. 7

§ 3582(c)(1)(A); United St ates v. Brooker , 976 F.3d 228, 23 5 (2d Cir. 2020). If a district court 8

appropriately determines that the § 3553(a) factors weigh against a sentence reduction, we may 9

affirm on that ground alone. See United States v. Keitt , 21 F.4th 67, 69 (2d Cir. 2021) ; see also 10

United States v. Green , 595 F.3d 432, 436 (2d Cir. 2010) (“[W] e may affirm a ruling on any ground 11

that is supported by the record

. ”). 12

We do so here. After careful review, w e perceive no abuse of discretion in the district 13

court’s consideration of the § 3553(a) factors , which addressed the seriousness of the underlying 14

offense, Hime’s criminal history and background, the need to protect the public, and the deterrent 15

effect of the sentence imposed , among other considerations

. In his primary argument to the 16

contrary , Hime points to comments by the district court at the original sentencing proceeding that

, 17

in his view, suggest that the court would have sentence d him below 240 months if not for the 18

mandatory minimum. T he district court had opined , however, only that the guidelines range , not 19

the mandatory minimum, was high. And when the district court express ed “hope” that Hime 20

could “get out before 20 years,” the court referred to the availability of good time credit. T he 21

district cou rt’s remaining commentary at Hime’s sentencing on the binding nature of mandatory 224 minimum sentences does not, in context

, undermine its discretionary denial of a later request for a 1

sentence reduction

. 1 2

We have reviewed Hime’s remaining arguments and find them to be without merit. F or 3

the foregoing reasons, the order of the district court is AFFIRMED

. 4

FOR THE COURT: 5

Catherine O ’ Hagan Wolfe, Clerk of Court 6

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1 We note that, as an alternative ground for denying the motion, the district court consulted
the policy statement for compassionate release contained in U.S.S.G. § 1B1.13(2), determining
that Hime was a danger to the community. This Court made clear in Br ooker , however, that
§ 1B1.13 does not apply to compassionate release motions brought by defendants, but only to
motions initiated by the Bureau of Prisons. See Brooker , 976 F.3d at 235

– 36. T he error here

, however, was harmless because , as discussed abov e, the court was required by statute to
“consider[] the factors set forth in section 3553(a),” 18 U.S.C. § 3582(c)(1)(A), which include “the
need . . . to protect the public from further crimes of the defendant,” id. § 3553(a)(2)(C)

. See,

e.g.
, United Sta tes v. Seshan , 850 F. App’x 800, 802 n.1 (2d Cir. 2021) (summary order) (observing
that since danger to the community is a part of the § 3553(a) balancing, any error in consulting §
1B1.13 did not affect the defendant’s substantial rights).