21-1524-cr

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 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 27th 3 day of October, two thousand twenty-two.

4

5 PRESENT:

6

7 AMALYA L. KEARSE,

8 MICHAEL H. PARK, 

9 MYRNA PÉREZ, 

10 Circuit Judges.

11 _____________________________________

12

13 United States of America,

14

15 Appellee,

16

17 v. 21-1524

18

19 Brian Hime,

20

21 Defendant-Appellant,

22

23 Christopher Scott, AKA Peanut, Nicholas 

24 VanValkenburgh, AKA Woody, AKA Wood, 

25 AKA Woodcock,

26

27 Defendants.

28

29 _____________________________________

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1 FOR DEFENDANT-APPELLANT: Brian Hime, pro se,

2 Bradford, PA.

3

4 FOR APPELLEE: Nicolas Commandeur, 

5 Thomas R. Sutcliffe, 

6 Assistant United States 

7 Attorneys, of counsel, for 

8 Carla B. Freedman, United 

9 States Attorney for the 

10 Northern District of New 

11 York, Syracuse, NY.

12

13

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

15 York (McAvoy, J.). 

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

17 DECREED that the order of the district court is AFFIRMED. 

18 Brian Hime pleaded guilty to offenses arising out of a drug-trafficking conspiracy. In 

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

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

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

22 weighed against reducing Hime’s sentence. Hime appeals, proceeding pro se. We assume the 

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

24 appeal.

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

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

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

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

29 range of permissible decisions.” United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009). 
3

1 “[O]nce we are sure that the sentence resulted from the reasoned exercise of discretion, we must 

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

3 Cir. 2008) (en banc).

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

5 imprisonment . . . after considering the factors set forth in section 3553(a),” if it finds that 

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

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

8 § 3582(c)(1)(A); United States v. Brooker, 976 F.3d 228, 235 (2d Cir. 2020). If a district court 

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

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

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

12 that is supported by the record.”). 

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

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

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

16 effect of the sentence imposed, among other considerations. In his primary argument to the 

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

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

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

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

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

22 district court’s remaining commentary at Hime’s sentencing on the binding nature of mandatory 
4

1 minimum sentences does not, in context, undermine its discretionary denial of a later request for a 

sentence reduction.

1 2

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

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

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk of Court

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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 Brooker, 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. The error here, 

however, was harmless because, as discussed above, 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 States 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).