2 1

- 1258

- c r United States of America v. Nolasco



### 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 (WI TH 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 1 8 th da y of April , two thousand twenty

- two

. 3 4 P resent : 5 D EBRA A NN L IVINGS TON , 6 Chief Judge
, 7 B ARRINGTON D. P ARKER , 8 B ETH R OBINSON , 9 Circuit Judg es. 10

_____________________________________ 11 12 U NITED S TATES OF A MERICA , 13 14 Appellee
, 15 16

v. 2 1

- 1258

- cr 17 18 J UAN B ONILLA , AKA A.D.A. P INTO , D OMINGO 19 F ERNANDEZ , Y OEL P ICHARDO , AKA Y OEL A LBERTO 20 P ICHARDO G ONZALEZ , AKA Y OEL A LBERTO 21 G ONZALEZ P ICHARDO , N ASSIR M ATEO , J OSE 22 E NCARNACION , S ANDY B EATO , J UAN E SPINAL , 23 G ABRIEL C ANO

- M ARTINEZ , E LOYS F ERNANDEZ , 24 AKA C HAMBOA , P EDRO F ERNANDEZ , AKA E L 25 M ONO , Y UDRIS F ERNANDEZ , AKA G UDRIS , J AVIER 26 H ERNANDEZ , AKA R OOKIE , L UIS P EREZ , R ANDALL 27 M ARTINEZ , AKA R ANDALL , AKA J OSE R ODRIGUEZ , 28 W ILTON R OSARIO , AKA W INSTON R OSARIO , H ENRY 29 F IORENTINO , F RANCISCO P RADO , AKA E L V IEJO , 30 AKA FNU LNU, M ARCOS R OD RIGUEZ , AKA 31 M ARKITO , E MMANUEL T AVAREZ , J OSE A NTONIO 322 L OPEZ S ANTIAGO , AKA A MARANTE , M IGUEL 1 T AVARES , AKA L EPIDO , N OLBERTO M OREL , AKA 2 B OONIE , J OSE T EJADA , 3 4 Defendants
, 5 6

v. 7 8 N ELSON N OLASCO , AKA M ENOR , AKA A NGEL 9 S OTO

- C ABAN , 10 11 Defendant

- Appellant

. 12

_____________________________________ 13 14 F or Appellee : D AVID K ESSLER , Assistant United States Attorney
, 15 ( Susan Corkery & Alexander A. Solomon
, Assistant 16 United States Attorney s , on the brief )
, for Breon Peace, 17 United States Attorney for the Eastern District of New 18 York, Brooklyn, NY

. 19 20 For Defendant

- Appellant : A NDREW J. F RISCH , Attorney at Law
, New York
, NY

. 21 22 Appeal from a n order of the United States District Court for the Eastern District of New 23

York ( Glasser
, J .)

. 24

UPON DUE CONSIDERATION , IT IS HEREBY ORDERED, ADJUDGED, AND 25

DECREED that the order of the district court is AFFIRMED

. 26

De fendant

- Appellant Nelson Nolasco (“Nolasco”) appeals the district court’s April 12, 27

2021 order denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) 28

(commonly referred to as “compassionate release”)

. In 2011 , Nolasco ple d guilty to : (1) Hobbs 29

Act robbery conspiracy
, 18 U.S.C. § 1951(a) ; (2) conspiracy to distribute heroin, cocaine, MDMA, 30

and marijuana, 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)( i ), (b)(1)(A)(ii)(II), (b)(1)(C), (b)(1)(D)
, and 31

846 ; and (3) brandishing and discharging a firearm in furtherance of robbery and drug trafficking
, 32

18 U.S.C. § 924(c)(1)(A) (i)

– (iii)

. In 2016, a fter considering Nolasco’s history and the 33

seriousness of his violent criminal activity

— including multiple robberies and shootings
, and a n 343 e xecution

- style murder

— t he district court sentenced him to 420 months ’ imprisonment. On 1

February 25, 2021, Nolasco , moving pro se , requested that the district court issue an order of 2

compassionate release under § 3582(c)(1)(A)(i). The district court denie d the motion. Nolasco
, 3

now represented by counsel, appeals from the denial of the motion, a rguing that the district court 4

erred by refusing his request for compassionate release without first appointing him counsel sua 5

sponte . We assume the parties’ fami liarity with the underlying facts, the procedural history of 6

the case, and the issues on appeal. 7

* * * 8

We re view for abuse of discretion a petitioner’s claim that the district court erred in denying 9

a motion for compassionate release pursuant to § 3582(c)(1)(A)

. S ee United States v. Saladino
, 10

7 F.4th 120, 122 (2d Cir. 2021) (per curiam) ( also reviewing questions of statutory interpretation 11

de novo ). T he d istrict court has “broad discretion” when considering such motions

. United 12

States v. Clenista , 26 F.4th 566
, 569 (2d Cir. 2022) (per curiam)

. The district court abuse s its 13

discretion if it “ (1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous 14

assessment of the evidence, or (3) rendered a decision that cannot be located within the range of 15

permissible decisions. ” Warren v. Pataki , 823 F.3d 125, 137 (2d Cir. 2016) (citation omitted). 16

U nder § 3582(c)(1)(A) (i) , as amended by the First Step Act of 2018, Pub. L. No. 115

- 391, 17

§ 603( b), 132 Stat. 5194, 5239

– 41 , the district court “may reduce a term of imprisonment upon 18

motion by a defendant

. . . . if, ‘after considering the factors set forth in 18 U.S.C. § 3553(a) to the 19

extent that they are applicable, it finds that . . . extraordinary and compelling reasons warrant such 20

a reduction.’” Clenista , 26 F.4th at 568 (brackets omitted) (quoting 18 U.S.C

. § 3582(c)(1)(A)) ; 21

see 18 U.S.C. § 3553(a) (listing factors for consideration, such as the “nature and circumstances 22

of the offense and the history and characteristics of the defendant” and the “need for the sentence 234 imposed”). In his motion for compassi onate release, Nolasco argue d , among other things, that 1

his early release is justified because of his general health concerns stemming from the COVID

- 19 2

pandemic (made worse by the fact that he is “slightly overweight”) and the “psychological stress” 3

resul ting from his incarceration

. App’x 252. The district court, after considering Nolasco’s 4

motion and the violent nature of his crimes , denied the motion, concluding that , “[n]ot only is there 5

no showing of any extraordinary or compelling circumstance to wa rrant a moment of consideration 6

of his petition, but the complete application of 18 U.S.C. § 3553(a) to his record would compel 7

that it be DENIED

. . . . ” App’x 263

– 64

. 8

Nolasco principally argues on appeal that the district court abused its discretion b y not 9

appointing him counsel sua sponte to assist him in moving for compassionate release. We 10

disagree. A “ defendant has no right to the assistance of counsel in filing a motion for 11

compassionate release [under § 3582].” United States v. Fleming , 5 F.4th 189, 193 (2d Cir. 12

2021) . As such, the “provision of counsel for such motions should rest in the discretion of the 13

district court.” United States v. Reddick , 53 F.3d 462, 465 (2d Cir. 1995) . And when 14

considering a motion for compassionate release, the “apparent merits of the motion” are a 15

“significant factor in the exercise of that discretion.” Id. at 465 n.2; see also United States v. 16

Myers , 524 F. App ’ x 758, 759 (2d Cir. 2013) (summary order)

. 17

Here, the district court did not abuse its discreti o n by not appointing counsel sua sponte

. 18

At the start, the merits of Nolasco’s claim strongly disfavor compassionate release. N olasco , who 19

is represented by counsel on this appeal, does not challenge the Government’s assertion , both 20

below and on appeal
, that his medical records show that he is generally in good health and is not 21

subject to any of the comorbidities for COVID

- 19 identified by the Centers for Disease Control 22

and Prevention

. See Note (1)(A), U.S.S.G. § 1B1.13

. Further, the serious and violent nature of 235 Nolasco’s crimes, the significant amount of time remaining on his sentence, and his repeated 1

disciplinary infractions while incarcerated strongly suggest that he is not an ideal candidate for 2

compassionate release at this time

. See 1 8 U.S.C. § 3553(a); see also United States v. Jones , 17 3

F.4th 371, 37 5 (2d Cir. 2021) (per curiam) ( affirming the district court’s denial of a 4

§ 3582(c)(1)(A) motion where petitioner’s offense conduct was “very serious”) ; United States v. 5

Prada , 852 F. App ’ x 32, 35 (2d Cir. 2021) (summary order) (holding that the district court did not 6

abuse its discretion in denying a § 3582(c)(1)(A) motion based, in part, on the petitioner’s 7

disciplinary infraction while incarcerated). Indeed, we can discern no error, mu ch less an abuse 8

of discretion, in the district court’s conclusions that (1) Nolasco failed to show extraordinary and 9

compelling circumstances warranting compassionate release, and (2) the § 3553(a) factors do not 10

favor his early release. 11

In arguing that the district court abused its discretion, Nolasco cites to cases where district 12

courts in this Circuit used their discretionary authority to appoint counsel to assist defendants 13

moving for compassionate release. See, e.g.
, United States v. Torres

- Nunez , No. 87

- CR

- 00419

- 14

DC

- 16, 2021 WL 1668024, at *1

– 2 (S.D.N.Y. Apr. 28, 2021) (Chin, J. , sitting by designation) 15

(appointing counsel to assist defendant in moving for compassionate release
, then granting 16

defendant’s request for release ) ; United S tates v. Garcia , No. 09

- CR

- 330(KAM), 2021 WL 17

1616914, at *1 (E.D.N.Y. Apr. 26, 2021) (appointing counsel to assist defendant in moving for 18

compassionate release, but ultimately denying the motion). But here , unlike the cases Nolasco 19

cites , the apparent me rits of his motion strongly dis favor compassionate release , and the district 20

court’s decision not to appoint counsel sua sponte is certainly within the range of permissible 21

decisions. Warren , 823 F.3d at 137 . The district court did not abuse its discreti on merely 226 because other courts have appointed counsel in arguably similar situations. 1 1

* * * 2

We have considered Nolasco’s remaining arguments and find them to be without merit. 3

Accordingly, w e AFFIRM the order of the district court

. 4

FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 6

1 Nolasco further claims that he was unable to adequately represent himself pro se because he is primarily a Spanish speaker. According to Nolasco, he was assisted by a fellow inmate who translated and typed the § 3582 motion on Nolasco’s behalf. He asserts that this further impeded his ability to adequately represent himself when moving for compassionate release. But Nolasco
, who is represented by counsel on this appeal, does not identify any particular ways in which his motion was lacking because it was prepared with the assistance of another inmate, as opposed to solely by himself. Indeed, his motion included personalized arguments ( e.g. , noting his extradition from Spain and requesting deportation to the Dominican Republic, see App’x 252

– 53 ), showing at a minimum his direct involvement in the process. This, coupled with the merits of his motion, do not suggest that the di strict court abused its discretion by not appointing him counsel

.