21-440

United States v. De Jesus Sierra

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. 

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

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

New York, on the 17th day of January, two thousand twenty-three.

PRESENT:

AMALYA L. KEARSE,

ROSEMARY S. POOLER,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

United States of America,

Appellee,

v. 21-440

Diogenes De Jesus Sierra,

AKA Diogenes Estes,

Defendant-Appellant.

_____________________________________

FOR DEFENDANT-APPELLANT: Diogenes De Jesus Sierra, pro se, Fort Dix, 

NJ.

FOR APPELLEE: Jonathan L. Bodansky, Stephen J. Ritchin, 

Assistant United States Attorneys, for 

Damian Williams, United States Attorney for 

the Southern District of New York, New 

York, NY.
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Appeal from a judgment of the United States District Court for the Southern District of 

New York (Marrero, J.).

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

DECREED that the district court’s February 2, 2021, judgment denying compassionate release is

AFFIRMED.

Defendant-Appellant Diogenes De Jesus Sierra, pro se, appealed the district court’s orders

denying (1) his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) and (2) his 

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). De Jesus Sierra was convicted of 

distribution and possession with intent to distribute heroin under 21 U.S.C. §§ 812, 841(a)(1), and 

841(b)(1)(C) and conspiracy to distribute heroin under 21 U.S.C. §§ 841(b)(1)(C) and 846. In 

2014, the district court sentenced De Jesus Sierra to 360 months of imprisonment. In 2020, he 

moved for a sentence reduction and separately moved for compassionate release. The district court 

sua sponte denied the motions. In December 2021, this court dismissed his appeal as to the sentence 

reduction under § 3582(c)(2) and permitted the appeal as to compassionate release to proceed in 

the ordinary course. We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal.

De Jesus Sierra has waived any appellate challenge to the district court’s denial of his 

compassionate release motion because he raised no arguments in his brief as to the district court’s 

rationale for denying his compassionate release motion. Gerstenbluth v. Credit Suisse Sec. (USA) 

LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013) (holding that a pro se litigant “waived any challenge” 

to the district court’s adverse ruling because the litigant’s brief mentioned the substance of the 

ruling only “obliquely and in passing”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) 
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(“Issues not sufficiently argued in the briefs are considered waived and normally will not be 

addressed on appeal.”).

To the extent that De Jesus Sierra’s brief on appeal argues, on the basis of the First Step 

Act of 2018, that the district court erred in denying his motion for a reduction of his sentence, 

those arguments are foreclosed by this court’s order dated December 29, 2021 (2d Cir. No. 21-

440, Doc. 42) dismissing his appeal as to that decision. To the extent that De Jesus Sierra instead 

argues that the district court erred in not granting him compassionate release in light of the First 

Step Act, he did not make that argument to the district court and therefore it is subject to review 

only for plain error. The standard for plain error is as follows: “First, there must be an error.

Second, the error must be plain. Third, the error must affect substantial rights, which generally 

means that there must be a reasonable probability that, but for the error, the outcome of the 

proceeding would have been different.” Greer v. United States, 141 S. Ct. 2090, 2096 (2021)

(internal quotation marks omitted).

De Jesus Sierra cannot meet even the initial part of this standard because his premise that 

the First Step Act is applicable to him lacks an arguable basis either in law or fact. The relevant 

provision of the First Step Act provides that “[t]his section, and the amendments made by this 

section, shall apply to any offense that was committed before the date of enactment of this Act, if 

a sentence for the offense has not been imposed as of such date of enactment.” First Step Act of 

2018, Pub. L. No. 115-391, § 401(c), 132 Stat. 5194 (emphasis added). Because De Jesus Sierra 

was sentenced in 2014 before the enactment of the First Step Act in 2018, he is not eligible for 

relief under § 401(a).

* * *
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We have considered De Jesus Sierra’s remaining arguments, which we conclude are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court