21

- 273

- cr United States v. Marlon Clenista
U NITED S TATES C OURT OF A PPEALS F OR THE S ECOND C IRCUIT August Term 20 21 (Argued: February 3 , 202 2 Decided: February 2 5 , 2022 )
Docket No. 21

- 273

- cr



### U NITED 

### S TATES OF 

### A MERICA 

### , Appellee ,

v.
G ILBERTO 

### H ALVON 

### , also known as Jona , J AMES 

### C ORCIA 

### , J OHN 

### B C ANARIA 

### , A UGUST 

### C ASTILLO 

### , K ERWIN 

### L ACSON 

### , M ONARCH 

### T ABOR 

### , L ORENA 

### M ARQUEZ 

### , also known as Enna , Defendants ,

M ARLON 

### C LENISTA 

### , Defendant

- Appellant

.

O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT FOR THE S OUTHERN D ISTRICT OF N EW Y ORK2 Before: C ABRANES , L YNCH , and C HIN , Circuit Judges

. Appeal from a n order entered in the United States District Court for
the Southern District of New York ( Kaplan , J. ) denying defendant

- appellant ' s motion for a sentence reduction under 18 U.S.C. § 3582(c)(1) . The district court
found that the 18 U.S.C. § 3553(a) factors weighed against reduction of
defendant

- appellant's mandatory minimum sentence.
A FFIRMED
.

M ITZI S. S TEINER , Assistant United States Attorney (David Abramowicz, Assistant United States Attorney, on the brief ), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, New York, for Appellee

. E LIZABETH D. F EMIA ( Ira M. Feinber g and Charles Barrera Moore , on the brief ) , Hogan Lovells US LLP, New York, New York , for Defendant

Appellant.3 P ER C URIAM : Pursuant to 18 U.S.C. § 3582(c)(1) as modified by the First Step Act,
Pub. L. No. 115

- 391, 132 Stat. 5194 (Dec. 21, 2018), a district court may reduce a term of imprisonment upon motion by a defendant. C ommonly referred to as the "compassionate release" provision , § 3582(c)(1) permits a district court to
reduce a term of imprisonment if, "after considering the fact ors set forth in [18
U.S.C. § 3553(a) ] to the extent that they are applicable, [i t ] finds that . . . extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). In this case, d efendant

- appellant Marlon Clenista appeals
from a n order of the district court (Kaplan, J .) entered January 2 6 , 2021 , denying
his motion for compassionate release

. Clenista contends principally that the district court erred in failing to consider the § 3553(a) sentencing factors as they

ex isted at the time of his motion , that is, that the district failed to consider post

sentencing changes in circumstances

. T his case pose s the threshold question of whether defendant s who
received a mandatory minimum sentence are eligible for a sentence redu ction
under § 3582(c)(1). We hold that they are . Because the district court did not4 abuse its discretion in denying Clenista's motion for compassionate release , however, we affirm.
BACKGROUND On June 6 , 2016, Clenista p le a d ed guilty to one count of conspir acy to distribute and possess with intent to distribute 500 or more grams of methamphetamine , in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).
At the time of the offense , Clenista was on supervised release for another federal methamphetamine

- distribution conviction. On September 14 , 2016, the district court adopted the Probation Department's calculation of Clenista's applicable Guidelines range and sentenc ed him to the mandatory minimum term of imprisonment of 120 months , followed by a five

- year term of supervised release. Clenista moved for compassionate release in the district court on December 4, 2020, after receiving no reply to a letter seeking such relief that he apparently mailed to the prison warden on J uly 19, 2020. 1 By order entered January 26 , 2021, the district court denied Clenista's motion. The district court
assumed without deciding that Clenista had shown extraordinary and

1 A factual dispute arose before the district court as to whether Clenista actually submitted the letter to the warden , but t he district court did not deny Clenista's motion because of failure to exhaust. The G overnment does not raise this issue on appeal.5 compelling circumstances, but ultimately determined that the § 3553(a) factors weighed against granting compassionate release. This appeal followed.
DISCUSSION
We review t he denial of a motion for compassionate release for
abuse of discretion a nd unde rlying matters of statutory interpretation de novo

. See United States v. Moore , 975 F.3d 84, 88

- 89 (2d Cir. 2020). A district court has broad discretion when considering a motion for compassionate release

. See
United States v. Brooker , 976 F.3d 2 2 8 , 237 (2d Cir. 2020) . Mere disagreement with

" how the district court balanced the § 3553(a) factors " therefore is not a sufficient ground for finding an abuse of discretion. United States v. Chambliss , 948 F.3d 691, 694 ( 5th Cir. 2020). Instead, a district court abuses its discretion if it bases its ruling " on an erroneous view of the law or on a clearly erroneous assessment of
the evidence , or render [s] a decision that cannot be located within the range of permissible decisions

. " United States v. Borden , 564 F.3d 100, 104 (2d Cir. 2009) (quoting In re Sims , 534 F.3d 117, 132 (2d Cir. 2008) )

. Clenista argues that the district court abused its discretion by failing to consider changed circumstances6 in its § 3553(a) analysis. W e are not persuaded a nd thus affirm the district

court 's denial of the motion

. I
. 18 U.S.C. § 3582(c)(1) and M andatory M inimum S entences As a threshold matter, this case implicates the question of whether a district court is barred from reduc ing a sentence pursuant to a compassionate
release motion when a defendant received the mandatory minimum sentence

. The district court did not deny the motion on this basis, and Clenista and the
G overnment both acknowle dge that United States v. Brooker implicitly held that
such defendants may be eligible for compassionate release. 976 F.3d at 2 30

. As
this Court has not clearly spoken on the issue, we address it now . In Brooker , defendant

- appellant Jeremy Zullo received separate ten

year and five

- year mandatory minimum sentences. Id. The district court deni ed Zullo's motion for compassionate release and he appealed. We vacated the
district court's order and remanded to permit the district court to properly

exe rcise its full discretion

. Id. at 237. Our decision thus implicitly recogniz ed that a mandatory minimum sentence could be reduced by a compassionate
release motion

. We now explicitly hold that a mandatory minimum sentence7 does not preclude a district co urt from reducing a term of imprisonment on a motion for compassionate release

. M ultiple other circuits have reached the same conclusion implicitly. See, e.g., United States v. Owens , 996 F.3d 755 (6th Cir. 2021) (reversing the district court's order deny ing compassionate release and remanding to the district court
whe re defendant was originally sentenced to the mandatory minimum); see also
United States v. Black , 999 F.3d 1071 (7th Cir. 2021) ( vacating and remanding in
the same situation ). This conclusion also follows from the language of § 3582(c)(1)(A). There is no indication in the statutory text that compassionate
release is not available to inmates sentenced to mandatory minimum terms. Instead, § 3582(c)(1)(A) broadly permits a district co urt to "reduce the term of imprisonment" once certain conditions are met. 18 U.S.C. § 3582(c)(1)(A). The broad language in § 3582(c)(1)(A) reflects the intention behind the compassionate release mechanism, which was first introduced in the Sentencing
Ref orm Act of 1984, Pub. L. No. 98

- 473, 98 Stat. 1837 (Oct. 12, 1984) . The Senate Judiciary Committee report on the Sentencing Reform Act explained that compassionate release would address "unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed8 circumstances , " and it did not limit such unusual cases to non - mandatory
minimum terms

. S. Rep. No. 98

- 225, 1983 WL 25404, at *55 (1983).
II
. The 18 U.S.C. § 3553(a) S entencing F actors Section 3553(a) lists numerou s factors that a court shall consider when imposing a sentence. Contrary to Clenista's assertions, n othing in the
record indicates that the district court failed to consider changed circumstances in its § 3553(a) analysis

. A district court is presumed to have "considered all
relevant § 3553(a) factors and arguments" unless the record suggests otherwise.
United States v. Rosa , 957 F.3d 113, 11 8 (2d Cir. 2020). Nothing in the record
rebut s this presumption. The briefing b efore the district court addressed at length post

- sentencing changes in Clenista's circumstances. Furthermore, i n its order denying compassionate release, the district court discussed the risk of
C OVID

- 19 in United States Penitentiary Lompoc, Clenista's f acility at the time of
his motion , as well as Clenista's medical history and age , factors involving circumstances that had changed since the date of his sentencing

. When reviewing a motion for a sentence modification, a district court need only "adequate ly explain the chosen sentence to allow for meaningful appellate review." Chavez

- Meza v. United States , 138 S. Ct. 1959, 1965 (2019). It is9 true that the district court emphasized "[Clenista's] substantial criminal history, the fact that this [was] his s econd conviction for distributing or conspiring to distribute methamphetamine, and his audacity in committing this offense while still on supervised release," App’x 239

- 40, sentencing considerations that had not changed since his original sentence. That t he district court gave greater weight to those unchanged factors than to the changed circumstances on which Clenista
relies does not mean that the court failed to consider the latter. W e cannot "assume a failure of consideration simply because a district court fail[ed] to . . . discuss" a given factor. United States v. Verkhoglyad , 516 F.3d 122, 131 (2d Cir. 2008). Nor can we require "that a particular factor be given determinative or dispositive weight , " even when a motion for compassionate release coin cides
with a change in circumstances like COVID

- 19. I d (internal quotation marks
omitted ) ; see also United States v. Jones , 17 F.4th 371, 375 (2d Cir. 2021) (rejecting defendant's argument that the district court should have "rebalanced [the § 3553(a)] factors in light of the pandemic"). Thus, the district court did not
abuse its discretion when it plac ed weight on "[t]he need to recognize the seriousness of [Clenista's] offense, to provide a just punishment, to protect the10 public from further such activity by [Clenista], and [his] characteristics." App’x
240. 2 Finally, although Clenista does not contest th e issue, we note that
the district court did not err in denying Clenista's compassionate release motion
"in sole reliance on the applicable § 3553(a) sentencing factors" rather than also determining whether Clenista had shown extraordinary and compelling

reasons. United States v. Keitt , 21 F.4th 67, 7 3 (2d Cir. 202 1). Such a process satisfies the requirements of § 3582(c)(1)(A) an d conforms with our precedent

. Id. ; Jones , 17 F.4th at 374.
CONCLUSION
For the reasons stated above , the district court's order denying compassionate release is AFFIRMED

.

2 On January 31, 2022, Clenista filed a motion requesting that we take judicial notice of certain COVID

- 19 conditions in Federal Correctional Institution Herlong, where Clenista is incarcerated. Dkt. No. 70. We have discretion to determine whether to take judicial notice of documents that are not part of the record on appeal. Dixon v. von Blanckensee , 994 F.3d 95, 102 (2d Cir. 2021). As the COVID

- 19 circumstances at Clenista's cu rrent place of incarceration are not relevant to whether the district court abused its discretion as to the § 3553(a) factors in denying Clenista's motion at an earlier time when he was incarcerated at a different institution , we decline to take judicial n otice and Clenista's motion is denied.