United States v. Roney

20-1834
United States v. Roney
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 TO 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
2nd day of November, two thousand twenty.

Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
AMALYA L. KEARSE,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 20-1834

PATRICK RONEY, AKA PATRICK F. RONEY,

Defendant-Appellant.
_____________________________________

For Defendant-Appellant: JAY S. OVSIOVITCH, Federal Public Defender’s Office,
Western District of New York, Rochester, NY

For Appellee: TIFFANY H. LEE, Assistant United States Attorney, for
James P. Kennedy, Jr., United States Attorney for the
Western District of New York, Buffalo, NY

Appeal from a final order of the United States District Court for the Western District of

New York (Skretny, J.).

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

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

Defendant-Appellant Patrick Roney (“Roney”) appeals from a June 2, 2020 final order of

the United States District Court for the Western District of New York (Skretny, J.) denying his

motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The district court

sentenced Roney to 168 months’ imprisonment and a life term of supervised release for possession

of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) on May 26, 2011. Roney filed

the operative motion for compassionate release on May 15, 2020, arguing in the district court that

his susceptibility to contracting and suffering life-threatening complications from COVID-19

while incarcerated at the Federal Medical Center, Rochester (“FMC Rochester”) constitutes an

extraordinary and compelling reason meriting his release.

As amended by the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A) authorizes a

defendant imprisoned for federal crimes to bring a motion for compassionate release before a

federal district court upon the “failure of the Bureau of Prisons to bring [such] a motion on the

defendant’s behalf” or upon “the lapse of 30 days from the receipt of such a request by the warden

of the defendant’s facility, whichever is earlier.” Per the text of the statute, a district court “may

reduce” the term of a defendant’s imprisonment “if it finds that . . . extraordinary and compelling

reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A). The determination as to what

constitutes extraordinary and compelling reasons warranting a reduction is committed to the sound

discretion of the district court. United States v. Brooker, No. 19-3218-CR, --- F.3d ----, 2020 WL

5739712, at *7 (2d Cir. Sept. 25, 2020) (holding that “the First Step Act freed district courts to

consider the full slate of extraordinary and compelling reasons that an imprisoned person might

bring before them in motions for compassionate release”). Prior to reducing a defendant’s term

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of imprisonment, however, a district court must consider “the factors set forth in section 3553(a)

to the extent that they are applicable.” 18 U.S.C. § 3582(c)(1)(A). 1 These factors include, inter

alia, the nature and circumstances of the offense; the history and characteristics of the defendant;

the need for the sentence to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, afford adequate deterrence, and protect the public from future crimes by

the defendant; and the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a).

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

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

has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence, or rendered a decision that cannot be located within the

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

(alterations and internal quotation marks omitted) (quoting Sims v. Blot, 534 F.3d 117, 132 (2d

Cir. 2008)). In assessing Roney’s contention that the district court abused its discretion in this

case, we assume the parties’ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

* * *

We need not decide whether Roney has proffered an extraordinary and compelling reason

that warrants his release under 18 U.S.C. § 3582(c)(1)(A)(i) because, even assuming arguendo

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Section 3582(c)(1)(A) also requires a district court entertaining a compassionate-release motion brought
by an incarcerated criminal defendant to consider whether a sentence reduction “is consistent with
applicable policy statements issued by the Sentencing Commission.” Notably, this Court recently held
that United States Sentencing Guideline § 1B1.13—the policy statement “applicable” to compassionate-
release motions brought by the Director of the Bureau of Prisons—is not “applicable” to compassionate-
release motions brought by incarcerated defendants. Brooker, --- F.3d ----, 2020 WL 5739712, at *6
(“[T]hough motions by the BOP still remain under the First Step Act, they are no longer exclusive, and
we read the Guideline as surviving, but now applying only to those motions that the BOP has made.”).

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that he has, we discern no abuse of discretion in the district court’s conclusion that release is

nevertheless unwarranted upon consideration of the § 3553(a) factors. Roney contends, to the

contrary, that the district court abused its discretion in its consideration of these factors because it:

(1) did not provide a clear explanation as to why releasing him 16 months earlier than his October

24, 2021 projected release date would significantly undermine the goals of sentencing; (2) failed

“to distinguish the original sentencing from compassionate release,” Appellant’s Br. at 30; and (3)

disregarded this Court’s admonition in United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010),

that a district court must take “great care” in considering the reasonableness of sentences imposed

under United States Sentencing Guideline (“U.S.S.G.”) § 2G2.2. For the following reasons, we

disagree.

At the start, the district court amply explained why its analysis of the § 3553(a) factors

weighed against release. Indeed, the district court considered each of the applicable § 3553(a)

factors in determining whether Roney’s release was warranted. It weighed, inter alia, Roney’s

serious medical conditions and susceptibility to COVID-19; the seriousness of his offense conduct,

which included the possession of hundreds of images of child pornography, some of which

depicted sadistic and masochistic conduct and prepubescent children younger than 12 years of age;

his prior convictions; the danger he presents to the community; the fairness of his original sentence;

and the need for his original sentence to remain in place to promote respect for the law and to

provide just punishment. In light of the district court’s thoughtful and extensive analysis of the

§ 3553(a) factors, Roney’s argument that the district court did not explain its reasons is misplaced.

Roney “may disagree with how the district court balanced the § 3553(a) factors, [but] that is not a

sufficient ground” for finding an abuse of discretion. United States v. Chambliss, 948 F.3d 691,

694 (5th Cir. 2020).

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 Roney’s argument that the district court erred in failing “to distinguish the original

sentencing from compassionate release,” Appellant’s Br. at 30, is equally without merit. The

First Step Act expressly requires a district court reviewing a compassionate-release motion to

consider the § 3553(a) factors. 18 U.S.C. § 3582(c)(1)(A). Those factors in turn require the

court to consider “the need for the sentence imposed . . . to reflect the seriousness of the offense,

to promote respect for the law, [] to provide just punishment for the offense,” and “to afford

adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a). To that end, courts regularly

consider whether compassionate release would be consistent with § 3553(a) by considering how

early release would impact the aims of the original sentence. See, e.g., United States v. Madoff,

No. 09-CR-213, --- F. Supp. 3d ----, 2020 WL 3001037, at *5 (S.D.N.Y. June 4, 2020) (Chin, J.)

(stressing the aims of the court’s original sentence in denying the defendant’s compassionate-

release motion on § 3553(a) grounds). And “[b]ecause a defendant’s sentence reflects the

sentencing judge’s view of the § 3553(a) factors at the time of sentencing, the time remaining in

that sentence may . . . inform whether immediate release would be consistent with those factors.”

United States v. Pawlowski, 967 F.3d 327, 331 (3d Cir. 2020). The district court in this case

accordingly did not err by considering whether immediate release would undermine the court’s

original sentence.

Roney’s argument that the district court disregarded this Court’s holding in Dorvee also

misses the mark. Roney may take issue with both the sentencing court’s Guidelines analysis

under U.S.S.G. § 2G2.2 and its decision not to vary downward in light of Dorvee. But a

compassionate-release motion “is not an opportunity to second guess or to reconsider” the

sentencing court’s original decision. United States v. Ebbers, 432 F. Supp. 3d 421, 429 (S.D.N.Y.

2020); cf. United States v. Wilson, 716 F.3d 50, 53 (2d Cir. 2013) (“[A] reduction in sentence

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pursuant to 18 U.S.C. § 3582(c) is not a resentencing . . . .” (citing Dillon v. United States, 560

U.S. 817, 825 (2010))). Roney asserts that the district court’s denial of his motion in this case

effectively precludes a sentence reduction for any defendant sentenced under U.S.S.G. § 2G2.2.

But this is simply incorrect. The district court did not make a blanket determination based solely

on Roney’s offense of conviction. Rather, the district court considered the § 3553(a) factors as

applied to the particular circumstances of Roney’s case and Roney’s particular history and

characteristics, and it made the individualized determination that compassionate release was not

warranted. That individualized determination is all § 3553(a) demands here. See United States

v. Easter, No. 19-2587, --- F.3d ----, 2020 WL 5525395, at *7 (3d Cir. Sept. 15, 2020) (“Ultimately,

while a district court ‘may’ impose a reduced sentence, it is not required to do so. . . . In making

that decision, however, the court ‘must’ consider the factors Congress has prescribed to provide

assurance that it is making an individualized determination.” (citation omitted)).

* * *

Roney also relies on changed conditions at FMC Rochester to argue that this matter should

be remanded with instructions that his original sentence be vacated. As Roney notes, whereas

only one member of FMC Rochester’s staff and no inmates had tested positive for COVID-19 at

the time the district court rendered its decision, the number of positive cases at FMC Rochester

has since risen, including among the inmate population. As of the date of this Order, the BOP

reports ten confirmed active cases of COVID-19 among inmates and nine confirmed active cases

among staff. See COVID-19 Cases, BUREAU OF PRISONS, https://www.bop.gov/coronavirus/

(last visited Oct. 30, 2020). Roney also proffers facts concerning other federal medical facilities

where COVID-19 cases have increased substantially during the pendency of the instant appeal.

Roney avers that over 200 inmates at FMC Carswell in Fort Worth, Texas and roughly 379 inmates

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at FMC Lexington in Lexington, Kentucky had tested positive for COVID-19 by the time he filed

his opening brief.

We are mindful that courts entertaining compassionate-release motions brought by high-

risk inmates during this unprecedented time have considered the number of confirmed COVID-19

cases at a facility in assessing the adequacy of the facility’s protective measures and accordingly

determining whether a defendant has demonstrated a particularized risk of contracting COVID-

19. Compare, e.g., United States v. Valencia, No. 15-CR-163, 2020 WL 2319323, at *1, *6–7

(S.D.N.Y. May 11, 2020) (granting a high-risk inmate’s compassionate-release motion in part

because the defendant was incarcerated at a facility that was tied for the most positive cases among

all BOP facilities nationwide), with United States v. Lombardo, No. 17-CR-318, 2020 WL

6118821, at *4 (E.D.N.Y. Oct. 16, 2020) (denying a high-risk inmate’s compassionate-release

motion in part due to “the fact that . . . 9 out of 2,636 total inmates” had tested positive). Indeed,

the district court in this case considered both the number of cases present at FMC Rochester and

FMC Rochester’s status as a medical facility in assessing whether Roney demonstrated a

particularized risk of contracting COVID-19.

These new facts, however, do not independently warrant remand in Roney’s case. The

facts on which Roney relies are not part of the record before this Court, and of course were not

before the district court at the time of the order under review. Moreover, there is no indication

in the record that the increased number of COVID-19 cases in the facility would alter the district

court’s conclusion. To the contrary, the court—which did not find the threat to Roney’s health

at the time of its order sufficiently imminent to constitute an extraordinary and compelling reason

for a sentence reduction—stated that even if it believed that this threshold had been met, the

rationale of the original sentence would still warrant denial of the application. It is of course

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possible that a sufficiently significant increase in the threat, combined with the passage of

additional time toward the expiration of Roney’s original sentence, would alter the district court’s

balancing of the circumstances argued to be extraordinary against the factors that counsel

continued incarceration. Without ruling out the possibility that changes in circumstances may in

some cases be so dramatic as to warrant a remand, we believe that in most cases, given the

unpredictable course of the COVID-19 pandemic, and the relevance of a prisoner’s changing

health circumstances to applications of this kind, it will be better to avoid having cases yo-yo

between the district court and the Court of Appeals. Accordingly, we conclude that the better

course is simply to affirm, recognizing that the denial of a motion of this kind generally will not

preclude a renewed application based on changed circumstances.

* * *

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

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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