21-476-cr
United States v. Rios
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 18th day of October, two thousand twenty-two.
PRESENT:
ROSEMARY S. POOLER,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-476
ORLANDO RIOS, AKA FIFO,
Defendant-Appellant. ∗
___________________________________________
∗
The Clerk of Court is respectfully directed to amend the caption as set forth above.
FOR DEFENDANT-APPELLANT: Orlando Rios, pro se, FCI Fort
Dix Correctional Institute, Joint
Base MDL, NJ.
FOR APPELLEE: Katherine A. Gregory,
Assistant United States
Attorney, for Trini E. Ross,
United States Attorney for the
Western District of New York,
Buffalo, NY.
Appeal from an order of the United States District Court for the Western
District of New York (Frank P. Geraci, Jr., Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Defendant-Appellant Orlando Rios, proceeding pro se, appeals from the
district court’s order denying his motion for a sentence reduction pursuant to
18 U.S.C. § 3582(c)(1)(A). On September 11, 2017, Rios pleaded guilty to
conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), 846. That offense carried a mandatory minimum term
of ten years’ imprisonment, and the district court calculated a Sentencing
Guidelines range of 262 to 327 months’ imprisonment. The district court then
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imposed a sentence of 188 months’ imprisonment, to be followed by five years’
supervised release.
On August 21, 2020, having served approximately 63 of his 188 months’
term of imprisonment, Rios moved for compassionate release pursuant to the First
Step Act of 2018. Under this statute, courts may, in their discretion, grant a
sentence reduction if, “after considering the [applicable] factors set forth in [18
U.S.C. §] 3553(a),” the court finds that “extraordinary and compelling reasons
warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Section 3553(a) lists
several factors a court must consider when imposing a sentence, including “the
nature and circumstances of the offense and the history and characteristics of the
defendant,” as well as the need for the sentence “to reflect the seriousness of the
offense,” “to promote respect for the law,” “to provide just punishment for the
offense,” “to afford adequate deterrence to criminal conduct,” “to protect the
public from further crimes of the defendant,” and “to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” Id. § 3553(a)(1), (a)(2)(A)–(C), (a)(6). A court may deny a
motion for compassionate release if it determines that a defendant has failed to
make the requisite showing regarding extraordinary and compelling reasons or
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that the section 3553(a) factors, on balance, do not warrant a sentence reduction.
See United States v. Keitt, 21 F.4th 67, 73 (2d Cir. 2021).
In denying Rios’s motion, the district court assumed that Rios’s medical
history and the harsh pandemic-related conditions under which Rios was serving
his sentence constituted extraordinary and compelling reasons for compassionate
release. The district court nonetheless concluded that a sentence reduction would
be inconsistent with the factors set forth in section 3553(a), considering the
seriousness of Rios’s offense and his extensive criminal history. This appeal
followed. 1
“We review the denial of a motion for compassionate release for abuse of
discretion.” United States v. Saladino, 7 F.4th 120, 122 (2d Cir. 2021). “[A] district
court has abused its discretion if it [has] 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) (internal quotation marks omitted).
1 While Rios’s Notice of Appeal was untimely, see Fed. R. App. P. 4(b)(1)(A), the government has
expressly and affirmatively waived any “argument that the appeal is untimely.” Government
Br. at 1–2 n.2. Since “Federal Rule of Appellate Procedure 4(b), which governs the time to appeal
from a criminal judgment,” is “not jurisdictional and . . . therefore capable of forfeiture by the
government,” United States v. Frias, 521 F.3d 229, 231 (2d Cir. 2008) (emphasis added), we give
effect to the government’s waiver and proceed to the merits of Rios’s argument.
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“Mere disagreement with how the district court balanced the [section] 3553(a)
factors therefore is not a sufficient ground for finding an abuse of discretion.”
United States v. Halvon, 26 F.4th 566, 569 (2d Cir. 2022) (internal quotation marks
omitted). We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
Rios contends that the district court abused its discretion when it (1) relied
on putatively incorrect and incomplete information concerning COVID-19 at FCI
Fort Dix, the prison where he was then serving his sentence; (2) improperly
balanced the section 3553(a) factors; and (3) failed to consider a sentence reduction
less favorable than time served. We address each argument in turn.
First, Rios argues that the district court relied on information concerning the
prevalence of COVID-19 at Fort Dix that was both inaccurate and incomplete.
But beyond that conclusory assertion, Rios does not cite to anything relied on by
the district court to support his assertion. See United States v. Butler, 970 F.2d 1017,
1026 (2d Cir. 1992) (“If the defendant seeks decreased punishment, he or she has
the burden of showing that the circumstances warrant that decrease.”). Instead,
Rios’s argument hinges on information that, by his own admission, was
disseminated “subsequent to [the district court’s decision],” Rios Br. at 8, and
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therefore was not available to the district court at the time it ruled on his motion.
The district court’s inability to know this information cannot be considered error.
Moreover, the district court assumed for the sake of argument that there were
hundreds of active COVID-19 cases among inmates at Fort Dix and expressly
acknowledged that Rios’s risk of exposure to COVID-19 was substantially greater
in prison than it would be if he were released. The district court’s decision to
deny Rios’s motion turned not on a misunderstanding of the heightened risk of
exposure facing Rios at Fort Dix, but rather on its determination that the section
3553(a) factors outweighed those risks.
Second, Rios argues that the district court abused its discretion by focusing
too intently on the seriousness of his offense, while failing to give sufficient weight
to his medical conditions and rehabilitative efforts. But while we, like the district
court, applaud the positive steps Rios has taken while in prison, we cannot say
that the district court improperly exercised its broad discretion in denying release
to a defendant with a lengthy criminal record who served just 63 months of a 188-
month sentence, which itself was already 70 months below the bottom of the
applicable Guidelines range. See United States v. Verkhoglyad, 516 F.3d 122, 131 (2d
Cir. 2008) (explaining that “the weight . . . afforded [to] any [section] 3553(a) factor
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is a matter firmly committed to the discretion of the sentencing judge” (internal
quotation marks omitted)); Halvon, 26 F.4th at 571 (finding no abuse of discretion
in the denial of compassionate release where, as here, the district court
emphasized the seriousness of offense, the need to provide just punishment, and
the need to protect the public from further criminal conduct by the defendant).
Finally, Rios argues that the district court erred by considering his motion
for compassionate release in an all-or-nothing fashion, without recognizing the
possibility of granting a sentence reduction less favorable than time served. But
Rios points to nothing in the district court’s order that suggests a failure to
consider a lesser reduction in sentence. Moreover, it bears noting that Rios
himself requested that the court order his immediate release – without ever raising
the prospect of a more modest sentence reduction. Given the record before it, the
district court did not err in failing to sua sponte address and reject a request that
was never made.
We have considered Rios’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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