21-1910-cr
United States v. Caraballo
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 1st day of December, two thousand twenty-two.
4
5 PRESENT: DENNIS JACOBS,
6 RAYMOND J. LOHIER, JR.,
7 ALISON J. NATHAN,
8 Circuit Judges.
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10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. No. 21-1910-cr
15
16 FRANK CARABALLO,
17
18 Defendant-Appellant.
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1 FOR DEFENDANT-APPELLANT: Frank Caraballo, pro se,
2 Tuscon, AZ
3
4 FOR APPELLEE: Joseph R. Perella, Assistant
5 United States Attorney
6 (Gregory L. Waples, Assistant
7 United States Attorney, on the
8 brief), for Nikolas P. Kerest,
9 United States Attorney for the
10 District of Vermont,
11 Burlington, VT
12 Appeal from order of the United States District Court for the District of
13 Vermont (Christina Reiss, Judge).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the order of the District Court is AFFIRMED.
16 Frank Caraballo, proceeding pro se, appeals from a July 23, 2021 order of
17 the United States District Court for the District of Vermont (Reiss, J.) denying his
18 motion for reconsideration and his supplemental motion for a reduction in
19 sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). In 2014 the District Court
20 sentenced Caraballo principally to 480 months’ imprisonment for drug- and
21 firearms-related offenses, including possessing a firearm in furtherance of a
22 drug-trafficking crime with death by murder resulting. In 2020 Caraballo moved
23 for a reduction in sentence, which the District Court denied. Caraballo then filed
24 a motion for reconsideration and a supplemental motion for a reduction in
2
1 sentence, both of which the District Court denied. We assume the parties’
2 familiarity with the underlying facts and the record of prior proceedings, to
3 which we refer only as necessary to explain our decision to affirm.
4 We review for abuse of discretion both the denial of a motion for a
5 reduction in sentence and the denial of a motion for reconsideration. See United
6 States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020); United States v. Moreno, 789
7 F.3d 72, 78 n.4 (2d Cir. 2015). To reduce a defendant’s term of imprisonment
8 under § 3582(c)(1)(A)(i), a district court must find that “extraordinary and
9 compelling reasons warrant such a reduction.” United States v. Halvon, 26 F.4th
10 566, 568 (2d Cir. 2022) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). Even if such reasons
11 exist, a district court “must also consider ‘the factors set forth in section 3553(a)
12 to the extent that they are applicable’ before it can reduce the defendant’s
13 sentence.” United States v. Jones, 17 F.4th 371, 374 (2d Cir. 2021) (quoting 18
14 U.S.C. § 3582(c)(1)(A)). A district court’s “reasonable evaluation” of the
15 section 3553(a) factors thus serves as an “alternative and independent basis for
16 denial of compassionate release.” Id. (quotation marks omitted).
17 Caraballo identifies several factors that he contends warrant a reduction in
18 his sentence. He primarily attacks his original sentence and also argues that, in
3
1 denying his initial and supplemental motions for a reduction in sentence, the
2 District Court erred by considering what he describes as “circumstantial
3 evidence” — including a recorded telephone call in which, according to the
4 District Court, Caraballo said that “if he got what he deserved in this case, it
5 would be the death penalty.” Gov’t App’x 226. Caraballo also argues that his
6 various health issues and the potential for an infectious outbreak at his prison
7 facility put him at risk of suffering serious complications from COVID-19. 1
8 Even assuming that, as the government conceded at the hearing on
9 Caraballo’s initial motion, Caraballo’s health issues qualified as an extraordinary
10 and compelling reason for reducing his sentence, the District Court’s reasonable
11 evaluation of the section 3553(a) factors provided an alternative and independent
12 basis in support of its decision to deny his motions. Caraballo was convicted of
13 possessing a firearm in furtherance of a drug-trafficking scheme with death by
14 murder resulting. As the District Court explained during Caraballo’s initial
15 compassionate release hearing, “[a] young woman was murdered . . . execution
16 style and left in the woods.” Gov’t App’x 190. In denying Caraballo’s motion for
1 Caraballo also argues that the District Court erred by concluding that it could not
reduce his sentence because he refused to receive his COVID-19 vaccine. Because he
was vaccinated while his appeal was pending, we need not consider this issue.
4
1 reconsideration and his supplemental motion for a reduction in sentence, the
2 District Court discussed the seriousness of Caraballo’s involvement in an
3 “execution-style killing,” the fact that he “was in our highest criminal history
4 category,” the risk that he posed to the public, and the “leniency built into” his
5 original sentence. Gov’t App’x 225-27. It also considered the extent of
6 Caraballo’s rehabilitation and his ability to participate in prison programs. Upon
7 review of the record, we conclude that the District Court adequately considered
8 the section 3553(a) factors and did not abuse its discretion in denying his
9 motions.
10 We have considered Caraballo’s remaining arguments and conclude that
11 they are without merit. For the foregoing reasons, the challenged order of the
12 District Court is AFFIRMED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk of Court
5