United States v. Daniel DiBiase ( 2021 )

20-3341-cr
United States v. Daniel DiBiase
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
27th day of August two thousand twenty-one.
Present: ROSEMARY S. POOLER,
DENNY CHIN,
RAYMOND J. LOHIER,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 20-3341-cr
DANIEL DIBIASE,
Defendant-Appellant. 1
_____________________________________________________
Appearing for Appellant: Casey Ellen Donnelly, Willkie Farr & Gallagher LLP, New York,
N.Y.
Appearing for Appellee: Mathew Andrews, Assistant United States Attorney (Karl Metzner,
Assistant United States Attorney, on the brief), for Audrey Strauss,
United States Attorney for the Southern District of New York,
New York, N.Y.
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The Clerk of Court is respectfully directed to amend the caption as set forth above.
Appeal from the United States District Court for the Southern District of New York
(Ramos, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
Daniel DiBiase appeals from an order dated September 14, 2020, of the United States
District Court for the Southern District of New York (Ramos, J.) denying his motion for
compassionate release. DiBiase received a sentence of 144 months’ imprisonment for his
violation of 18 U.S.C. §1962(d). We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.
DiBiase argues the district court abused its discretion in finding that despite the existence
of an extraordinary and compelling basis for a sentence reduction—the increased risk DiBiase
faces from COVID-19 in light of his medical conditions—the need for the sentence to promote
deterrence and reflect the seriousness of the offense required DiBiase’s continued incarceration.
DiBiase also argues that the district court erred in finding that it lacked the power to order him to
serve the remainder of his sentence in home confinement. We find no abuse of discretion on the
first issue, and no error of law on the second.
A district court has the power to reduce a sentence upon a defendant’s motion “if it finds
that . . . extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §
3582(c)(1)(A). If it finds these extraordinary and compelling reasons, the district court may
reduce the sentence “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent
they are applicable.” Id. “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) (citation and bracket omitted). For questions of the appropriate balancing of the
Section 3553(a) factors, we provide wide latitude to district courts. See United States v. Cavera,
550 F.3d 180, 189 (2d Cir. 2008) (“[W]e will not substitute our own judgment for the district
court’s on the question of what is sufficient to meet the §3553(a) considerations in any particular
case.”).
The district court provided reasoned grounds for declining to reduce DiBiase’s sentence.
The district court noted that despite the extraordinary and compelling basis for the request,
DiBiase was involved in 27 home burglaries, including five that were at gunpoint, and victims
spoke out against any potential release. The goals of deterrence are particularly relevant in a case
such as this one, where the defendant has already been convicted of similar conduct and
reoffends. DiBiase identifies several district courts that have granted release to inmates based on
the conditions of incarceration during the COVID-19 pandemic, but this is precisely the type of
discretionary calculus that the sentencing structure leaves to district courts. As the government
notes, many district courts have denied compassionate release motions in similar cases involving
dangerous felonies. The district court acknowledged the exceptional circumstances of the
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pandemic health risks and properly balanced them against the need for deterrence and to reflect
the seriousness of the crime.
DiBiase argues that the district court improperly failed to consider his role as the getaway
driver in these burglaries as supporting leniency. He cites two district court cases where judges
found that an individual who did not engage in the physical robbery was entitled to some
leniency based on that fact and granted compassionate release motions. However, neither of
these individuals resemble DiBiase in any way. In United States v. Pena, the defendant had
minimal criminal history with no violent offenses, was suffering from substance abuse problems
arising from the death of his son, and planned a single robbery. 459 F. Supp. 3d 544, 550, 552
(S.D.N.Y. 2020). In United States v. Adeyami, the defendant was 19-years old, had no criminal
history, and did not participate in a crime that caused physical harm to anyone. 470 F. Supp. 3d
489, 493-94 (E.D. Pa. 2020). By contrast, DiBiase was in his fifties, participated in 27 burglaries,
several of which involved physical assaults, threats of murder and rape, and collectively resulted
in the theft of over $2.5 million in stolen goods. DiBiase acknowledges that many defendants
have failed to obtain release despite the pandemic but suggests these were individuals who still
posed a danger to the community or played leading roles in criminal enterprises, and he is
distinguishable. As one of the principal participants in this string of burglaries, DiBiase was
involved in exceptionally violent conduct and played a leading role in a dangerous criminal
enterprise.
DiBiase also argues that the district court erred in holding that it lacked the power to
order that he serve the remainder of his sentence in home confinement. This Court has not
determined whether a district court has the power to order a defendant to serve his term of
imprisonment in home confinement. Other Circuits, however, have held that this power rests
solely with the Bureau of Prisons (“BOP”). See, e.g., United States v. Houck, 2 F.4th 1082, 1085
(8th Cir. 2021). Indeed, the Supreme Court has recognized that the power to determine a
prisoner's place of imprisonment “rests with the BOP.” Tapia v. United States, 564 U.S. 319, 331
(2011).
In his motion below, DiBiase explicitly asked the district court “for an order shortening
his current prison release date of January 7, 2023 to time served, or alternatively to order that he
serve out the remainder of his sentence on home confinement.” App’x at 40. This motion seeks
an order either (1) reducing DiBiase’s sentence to time served; or (2) allowing DiBiase to serve
his term of imprisonment in home confinement. It does not request an order imposing home
confinement as a condition of his supervised release after he serves his sentence. On appeal,
DiBiase elides this distinction and seeks an order granting his release and then imposing a
supervised release condition of home confinement. This is a different request, which the district
court would have the power to grant. However, the district court would first have to reduce the
term of imprisonment, and it explicitly declined to take this step. The district court committed no
error in considering a motion for an alternative order as seeking a redesignation rather than a
resentencing and denying this request.
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We have considered the remainder of DiBiase’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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