United States v. Star ( 2022 )

20-1999(L)
United States v. Star
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 16th day of June, two thousand twenty-two.
PRESENT: JON O. NEWMAN,
JOSÉ A. CABRANES,
JOSEPH F. BIANCO,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 20-1999(L)
20-2043(Con)
v.
JOHN STAR,
Defendant-Appellant,
AKIN AYORINDE, HERVIN HENRY, ANTHONY ONUA,
UMANA OTON, MAX SHIMBA, ANTHONY SUAZO,
AKA HECTOR SUAZO, MARISOL VASQUEZ, MOISES
VASQUEZ, JOSE VASQUEZ,
Defendants. *
*
The Clerk of the Court is directed to amend the caption as set forth above.
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FOR APPELLEE: Jo Ann M. Navickas, William P. Campos,
Assistant United States Attorneys, for
Breon Peace, United States Attorney,
Eastern District of New York, Brooklyn,
NY.
FOR DEFENDANT-APPELLANT: John Star, pro se, Forrest City, AR.
Appeal from an order of the United States District Court for the Eastern District of New
York (I. Leo Glasser, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
John Star pleaded guilty to one count of conspiracy to commit bank and wire fraud, see 18
U.S.C. § 1349; see also id. §§ 1343, 1344, and one count of bail jumping, see id. § 3146, and was
sentenced principally to 120 months’ imprisonment. The District Court denied Star’s motion for
compassionate release and his request for a continuance to have counsel appointed, holding that the
COVID-19 pandemic and Star’s medical conditions were not “extraordinary and compelling
reasons” for his release. Id. § 3582(c)(1)(A)(i). We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
The District Court did not abuse its discretion in denying Star’s motion. See United States v.
Jones, 17 F.4th 371, 374 (2d Cir. 2021) (per curiam) (noting the applicable standard of review, and
that a district court may “end its analysis if it determines that extraordinary and compelling reasons
for granting the motion are absent”). The actual severity of Star’s medical conditions is unclear
because he provided no records. See United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992) (“A
party with an affirmative goal and presumptive access to proof on a given issue normally has the
burden of proof as to that issue,” including where a “defendant seeks decreased punishment.”). Nor
did Star show that his prison had a significant problem with COVID-19; to the contrary, the
Government reported that there were no cases of infection at the time of Star’s compassionate
release motion. See Jones, 17 F.4th at 375 (finding no abuse of discretion where the severity of the
prisoner’s medical condition was “open to question” in a prison with “few confirmed COVID-19
cases”).
The District Court likewise did not abuse its discretion in denying a continuance. United
States v. O’Connor, 650 F.3d 839, 854 (2d Cir. 2011) (noting the applicable standard of review). Star
had no right to appointed counsel, see United States v. Fleming, 5 F.4th 189, 192 (2d Cir. 2021); rather,
it was left to the District Court’s discretion, based in large part on the merit of the case, see United
States v. Reddick, 53 F.3d 462, 465 & n.2 (2d Cir. 1995) (stating that, in determining whether to
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appoint counsel, the merits of a § 3582 motion are a “significant factor”). Star did not show that
appointment of counsel was warranted. Nor does the record support Star’s claim that he secured
pro bono counsel who was denied an opportunity to speak on his behalf.
Finally, although both parties have briefed arguments regarding the District Court’s order
denying 28 U.S.C. § 2255 relief, Star did not designate this order in his Notice of Appeal, and it is
therefore not before the Court. See Fed. R. App. P. 3(c)(1)(B) (a notice of appeal must “designate
the judgment—or the appealable order—from which the appeal is taken”); Rana v. Islam, 887 F.3d
118, 121 (2d Cir. 2018) (noting that this requirement is jurisdictional for pro se appellants).
We have reviewed all of the remaining arguments raised by Star on appeal and find them to
be without merit. For the foregoing reasons, we AFFIRM the June 4, 2020, order of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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