United States v. Hime ( 2022 )

21-1524-cr
United States v. Hime
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 City of
3 New York, on the 27th day of October, two thousand twenty-two.
4
5 PRESENT:
6
7 AMALYA L. KEARSE,
8 MICHAEL H. PARK,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 United States of America,
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15 Appellee,
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17 v. 21-1524
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19 Brian Hime,
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21 Defendant-Appellant,
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23 Christopher Scott, AKA Peanut, Nicholas
24 VanValkenburgh, AKA Woody, AKA Wood,
25 AKA Woodcock,
26
27 Defendants.
28
29 _____________________________________
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1 FOR DEFENDANT-APPELLANT: Brian Hime, pro se,
2 Bradford, PA.
3
4 FOR APPELLEE: Nicolas Commandeur,
5 Thomas R. Sutcliffe,
6 Assistant United States
7 Attorneys, of counsel, for
8 Carla B. Freedman, United
9 States Attorney for the
10 Northern District of New
11 York, Syracuse, NY.
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14 Appeal from an order of the United States District Court for the Northern District of New
15 York (McAvoy, J.).
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
17 DECREED that the order of the district court is AFFIRMED.
18 Brian Hime pleaded guilty to offenses arising out of a drug-trafficking conspiracy. In
19 2014, he was sentenced to a mandatory minimum of 240 months’ imprisonment.
20 Hime moved in 2021 for compassionate release under 18 U.S.C. § 3582(c)(1)(A). The
21 district court denied the motion because, among other reasons, the 18 U.S.C. § 3553(a) factors
22 weighed against reducing Hime’s sentence. Hime appeals, proceeding pro se. We assume the
23 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
24 appeal.
25 “We typically review the denial of a motion for a discretionary sentence reduction for abuse
26 of discretion.” United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020). A district court
27 abuses its discretion if its ruling is based “on an erroneous view of the law or on a clearly erroneous
28 assessment of the evidence,” or if it has “rendered a decision that cannot be located within the
29 range of permissible decisions.” United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).
1 “[O]nce we are sure that the sentence resulted from the reasoned exercise of discretion, we must
2 defer heavily to the expertise of district judges.” United States v. Cavera, 550 F.3d 180, 193 (2d
3 Cir. 2008) (en banc).
4 Section 3582(c)(1)(A) provides that a district court “may reduce” a defendant’s “term of
5 imprisonment . . . after considering the factors set forth in section 3553(a),” if it finds that
6 “extraordinary and compelling reasons warrant such a reduction” and “that such a reduction is
7 consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
8 § 3582(c)(1)(A); United States v. Brooker, 976 F.3d 228, 235 (2d Cir. 2020). If a district court
9 appropriately determines that the § 3553(a) factors weigh against a sentence reduction, we may
10 affirm on that ground alone. See United States v. Keitt, 21 F.4th 67, 69 (2d Cir. 2021); see also
11 United States v. Green, 595 F.3d 432, 436 (2d Cir. 2010) (“[W]e may affirm a ruling on any ground
12 that is supported by the record.”).
13 We do so here. After careful review, we perceive no abuse of discretion in the district
14 court’s consideration of the § 3553(a) factors, which addressed the seriousness of the underlying
15 offense, Hime’s criminal history and background, the need to protect the public, and the deterrent
16 effect of the sentence imposed, among other considerations. In his primary argument to the
17 contrary, Hime points to comments by the district court at the original sentencing proceeding that,
18 in his view, suggest that the court would have sentenced him below 240 months if not for the
19 mandatory minimum. The district court had opined, however, only that the guidelines range, not
20 the mandatory minimum, was high. And when the district court expressed “hope” that Hime
21 could “get out before 20 years,” the court referred to the availability of good time credit. The
22 district court’s remaining commentary at Hime’s sentencing on the binding nature of mandatory
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1 minimum sentences does not, in context, undermine its discretionary denial of a later request for a
2 sentence reduction. 1
3 We have reviewed Hime’s remaining arguments and find them to be without merit. For
4 the foregoing reasons, the order of the district court is AFFIRMED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk of Court
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We note that, as an alternative ground for denying the motion, the district court consulted
the policy statement for compassionate release contained in U.S.S.G. § 1B1.13(2), determining
that Hime was a danger to the community. This Court made clear in Brooker, however, that
§ 1B1.13 does not apply to compassionate release motions brought by defendants, but only to
motions initiated by the Bureau of Prisons. See Brooker, 976 F.3d at 235–36. The error here,
however, was harmless because, as discussed above, the court was required by statute to
“consider[] the factors set forth in section 3553(a),” 18 U.S.C. § 3582(c)(1)(A), which include “the
need . . . to protect the public from further crimes of the defendant,” id. § 3553(a)(2)(C). See,
e.g., United States v. Seshan, 850 F. App’x 800, 802 n.1 (2d Cir. 2021) (summary order) (observing
that since danger to the community is a part of the § 3553(a) balancing, any error in consulting §
1B1.13 did not affect the defendant’s substantial rights).
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