United States v. Robert Levine ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 21, 2021*
Decided January 21, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 20–1929
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v. No. 2:91 CR 3
ROBERT M. LEVINE, James T. Moody,
Defendant-Appellant. Judge.
ORDER
Robert Levine is a federal inmate serving a life sentence imposed about 30 years
ago for a triple murder-for-hire scheme. He hired a hitman who murdered Levine’s
brother and sister-in-law and attempted to murder his nephew. Levine asked the
district court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), citing his age
(78) and poor health. The district court denied the motion, finding that, despite his
advanced age and declining health, the factors under 18 U.S.C. § 3553(a)—the nature of
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20–1929 Page 2
the crime, need for deterrence, and desire to protect the public and promote respect for
the law—weighed against granting Levine compassionate release. Because the district
court did not abuse its discretion in denying the motion, we affirm.
Levine plotted the murder scheme in the late 1980s after he and his brother had
worked together in business. When his brother accused Levine of stealing business
funds, Levine hired a hitman to kill his brother, sister-in-law, and adult nephew. He
told the hitman to kill his nephew first, then his sister-in-law, and his brother last, so
that Levine would stand to inherit his brother’s entire estate. The hitman ambushed the
family in their home, pistol-whipped the nephew (who managed to escape), and then
shot and killed Levine’s brother and sister-in-law. After a year of investigation, Levine
anticipated that he would be indicted for the murders, so he fled and lived under
aliases for months. He eventually surrendered to authorities near the Mexican border.
Levine was convicted for his scheme in 1991. A jury found him guilty of four
counts of using interstate commerce to commit murder for hire, 18 U.S.C. § 1958, and
one count of conspiring to use interstate commerce for that purpose, 18 U.S.C. § 371.
The court sentenced him to life in prison. We affirmed the conviction and sentence on
direct appeal, see United States v. Levine, 5 F.3d 1100 (7th Cir. 1993), and denied Levine’s
motions for post-conviction relief. See Levine v. United States, 221 F.3d 941 (7th Cir. 2000);
United States v. Levine, 132 F.3d 37 (7th Cir. 1997) (unpublished).
Last February, Levine moved for compassionate release. He invoked 18 U.S.C.
§ 3582(c)(1)(A)(i), which permits such release for “extraordinary and compelling
reasons” after the court considers the factors under 18 U.S.C. § 3553(a). Levine offered
several reasons for his release: he is in his late seventies, has served nearly 30 years in
prison with no disciplinary record, and suffers from numerous medical maladies,
including advanced heart disease, Non-Hodgkin’s lymphoma (currently in remission),
and a chronic lung disease that may be cancerous. See U.S.S.G. § 1B1.13 App. Note
1(A)(ii). He later added that he faces extra risks should he contract COVID-19.
The district court denied Levine’s motion. First, it noted the circumstances that
the Sentencing Commission lists in U.S.S.G. § 1B1.13 and its accompanying policy
statement of “extraordinary and compelling reasons” for release. The court doubted but
assumed that Levine satisfied those reasons based on the “serious deterioration” in his
health, see id. App. Note 1(B), and the reduced risk that, at his age, he would endanger
society if released. See 18 U.S.C. § 3142(g). Yet the court found that the factors under
18 U.S.C. § 3553(a) weighed against release. It wrote that “[t]here are perhaps few
No. 20–1929 Page 3
crimes more offensive and heartbreaking than the murder of one’s own family
members.” The court also emphasized that Levine told his hitman to kill the family in
the order that would maximize his unlawful inheritance. “Further,” the court added,
“society would benefit from defendant continuing to serve his life sentence.” The
sentence would deter “others” from committing similar crimes and would protect the
public from Levine, who despite his physical inabilities remained “mentally capable.”
This concerned the court because “murder-for-hire requires little physical agility or
youth,” so Levine could commit “further horrific acts” or “torment” his nephew.
Finally, the court ruled, a life sentence would also “promote respect for the law”
because Levine “has failed to accept any responsibility for his actions.”
Levine appeals, arguing that the district court erred by denying his motion for
compassionate release. He repeats that his age (now 79), poor health, and the risks he
would face if he contracts COVID-19 qualify him for release. Levine also contends that
the district court erred when analyzing the § 3553(a) factors because it focused entirely
on the nature and circumstances of his offense. We review the district court’s decision
for abuse of discretion. United States v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020).
A district court may grant an inmate’s request for compassionate release if it
finds that “extraordinary and compelling reasons warrant such a reduction” after
considering applicable factors listed in § 3553(a). Id. (quoting 18 U.S.C. § 3582(c)(1)(A)).
But the district court need not have analyzed whether Levine’s circumstances satisfied
“extraordinary and compelling reasons” as defined by U.S.S.G. § 1B1.13. That guideline
applies to motions brought by the Director of the Bureau of Prisons. Because Levine,
rather than the Director, brought this motion, this guideline is not controlling. See Gunn,
980 F.3d at 1179. Nonetheless, the district court’s reference to that guideline is
inconsequential. The court assumed for purposes of its analysis that Levine’s conditions
qualified as extraordinary and compelling reasons for release under 18 U.S.C.
§ 3582(c)(1)(A)(i). Therefore, any argument that the court did not appropriately consider
Levine’s medical conditions or his increased risk should he contract COVID-19 fails.
The district court permissibly found that, even if Levine presented extraordinary
and compelling reasons for release, the § 3553(a) factors outweighed those reasons and
counseled against release. First, it reasonably explained that the nature of Levine’s
offenses—orchestrating the murder of family members, leaving his nephew parentless,
and scheming to maximize an ill-gotten inheritance—were among the most serious
known to the law. See 18 U.S.C. § 3553(a)(1). Second, contrary to Levine’s assertion, the
court did not consider only the seriousness his offenses. It also properly considered the
No. 20–1929 Page 4
need to deter “others” from committing similar crimes. See § 3553(a)(2)(B). And it
rightly considered the need to protect people from Levine himself. See § 3553(a)(2)(C).
Although it assumed that Levine’s physical condition might keep him from committing
violence personally, it worried that because he remained mentally able, he could still
commit “horrific acts” and “torment” his nephew. Finally, it properly found that a life
sentence was needed to promote respect for the law, as Levine still refused to accept
responsibility. See § 3553(a)(2)(A). Thus, in its discretionary balancing of these factors
against Levine’s health, the district court’s decision was reasonable.
Last, Levine argues that his case should be remanded and reassigned to another
district judge for a do-over because, he speculates, the district judge’s friendship with
the late Judge Lozano (who presided over Levine’s trial) influenced the decision to deny
the motion. But a friendly relationship is not “’compelling evidence’ of bias so that a
reasonable person would be convinced the judge is biased.” United States v. Modjewski,
783 F.3d 645, 649 (7th Cir. 2015) (quoting Grove Fresh Distribs., Inc. v. John Labatt, Ltd.,
299 F.3d 635, 640 (7th Cir. 2002)).
We have reviewed Levine’s other arguments, and none has merit.
AFFIRMED