United States v. Michael Sarno ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1963
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL SARNO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cr-0115-3 — Ronald A. Guzman, Judge.
____________________
ARGUED MARCH 31, 2022 — DECIDED JUNE 21, 2022
____________________
Before MANION, HAMILTON, and BRENNAN, Circuit Judges.
MANION, Circuit Judge. Nearly halfway through a 25-year
prison term, federal inmate Michael Sarno moved for compas-
sionate release based on severe physical disabilities. The dis-
trict court assumed Sarno’s medical circumstances were ex-
traordinary and compelling but nevertheless denied the mo-
tion after finding numerous factors set out in 18 U.S.C.
§ 3553(a) weighed strongly against a sentence reduction.
Sarno contends the district court erred in weighing those
2 No. 21-1963
factors and failed to discuss evidence he submitted. He also
contends the inability to communicate with his attorney at a
critical point in proceedings prevented him from disputing
certain inaccurate government assertions. Finding no reason
to question the district court’s judgment, we affirm.
Sarno headed a criminal enterprise operating out of north-
ern Illinois for several years. The enterprise placed video gam-
bling machines in local bars and restaurants in an arrange-
ment that, contrary to the law, allowed patrons using the ma-
chines to take their winnings in cash. This illegal operation
was lucrative for Sarno. When a rival organization tried to
push into Sarno’s territory, he sent it a warning in the form of
a pipe bomb that exploded outside its headquarters. The en-
terprise also burglarized or robbed more than a dozen homes
and jewelry stores in Illinois, Indiana, and Wisconsin and traf-
ficked in the stolen property.
Eventually, the law caught up with Sarno. In December
2010, a jury found him guilty of conspiring to participate in
racketeering activity and of conducting an illegal gambling
business. See 18 U.S.C. §§ 1955, 1962. He was sentenced to 25
years in prison and ordered to pay nearly $1.8 million in res-
titution. We affirmed both the conviction and the sentence.
United States v. Volpendesto, 746 F.3d 273 (7th Cir. 2014).
Sarno filed the motion for compassionate release at issue
here in November 2020. Then 62 years old, his health had
steadily deteriorated over the previous six months. Severe os-
teoarthritis in his left shoulder and knee prevented him from
walking, bathing, dressing, or using the toilet on his own. He
would frequently fall when trying to transition into and out
of his wheelchair. This immobility compounded the disabling
effects of several other maladies, such as respiratory disease,
No. 21-1963 3
obesity, hypertension, and kidney dysfunction. On multiple
occasions, Sarno had to be transported to outside medical fa-
cilities for treatment of acute health problems.
The district court held two hearings and considered many
submissions from the parties. A week after Sarno’s last filing,
it ruled on the motion. The court assumed Sarno’s poor health
constituted an extraordinary and compelling reason to grant
compassionate release. Nevertheless, the court determined
early release would be inconsistent with the § 3553(a) factors.
Specifically, cutting Sarno’s sentence short would deprecate
the seriousness of his offenses, undermine respect for the law,
ignore his extensive criminal history, and pose a danger to the
public. Concluding that these factors weighed decisively
against releasing him, the district court denied Sarno’s mo-
tion. After the court declined to reconsider, Sarno brought this
appeal.
Generally, a federal court “may not modify a term of im-
prisonment once it has been imposed.” 18 U.S.C. § 3582(c). But
Congress has permitted early release if “extraordinary and
compelling reasons warrant … a reduction” in sentence.
§ 3582(c)(1)(A)(i). Such a motion for compassionate release
may be filed by a prisoner or by the Director of the Bureau of
Prisons. Id. When initiated by a prisoner, the motion “involves
a two-step inquiry: one, did the prisoner present an extraor-
dinary and compelling reason for release, and two, is release
appropriate under § 3553(a).” United States v. Kurzynowski,
17 F.4th 756, 759 (7th Cir. 2021). We review the original denial
of a compassionate-release motion, as well as the denial of a
motion to reconsider, for abuse of discretion. Id.; O'Donnell v.
Saul, 983 F.3d 950, 954 (7th Cir. 2020).
4 No. 21-1963
As the district court explained, the record amply supports
denial of Sarno’s motion for a sentence reduction. The factors
the court cited—seriousness of the crime, respect for the law,
criminal history, danger to the public—are all considerations
under § 3553(a) that militate against a defendant’s early re-
lease from prison.
Sarno criticizes the court’s assessment of some of these fac-
tors, but his arguments are meritless. He asserts the district
court, in finding he would continue to pose a danger to the
public, overlooked that his age and infirmity lessened the
likelihood of recidivism. But there was no oversight on this
issue. The court specifically noted Sarno did not personally
undertake the bombing or the robberies but “directed others
to do these things and received the benefit of their criminal
activities.” His current physical condition, the court con-
cluded, would not prevent him from returning to his old ways
and using subordinates to commit crimes. This reasoning
seems eminently sensible to us. Youth and vigor might have
been necessary for Bill Sikes and the Artful Dodger to ply
their trades, but Fagin could still run a criminal enterprise as
an old man.
Sarno similarly suggests the district court judged his crim-
inal history too harshly. He acknowledges the robberies and
the bombing but asserts he personally “did not harm any-
one.” Even if true, this is faint praise indeed. Sarno may not
have carried out these crimes, but he ordered the bombing
and exercised control over the robberies. Volpendesto, 746 F.3d
at 297. Illegal gambling, racketeering conspiracy, robbery,
and the use of explosives are all grave and violent crimes with
potentially deadly consequences for their victims. Sarno
played a central role in these illegal activities.
No. 21-1963 5
In addition to these crimes, the court considered Sarno’s
long career “entrenched in organized crime and its street
crews long before his conviction in this case.” His criminal
history spanned decades; it involved not only racketeering
conspiracy and running an illegal gambling business but also
predatory lending, extortion, and violent debt collection. Be-
fore being sentenced in this case, Sarno already had multiple
felony convictions. The district court’s assessment of these
matters was “well within the broad discretion a judge pos-
sesses under § 3582(c)(1).” United States v. Ugbah, 4 F.4th 595,
598 (7th Cir. 2021).
Next, Sarno objects to what the district court did not say.
During the hearings, the court expressed concern that, if re-
leased, the inability to find legitimate work coupled with sub-
stantial healthcare costs would tempt Sarno to resume his
criminal career. In response, Sarno detailed the health insur-
ance he would obtain upon release and informed the court
that a generous friend had offered to set up a trust that would
cover Sarno’s medical expenses for as long as necessary. In his
order denying compassionate release, however, the district
judge did not mention this issue or evidence.
A district court must provide “reasonable assurance that
it at least considered the prisoner’s principal arguments.”
United States v. Newton, 996 F.3d 485, 489 (7th Cir. 2021). This
does not mean the court’s opinion must address every issue
that arises in compassionate-release proceedings. See United
States v. Sanders, 992 F.3d 583, 588 (7th Cir. 2021). Instead, an
opinion is adequate when it reflects individualized assess-
ment of the prisoner’s circumstances and primary arguments
and makes the judge’s thinking clear. Newton, 996 F.3d at 491.
6 No. 21-1963
The district court’s opinion here did that. The court ac-
cepted (for argument’s sake) Sarno’s primary contention that
his medical condition met the statutory threshold for a sen-
tence reduction. The court then denied compassionate release
based on Sarno’s specific circumstances. The evidence Sarno
says the district court should have discussed concerned one
risk factor (financial pressure) relating to one aspect (likeli-
hood of recidivism) of one relevant factor under § 3553(a)
(protecting the public from further crimes by Sarno). If the
court had cited this risk factor to deny the motion while ig-
noring the rebuttal evidence offered, Sarno might have a
point. But the court didn’t do that. The issue’s omission from
the court’s ruling indicates that the judge ultimately did not
think it relevant to resolving the motion. “Federal law does
not contain a mandatory-dictum policy, under which a judge
must consider every possible issue.” Ugbah, 4 F.4th at 598. The
district court’s opinion satisfies us that it properly exercised
its discretion and considered all appropriate matters.
Sarno’s final argument is a procedural one that bundles
together the constitutional rights to confer with counsel and
to be heard in a meaningful way. During proceedings, the
government advised the district court that Sarno had been
transferred to the United States Medical Center for Federal
Prisoners in Springfield, Missouri (MCFP Springfield), where
he would receive round-the-clock nursing care and remain
until he was healthy enough to undergo knee-replacement
surgery. Sometime after the second hearing, Sarno’s counsel
learned he had been transferred temporarily from MCFP
Springfield to an outside medical facility for treatment.
Sarno’s attorney was not told where and was not able to speak
with him in the time leading up to the court’s April 14, 2021,
ruling.
No. 21-1963 7
Thus, while Sarno was held incommunicado, he could not
confer with his attorney to respond to the assertions in the
government’s April 7, 2021, memorandum. Sarno contends he
was denied the right to communicate with counsel about the
government’s new allegations and to respond to those allega-
tions before the court ruled on his motion.
This argument was not timely raised below. Sarno’s attor-
ney did not alert the district court to any problem contacting
his client until he moved for reconsideration. And even then,
the three-sentence assertion was underdeveloped. Nor did
counsel ask for a continuance. He responded to the govern-
ment’s April 7 memorandum that same day but never re-
quested a delay in proceedings until he could reach Sarno.
The response suggested another hearing only if the court still
questioned the information Sarno had already submitted.
Otherwise, counsel urged the court to grant the compassion-
ate-release motion.
An argument first raised or developed in a motion to re-
consider usually comes too late to preserve the issue for ap-
pellate review. Pole v. Randolph, 570 F.3d 922, 938 (7th Cir.
2009). At most, we would review an argument not presented
to the district court during § 3582(c) proceedings for plain er-
ror. See United States v. Williams, 32 F.4th 653, 655 (7th Cir.
2022). Under plain-error review, reversing the district court is
appropriate only if we find: (1) an error, (2) that is clear or
obvious under the law, (3) affects a prisoner’s substantial
rights, and (4) seriously impugns the fairness, integrity, or
public reputation of judicial proceedings. United States v.
Burns, 843 F.3d 679, 687 (7th Cir. 2016).
Initially, we have doubts whether the first two elements
are met in this context. Sarno does not assert a constitutional
8 No. 21-1963
right to appointed counsel; there is none in § 3582(c) proceed-
ings. United States v. Clayton, 811 F.3d 918, 921 (7th Cir. 2016).
Rather, he invokes the right to access the attorney he retained.
But although “an inmate’s opportunity to confer with counsel
is a particularly important constitutional right which the
courts will not permit to be unnecessarily abridged,” Dreher
v. Sielaff, 636 F.2d 1141, 1146 (7th Cir. 1980), preventing escape
and ensuring public safety “’are essential goals that may re-
quire limitation or retraction of the retained constitutional
rights of both convicted prisoners and pretrial detainees,’” id.at 1145–46 (quoting Bell v. Wolfish, 441 U.S. 520, 546–47 (1979)).
Sarno doesn’t dispute that the temporary inability to com-
municate with his attorney was predicated at least partially
on valid security concerns.
Moreover, “a § 3582(c)(2) motion does not require a do-
over of an original sentencing proceeding where a defendant
is cloaked in rights mandated by statutory law and the Con-
stitution.” United States v. Young, 555 F.3d 611, 614–15 (7th Cir.
2009) (internal quotation marks omitted). A district judge has
“considerable leeway in choosing how to adjudicate
§ 3582(c)(2) sentence-reduction motions.” Id. at 615. So,
whether the district court was obliged to explicitly invite
Sarno to respond to the government’s April 7 memorandum
before ruling on the motion is an unsettled question. See id.
(declining “to identify the minimum procedural protections
that are required in § 3582(c)(2) proceedings”).
But we need not resolve whether there was error here that
was clear or obvious. Under the third element of plain-error
review, a prisoner’s substantial rights were not affected un-
less he “can show a reasonable probability that, but for the
error, the outcome of the proceeding would have been
No. 21-1963 9
different.” Burns, 843 F.3d at 688 (internal quotation marks
omitted). In these circumstances, this means Sarno must show
a reasonable probability that, had he been able with counsel’s
assistance to respond meaningfully to the government’s April
7 assertions, the district court would have granted his com-
passionate-release motion.
We see no reasonable probability that the information or
arguments Sarno now proffers would have changed the dis-
trict court’s judgment if he had presented them below.
First, he challenges the government’s contention that
MCFP Springfield could adequately care for his medical
needs because, since arriving there, he was twice transferred
to outside facilities for treatment of acute problems (pneumo-
nia and suspected tuberculosis). It could be argued, as the
government does, that these transfers show MCFP Spring-
field is capable of ensuring Sarno receives all necessary med-
ical care. But even if the transfers suggest the inability to pro-
vide sufficient care for his chronic disabilities, the level of care
Sarno receives while incarcerated is relevant, if at all, to the
threshold question of whether extraordinary and compelling
reasons exist to justify a sentence reduction. The district court
assumed Sarno met that threshold but found § 3553(a) consid-
erations made reduction inappropriate. There is no reason to
think Sarno’s present contentions (of slightly worse medical
circumstances) might have changed the district judge’s mind.
See United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021)
(noting “courts are not compelled to release every prisoner
with extraordinary and compelling health concerns”).
Second, Sarno asserts spurious information provided by
the government led the district court to conclude wrongly
that he “remains in contact with and dependent upon
10 No. 21-1963
previous associates from his life of organized crime.” Sarno
disputes the extent to which the three individuals the govern-
ment and the court cited stayed in touch with him, deposited
money in his prison account, or had criminal records. We
agree the district court shouldn’t have assumed one individ-
ual (Sarno’s nephew by marriage) to be of unsavory character
simply because he is related to a convicted organized crime
boss. The other men, however, did contribute to Sarno’s
prison account and either had a criminal record or were reli-
ably implicated in Sarno’s illegal enterprise. In any event, this
was a relatively minor issue in the court’s analysis compared
to Sarno’s serious criminal history and danger to the public.
Even if the district judge accepted the more nuanced circum-
stances Sarno sketches, there is no reasonable basis to think
he would have granted compassionate release. Even “one
good reason for denying a compassionate-release motion suf-
fices,” United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022),
and here there were several. Thus, there was no plain error.
The district court did not abuse its discretion or otherwise
err in denying Sarno early release.
AFFIRMED