United States v. Zayac

22-1425
United States v. Zayac
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 9th day of November, two thousand twenty-three.
Present:
José A. Cabranes,
Robert D. Sack,
Myrna Pérez,
Circuit Judges.
United States of America,
Appellee,
v. No. 22-1425
Heriberto Gonzalez, AKA Eddie, AKA Pablo,
Defendant,
Andrew Zayac,
Defendant - Appellant.
For Appellee: ROBERT S. DEARINGTON, Assistant United States
Attorney, for Vanessa Roberts Avery, United States
Attorney for the District of Connecticut, New Haven,
Connecticut.
For Defendant-Appellant: ANDREW J. FRISCH, The Law Offices of Andrew J.
Frisch, PLLC, New York, New York.
Appeal from the United States District Court for the District of Connecticut (Janet C. Hall,
Judge).
Petitioner Andrew Zayac appeals the district court’s judgment denying a motion for
compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Upon due consideration, it is
hereby ORDERED that the judgment of the district court is AFFIRMED.
The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, (the “First Step Act”)
expanded the process for requesting a modification of a sentence by allowing any incarcerated
person in the federal Bureau of Prisons (the “Bureau”) to file a district court motion seeking to
“reduce the term of imprisonment” after they have exhausted administrative remedies with the
Bureau. 18 U.S.C. § 3582(c)(1)(A). The district court may grant the motion for one of two
reasons, only one of which is at issue in this case: if “extraordinary and compelling reasons warrant
such a reduction.” Id. § 3582(c)(1)(A)(i). Our court has held that “the First Step Act free[s]
district courts to exercise their discretion in determining what are extraordinary circumstances.”
United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020).
The inquiry does not end with the “extraordinary and compelling reasons” analysis. “[A]
finding of extraordinary and compelling reasons is necessary, but not sufficient, to grant a
defendant’s motion for compassionate release.” United States v. Keitt, 21 F.4th 67, 69 (2d Cir.
2
2021) (emphasis in original) (quoting United States v. Jones, 17 F.4th 371, 374 (2d Cir. 2021)).
The district court must also “consider[] the factors set forth in [18 U.S.C. §] 3553(a) to the extent
that they are applicable.” Keitt, 21 F.4th at 71 (brackets in Keitt) (quoting 18 U.S.C.
§ 3582(c)(1)(A)).
Because of the wide discretion the First Step Act vests in district courts, “[w]e typically
review the denial of a motion for a discretionary sentence reduction for abuse of discretion.”
Keitt, 21 F.4th at 71 (quoting United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020)).
We cannot say that in this case the district court abused its discretion in rejecting all three
reasons for release that Mr. Zayac alleged were “extraordinary and compelling” under § 3582.
First, the district court declined to consider the sentencing disparity between Mr. Zayac and his
co-defendant, because Mr. Zayac was convicted of kidnapping resulting in death and felony
murder, whereas a separate jury acquitted his co-defendant of all of the more serious charges
against the two. Second, the district court noted that Mr. Zayac is now vaccinated against Covid-
19, which weighed against concluding that Covid-19 and its implications for his incarceration were
a compelling reason for release. And finally, the district court recognized Mr. Zayac’s attempts
at rehabilitation as compelling but weighed his evidence against a series of disciplinary tickets he
accrued in prison. Even if the district court erred in its evaluation of these relatively de minimis
disciplinary infractions, the Second Circuit has held that “[t]he only statutory limit on what a court
may consider to be extraordinary and compelling is that ‘rehabilitation . . . alone shall not be
considered an extraordinary and compelling reason.’” Brooker, 976 F.3d at 237–8 (some
alterations in Brooker) (quoting 28 U.S.C. § 994(t)).
3
Because we cannot say the district court abused its discretion when weighing Mr. Zayac’s
evidence and ultimately denying his motion for compassionate release, we affirm the judgment of
the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4