Full Opinion (html_with_citations)

21-13-cr
United States v. Keitt




                                  In the
            United States Court of Appeals
                         For the Second Circuit


                             August Term, 2021
                               No. 21-13-cr

                         UNITED STATES OF AMERICA,
                                  Appellee,

                                     v.

                JAYVON KEITT, AKA SEALED DEFENDANT 1,
                          Defendant-Appellant.



             Appeal from the United States District Court
                 for the Southern District of New York.
            No. 1:20-cr-00066-AT-1 — Analisa Torres, Judge.



                         ARGUED: NOVEMBER 30, 2021
                         DECIDED: DECEMBER 22, 2021

          Before: PARK, NARDINI, and MENASHI, Circuit Judges.



       Defendant Jayvon Keitt moved to reduce his 60-month
sentence to time served under
18 U.S.C. § 3582
(c)(1)(A). The United
States District Court for the Southern District of New York (Torres, J.)
denied Keitt’s motion, relying on the applicable factors listed in
18 U.S.C. § 3553
(a), including the seriousness of Keitt’s offense, the harm
it had caused his community, and the need to avoid unwarranted
sentencing disparities among similarly situated criminal defendants.
We AFFIRM, and hold that when a district court denies a defendant’s
motion under § 3582(c)(1)(A) in sole reliance on the applicable
§ 3553(a) factors, it need not also determine whether the defendant
has shown extraordinary and compelling reasons that might (in other
circumstances) justify a sentence reduction.


                          ADAM S. HOBSON, (David Abramowicz, on
                          the brief), Assistant United States Attorneys,
                          for Audrey Strauss, United States Attorney
                          for the Southern District of New York, New
                          York, NY, for Appellee.

                          MATTHEW J. GALLUZZO, Law Office of
                          Matthew Galluzzo PLLC, New York, NY,
                          for Defendant-Appellant.


PER CURIAM:

      Defendant Jayvon Keitt moved to reduce his 60-month

sentence to time served under
18 U.S.C. § 3582
(c)(1)(A), commonly

referred to as the compassionate release statute. In considering Keitt’s

motion, the district court recognized the health challenges he might

face from the COVID-19 pandemic while incarcerated.            Without



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expressing any view as to whether these circumstances might rise to

the level of “extraordinary and compelling reasons” that might

otherwise make him eligible for a sentence reduction, the court

denied Keitt’s motion based on the factors laid out in
18 U.S.C. § 3553
(a). The court declined to reduce Keitt’s sentence in light of the

seriousness of his offense, the harm it had caused his community, and

the need to prevent unwarranted sentencing disparities among

similarly situated criminal defendants—particularly because he had

received the minimum prison term provided by statute.

      We recently held in United States v. Jones,
17 F.4th 371
, 374 (2d

Cir. 2021), that a finding of extraordinary and compelling reasons is

necessary, but not sufficient, to grant a defendant’s motion for

compassionate release. Consistent with Jones, and with the decisions

of our sister Circuits, we today make clear that when a district court

denies a defendant’s motion under § 3582(c)(1)(A) in sole reliance on

the applicable § 3553(a) sentencing factors, it need not also determine




                                   3
whether the defendant has shown extraordinary and compelling

reasons that might (in other circumstances) justify a sentence

reduction. Applying that principle here, we AFFIRM.

 I.   BACKGROUND

      On May 2, 2019, Keitt was arrested on a criminal complaint,

filed in the United States District Court for the Southern District of

New York, charging him with one count of conspiring to distribute

and possess with intent to distribute at least 280 grams of crack

cocaine base and at least 40 grams of fentanyl, in violation of
21 U.S.C. §§ 841
(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846. On January 24, 2020,

pursuant to a written plea agreement, Keitt pled guilty to a one-count

information charging him with conspiring to distribute and possess

with intent to distribute 28 grams or more of crack cocaine in violation

of
21 U.S.C. §§ 841
(a)(1), 841(b)(1)(B), and 846.        Keitt and the

Government stipulated that 70 to 87 months of imprisonment was the

properly calculated advisory range under the U.S. Sentencing




                                   4
Guidelines. Under § 841(b)(1)(B), the mandatory minimum term of

imprisonment was 60 months.

      On August 6, 2020, the district court (Annalisa Torres, J.)

sentenced Keitt to a below-Guidelines sentence of 60 months in

prison. The district court acknowledged the seriousness of Keitt’s

crime and his extensive criminal history, including his regular sale of

large quantities of dangerous drugs over an extended period. But

given all the circumstances—namely, Keitt’s young age, difficult

upbringing, history of asthma, gall bladder infection, and detention

during the COVID-19 pandemic—the district court concluded at

sentencing that a downward variance to 60 months was appropriate.

      Keitt did not appeal his sentence, and understandably so: he

had received the lowest prison term authorized by his statute of

conviction. Instead, three days later, on August 9, 2020, he submitted

a request for compassionate release to the Federal Bureau of Prisons

(the “BOP”). While awaiting a response from prison authorities, on




                                  5
December 2, 2020—less than four months after the sentence was

imposed 1—Keitt filed a motion in the district court to reduce his

sentence to time served under
18 U.S.C. § 3582
(c)(1)(A). Keitt argued

that due to his asthma, he faced a heightened risk of serious illness if

he contracted COVID-19, and thus extraordinary and compelling

reasons justified his release.        He also argued that the “BOP’s

restrictions to curb the spread of the coronavirus have led to harsh

lockdowns, restrictions on movement between jails, and have all but

eliminated educational and other program[m]ing opportunities,”

making his ability to participate in drug treatment programs

uncertain. Joint App’x at 105–06.

       On December 17, 2020, the district court denied Keitt’s motion.

After considering the applicable factors listed in § 3553(a), the district




       1Keitt qualified for statutory credit for the time he spent in detention
from the time of his arrest on May 2, 2019, up until his sentencing on August
6, 2020. See
18 U.S.C. § 3585
(b) (“A defendant shall be given credit toward
the service of a term of imprisonment for any time he has spent in official
detention prior to the date the sentence commences.”).



                                      6
court concluded that a reduction in Keitt’s sentence was not justified.

The district court explained that the defendant had sold a large

amount of dangerous drugs, and that he did so as a gang member.

The seriousness of his crime, and the harm it had caused the

community, pointed to the need for a substantial sentence to promote

respect for the law and to provide just punishment.         The court

observed that Keitt’s early release—after he had served only about

one-third of his prison term—would undermine those interests. The

court also explained that because Keitt’s five-year sentence was

mandated by statute, granting his request for release “would risk

creating a substantial and unwarranted sentencing disparity between

Keitt and other defendants convicted of the same offense under

similar circumstances.”
Id. at 119
. And while the district court

acknowledged Keitt’s asthma and the severe effects that COVID-19

can have even for young and healthy people, it did not make any

finding as to whether those health risks constituted “extraordinary




                                  7
and compelling circumstances.”         Instead, it relied only on the

§ 3553(a) factors to deny Keitt’s motion.

       On appeal, Keitt raises two arguments. First, he contends that

the district court erred in failing to conclude that extraordinary and

compelling circumstances justified his release—namely, that his

preexisting health condition of asthma exposes him to potentially

serious consequences from being incarcerated during the COVID-19

pandemic, and that the district court failed to consider the dangers

existing at his particular prison. Second, Keitt argues that the district

court “failed to consider several relevant factors set forth in
18 U.S.C. § 3553
(a).”   Appellant Br. at 13.      As explained below, neither

argument has merit.

 II.   DISCUSSION

       Section 3582(c)(1)(A) authorizes a court to reduce a previously

imposed term of imprisonment upon finding that “extraordinary and

compelling reasons warrant such a reduction.”                18 U.S.C.




                                   8
§ 3582(c)(1)(A)(i). A court deciding a compassionate release motion

can consider “the full slate of extraordinary and compelling reasons

that an imprisoned person might bring before [it].” United States v.

Brooker,
976 F.3d 228
, 237 (2d Cir. 2020).        But there are three

requirements that must be satisfied before a court can grant such

relief. First, absent waiver or forfeiture by the government, an inmate

must exhaust administrative remedies by requesting such relief from

prison authorities. Specifically, an inmate may ask the sentencing

court to consider reducing a sentence only “after the defendant has

fully exhausted all administrative rights to appeal a failure of the

Bureau of Prisons to bring a motion on the defendant’s behalf or the

lapse of 30 days from the receipt of such a request by the warden of

the defendant’s facility, whichever is earlier.”
18 U.S.C. § 3582
(c)(1)(A); see also United States v. Saladino,
7 F.4th 120
, 124 (2d

Cir. 2021) (holding that the government may waive or forfeit the

exhaustion requirement). Second, a court must “consider[] the factors




                                   9
set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable.”
18 U.S.C. § 3582
(c)(1)(A); see Jones, 17 F.4th at 374–75. Section 3553(a),

in turn, lists numerous factors a court must review when imposing a

sentence. These include, as most relevant here, “the nature and

circumstances of the offense and the history and characteristics of the

defendant”; “the need for the sentence imposed . . . to reflect the

seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense”; “the need for the sentence

imposed . . . to provide the defendant with . . . correctional treatment

in the most effective manner”; and “the need to avoid unwarranted

sentence disparities among defendants with similar records who have

been found guilty of similar conduct.”
18 U.S.C. § 3553
(a). Third, the

inmate must demonstrate that his proffered circumstances are indeed

“extraordinary and compelling” such that, in light of these § 3553(a)

factors, a sentence reduction is justified under § 3582(c)(1)(A) and

would not simply constitute second-guessing of the sentence




                                    10
previously imposed. 2

      “We typically review the denial of a motion for a discretionary

sentence reduction for abuse of discretion.” United States v. Holloway,
956 F.3d 660
, 664 (2d Cir. 2020). “A district court has abused its

discretion if it has (1) based its ruling on an erroneous view of the law,

(2) made a clearly erroneous assessment of the evidence, or (3)

rendered a decision that cannot be located within the range of

permissible decisions.” Saladino, 7 F.4th at 122 (emphasis omitted)

(quoting Warren v. Pataki,
823 F.3d 125, 137
 (2d Cir. 2016)).

      The district court did not abuse its discretion when it declined

to reduce Keitt’s sentence under
18 U.S.C. § 3582
(c)(1)(A).         First,

contrary to Keitt’s assertion, the district court recognized the health

challenges stemming from his particular circumstances. The court



      2 The statute sets out a fourth requirement: that the “reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.”
18 U.S.C. § 3582
(c)(1)(A). We have held that, at present, the
policy statement governing compassionate release—U.S.S.G. § 1B1.13—
governs only motions brought by the Director of the Bureau of Prisons, not
those brought directly by inmates. See Brooker, 976 F.3d at 236–37.



                                   11
noted that Keitt was “twenty-one years old” and “ha[d] a history of

childhood asthma,” and acknowledged that it “d[id] not disregard

Keitt’s asthmatic condition, or the risk he might face should he

contract COVID-19.” Joint App’x at 116, 119. It went on to note that

although Keitt’s “young age and the apparently mild nature of his

asthma may place him outside of the most acutely vulnerable

group . . . the novel coronavirus can have devastating effects on even

young and healthy individuals.” Id. at 119. The record therefore

belies any suggestion that the district court failed to take account of

Keitt’s personal circumstances. 3



      3 Contrary to Keitt’s argument, the district court was not required to
consider the specific conditions of confinement at FCI Schuylkill, Keitt’s
designated place of incarceration. Keitt, who was still housed at the
Brooklyn Metropolitan Detention Center when he filed his motion, did not
provide the district court with any information concerning the conditions
of confinement at FCI Schuylkill. Rather, he argued in general terms that
the BOP is ill-equipped to care for inmates like Keitt whose health
conditions put them at particular risk for COVID-19. The district court did
not abuse its discretion by not considering facts or arguments that Keitt
failed to present, and the record does not reflect any new confinement
conditions at FCI Schuylkill that would require reversal of the district
court’s decision.



                                    12
      Second, the district court did not abuse its discretion in

concluding that, in light of the applicable § 3553(a) factors, it would

not reduce Keitt’s sentence. The court noted that Keitt had sold a

large quantity of dangerous drugs over an extended period as part of

his membership in a gang, and it determined that the nature and

circumstances of the offense required “a substantial sentence . . . to

promote respect for the law and to provide just punishment.” Id. at

118. The court also noted that Keitt’s 60-month sentence had resulted

from a mandatory minimum set by statute. As a result, reducing his

sentence could have created an unwarranted sentencing disparity

between Keitt and similar defendants convicted of the same offense—

and Congress expressly instructed courts to consider the need to

avoid such a disparity,
18 U.S.C. § 3553
(a)(6). We see no abuse of

discretion in the district court’s careful review of the relevant

§ 3553(a) factors and its conclusion that they militate against a

sentence reduction here. See United States v. Verkhoglyad,
516 F.3d 122
,




                                  13
131 (2d Cir. 2008) (“[T]he weight to be afforded any § 3553(a) factor is

a matter firmly committed to the discretion of the sentencing

judge . . . .” (cleaned up)).

       We also reject Keitt’s argument that the district court failed to

consider, as part of its § 3553(a) analysis, the effect of COVID-19-

related lockdowns on the rehabilitative services offered by the BOP.

At sentencing—just months before deciding his motion for

compassionate release—the court stated that it “fully recognize[d]

and consider[ed] the conditions” stemming from the COVID-19

pandemic that Keitt “experienced in jail while awaiting sentencing

and will experience in person while in prison postsentencing.” Joint

App’x at 96. The record therefore demonstrates that the district court

was well aware of these lockdowns and had already accounted for

them when it imposed Keitt’s below-Guidelines sentence of 60

months. Indeed, it would have been most unusual if the district

court’s analysis of the § 3553(a) factors had been markedly different




                                   14
after such a short period of time. Moreover, we cannot fault the

district court for failing to recite all of the facts that Keitt had

discussed in his motion. We have never required a district court to

“address every argument the defendant has made or discuss every

§ 3553(a) factor individually.” United States v. Rosa,
957 F.3d 113
, 119

(2d Cir. 2020) (quoting United States v. Villafuerte,
502 F.3d 204, 210
 (2d

Cir. 2007)).

      Finally, it is true that in deciding Keitt’s motion for

compassionate release, the court did not determine whether his

proffered circumstances rose to the level of extraordinary and

compelling reasons. Instead, it denied relief solely in light of the

§ 3553(a) factors. That was not an error. As we explained above, a

court may reduce a sentence under § 3582(c)(1)(A) only if three

conditions are in place: administrative exhaustion (absent waiver or

forfeiture by the government); satisfaction of the § 3553(a) factors; and

extraordinary and compelling reasons. It follows that if a district




                                    15
court determines that one of those conditions is lacking, it need not

address the remaining ones.                 See Jones, 17 F.4th at 374

(“[E]xtraordinary and compelling reasons are necessary—but not

sufficient—for a defendant to obtain relief under § 3582(c)(1)(A).”).

We therefore hold that when a district court denies a defendant’s

motion under § 3582(c)(1)(A) in sole reliance on the applicable

§ 3553(a) sentencing factors, it need not determine whether the

defendant has shown extraordinary and compelling reasons that

might (in other circumstances) justify a sentence reduction. 4 The


       4  In reaching this conclusion, we join our sister Circuits that have
similarly held that a district court may rely solely on the § 3553(a) factors
when denying a defendant’s motion for compassionate release. See, e.g.,
United States v. Saccoccia,
10 F.4th 1
, 8 (1st Cir. 2021) (affirming the denial of
compassionate release without deciding whether there were extraordinary
and compelling reasons for a sentence reduction); United States v. Elias,
984 F.3d 516
, 519 (6th Cir. 2021) (“[D]istrict courts may deny compassionate-
release motions when any of the three prerequisites listed in § 3582(c)(1)(A)
is lacking and do not need to address the others.”); United States v. Keller,
2 F.4th 1278
, 1284 (9th Cir. 2021) (“[A]lthough a district court must perform
this sequential inquiry[—regarding whether extraordinary and compelling
reasons warrant a sentence reduction and accounting for the § 3553(a)
factors—]before it grants compassionate release, a district court that
properly denies compassionate release need not evaluate each step.”); United
States v. McGee,
992 F.3d 1035
, 1043 (10th Cir. 2021) (agreeing with the Sixth



                                       16
district court therefore did not abuse its discretion in denying Keitt’s

motion to reduce his sentence.

III.   CONCLUSION

       To summarize, we hold as follows:

   (1) When a district court denies a defendant’s motion under
18 U.S.C. § 3582
(c)(1)(A) in sole reliance on the applicable

       § 3553(a) sentencing factors, it need not determine whether the

       defendant has shown extraordinary and compelling reasons

       that might (in other circumstances) justify a sentence reduction.

   (2) The district court did not abuse its discretion in declining to

       reduce the defendant’s sentence in light of the applicable

       § 3553(a) factors in the case.



Circuit’s holding that “district courts may deny compassionate-release
motions when any of the three prerequisites listed in § 3582(c)(1)(A) is
lacking and do not need to address the others” (quoting Elias, 984 F.3d at
519)); United States v. Tinker,
14 F.4th 1234
, 1240 (11th Cir. 2021) (“[A] district
court doesn’t procedurally err when it denies a request for compassionate
release based on the § 3553(a) sentencing factors . . . without first explicitly
determining whether the defendant could present ‘extraordinary and
compelling reasons.’”).



                                        17
      For the foregoing reasons, we AFFIRM the district court’s

order denying Keitt’s motion for compassionate release.




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