United States v. McLean

• Court: Court of Appeals for the Second Circuit
• Decided: November 29, 2023
• Docket: 22-966
• Status: Unpublished

Opinion

22-966(L) United States v. McLean 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 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, 3 in the City of New York, on the 29th day of November, two thousand twenty-three. 4 5 PRESENT: 6 GERARD E. LYNCH, 7 MICHAEL H. PARK, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 22-966(L), 17 22-1176(CON), * 18 Lenroy McLean, AKA Dean, Milton Samuels, 22-1180(CON) 19 AKA Scooby, 20 Defendants-Appellants, 21 22 Roberto Sanchez, Gabrielle Cohen-Sanchez, 23 Wayne Mauricio Burke, AKA Enrique Nunes 24 Arce, AKA Mauricio, Joseph Rivera, Robert 25 Calcano, AKA Ralph, 26 27 Defendants. 28 _____________________________________

* 22-1176 (Con) and 22-1180 (Con) were determined by order filed on October 13, 2022. 1 FOR APPELLEE: Michael D. Lockard and Stephen J. 2 Ritchin, and Danielle R. Sassoon, 3 Assistant United States Attorneys, 4 for Damian Williams, United 5 States Attorney for the Southern 6 District of New York, New York, 7 NY. 8 9 FOR DEFENDANT-APPELLANT: Lenroy McLean, pro se, 10 Seagoville, TX. 11

12 Appeal from an order of the United States District Court for the Southern District

13 of New York (Sullivan, J.).

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

15 AND DECREED that the order of the district court is AFFIRMED.

16 Pro se Appellant Lenroy McLean appeals the district court’s denial of his 18 U.S.C.

17 § 3582(c)(1)(A) motion for a sentence reduction. McLean is currently serving a 228-

18 month sentence for participating in a narcotics conspiracy that resulted in the distribution

19 of over 150 kilograms of cocaine. See United States v. Sanchez, 419 F. App’x 27 (2d Cir.

20 2011) (discussing the background of the case on direct appeal). In his motion, McLean

21 argued that his health conditions, the COVID-19 pandemic, his rehabilitation, his post-

22 release plan, and the time he has already served warranted a sentence reduction. The

23 district court denied his motion, reasoning that the severity of his offense, and the need for

24 the sentence imposed to reflect that severity and provide a deterrent effect, outweighed the

25 factors that might otherwise support a reduction. See United States v. McLean, No. 08-

26 CR-789-7, 2022 WL 1125946, at *5–6 (S.D.N.Y. Apr. 15, 2022). McLean now appeals, 2 1 claiming that the district court abused its discretion in denying his motion. He contends

2 that the district court incorrectly applied the § 3553(a) sentencing factors, failed to

3 adequately consider his rehabilitation, family, and immigration status, and improperly

4 considered his failure to accept responsibility or express remorse. We assume the parties’

5 familiarity with the remaining underlying facts, the procedural history, and the issues on

6 appeal.

7 We review a denial of compassionate release for abuse of discretion. See United

8 States v. Keitt, 21 F.4th 67, 71 (2d Cir. 2021). “A district court has abused its discretion

9 if it has (1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous

10 assessment of the evidence, or (3) rendered a decision that cannot be located within the

11 range of permissible decisions.” Id. The district court’s discretion here is “broad,” as it

12 is in “all sentencing matters.” United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020).

13 A motion under § 3582(c)(1)(A) must demonstrate both extraordinary and

14 compelling reasons justifying release and that a sentence reduction is consistent with the

15 sentencing factors set forth in § 3553(a), so a district court may deny a motion based solely

16 on the latter without reaching the former. See Keitt, 21 F.4th at 73. The sentencing

17 factors include, among others, “the nature and circumstances of the offense and the history

18 and characteristics of the defendant”; “the need for the sentence imposed . . . to reflect the

19 seriousness of the offense, to promote respect for the law, . . . to provide just punishment

20 for the offense,” to deter criminal conduct, and “to protect the public from further crimes”;

3 1 and the “need to avoid unwarranted sentence disparities among defendants with similar

2 records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), (2), (6).

3 Here, the district court acted well within its broad discretion in denying McLean’s

4 motion. The district court appropriately considered the nature of the offense and the need

5 for the sentence to reflect the seriousness of the offense and to promote respect for the law.

6 McLean and his co-defendants engaged in a conspiracy to traffic “massive quantities

7 of . . . a deadly and destructive drug,” and he received a below-Guidelines sentence.

8 McLean, 2022 WL 1125946, at *6. The district court’s conclusion that its sentence was

9 appropriate was not a determination that “cannot be located within the range of permissible

10 decisions.” See Keitt, 21 F.4th at 71.

11 McLean argues that the district court relied solely on the denial of the motion for

12 compassionate release by his co-defendant Roberto Sanchez and did not adequately

13 consider McLean’s rehabilitation, family situation, the certainty of deportation, and his

14 decreased propensity for violence. But as we have explained, we presume that the district

15 court has considered all relevant § 3553(a) factors and arguments “unless the record

16 suggests otherwise.” United States v. Halvon, 26 F.4th 566, 570 (2d Cir. 2022). Here,

17 the record affirmatively demonstrates that the district court carefully considered the

18 § 3553(a) factors and McLean’s arguments and directly addressed the particulars of his

19 case, referring to Sanchez only to note that the factors bearing on this case were similar to

20 those that had led the court to deny a similar previous application by Sanchez. We

21 identify no error in that approach.

4 1 We have considered McLean’s remaining arguments and find them to be without

2 merit. Accordingly, we AFFIRM the order of the district court.

3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 6