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Date: 07-16-2021

Case Style:


Case Number: 20-1776-cr


Court: United States Court of Appeals for the Second Circuit

Plaintiff's Attorney: Elizabeth L. Macchiaverna, Kayla Bensing, Assistant
United States Attorneys, for Jacquelyn M. Kasulis,
Acting United States Attorney for the Eastern District of
New York

Defendant's Attorney:

New York, NY Criminal defense Lawyer Directory


New York, New York - Criminal defense lawyer represented defendant with possession with intent to distribute cocaine base and usse of a firearm during a drug trafficking crime charges.

On May 26, 2020, Defendant-Appellant Warren Fleming filed a motion for
compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A),
seeking relief from the 65-month prison sentence imposed by the United States
District Court for the Eastern District of New York (Kiyo A. Matsumoto, J.)
following his conviction of possession with intent to distribute cocaine base and
use of a firearm during a drug trafficking crime.1 Fleming argued that his risk of
contracting COVID-19 in his facility, FCI Danbury, and a heightened risk of
complications if he were to contract the virus due to asthma, constituted
extraordinary and compelling reasons justifying modification of his original
sentence. The district court denied Fleming’s motion. See United States v. Fleming,
No. 18-CR-197, 2020 WL 2838511 (E.D.N.Y. June 1, 2020), reconsideration denied,
2020 WL 5503475 (E.D.N.Y. Sept. 11, 2020). The district court found that the added
risk of asthma-related complications if Fleming were to contract COVID-19
1 See 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); 18 U.S.C. § 924(c)(1)(A)(i). 4
“weigh[ed] only slightly in favor of modifying [his] sentence,” while Fleming’s
history of committing increasingly violent crimes over nearly three decades
“weigh[ed] heavily against modifying the sentence” given the need to ensure the
“protection of the public at large.” Id. at *3–4. Fleming appealed.
Fleming’s counsel, Colleen Cassidy of the Federal Defenders of New York,
moved pursuant to Anders v. California, 386 U.S. 738 (1967), to be relieved from
representing Fleming on appeal. Cassidy submitted a brief accompanying her
Anders motion explaining that she could make “no reasonable argument that the
court abused its broad discretion under [the First Step Act]” because “the district
court understood its discretion and properly exercised it.” Anders Br. at 7–9.
Cassidy acknowledged that the district court, in assessing whether Fleming was
“a danger to the safety of the community,” considered the United States
Sentencing Guideline (“U.S.S.G.”) § 1B1.13 policy statement, which this Court has
since held to be inapplicable in United States v. Brooker, 976 F.3d 228, 237 (2d Cir.
2020). Anders Br. at 10. But Cassidy explained that the district court also relied on
18 U.S.C. § 3553(a), whose “factors equally required the court to consider 5
protection of the public,” such that there was “no basis to conclude that the court’s
reasoning [would] have been any different if it had only considered the § 3553(a)
factors and not that Guideline policy statement.” Anders Br. at 10. 2 The
Government moved for summary affirmance.
For the reasons stated below, we grant Cassidy’s motion to withdraw as
counsel and deny the Government’s motion for summary affirmance. We write to
clarify that an attorney who moves to be relieved from representing a client who
appeals the denial of a motion for compassionate release need not comply with the
requirements applicable to motions made under Anders. Those procedures are not
required because a defendant filing a compassionate release motion or appealing
from the denial of such a motion has no constitutional or statutory right to the
assistance of counsel.
2 The district court also focused on U.S.S.G. § 1B1.13 in finding that Fleming could continue to
provide self-care for his asthma in prison. Fleming, 2020 WL 2838511, at *3. In Brooker, we held
that § 1B1.13 does not apply to motions for compassionate release because “the First Step Act
freed district courts to consider the full slate of extraordinary and compelling reasons that an
imprisoned person might bring before them.” 976 F.3d at 237.6
In Anders, the Supreme Court held that the “constitutional requirement of
substantial equality and fair process” requires a defendant’s attorney to “support
his client’s appeal to the best of his ability,” and if filing an appeal would be wholly
frivolous, to accompany a request to withdraw as counsel with “a brief referring
to anything in the record that might arguably support the appeal.” 386 U.S. at 744;
cf. Local Rule 4.1(b) (requiring defense counsel seeking to withdraw on the ground
that an appeal presents no non-frivolous issues to file an Anders motion and brief).
Furnished with his counsel’s Anders brief, the defendant may then “raise any
points that he chooses” in a pro se appellate brief. 386 U.S. at 744. The Anders
procedure thereby aims to secure an indigent defendant “the same rights and
opportunities on appeal” as those enjoyed by defendants who can afford private
representation. Id. at 745.
Yet “Anders did not set down an independent constitutional command that
all lawyers, in all proceedings, must follow these particular procedures.
Rather, Anders established a prophylactic framework that is relevant when, and 7
only when, a litigant has a previously established constitutional right to counsel.”
Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987). That constitutional right is
rooted in the Sixth Amendment, which provides that “the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence,” including on direct
appeal from a criminal conviction. U.S. Const. amend. VI; see Douglas v. California,
372 U.S. 353, 355 (1963). But “the right to appointed counsel extends to the first
appeal of right, and no further.” Finley, 481 U.S. at 555. As restated in Rule 44(a) of
the Federal Rules of Criminal Procedure, a defendant is entitled to courtappointed counsel “at every stage of the proceeding from initial appearance
through appeal.”
The statutory right to appointed counsel on appeal is similarly confined to
direct appeals. The Criminal Justice Act of 1964 (the “CJA”), Pub. L. No. 88-455, 78
Stat. 552–54, guarantees criminal defendants the assistance of counsel “at every
stage of the proceedings from [an] initial appearance before the United States
magistrate judge or the court through appeal, including ancillary matters
appropriate to the proceedings.” 18 U.S.C. § 3006A(c). The “ancillary matters” 8
described in § 3006A(c) are “those involved ‘in defending the principal criminal
charge’” including “trial and direct appeals,” but do not extend to “collateral
attacks upon a judgment.” United States v. Reddick, 53 F.3d 462, 464 (2d Cir. 1995)
(quoting Miranda v. United States, 455 F.2d 402, 404–05 (2d Cir. 1972)). We have
therefore declined to require the appointment of counsel under the CJA when a
defendant has filed a motion for sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) based on subsequent changes in the Sentencing Guidelines. Id. at 465.
“And every federal court of appeals to address the issue has agreed that there is
no constitutional (or statutory) right to appointed counsel in § 3582(c)
proceedings.” United States v. Manso-Zamora, 991 F.3d 694, 696 (6th Cir. 2021).3
Because a defendant has no right to the assistance of counsel in filing a
motion for compassionate release or appealing from the denial of such a motion,
3 See United States v. Blake, 986 F.3d 756, 758 (7th Cir. 2021); United States v. Meeks, 971 F.3d 830,
833 (8th Cir. 2020); United States v. Garcia, 689 F.3d 362, 364 (5th Cir. 2012); United States v. Webb,
565 F.3d 789, 795–96 (11th Cir. 2009); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United
States v. Townsend, 98 F.3d 510, 513 (9th Cir. 1996). In United States v. Johnson, Nos. 15-6413/16-5346,
2016 WL 10704239, at *3 (6th Cir. 2016), the Sixth Circuit similarly observed (without deciding)
that there has been no historical right to counsel in proceedings under § 3582(c)(2).9
an attorney seeking to withdraw before us need not file an Anders brief pursuant
to Local Rule 4.1(b). That rule applies only when counsel “seeks to withdraw from
representing a defendant on appeal”—that is, on a direct appeal. So, too, Local
Rule 4.1(d)—which establishes the procedures for withdrawing on grounds other
than frivolousness—is limited by its terms to representation “on appeal.” We
understand the term “appeal” in Local Rules 4.1(b) and (d) to refer to a criminal
defendant’s first appeal as of right, in line with our longstanding construction of
the same term in 18 U.S.C. § 3006A(c). See Reddick, 53 F.3d at 464–65;see also Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448 n.3 (2006) (confirming textual
interpretation based on “the use of the [same] word . . . elsewhere in the United
States Code”). Compassionate release motions fall outside that definition, and
therefore neither Local Rule 4.1(b) nor Local Rule 4.1(d) governs on an appeal from
such a motion.
Instead, a motion to withdraw as counsel in an appeal from postjudgment
proceedings such as a compassionate release motion must comply with Rule 27 of
the Federal Rules of Appellate Procedure and Local Rule 27.1. Federal Rule 10
27(a)(2)(A) requires a motion to “state with particularity the grounds for the
motion, the relief sought, and the legal argument necessary to support it.” In this
context, unlike that of an Anders motion, Rule 27(a)(2)(C)(i) of the Federal Rules of
Appellate Procedure directs that “[a] separate brief supporting or responding to a
motion must not be filed.” Counsel therefore must place her arguments in the
document identified as the motion, rather than filing a separate brief. Counsel
must also file an affidavit accompanying the motion, see Fed. R. App. P.
27(a)(2)(B)(i), confirming that she has advised the defendant that the options
available to him are to (1) obtain other counsel if he is able to do so, (2) represent
himself (if the court allows it), or (3) if he cannot afford to retain private counsel,
apply to the court to appoint counsel for him.4 If the defendant has indicated that
4 The appointment of CJA counsel at this stage rests in the court’s sole discretion. See 18 U.S.C.
§ 3006A(a)(2); Blake, 986 F.3d at 758 (“[J]udges have discretion to recruit and sometimes appoint
counsel for prisoners seeking post-judgment benefits, but prisoners do not have a constitutional
or statutory entitlement to appointed counsel.” (citation omitted)).11
he wishes to continue pro se, counsel should further indicate in her affidavit that
she has advised the defendant in writing of any filing and briefing deadlines.5
We grant Cassidy’s motion to be relieved as counsel because her motion and
brief substantially complied with the requirements of Rule 27. Cassidy stated the
specific grounds for her motion to withdraw. Further, Cassidy submitted an
affidavit indicating that she had provided written notice to Fleming of his right to
retain or seek appointment of alternate counsel, as well as the deadline for his
opening brief should he desire to proceed pro se. 6
The Government’s motion for summary affirmance is denied. “Summary
affirmance of a district court’s decision in place of full merits briefing . . . is, and
should be treated as, a rare exception to the completion of the appeal process. It is
5 In that circumstance, the defendant should be afforded sufficient time to prepare and file a pro
se appellate brief.
6 Fleming’s pro se response confirms that Cassidy advised him of his right to request appointed
counsel or to proceed pro se, and that she informed him of the filing deadline for his response. 12
a short-cut and, in light of the liberty and property rights involved, one that is
available only if an appeal is truly frivolous.” United States v. Davis, 598 F.3d 10, 13
(2d Cir. 2010) (quotation marks omitted). Even where “the correct resolution of an
appeal seems obvious,” we will not summarily affirm unless the claim presented
“lacks an arguable basis either in law or in fact.” Id. at 13–14 (quotation marks
omitted). That is not the case here. While Fleming’s appeal may face an uphill
battle given the broad discretion district courts exercise in considering motions for
compassionate release, see Brooker, 976 F.3d at 237, and that § 3553(a) provided an
independent basis for the district court’s decision, see Fleming, 2020 WL 2838511,
at *3–4, we are not satisfied that Fleming’s appeal is so patently frivolous as to
warrant affirmance without the benefit of full briefing.
* * *
In sum, we hold that an attorney seeking to withdraw from representation
of a defendant appealing from denial of a motion for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(1)(A) need not comply with the requirements
applicable to motions made under Anders. Instead, an attorney submitting a 13
motion to be relieved as counsel at this stage must comply with Rule 27 of the
Federal Rules of Appellate Procedure and Local Rule 27.1. Because Cassidy’s
motion substantially complied with the requirements of Rule 27, we GRANT
Cassidy’s motion to withdraw as Fleming’s counsel.

Outcome: We DENY the Government’s motion for summary affirmance. Fleming’s appeal, which he has elected to pursue pro se, will be heard by a panel of this Court in due course

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