United States v. Edwards (Brown)

23-6139-cr

United States v. Edwards (Brown)

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 19th day of July, two thousand

twenty-four.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

RAYMOND J. LOHIER, JR.,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

United States of America,

Appellee,

v. 23-6139-cr

Cory Edwards, AKA WIGGLES, AKA

SEALED DEFENDANT #1, Charles

Myles, AKA BOSSMAN, AKA

SEALED DEFENDANT #2, Antonio

Owens, AKA O’HEAD, AKA

SEALED DEFENDANT #3, Rasue

Barnett, AKA WILD THANG, AKA

SEALED DEFENDANT #5, Waliek

Betts, AKA LEEK, AKA SEALED

DEFENDANT #6, Akim Betsey, AKA

KOON, AKA KIMY, AKA SEALED

DEFENDANT #7, Charles Brown, AKA

TADDA, AKA TATA, AKA SEALED

DEFENDANT #8, Terrence Edwards,

AKA JAQUAN, AKA SILK, AKA

SEALED DEFENDANT #9, Dudley

Harris, AKA DUD, AKA SEALED

DEFENDANT #10, Rodney Hill, AKA

HOT ROD, AKA SEALED

DEFENDANT #11, Christopher Holbdy,

AKA NUTS, AKA SEALED

DEFENDANT #12, Anthony Jackson,

AKA CAPONE, AKA TONE, AKA

SEALED DEFENDANT #13, Lance

Johnson, AKA L-A, AKA

CLUE, AKA SEALED DEFENDANT

#14, Ridwan Othman, AKA

WIGWAM, AKA BLITZ, AKA

SEALED DEFENDANT #15, London

Rice, AKA GRAMS, AKA SEALED

DEFENDANT #16, Cheiron Thomas,

AKA SLAB, AKA SEALED

DEFENDANT #17, Edward Thomas,

AKA POPPY, AKA ESCO, AKA

SEALED DEFENDANT #18, David

Trapps, AKA DIRTY DAVE, AKA

SEALED DEFENDANT #19, Jamontae

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Wallace, AKA MONTY, AKA

SEALED DEFENDANT #20, Robert

Shaw, AKA SEALED DEFENDANT

#21, Eric Dunbar, AKA SEALED

DEFENDANT #22, Tommie Briscoe,

AKA SEALED DEFENDANT #23, Leroy

Antwain Walker, AKA LEROY

WALKER STOKES, AKA SEALED

DEFENDANT #24, Leonard Holbdy,

AKA SEALED DEFENDANT 25,

Christian Williams, AKA SEALED

DEFENDANT 26,

Defendants,

Karo Brown, AKA KIKE, AKA KITE,

AKA SEALED DEFENDANT #4,

Defendant-Appellant.

_____________________________________

FOR DEFENDANT-APPELLANT: Karo Brown, pro se, Otisville, NY.

FOR APPELLEE: Adrian LaRochelle, Thomas R.

Sutcliffe, Assistant United States

Attorneys, for Carla B. Freedman,

United States Attorney for the

Northern District of New York,

Syracuse, NY.

Appeal from an order of the United States District Court for the Northern

District of New York (Frederick J. Scullin, Jr., Judge).

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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order is AFFIRMED.

Defendant-Appellant Karo Brown appeals from an order entered by the

district court on January 31, 2023, principally denying his second motion for a

sentence reduction under Section 404 of the First Step Act of 2018 (the “First Step

Act” or “FSA”), Pub. L. No. 115-391, 132 Stat. 5194. In 2004, Brown was

convicted of racketeering activity by a jury, which attributed to him racketeering

activity including, inter alia, acts involving murder, attempted murder, or

conspiracy to commit murder; and conspiracy to distribute and possess with

intent to distribute crack cocaine. The district court sentenced Brown

principally to forty years’ imprisonment and we affirmed Brown’s conviction

and sentence on appeal. See United States v. Edwards, 214 F. App’x 57, 66 (2d Cir.

2007) (summary order). Brown’s first motion for a sentence reduction pursuant

to the FSA was filed in 2019. As to it, the district court determined that Brown

was eligible for relief under the FSA, but that because of his murder-related

racketeering activities, which rendered him subject to a statutory maximum of

life imprisonment, his sentencing range pursuant to the United States Sentencing

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Guidelines (the “Guidelines”) remained the same despite subsequent changes in

the penalty scheme for crack-cocaine offenses. The court ultimately declined to

reduce his sentence, concluding that the updated Guidelines range would still

be thirty years to life and that the 18 U.S.C. § 3553(a) factors still warranted a

forty-year sentence. On Brown’s appeal of that decision, we affirmed. United

States v. Brown, No. 20-2787, 2021 WL 5173293, at *1–2 (2d Cir. Nov. 8, 2021)

(summary order).

The present appeal concerns Brown’s second motion for relief under the

FSA. In it, Brown asked the district court to reconsider its prior decision in light

of the Supreme Court’s decision in Concepcion v. United States, 597 U.S. 481 (2022).

The district court again denied a reduction, reasoning that Brown’s second

motion could not be brought due to Section 404(c) of the FSA, which bars

subsequent motions if an initial motion received a complete review on the merits.

Out of an abundance of caution, the court construed Brown’s motion as also

seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A), but concluded

that the § 3553(a) factors continued to justify Brown’s sentence. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case,

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and the issues on appeal, which we set forth here only as necessary to explain

our decision to AFFIRM.

***

We review the denial of a motion for a discretionary sentence reduction—

whether under Sections 404(b) or 3582(c)(1)(A)—for abuse of discretion, and

review underlying matters of statutory interpretation de novo. See United States

v. Halvon, 26 F.4th 566, 569 (2d Cir. 2022) (per curiam) (§ 3582(c)(1)(A)); United

States v. Moore, 975 F.3d 84, 88‒89 (2d Cir. 2020) (§ 404(b) via § 3582(c)(1)(B)).

At the start, we agree with the district court that Brown’s second motion

for relief under Section 404(b) of the FSA is barred. The First Step Act bars a

defendant from moving for relief when his or her prior motion was denied on

the merits—an “explicit limitation[] on available relief[.]” Concepcion, 597 U.S.

at 496. The text of Section 404(c) mandates that “[n]o court shall entertain a

motion made under this section to reduce a sentence if . . . a previous motion

made under this section to reduce the sentence was, after the date of enactment

of this Act, denied after a complete review of the motion on the merits.” Section

404(c), Pub. L. No. 115-391, 132 Stat. 5194. Under this Circuit’s precedent, a

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complete review consists of a court’s review of the “retroactive application of

Sections 2 and 3” of the Fair Sentencing Act. Moore, 975 F.3d at 91.

Brown received that review. In denying his first motion, the district court

reassessed his Guidelines range under the 2018 Guidelines, which reflect the

amended drug quantities made applicable by the FSA. On appeal of that

decision, we expressly rejected Brown’s arguments that the district court failed

to provide a full review, committed procedural error, or incorrectly calculated

that range. Brown, 2021 WL 5173293, at *1–2. Brown argues that the district

court failed nonetheless to conduct a complete review of his previous motion on

the merits because it did not have “the benefit of Concepcion at the time of the

Court’s original decision.” Appellant Br. 12. For movants eligible for FSA

relief, Concepcion makes clear that a district court may consider “intervening

changes of law,” including changes to the Guidelines, or “changes of fact,” such

as behavior in prison, when adjudicating an FSA motion. 597 U.S. at 486, 500.

But here, as the district court stated, the initial adjudication of Brown’s FSA

motion was “entirely consistent with Concepcion.” GA:369. And more

fundamentally, the Supreme Court’s decision in Concepcion, by clarifying how

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courts are to apply Section 404(b), does not thereby render the earlier review of

Brown’s FSA motion any less complete for the purpose of Section 404(c). Thus,

the district court correctly denied Brown’s motion as barred under that

provision.

As a final matter, Brown also challenges the district court’s consideration

of his entitlement to compassionate release under 18 U.S.C. § 3582(c)(1)(A). The

district court construed Brown’s motion as seeking compassionate release and

denied such relief. Section 3582(c)(1)(A)(i), as amended by the First Step Act,

provides that a court “may reduce the term of imprisonment . . . after considering

the factors set forth in section 3553(a) to the extent that they are applicable, if it

finds that . . . extraordinary and compelling reasons warrant such a reduction[.]”

In United States v. Brooker, we interpreted the First Step Act to permit a district

court to evaluate the “full slate of [qualifying] extraordinary and compelling

reasons” for a defendant’s compassionate release motion. 976 F.3d 228, 237 (2d

Cir. 2020). Brown alleges that his rehabilitation while in prison, combined with

changes in sentencing law and other unspecified factors, constitute

extraordinary and compelling reasons to reduce his sentence. But neither

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Brooker nor Section 3582 compel the district court to agree. Indeed,

rehabilitation alone is not an “extraordinary and compelling reason,” 28 U.S.C.

§ 994(t), and even after accounting for changes in sentencing law, Brown is

subject to the same Guidelines range today as he was in 2005.

The district court also did not abuse its discretion in concluding that the

§ 3553(a) factors did not warrant relief. Upon careful consideration of the merits

of each of Brown’s asserted factors, the district court concluded that none of them

overcame the nature and seriousness of Brown’s offense. GA:370–71. To reach

this decision, the district court conducted a straightforward application of the

§ 3553(a) factors, and “[m]ere disagreement with how the district court balanced

the § 3553(a) factors . . . is not a sufficient ground for finding an abuse of

discretion.” Halvon, 26 F.4th at 569 (internal quotation marks omitted).

To the extent that Brown argues that the district court should not have

recharacterized his motion as seeking compassionate release without providing

him an opportunity to argue the § 3553(a) factors, the district court indicated its

willingness to reconsider Brown’s eligibility for relief under § 3582 in the future.

GA:372. Discerning no abuse of discretion in the district court’s assessment of

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the § 3553(a) factors on this record, we make no determination as to any such

future application based on an expanded record.

Accordingly, for the reasons set forth above, we AFFIRM the order of the

district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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