United States v. Fleming

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20-1776-cr United States v. Fleming In the United States Court of Appeals for the Second Circuit August Term, 2020 No. 20-1776-cr UNITED STATES OF AMERICA, Appellee, v. WARREN FLEMING, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of New York. No. 1:18-cr-197-1 — Kiyo A. Matsumoto, Judge. SUBMITTED: JUNE 25, 2021 DECIDED: JULY 14, 2021 Before: LEVAL, CABRANES, and NARDINI, Circuit Judges. Attorney Colleen Cassidy moves pursuant to Anders v. California, 386 U.S. 738 (1967), to be relieved as counsel to Defendant-Appellant Warren Fleming in his appeal from a final order entered on June 1, 2020, in the United States District Court for the Eastern District of New York (Kiyo A. Matsumoto, J.), denying Fleming’s motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Because a defendant has no constitutional or statutory right to assistance of counsel on a compassionate release motion or an appeal from the denial of such a motion, we hold that an attorney seeking to be relieved before us in that context need not file a motion and brief that comply with the requirements of Anders, 386 U.S. at 744–45. Instead, counsel’s motion to be relieved must adhere to Rule 27 of the Federal Rules of Appellate Procedure and Local Rule 27.1 by stating with particularity the grounds for the motion, the relief requested, and the legal argument supporting that request, as well as attaching an affidavit indicating that counsel has advised the defendant of the process for obtaining court-appointed counsel or proceeding pro se. Because Cassidy’s motion complied with the requirements of Rule 27, we GRANT her motion to withdraw as Fleming’s counsel. In addition, the Government moves for summary affirmance of the district court’s decision on the grounds that Fleming’s motion presents no non-frivolous issues on appeal. We disagree, and therefore DENY the Government’s motion for summary affirmance. Elizabeth L. Macchiaverna, Kayla Bensing, Assistant United States Attorneys, for Jacquelyn M. Kasulis, Acting United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, New York, for Defendant- Appellant 2 WILLIAM J. NARDINI, Circuit Judge: 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 …

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