Opinion
21-81-cr
03-14-2022
United States of America, Appellee, v. Kevin DiMartino, Defendant-Appellant.
FOR DEFENDANT-APPELLANT: TIMOTHY P. MURPHY, Assistant Federal Public Defender, for Marianne Mariano, Federal Public Defender for the Western District of New York, Buffalo, NY. FOR APPELLEE: Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.
UNPUBLISHED OPINION
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 TO 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 14th day of March, two thousand twenty-two.
Appeal from an order of the United States District Court for the Western District of New York (Geraci, J.).
FOR DEFENDANT-APPELLANT:
TIMOTHY P. MURPHY, Assistant Federal Public Defender, for Marianne Mariano, Federal Public Defender for the Western District of New York, Buffalo, NY.
FOR APPELLEE:
Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.
PRESENT: Denny Chin, Richard J. Sullivan, Joseph F. Bianco, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court entered on December 30, 2020, is AFFIRMED.
Defendant-Appellant Kevin DiMartino pleaded guilty to knowingly possessing child pornography on October 11, 2017, after law enforcement officers found 14, 000 images of child pornography on his hard drive, 9, 000 images on his thumb drive, and 400 images on his desktop. See 18 U.S.C. § 2252A(a)(5)(B), (b)(2). DiMartino was released pending sentencing but violated his bail conditions by having unsupervised contact with a young child. He subsequently attempted to persuade the child's father to make false statements about his conduct. After a hearing, the district court imposed a two-level enhancement for distribution of child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F) and a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, resulting in a Guidelines sentencing range of 121-to-151 months. On June 19, 2018, the district court imposed a sentence of 125 months, citing the quantity of images involved in the offense as well as their content, which included prepubescent minors and sadistic or masochistic conduct.
On May 7, 2020, having served less than three years of his sentence, DiMartino moved pro se for compassionate release pursuant to the First Step Act of 2018. The First Step Act, in relevant part, permits a court to "reduce the [defendant's] term of imprisonment... if it finds that[] extraordinary and compelling reasons warrant such a reduction" and that the reduction is consistent with the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3582(c)(1), (c)(1)(A)(i). Section 3553(a), in turn, requires a district court imposing a sentence to consider "the nature and circumstances of the offense and the history and characteristics of the defendant," id. § 3553(a)(1), and also to ensure that the sentence "reflects] the seriousness of the offense, . . . promote[s] respect for the law, . . . provide[s] just punishment for the offense/' and "afford[s] adequate deterrence to criminal conduct/' among other sentencing objectives, id. § 3553(a)(2)(A)-(B).
The district court denied DiMartino's May 7 motion, and a second pro se motion filed May 15, 2020, for failure to exhaust administrative remedies. See id. § 3582(c)(1)(A). After properly exhausting, DiMartino filed a counseled motion for compassionate release on June 16, 2020, alleging that his asthma, hypertension, obesity, sleep apnea, heart disease, and high cholesterol all put him at a higher risk of complications from COVID-19, and noting his lack of criminal history and his positive adjustment to prison. The district court denied DiMartino's motion on July 23, 2020, holding that "even if" DiMartino could satisfy all the other requirements entitling him to compassionate release, a sentence reduction was inconsistent with the objectives of sentencing set forth in § 3553(a). App'x at 124. The district court cited the gravity of DiMartino's offense conduct and the fact that he continued to engage in misconduct even while the case was pending by having unsupervised contact with a child and attempting to persuade the child's father to lie about it.
DiMartino filed a fourth motion for compassionate release on December 28, 2020, reiterating his health conditions and alleging that there was a COVID-19 outbreak at FCI Danbury, where he was incarcerated. The district court again denied the motion, incorporating the reasons stated in the July 23, 2020 order and explaining that, regardless of any COVID-19 outbreak, the § 3553(a) factors made such a "drastic reduction [in DiMartino's] sentence" inappropriate given "the serious nature of his offense." App'x at 160-61. DiMartino timely appealed.
We review a district court's denial of a motion for compassionate release for abuse of discretion. See United States v. Keitt, 21 F.4th 67, 71 (2d Cir. 2021). "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." Id. (citation omitted).
DiMartino contends that the district erred by failing to find that extraordinary and compelling reasons justified his release. But as this Court has explained, a finding that the § 3553(a) factors do not favor early release is independently sufficient to deny a compassionate-release motion, regardless of the existence of extraordinary and compelling reasons. See id. at 73. And the district court's determination that the § 3553(a) factors required denying DiMartino's motion lies well within its discretion, especially because of "the serious nature of [the] offense" and the fact that DiMartino "has yet to serve even half of his sentence." App'x at 160-61.
DiMartino's argument that the district court erroneously focused on the sentencing factors as they existed at the time of his sentencing in 2018, instead of re weighing them in light of the pandemic conditions that existed at the time of his motion, also misses the mark. "[T]he nature and circumstances of the [underlying] offense" did not diminish between 2018 and 2020, regardless of the pandemic. 18 U.S.C. § 3553(a)(1). Accordingly, the district court reasonably concluded that the needs for the sentence "to reflect the seriousness of the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant" were just as weighty in 2020 as they were when the district court originally imposed its sentence in 2018. Id. § 3553(a)(2)(A)-(C). And while DiMartino may disagree with how the district court balanced the § 3553(a) factors, "[t]he weight to be afforded any § 3553(a) factor is a matter firmly committed to the discretion of the sentencing judge." Keitt, 21 F.4th at 72 (quoting United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008)).
Lastly, DiMartino contends that the district court erred by implying that it doubted the accuracy of the Federal Bureau of Prisons' publicly reported statistics for inmate infections at FCI Danbury. But the district court did no such thing. To the contrary, it merely remarked that "[e]ven assuming" the truth of DiMartino's assertion that FCI Danbury was facing a new outbreak, the § 3553(a) factors did not favor release. App'x at 160-61. Far from implying doubt about the accuracy of DiMartino's claims, the district court simply noted that the magnitude of a COVID-19 outbreak went to the "extraordinary and compelling circumstances" analysis, an analysis separate from the district court's disposition of DiMartino's motion based on the § 3553(a) factors.
We have considered DiMartino's remaining arguments and find them to be meritless. Accordingly, we AFFIRM the order of the district court.