5 F.4th 189
2d Cir.2021Background
- Warren Fleming, convicted for possession with intent to distribute crack cocaine and using a firearm, was sentenced to 65 months imprisonment; he moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A) citing COVID-19 risk and asthma.
- The district court denied release, finding asthma weighed only slightly in favor and Fleming’s long history of violent crime and public‑safety concerns weighed heavily against modification.
- Fleming appealed; his appellate counsel, Colleen Cassidy, moved to withdraw and filed an Anders brief asserting no non‑frivolous appellate argument, while the Government moved for summary affirmance.
- The Second Circuit held that defendants have no constitutional or statutory right to appointed counsel for compassionate‑release motions or appeals from their denial, so Anders procedures (tied to a constitutional right to counsel) are inapplicable in that context.
- The court ruled that counsel seeking withdrawal in such post‑judgment proceedings must comply with Fed. R. App. P. 27 and Local Rule 27.1 (state grounds with particularity, include legal argument in the motion, and attach an affidavit notifying the defendant of options including seeking appointed counsel or proceeding pro se).
- Cassidy’s motion substantially complied with Rule 27, so withdrawal was granted; the Government’s motion for summary affirmance was denied and Fleming will proceed pro se on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Anders apply when counsel seeks to withdraw on an appeal from denial of a compassionate‑release motion? | Fleming: no right to counsel for §3582(c)(1)(A) proceedings, so Anders not required. | Government/Rules: Anders/Local Rule 4.1 governing withdrawal on appeal might apply. | Anders not required; withdraw motions governed by Fed. R. App. P. 27 and Local Rule 27.1. |
| What procedural content must a withdrawal motion include in this context? | Cassidy/Fleming: motion should state grounds, relief sought, legal argument, and include affidavit advising defendant of options. | (No opposing, but Government contested nothing sufficient to deny withdrawal.) | Motion must follow Rule 27(a)(2) and Local Rule 27.1: include particularized grounds, legal argument within the motion, and an affidavit confirming defendant was advised of counsel/ pro se/appointment options and deadlines. |
| Did Cassidy’s withdrawal motion satisfy the required procedure? | Cassidy: her motion complied with Rule 27 and she informed Fleming in writing of his options and deadlines. | Government: argued appeal lacked non‑frivolous issues and moved to summarily affirm. | Court found Cassidy substantially complied with Rule 27 and granted withdrawal. |
| Is summary affirmance appropriate because the appeal is frivolous? | Fleming: appeal not plainly frivolous — district court relied on §3553(a) and Brooker may affect the legal framework. | Government: no non‑frivolous issues; move for summary affirmance. | Denied: summary affirmance is rare; the appeal is not so patently frivolous to skip full briefing. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (counsel withdrawing on a direct appeal must file brief identifying anything that might arguably support the appeal)
- Pennsylvania v. Finley, 481 U.S. 551 (1987) (Anders framework applies only where there is a constitutional right to counsel)
- Douglas v. California, 372 U.S. 353 (1963) (right to counsel extends to first appeal of right)
- United States v. Brooker, 976 F.3d 228 (2d Cir. 2020) (§ 1B1.13 policy statement does not constrain district courts on compassionate‑release motions)
- United States v. Reddick, 53 F.3d 462 (2d Cir. 1995) (CJA "ancillary matters" limited to direct appeals and matters defending the principal criminal charge)
- Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) (textual interpretation may be guided by the use of the same term elsewhere in the Code)
- United States v. Manso‑Zamora, 991 F.3d 694 (6th Cir. 2021) (no constitutional or statutory right to counsel in § 3582(c) proceedings)
- United States v. Blake, 986 F.3d 756 (7th Cir. 2021) (appointment of counsel for post‑judgment benefits is discretionary, not a right)
- United States v. Davis, 598 F.3d 10 (2d Cir. 2010) (standard for summary affirmance: claim must lack an arguable basis in law or fact)