United States v. Sarno

37 F.4th 1249

UNITED STATES of America, Plaintiff-Appellee,

v.Michael SARNO, Defendant-Appellant.

No. 21-1963

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2022

Decided June 21, 2022

Debra Riggs Bonamici, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

John W. Chwarzynski, Jr., Attorney, Hale & Monico, Chicago, IL, Nicholas A. Caputo, Attorney, Caputo Law Firm, P.C., Berwyn, IL, for Defendant-Appellant.

Before Manion, Hamilton, and Brennan, Circuit Judges.

Manion, Circuit Judge.

Nearly halfway through a 25-year prison term, federal inmate Michael Sarno moved for compassionate release based on severe physical disabilities. The district court assumed Sarno's medical circumstances were extraordinary and compelling but nevertheless denied the motion after finding numerous factors set out in 18 U.S.C. § 3553(a) weighed strongly against a sentence reduction. Sarno contends the district court erred in weighing those factors and failed to discuss evidence he submitted. He also contends the inability to communicate with his attorney at a critical point in proceedings prevented him from disputing certain inaccurate government assertions. Finding no reason to question the district court's judgment, we affirm.

Sarno headed a criminal enterprise operating out of northern Illinois for several years. The enterprise placed video gambling machines in local bars and restaurants in an arrangement that, contrary to the law, allowed patrons using the machines to take their winnings in cash. This illegal operation was lucrative for Sarno. When a rival organization tried to push into Sarno's territory, he sent it a warning in the form of a pipe bomb that exploded outside its headquarters. The enterprise also burglarized or robbed more than a dozen homes and jewelry stores in Illinois, Indiana, and Wisconsin and trafficked in the stolen property.

Eventually, the law caught up with Sarno. In December 2010, a jury found him guilty of conspiring to participate in racketeering activity and of conducting an illegal gambling business. See 18 U.S.C. §§ 1955, 1962. He was sentenced to 25 years in prison and ordered to pay nearly $1.8 million in restitution. We affirmed both the conviction and the sentence. United States v. Volpendesto , 746 F.3d 273 (7th Cir. 2014).

Sarno filed the motion for compassionate release at issue here in November 2020. Then 62 years old, his health had steadily deteriorated over the previous six months. Severe osteoarthritis in his left shoulder and knee prevented him from walking, bathing, dressing, or using the toilet on his own. He would frequently fall when trying to transition into and out of his wheelchair. This immobility compounded the disabling effects of several other maladies, such as respiratory disease, obesity, hypertension, and kidney dysfunction. On multiple occasions, Sarno had to be transported to outside medical facilities for treatment of acute health problems.

The district court held two hearings and considered many submissions from the parties. A week after Sarno's last filing, it ruled on the motion. The court assumed Sarno's poor health constituted an extraordinary and compelling reason to grant compassionate release. Nevertheless, the court determined early release would be inconsistent with the § 3553(a) factors. Specifically, cutting Sarno's sentence short would deprecate the seriousness of his offenses, undermine respect for the law, ignore his extensive criminal history, and pose a danger to the public. Concluding that these factors weighed decisively against releasing him, the district court denied Sarno's motion. After the court declined to reconsider, Sarno brought this appeal.

Generally, a federal court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). But Congress has permitted early release if "extraordinary and compelling reasons warrant ... a reduction" in sentence. § 3582(c)(1)(A)(i). Such a motion for compassionate release may be filed by a prisoner or by the Director of the Bureau of Prisons. Id. When initiated by a prisoner, the motion "involves a two-step inquiry: one, did the prisoner present an extraordinary and compelling reason for release, and two, is release appropriate under § 3553(a)." United States v. Kurzynowski , 17 F.4th 756, 759 (7th Cir. 2021). We review the original denial of a compassionate-release motion, as well as the denial of a motion to reconsider, for abuse of discretion. Id. ; O'Donnell v. Saul , 983 F.3d 950, 954 (7th Cir. 2020).

As the district court explained, the record amply supports denial of Sarno's motion for a sentence reduction. The factors the court cited—seriousness of the crime, respect for the law, criminal history, danger to the public—are all considerations under § 3553(a) that militate against a defendant's early release from prison.

Sarno criticizes the court's assessment of some of these factors, but his arguments are meritless. He asserts the district court, in finding he would continue to pose a danger to the public, overlooked that his age and infirmity lessened the likelihood of recidivism. But there was no oversight on this issue. The court specifically noted Sarno did not personally undertake the bombing or the robberies but "directed others to do these things and received the benefit of their criminal activities." His current physical condition, the court concluded, would not prevent him from returning to his old ways and using subordinates to commit crimes. This reasoning seems eminently sensible to us. Youth and vigor might have been necessary for Bill Sikes and the Artful Dodger to ply their trades, but Fagin could still run a criminal enterprise as an old man.

Sarno similarly suggests the district court judged his criminal history too harshly. He acknowledges the robberies and the bombing but asserts he personally "did not harm anyone." Even if true, this is faint praise indeed. Sarno may not have carried out these crimes, but he ordered the bombing and exercised control over the robberies. Volpendesto , 746 F.3d at 297. Illegal gambling, racketeering conspiracy, robbery, and the use of explosives are all grave and violent crimes with potentially deadly consequences for their victims. Sarno played a central role in these illegal activities.

In addition to these crimes, the court considered Sarno's long career "entrenched in organized crime and its street crews long before his conviction in this case." His criminal history spanned decades; it involved not only racketeering conspiracy and running an illegal gambling business but also predatory lending, extortion, and violent debt collection. Before being sentenced in this case, Sarno already had multiple felony convictions. The district court's assessment of these matters was "well within the broad discretion a judge possesses under § 3582(c)(1)." United States v. Ugbah , 4 F.4th 595, 598 (7th Cir. 2021).

Next, Sarno objects to what the district court did not say. During the hearings, the court expressed concern that, if released, the inability to find legitimate work coupled with substantial healthcare costs would tempt Sarno to resume his criminal career. In response, Sarno detailed the health insurance he would obtain upon release and informed the court that a generous friend had offered to set up a trust that would cover Sarno's medical expenses for as long as necessary. In his order denying compassionate release, however, the district judge did not mention this issue or evidence.

A district court must provide "reasonable assurance that it at least considered the prisoner's principal arguments." United States v. Newton , 996 F.3d 485, 489 (7th Cir. 2021). This does not mean the court's opinion must address every issue that arises in compassionate-release proceedings. See United States v. Sanders , 992 F.3d 583, 588 (7th Cir. 2021). Instead, an opinion is adequate when it reflects individualized assessment of the prisoner's circumstances and primary arguments and makes the judge's thinking clear. Newton , 996 F.3d at 491.

The district court's opinion here did that. The court accepted (for argument's sake) Sarno's primary contention that his medical condition met the statutory threshold for a sentence reduction. The court then denied compassionate release based on Sarno's specific circumstances. The evidence Sarno says the district court should have discussed concerned one risk factor (financial pressure) relating to one aspect (likelihood of recidivism) of one relevant factor under § 3553(a) (protecting the public from further crimes by Sarno). If the court had cited this risk factor to deny the motion while ignoring the rebuttal evidence offered, Sarno might have a point. But the court didn't do that. The issue's omission from the court's ruling indicates that the judge ultimately did not think it relevant to resolving the motion. "Federal law does not contain a mandatory-dictum policy, under which a judge must consider every possible issue." Ugbah , 4 F.4th at 598. The district court's opinion satisfies us that it properly exercised its discretion and considered all appropriate matters.

Sarno's final argument is a procedural one that bundles together the constitutional rights to confer with counsel and to be heard in a meaningful way. During proceedings, the government advised the district court that Sarno had been transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri (MCFP Springfield), where he would receive round-the-clock nursing care and remain until he was healthy enough to undergo knee-replacement surgery. Sometime after the second hearing, Sarno's counsel learned he had been transferred temporarily from MCFP Springfield to an outside medical facility for treatment. Sarno's attorney was not told where and was not able to speak with him in the time leading up to the court's April 14, 2021, ruling.

Thus, while Sarno was held...