United States Court of Appeals For the Second Circuit

August Term 2021

Argued: May 25, 2022 Decided: June 15, 2022

No. 21-2747

UNITED STATES OF AMERICA,

Appellee,

v. PASQUALE AMATO, CARMINE SESSA, LAWRENCE A. FIORENZA, LAWRENCE MAZZA, JOSEPH RUSSO, AKA JO JO, ANTHONY RUSSO, AKA CHUCKIE, ROBERT ZAMBARDI, AKA BOBBY ZAM, JOSEPH MONTELEONE, SR., AKA JOE MONTE, ALPHONSE PERSICO, AKA ALLIE BOY, JOSEPH TOMASELLO, AKA JOE T, THEODORE PERSICO, AKA TEDDY, RICHARD FUSCO, AKA RICHIE, JAMES DELMASTRO, AKA JAMES DELMASTRO, MICHAEL SESSA,

Defendants,

VICTOR J. ORENA, AKA LITTLE VIC, AKA VICTOR J. ORENA,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of New York No. 92-cr-351, Eric R. Komitee, Judge. Before: POOLER, SACK, and NATHAN, Circuit Judges.

Appeal from an order entered in the United States District Court for the Eastern District of New York (Komitee, J.). denying the defendant-appellant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). The district court found that the 18 U.S.C. § 3553(a) factors weighed against reduction of the defendant-appellant’s sentence.

AFFIRMED.

DEVON LASH, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee. DAVID I. SCHOEN, Attorney at Law, Montgomery, AL, for Defendant-Appellant.

PER CURIAM:

As part of the First Step Act of 2018, Congress authorized courts to reduce a term of imprisonment upon motion by a defendant. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C. § 3582(c)(1)(A)). Section 3582(c)(1), colloquially known as the “compassionate release” provision, permits a district court to reduce a previously imposed sentence “after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”

2 Appellant Victor Orena contends primarily that the district court erred in denying his motion pursuant to § 3582 by refusing to consider new evidence that he says calls into question the validity of his conviction.

We conclude that when considering a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 U.S.C. § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 U.S.C. § 2255 or § 2241. Because the district court properly refused to consider such evidence here as to the § 3553(a) factors and otherwise did not abuse its discretion in denying Orena’s motion for compassionate release, we affirm.

BACKGROUND

Orena is currently serving a mandatory life sentence for racketeering and murder in aid of racketeering, among other conv