UNITED STATES OF AMERICA, Appellant, v. JOE FERNANDEZ, Defendant-Appellee, MANUEL ALADINO SUERO, JOSE GERMAN RODRIGUEZ-MORA, also known as GORDO, LUIS RIVERA, ALBERTO REYES, also known as ZAC, PATRICK H. DARGE, Defendants.
Docket No. 22-3122-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
June 11, 2024
August Term, 2023. (Argued: December 4, 2023)
Before: SACK, LOHIER, AND KAHN, Circuit Judges.
The government appeals from a judgment entered on November 17, 2022, in which the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted federal prisoner Joe Fernandez‘s motion for a sentence reduction pursuant to
REVERSE the judgment of the district court.
DAVID ABRAMOWICZ (Christopher D. Brumwell, Won S. Shin, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellant;
BENJAMIN GRUENSTEIN, Cravath, Swaine & Moore LLP, New York, NY, for Appellee.
SACK, Circuit Judge:
This appeal raises questions as to which claims and arguments a district court is permitted to consider as “extraordinary and compelling reasons” in support of a motion for a sentence reduction pursuant to
In 2021, Fernandez filed the instant motion for compassionate release in the district court arguing, in relevant part, that two “extraordinary and compelling reasons” warranted his release: (1) his potential innocence in light of the questionable credibility of Darge, the government‘s key witness at trial, and (2) the significantly lower sentences imposed on Fernandez‘s co-defendants. The United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) granted the motion on these grounds, reduced Fernandez‘s sentence to time served, and ordered his release.
The government appealed, arguing that the district court abused its discretion because potential innocence is never a permissible “extraordinary and compelling reason[]” for a sentence reduction within the meaning of
BACKGROUND
I. Factual Background
A. Fernandez‘s Offense Conduct
It was established at Fernandez‘s trial that, in early 2000, Arturo Cuellar and Idelfonso Vivero Flores, two members of a Mexican drug cartel, traveled to New York City to collect payment for 274 kilograms of cocaine their cartel had delivered to Minaya, the leader of a New York drug ring. Minaya, who owed the cartel approximately $6.5 million for the drugs, decided not to pay Cuellar and Flores, and instead hired Patrick Darge to kill them. Darge, in turn, hired Fernandez as his backup shooter and Luis Rivera as the getaway car driver.
In the morning of February 22, 2000, Darge and Fernandez waited for their intended victims in a dark area of the lobby of 3235 Parkside Place, an apartment
On October 13, 2011, eleven years after the shooting, law enforcement officers came searching for Fernandez at an address in Woodbury, New York, but found only his wife there. That same day, Fernandez met with his cousins Christian Guzman and Alain Darge (Patrick Darge‘s brother) at Guzman‘s residence to consult Alain on what to do next. Five days later, on October 18, 2011, Fernandez surrendered to the police.
B. Fernandez‘s Trial, Conviction, and Post-Trial Proceedings
On February 6, 2013, Fernandez was indicted on one count of participating
On cross-examination, Darge admitted that, as a cooperating witness in a different case, he lied to the government, agents, and judge for his own personal benefit. Those lies related to (1) his involvement in two prior murders (including one at issue in this case), (2) his history of credit card fraud, (3) the extent to which he dealt drugs, (4) his brother Alain Darge‘s involvement in his drug dealing business, and (5) Alain Darge‘s history of “shooting people.” Tr. at 405. Despite these admissions, the jury convicted Fernandez on both counts on March 7, 2013.
Fernandez thrice argued to the district court (twice in post-trial motions and once at his sentencing) that the evidence was insufficient to sustain his conviction because Darge‘s testimony was unreliable. Each time, the court rejected his argument.
On October 7, 2014, the district court sentenced Fernandez to a mandatory life sentence on the first count (participating in a murder-for-hire conspiracy resulting in two deaths, in violation of
Fernandez appealed his conviction, arguing again “that Darge‘s testimony was insufficient to sustain his conspiracy conviction because it was uncorcorroborated.” United States v. Fernandez, 648 F. App‘x 56, 60 (2d Cir. 2016) (summary order), cert. denied, 583 U.S. 925 (2017). On May 2, 2016, this Court affirmed. Id.
Fernandez then pursued collateral challenges to his conviction and sentence, pressing claims other than his potential innocence. On November 3, 2021, the district court vacated Fernandez‘s conviction for aiding and abetting the use of a firearm in connection with murder for hire in light of the Supreme Court‘s intervening ruling in United States v. Davis, 588 U.S. 445 (2019), holding, as relevant here, that
C. Fernandez‘s Motion for a Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A)
On November 30, 2021, Fernandez filed a pro se motion for compassionate release under
The district court rejected the third ground; it did not address the fourth. Nonetheless, persuaded by Fernandez‘s assertion of his potential innocence and
As to Fernandez‘s potential innocence, Judge Hellerstein explained that “[a]lthough there is factual support for the jury‘s verdict and the verdict has been affirmed, a certain disquiet remains.” App‘x at 164 (citation omitted). That “disquiet” over Fernandez‘s potential innocence arose from at least six considerations: (1) Patrick and Alain Darge had fled to the Dominican Republic immediately after the two murders while Fernandez had not; (2) in the eleven years between the murders and his arrest, Fernandez had earned an honest living and had no record of violence; (3) Patrick Darge, as a witness against Fernandez, had a motive to lie to the government and had done so in the past; (4) the trial evidence was inconsistent as to whether Darge fired the first shot and Fernandez fired the rest, or Fernandez fired the first shot and Darge the rest; (5) more effective cross-examination of Darge may have exposed his desire to protect his brother Alain as a motive to lie; and (6) the government had chosen not to charge the getaway car driver Rivera for his participation in the murder scheme, instead accepting his guilty plea for an unrelated narcotics charge.
As to the disparity between Fernandez‘s and his co-defendants’ sentences,
Based on those two grounds, and after determining that the factors set forth under
On December 12, 2022, the government timely appealed. On January 4, 2023, this Court denied the government‘s motion to stay Fernandez‘s release pending this appeal.
STANDARD OF REVIEW
“We review the denial of a motion for compassionate release for abuse of discretion.” United States v. Amato, 48 F.4th 61, 64 (2d Cir. 2022) (per curiam) (internal quotation marks omitted), cert. denied sub nom. Orena v. United States, 143 S. Ct. 1025 (2023) (internal quotation marks omitted). “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
DISCUSSION
I. Legal Standard
“Pursuant to
II. Analysis
On this appeal, the government argues that the district court abused its discretion by impermissibly considering Fernandez‘s claims of his potential innocence and the disparity between his and his co-defendants’ sentences as “extraordinary and compelling reasons” under
A. Fernandez‘s Sentencing Disparity Claim
Turning to Fernandez‘s sentencing-disparity claim first, we begin with a construction of the statutory language “extraordinary and compelling reasons.”
that does not exceed the unserved portion of the original term of imprisonment), after considering the [sentencing] factors set forth in [
(i) extraordinary and compelling reasons warrant such a reduction
. . .
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
Fernandez argues that under this Court‘s reasoning in Brooker, district courts have discretion to consider “any reason that fits within the ordinary meaning of ‘extraordinary and compelling,‘” Appellee Br. at 28—save for rehabilitation alone, see
Under the circumstances of this case, Fernandez‘s sentencing disparity is not an “extraordinary and compelling reason[]” to reduce his sentence under the plain meaning of the statute. Fernandez concedes that, “[i]n contrast to all of his co-defendants,” he did not plead guilty or cooperate with the government, but “maintained his innocence, proceeded to trial, and received a [mandatory] life sentence.” Appellee Br. at 49. It is not “extraordinary” (indeed, it should be expected) that a defendant who proceeds to trial and is convicted receives a longer sentence than his co-defendants who plead guilty to different crimes, accept responsibility, and assist the government by cooperating. The Supreme Court has observed that our “system of pleas . . . . often results in individuals
Nor is a disparity between Fernandez‘s sentence and those of his co-defendants a “compelling” reason to reduce a sentence. “Disparities between the sentences of coconspirators can exist for valid reasons, such as . . . the offenses of conviction, or one coconspirator‘s decision to plead guilty and cooperate with the government.” United States v. Conatser, 514 F.3d 508, 522 (6th Cir. 2008). This Court, too, has recognized that “a reasonable explanation” for a sentencing disparity was “readily apparent” where there were “varying degrees of culpability and cooperation between the various defendants,” and where, unlike the defendant-appellant in that case, all co-defendants “cooperated and pled guilty.” United States v. Ebbers, 458 F.3d 110, 129 (2d Cir. 2006), cert. denied, 549 U.S. 1274 (2007); see also United States v. Gahagen, 44 F.4th 99, 113 (2d Cir. 2022) (same).
In sum, “[t]here is nothing ‘extraordinary’ or ‘compelling’ about a sentence disparity that results from a co-defendant‘s decision to plead guilty and assist the government.” Hunter, 12 F.4th at 572 (holding that the district court abused its discretion in granting a compassionate release motion based in part on the sentencing disparity between the movant and his co-defendant).4
We next turn to Fernandez‘s potential-innocence claim. Like his sentencing disparity claim, Fernandez insists that, in light of Brooker and the broad ordinary meaning of the statutory terms “extraordinary and compelling,” the district court was permitted to consider his potential-innocence claim as part of his compassionate release motion. The government counters that
Because “[r]epeal by implication is disfavored[,]” Garfield v. Ocwen Loan Servicing, LLC, 811 F.3d 86, 89 (2d Cir. 2016), “a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment,”
We conclude that
Indeed, we foreshadowed our conclusion today in United States v. Amato and United States v. Jacques. In Amato, 48 F.4th at 65, we held that “arguments challenging the validity of an underlying conviction cannot be raised in a § 3582 motion as part of the
[i]f a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to
28 U.S.C. § 2255 , which imposes particular procedural limitations. A defendant cannot evade this collateral review structure by attacking the validity of his conviction through § 3582.
Id. That reasoning applies here: Challenging the validity of a conviction under the extraordinary-and-compelling-reasons prong of section 3582 would permit a defendant to “evade [the] collateral review structure” of section 2255, a result in tension with Amato.
In United States v. Jacques, we concluded that attacks on the validity of the defendant‘s conviction were not cognizable on a section 3582 motion for compassionate release—either under the section 3553(a) prong or the extraordinary-and-compelling-reasons prong. See No. 20-3276, 2022 WL 894695, at *2 (2d Cir. Mar. 28, 2022) (summary order). There too we reasoned that “[p]ermitting a [defendant] to make actual innocence arguments in this manner would enable him to pursue habeas relief through a compassionate release motion and thereby evade the procedural limitations on bringing habeas claims.” Id. Fernandez contends that Jacques is a summary order and therefore not
Fernandez‘s reliance on Brooker is unavailing. While it is correct that district courts have the discretion “to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release,” 976 F.3d at 237 (emphasis added), Brooker did not discuss or decide the scope of that “full slate.” See also Amato, 48 F.4th at 66 (“Nothing in [Brooker] permits defendants to circumvent the procedural limitations of § 2255 by repackaging actual innocence arguments into the § 3553(a) factors.“). And where, as here, the straightforward application of canons of statutory construction removes certain claims from that slate, a district court may not consider them.5
Only one circuit has stood against the weight of this authority. In United States v. Trenkler, 47 F.4th 42, 48 (1st Cir. 2022), the First Circuit held that section 3582‘s plain language permits a district court to consider any claim (other than rehabilitation alone) as a possibly extraordinary and compelling reason.
In the alternative, Fernandez argues that even if challenges to the validity of a conviction must be brought on a section 2255 petition, his innocence claim is not barred here because it is not, in fact, an attack on the legal validity of his conviction. Rather, Fernandez argues that his life sentence is “unjust” in light of Patrick Darge‘s unreliable testimony, even if it does not taint Fernandez‘s conviction with legal error. Appellee Br. at 43.
Again, we disagree. “[N]o matter how an inmate characterizes his request for relief, the substance of that request controls.” Ferguson, 55 F.4th at 270. Whether Fernandez couches his claims in terms of legal validity or “justness,” he is, in substance, attacking his conviction. And “[i]f in substance [an inmate]
Finally, Fernandez argues that he could not have raised his potential-innocence claim on a section 2255 petition because such claims succeed only when coupled with a meritorious claim of constitutional error. See Herrera v. Collins, 506 U.S. 390, 404 (1993) (“[A] claim of ‘actual innocence’ . . . is [only] a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.“). Because he had no constitutional claim, Fernandez explains, he could not have raised his potential-innocence claim on habeas, which means it remains viable on the instant compassionate release motion. This argument fails, too. As Fernandez concedes, a potential-innocence argument would have been cognizable on a section 2255
In sum, Fernandez cannot escape the principle espoused by the majority of our sister circuits and adopted by us today: Challenges to the validity of a conviction—including potential-innocence claims—cannot qualify as “extraordinary and compelling reasons” under section 3582(c)(1)(A) because they can (and therefore must) be brought in a section 2255 petition.
CONCLUSION
We have considered Fernandez‘s remaining arguments on appeal and conclude that they are without merit. We REVERSE the district court‘s order and judgment and REMAND for further proceedings consistent with this opinion and the order issued concurrently herewith.
Notes
The court may not modify a term of imprisonment once it has been imposed except that—
(1) in any case—
(A) the [district] court, . . . may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions
We therefore need not, and do not, resolve the parties’ disagreement over whether a sentencing disparity claim categorically amounts to a challenge of the validity of a sentence, must therefore always be brought on direct or collateral review, and is therefore always barred on a motion for compassionate release. Compare Appellee Br. at 43 (Fernandez arguing that his sentencing disparity claim does not challenge the legal validity of his sentence, but contends simply that the disparity is “unjust” because it far exceeds that of his co-defendants), with Appellant Br. at 38 (arguing that Fernandez‘s sentencing disparity claim is an attack on the sentence‘s validity). Here, we simply assume without deciding that Fernandez‘s sentencing disparity claim is not a challenge to the validity of his sentence, and conclude that Fernandez‘s claim cannot be an “extraordinary and compelling reason[]” to reduce his sentence under the plain meaning of the statutory terms.