United States v. Fernandez

104 F.4th 420

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

August Term, 2023

United States Court of Appeals, Second Circuit

Argued: December 4, 2023

Decided: June 11, 2024

Appeal from the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge)

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.

Before: Sack, Lohier, and Kahn, Circuit Judges.

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 18 U.S.C. § 3582(c)(1)(A), commonly known as a motion for "compassionate release." Defendant-Appellee Joe Fernandez, then imprisoned in a federal penitentiary, filed this compassionate-release motion seeking a reduction of the mandatory life sentence he was serving for his conviction of murder for hire, in violation of 18 U.S.C. § 1958.

Patrick Darge had hired Fernandez as a "backup shooter" in a scheme to murder two Mexican drug cartel members who had come to New York City to collect payment for more than 270 kilograms of cocaine the cartel had sold to local drug trafficker Jeffrey Minaya. While Darge (and several other co-defendants implicated in the scheme) pleaded guilty to various narcotics, firearms, and murder charges and cooperated with the government, Fernandez went to trial and was convicted.

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 18 U.S.C. § 3582(c)(1)(A), and that Fernandez's sentencing disparity is not an "extraordinary and compelling reason[ ]" for a sentence reduction on the facts of this case. We agree with the government that a compassionate release motion is not the proper vehicle for litigating the issues Fernandez has raised, irrespective of whether his mandatory life sentence is unjust. We therefore reverse the judgment of the district court.

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 building in the Bronx. Alberto Reyes, another participant in the scheme, ushered in Cuellar and Flores, called an elevator, gave the "sign" to Darge and Fernandez, and left. As Cuellar and Flores stood waiting for the elevator, Darge emerged from the shadows and shot Cuellar in the back of the head. Darge then turned to shoot Flores, but Darge's gun jammed. He ran out of the lobby to the getaway car, where Rivera was waiting. Fernandez, however, remained in the lobby and fired fourteen shots, nine of which hit either Cuellar or Flores. Having confirmed that both victims were dead, Fernandez returned to the getaway car and he, Darge, and Rivera fled the scene. Darge paid Fernandez $40,000 for his participation in the scheme.

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 in a murder-for-hire conspiracy resulting in two deaths, in violation of 18 U.S.C. § 1958, and one count of aiding and abetting the use of a firearm to commit two murders during and in relation to a crime of violence (the murder-for-hire conspiracy in count one), in violation of 18 U.S.C. §§ 924(j)(1) and 2. Unlike Darge, Reyes, and Minaya, who were also charged but pleaded guilty,¹ Fernandez maintained his innocence and went to trial. The evidence included bullets and shell casings from the crime scene; photographs of the scene and relevant individuals; and phone records. The evidence also included testimony of four law enforcement officers (one of whom was a ballistics expert), one doctor from the Office of the Chief Medical Examiner, and six cooperating witnesses. The government's key cooperating witness was Darge, the only one attesting to first-hand knowledge of Fernandez's participation in the shooting.

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 18 U.S.C. § 1958), and a non-mandatory life sentence, running consecutively on the second count (aiding and abetting the use of a firearm to commit two murders during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(j)(1) and 2). Separately, the district court sentenced Darge to 30 years' imprisonment; Reyes (who brought the victims into the lobby and gave the sign to shoot) to 25 years; Minaya (the drug lord who ordered the murders) to 15 years; and Rivera (the getaway driver) to two years. See supra note 1.

Fernandez appealed his conviction, arguing again "that Darge's testimony was insufficient to sustain his conspiracy conviction because it was uncorroborated." United States v. Fernandez, 648 F. App'x 56, 60 (2d Cir. 2016) (summary order), cert. denied, 583 U.S. 925, 138 S.Ct. 337, 199 L.Ed.2d 225 (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, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), holding, as relevant here, that 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. Id. at 470, 139 S.Ct. 2319. This left Fernandez to serve the remaining mandatory life sentence for his murder-for-hire conviction. The court denied the other collateral challenges. Fernandez appealed those denials, and this Court affirmed. Fernandez v. United States, 757 F. App'x 52 (2d Cir. 2018) (summary order), cert. denied, — U.S. —, 140 S. Ct. 337, 205 L.Ed.2d 190 (2019).

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 18 U.S.C. § 3582(c)(1)(A), which was supplemented by counsel on February 14, 2022. Fernandez argued that four extraordinary and compelling reasons warranted a reduction of his sentence: (1) his potential innocence in light of Patrick Darge's non-credible testimony, see Supp. App'x at 57 (asserting that "there is a strong basis to question the correctness of the verdict"); (2) the considerably lower sentences imposed on Darge, Reyes, Minaya, and Rivera; (3) the harsh conditions of his confinement resulting from the COVID-19 pandemic; and (4) his rehabilitation while incarcerated.

The district court rejected the third ground; it did not address the fourth. Nonetheless, persuaded by Fernandez's assertion of his potential innocence and sentencing disparity, the district court granted Fernandez's motion on November 17, 2022.

As to Fernandez's potential innocence, Judge Hellerstein explained that "[a]lthough there is factual support for the jury's verdict and the verdict...