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June 11, 2024

Notable new Second Circuit opinion limits grounds for granting 3582(c)(1)(A) sentence reduction

A helpful reader made sure I did not miss a notable new opinion today from a Second Circuit panel reversing a notable sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  The 28-page ruling in US v. Fernandez, No. 22-3122 (2d Cir. June 11, 2024) (available here), gets started this way:

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 codefendants 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.

The discussion of sentencing disparity as a legal basis for possible sentence reduction is quite nuanced, and it includes a lengthy footnote starting with this sentence: "We cannot foreclose the possibility that significant sentencing disparities, even between a defendant who went to trial and a co-defendant who pleaded guilty and cooperated, might, in some unusual circumstances, warrant a finding of 'extraordinary and compelling' reasons to grant a sentence reduction."   In addition, the innocence discussion is also dynamic.  But, nuances aside, this ruling would seem to greatly hinder claims of actual innocence or general co-defendant sentencing dispartity as a basis for seeking a sentece reduction.

June 11, 2024 at 02:34 PM | Permalink


Either he's innocent or he isn't. If he is, let him out yesterday. If he isn't, his sentence (for murder for hire as part of a drug cartel enforcement) is more than earned. In no event does a shorter sentence make any sense. It's an idiotic form of compromise.

Posted by: Bill Otis | Jun 11, 2024 3:25:53 PM

The district judge did let him out.

Posted by: AFPD | Jun 11, 2024 4:30:40 PM


...which is a good reason to be thankful that circuit judges are higher than district judges.

Posted by: Bill Otis | Jun 11, 2024 5:14:01 PM

And yet, Bill, you invented a means to write circuit judges entirely out of most federal sentencing cases, and thus made district judges in these cases almost entirely unaccountable and unreviewable, despite the fact Congress wrote an entirely different approach into statutory law.

Posted by: Doug B | Jun 11, 2024 5:33:41 PM

How do you know he's guilty? The Circuit didn't rule on that. They said even if he was innocent that wouldn't be a legal basis to let him out.

Posted by: AFPD | Jun 11, 2024 6:54:03 PM

Doug --

Let me quote you verbatim (emphasis added): "And yet, Bill, you invented a means to write CIRCUIT JUDGES entirely out of most federal sentencing cases, and thus made district judges in these cases almost entirely unaccountable and unreviewable, despite the fact Congress wrote an entirely different approach into statutory law."

My invention (or was it Satan's?) has, as you know, been approved by all the circuit courts.

Q: Who sits on circuit courts?

A: Circuit judges.

So all those circuit judges were in a conspiracy with me to scuttle their own authority. And have been for 30 years.

Far out!!!

Doug, I think you might have been reading too many Keith Lynch comments.

Posted by: Bill Otis | Jun 11, 2024 10:20:02 PM


"How do you know he's guilty? The Circuit didn't rule on that."

Actually it did, just not in the present opinion. United States v. Fernandez, 648 F. App’x 56, 60 (2d Cir. 2016) 10
(summary order), cert. denied, 583 U.S. 925 (2017).

Posted by: Bill Otis | Jun 12, 2024 12:07:04 AM

Not a "conspiracy," Bill, just a willingness of circuit judges to elevate the interests of DOJ (and their disaffinity for lots more cases to resolve) over the text and policy of the SRA. And, as SCOTUS hightights every term, the circuit courts do not always get the law right (though you and I think that's true for SCOTUS, too, see, eg, Dickerson and Watts).

Posted by: Doug B | Jun 12, 2024 8:29:36 AM

Well gads. Doug, you'd think that, over the course of 30 long years, at least ONE of the circuits would have the moxie to step up to the plate and take down Satan's work.

Jeeeeeeeeeeeez. Now I'm worried. Maybe Keith Lynch is right after all: The prosecutors and cops and judges too are ALL just the functional equivalent of La Cosa Nostra. Perhaps if they do a re-make of the Godfather, they'll cast me as Vito Corleone. The first time I could have been cast as Michael, but that was....................a while back.

Posted by: Bill Otis | Jun 12, 2024 10:00:23 AM


Reading that DC opinion (United States v. Fernandez, 648 F. App’x 56, 60 (2d Cir. 2016) 10), I have some problem that the guy got convicted at all. At least going through that opinion, the only evidence placing the defendant as part of the offense was from a couple guys who had every reason to lie. And that only one of them actually did testify (at least as I read it, the trial court ruled that the second's testimony would simply be cumulative with the first and so pointless to waste the court's time).

Posted by: Soronel Haetir | Jun 12, 2024 6:54:38 PM

Soronel --

One of the most important questions in law is who is in the best position to decide the question. In this instance, it's the jury, which heard all of it firsthand, and the trial judge, who denied the defense motion to set aside the jury's verdict for insufficient evidence. I'll defer to them, particularly in light of the court of appeals' refusal to set aside their judgment.

But my main point was simply that AFPD was not telling the truth in claiming that the Second Circuit did not rule on the substantive question of guilt or innocence.

Posted by: Bill Otis | Jun 12, 2024 8:45:32 PM

The person in the best position to decide the question of guilt or innocence is obviously the prosecutor. Its not like they select targets for investigation at random like members of a jury pool.

I dont say always. I say almost always. You cant trust rat prosecutors, what are they even doing on that side of the well? MAGA

Posted by: MAGA 2024 | Jun 15, 2024 11:21:34 AM


One of the finest prosecutors I worked for was Helen F. Fahey, a Democratic US Attorney appointed by Slick Willie, but a wonderful and principled human being. And, now that you mention it, prosecutors are in quite a good position to decide guilt or innocence, as shown, e.g., by the fact that juries agree with them the great majority of the time, and defense lawyers agree with them even more frequently, when they sign plea agreements admitting their clients' guilt.

Posted by: Bill Otis | Jun 15, 2024 6:28:41 PM

Bill :

Glad to hear you had a rat boss who didn't get in your way. Obviously she recognized a man of superior talent and solid connections.

Also glad you agree for once instead of launching into one of your ludicrous attacks. I dont know if its your spleen acting up or Mars entering the house of Scorpio or what but you gotta take a chill pill sometimes. Youre not alone in opposing the torrent of leftist blather. You have allies here. A bunker mentality does not suit you on this blog. Save it for when you might need it, like next January. If the rats try to steal the election again itll be all hands on deck and I trust we can count you to bring the skills Mrs. Fahey percieved to bear on uniting this country, befouled by the Bidens, behind President Trump to prosper and grow.

Ill agree back atcha about defense lawyers. A few of their clients will express contrition, fiegned or not, but in general the defense counselor has to look at his own situation and say "better luck next time". The more of them you can get to say that more often, the better you are at your job.

Hope your fathers day was enjoyable. Cheers MAGA

Posted by: MAGA 2024 | Jun 17, 2024 4:15:54 PM

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