Opposition Brief — Joe Fernandez, Petitioner v. United States

No. 24-556

In the Supreme Court of the United States

JOE FERNANDEZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

ANTOINETTE T. BACON

ANN O’CONNELL ADAMS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly determined

that petitioner had not identified “extraordinary and

compelling reasons” that supported reducing his sentence under 18 U.S.C. 3582(c)(1)(A)(i), where his motion

relied on his asserted “potential innocence” and differences between his sentence and those of his coconspirators.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D.N.Y.):

United States v. Fernandez, No. 10-cr-863 (Oct.

22, 2014)

United States v. Fernandez, No. 17-cv-4806 (Nov.

13, 2017)

United States v. Fernandez, No. 10-cr-863 (Nov.

3, 2021)

United States Court of Appeals (2d Cir.):

United States v. Fernandez, No. 14-4158 (May 2,

2016)

United States v. Fernandez, No. 15-487 (May 2,

2016)

United States v. Fernandez, No. 15-643 (May 2,

2016)

United States v. Fernandez, No. 18-6 (Dec. 4, 2018)

United States v. Fernandez, No. 20-1130 (June 22,

2020)

U.S. Supreme Court:

Fernandez v. United States, No. 17-5760 (Oct. 10,

2017)

Fernandez v. United States, No. 19-5631 (Oct. 7,

2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument..................................................................................... 11

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Concepcion v. United States, 597 U.S. 481 (2022) ........ 14, 15

Dillon v. United States, 560 U.S. 817 (2010) .................. 3, 12

Ferguson v. United States, 144 S. Ct. 1007 (2024) ............. 11

Fraction v. United States, 143 S. Ct. 1784 (2023) .............. 11

Gibbs v. United States, 143 S. Ct. 1796 (2023) .................... 11

Jones v. Hendrix, 599 U.S. 465 (2023)................................. 13

King v. United States, 143 S. Ct. 1784 (2023) ..................... 11

McCall v. United States, 143 S. Ct. 2506 (2023) ................. 11

Preiser v. Rodriguez, 411 U.S. 475 (1973)........................... 14

Tapia v. United States, 564 U.S. 319 (2011) ......................... 3

United States v. Brooker, 976 F.3d 228 (2d Cir. 2020) .... 5, 8

United States v. Chen, 48 F.4th 1092 (9th Cir. 2022) ......... 19

United States v. Crandall, 25 F.4th 582 (8th Cir.),

cert. denied, 142 S. Ct. 2781 (2022) ............................. 13, 17

United States v. Davis, 588 U.S. 445 (2019) ......................... 2

United States v. Escajeda, 58 F.4th 184

(5th Cir. 2023)...................................................................... 17

United States v. Ferguson, 55 F.4th 262

(4th Cir. 2022), cert. denied, 144 S. Ct. 1007 (2024)......... 17

United States v. Jenkins, 50 F.4th 1185

(D.C. Cir. 2022) ....................................................... 13, 14, 17

United States v. King, 40 F.4th 594, 595

(7th Cir. 2022), cert. denied, 143 S. Ct. 1784

(2023)................................................................................ 12

(III)

IV

Cases—Continued:

Page

United States v. McCall, 56 F.4th 1048

(6th Cir. 2022), cert. denied, 143 S. Ct. 2506 (2023)... 12, 13

United States v. Roper, 72 F.4th 1097

(9th Cir. 2023)................................................................ 17, 18

United States v. Ruvalcaba, 26 F.4th 14

(1st Cir. 2022) ...................................................................... 19

United States v. Trenkler, 47 F.4th 42 (1st Cir. 2022) ....... 17

United States v. Von Vader, 58 F.4th 369 (7th Cir.),

cert. denied, 144 S. Ct. 399 (2023) ..................................... 17

United States v. West, 70 F.4th 341 (6th Cir. 2023),

cert. denied, 144 S. Ct. 1010 (2024) ................................... 17

United States v. Wesley, 60 F.4th 1277

(10th Cir. 2023), cert. denied, 144 S. Ct. 2649 (2024) ....... 17

Wesley v. United States, 144 S. Ct. 2649 (2024) ................. 11

West v. United States, 144 S. Ct. 1010 (2024) ..................... 11

Wisconsin Cent. Ltd. v. United States,

585 U.S. 274 (2018).............................................................. 12

Statutes, guidelines, and rule:

First Step Act of 2018, Pub. L. No. 115-391,

Tit. VI, § 603(b), 132 Stat. 5239 ........................................... 4

§ 404, 132 Stat. 5222 .................................................. 14, 15

§ 404(a), 132 Stat. 5222.................................................... 15

§ 404(b), 132 Stat. 5222 ................................................... 15

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

Tit. II, Ch. II, 98 Stat. 1987 (18 U.S.C. 3551 et seq.) ......... 3

§ 212(a)(2), 98 Stat. 1998-1999 .......................................... 3

§ 217(a), 98 Stat. 2019 ....................................................... 4

§ 217(a), 98 Stat. 2023 ....................................................... 8

18 U.S.C. 924(c)(3)(B)...................................................... 2, 6, 8

18 U.S.C. 924(j) .................................................................... 2, 6

18 U.S.C. 1958 .......................................................................... 9

V

Statutes, guidelines, and rule—Continued:

Page

18 U.S.C. 3553(a) ..................................................................... 9

18 U.S.C. 3582(c) ................................................................ 3, 12

18 U.S.C. 3582(c)(1)(A) .......................................... 2-5, 8, 10-18

18 U.S.C. 3582(c)(1)(A)(i) ............................................ 8, 14, 15

18 U.S.C. 3582(c)(1)(A)(ii) ..................................................... 12

28 U.S.C. 991 ............................................................................ 3

28 U.S.C. 994(a) ....................................................................... 3

28 U.S.C. 994(a)(2)(C) ............................................................. 3

28 U.S.C. 994(t) .............................................................. 3, 4, 14

28 U.S.C. 2255 ........................................... 2, 7, 8, 10, 13, 15, 16

United States Sentencing Guidelines:

Ch. 1:

§ 1B1.13, comment. (n.1(A)-(D)) (2016) ..................... 4

§ 1B1.13, comment. (n.1(D)) (2016) ............................ 4

§ 1B1.13 (2023) ............................................. 5, 17, 18

§ 1B1.13(b) (2023) .................................................. 18

App. C Supp.:

Amend. 683 (Nov. 1, 2006) .......................................... 4

Amend. 799 (Nov. 1, 2016) .......................................... 4

Sup. Ct. R. 10 ......................................................................... 15

Miscellaneous:

88 Fed. Reg. 28,256 (May 3, 2023) ....................................... 18

Oxford Dictionary of the English Language (2010) .......... 13

Webster’s Third New International Dictionary of

the English Language (1971) ...................................... 12, 13

In the Supreme Court of the United States

No. 24-556

JOE FERNANDEZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-25a)

is reported at 104 F.4th 420. The order of the district

court (Pet. App. 28a-39a) is unreported but is available

at 2022 WL 17039059. Prior decisions of the court of

appeals in petitioner’s case are available at 648 Fed.

Appx. 56 and 757 Fed. Appx. 52.

JURISDICTION

The judgment of the court of appeals was entered on

June 11, 2024. A petition for rehearing was denied on

August 15, 2024 (Pet. App. 40a-41a). The petition for a

writ of certiorari was filed on November 13, 2024. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of New York, petitioner

was convicted of conspiring to commit murder for hire

resulting in death, in violation of 18 U.S.C. 1958; and

using a firearm in furtherance of a crime of violence resulting in death, in violation of 18 U.S.C. 924(j). Judgment 1. The district court sentenced him to two consecutive terms of life imprisonment, to be followed by five

years of supervised release. Judgment 2-3. The court

of appeals affirmed. 648 Fed. Appx. 56. This Court denied a petition for a writ of certiorari. 583 U.S. 925.

In 2017, petitioner filed a motion to vacate his convictions and sentence pursuant to 28 U.S.C. 2255. D. Ct.

Doc. 217 (June 23, 2017). The district court denied the

motion. 17-cv-4806 D. Ct. Doc. 6 (Nov. 13, 2017). The

court of appeals affirmed. 757 Fed. Appx. 52. This Court

denied a petition for a writ of certiorari. 140 S. Ct. 337.

In 2020, the court of appeals authorized petitioner to

file a second Section 2255 motion to raise a claim that

his Section 924(j) conviction should be vacated in light

of United States v. Davis, 588 U.S. 445 (2019). 20-1130

C.A. Order (June 22, 2020). The district court granted

the motion and vacated petitioner’s life sentence for the

Section 924(j) offense, leaving undisturbed his life sentence for the murder-for-hire conspiracy. D. Ct. Doc.

245 (Nov. 3, 2021).

In 2021, petitioner filed a motion for a sentence reduction under 18 U.S.C. 3582(c)(1)(A). D. Ct. Doc. 248

(Nov. 30, 2021); D. Ct. Doc. 257 (Feb. 14, 2022). The district court granted the motion and reduced petitioner’s

life sentence to a time-served sentence of roughly 11

years. Pet. App. 28a-39a. The court of appeals reversed.

Id. at 1a-25a.

3

1. a. The Sentencing Reform Act of 1984 (Sentencing Reform Act), Pub. L. No. 98-473, Tit. II, Ch. II, 98

Stat. 1987 (18 U.S.C. 3551 et seq.), “overhaul[ed] federal

sentencing practices.” Tapia v. United States, 564 U.S.

319, 325 (2011). To make prison terms more determinate, Congress “established the Sentencing Commission

and authorized it to promulgate Sentencing Guidelines

and to issue policy statements.” Dillon v. United States,

560 U.S. 817, 820 (2010); see 28 U.S.C. 991, 994(a).

Congress also abolished the practice of federal parole, specifying that a “court may not modify a term of

imprisonment once it has been imposed” except in certain enumerated circumstances. 18 U.S.C. 3582(c); see

Tapia, 564 U.S. at 325. One of those circumstances is

set forth in 18 U.S.C. 3582(c)(1)(A). As originally enacted

in the Sentencing Reform Act, Section 3582(c)(1)(A)

stated:

the court, upon motion of the Director of the Bureau

of Prisons, may reduce the term of imprisonment, 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 and that such a reduction

is consistent with applicable policy statements issued

by the Sentencing Commission.

Sentencing Reform Act § 212(a)(2), 98 Stat. 1998-1999.

Congress made clear that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary

and compelling reason.” 28 U.S.C. 994(t); see Sentencing Reform Act § 217(a), 98 Stat. 2023.

Congress also directed the Sentencing Commission

to promulgate “general policy statements regarding

* * * the appropriate use of * * * the sentence modification provisions set forth in [Section] 3582(c).” 28 U.S.C.

4

994(a)(2)(C); see Sentencing Reform Act § 217(a), 98 Stat.

2019. Congress instructed “[t]he Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A)

of title 18, [to] describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” 28 U.S.C. 994(t); see Sentencing Reform Act § 217(a), 98 Stat. 2023.

The Commission did not promulgate an applicable

policy statement until 2006, when it issued Sentencing

Guidelines § 1B1.13. See Sentencing Guidelines App. C,

Amend. 683 (Nov. 1, 2006). As amended in 2016, the

commentary to Section 1B1.13 described four categories of reasons that should be considered extraordinary

and compelling: “Medical Condition of the Defendant,”

“Age of the Defendant,” “Family Circumstances,” and

“Other Reasons.” Id. § 1B1.13, comment. (n.1(A)-(D)); see

id. App. C Supp., Amend. 799. The fourth category—

“Other Reasons”—encompassed any reason determined

by the Bureau of Prisons (BOP) director to be “extraordinary and compelling” “other than, or in combination

with,” the reasons described in the other three categories. Id. § 1B1.13, comment. (n.1(D)).

b. In the First Step Act of 2018 (First Step Act),

Pub. L. No. 115-391, Tit. VI, § 603(b), 132 Stat. 5239,

Congress amended Section 3582(c)(1)(A) to allow defendants, as well as the BOP itself, to file motions for a

reduced sentence. As amended, Section 3582(c)(1)(A)

now states:

the court, upon motion of the Director of the Bureau

of Prisons, or upon motion of the defendant after the

defendant has fully exhausted all administrative

rights to appeal a failure of the Bureau of Prisons to

5

bring a motion on the defendant’s behalf or the lapse

of 30 days from the receipt of such a request by the

warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment * * * ,

after considering the factors set forth in section

3553(a) to the extent that they are applicable, if it

finds that * * * extraordinary and compelling reasons warrant such a reduction * * * and that such a

reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. 3582(c)(1)(A).

After the First Step Act’s enactment, the Second

Circuit determined that the 2016 version of Sentencing

Guideline § 1B1.13, including its description of what

should be considered “extraordinary and compelling”

reasons, was not applicable to Section 3582(c)(1)(A) motions filed by defendants. See United States v. Brooker,

976 F.3d 228, 235-236 (2d Cir. 2020).

2. In 2000, Arturo Cuellar and Idelfonso Vivero Flores, members of a Mexican drug cartel, traveled to New

York City to collect a $6.5 million debt for 274 kilograms

of cocaine that their cartel had delivered to Jeffrey Minaya, the leader of a New York drug ring. Pet. App. 4a.

Instead of paying Cuellar and Flores, Minaya hired Patrick Darge to kill them. Ibid. Darge enlisted petitioner

(his cousin) as his “backup shooter” and Luis Rivera as

their getaway driver. Ibid.; see id. at 29a.

On the morning of February 22, 2000, petitioner and

Darge waited for Cuellar and Flores in the lobby of an

apartment building in the Bronx. Pet. App. 4a. Alberto

Reyes, another participant in the scheme, let Cuellar

and Flores into the building, called an elevator, signaled

to petitioner and Darge, and left. Ibid. Darge shot

Cuellar in the back of the head, but his gun jammed

6

before he could shoot Flores, and he fled to the getaway

car. Ibid. Petitioner remained in the lobby and fired 14

shots, nine of which hit either Cuellar or Flores. Ibid.

After confirming that both victims were dead, petitioner fled to the getaway car and he, Darge, and Rivera

left the scene. Ibid. Darge paid petitioner $40,000 for

his role in the murder. Ibid.

In October 2011—eleven years later—police came

searching for petitioner at an address in Woodbury,

New York, and encountered his wife. Pet. App. 5a. Petitioner surrendered to police a few days later. Ibid.

3. A grand jury in the Southern District of New

York charged petitioner with one count of conspiring to

commit murder for hire resulting in death, in violation

of 18 U.S.C. 1958, and one count of using a firearm in

furtherance of a crime of violence resulting in death, in

violation of 18 U.S.C. 924(j). Superseding Indictment 12. The predicate crime of violence for the Section 924(j)

offense was the murder-for-hire conspiracy. Id. at 2; Pet.

App. 5a. Darge, Reyes, and Minaya were also charged

with crimes related to the murders and pleaded guilty,

while Rivera was charged with, and pleaded guilty to, a

drug conspiracy that was separate from the murder-forhire scheme. Pet. App. 5a-6a n.1.

Petitioner opted to proceed to trial. Pet. App. 5a-6a.

The evidence at trial included bullets and shell casings

from the crime scene; photographs of the scene and relevant individuals; the testimony of four law enforcement officers, one of whom was a ballistics expert; the

testimony of a doctor from the Office of the Chief Medical Examiner; and the testimony of six cooperating witnesses. Id. at 6a. The government’s key cooperating

witness was Darge, who testified to petitioner’s participation in the shooting. Ibid. On cross-examination,

7

Darge admitted that, as a cooperating witness in another case, he had lied to the government, agents, and a

judge for his own benefit. Ibid. Those lies related to

his involvement in two prior murders (including one at

issue in this case), his history of credit card fraud, the

extent to which he dealt drugs, his brother’s involvement in his drug-dealing business, and his brother’s history of “shooting people.” Ibid.

The jury found petitioner guilty on both counts. Pet.

App. 6a; Judgment 1. In two post-trial motions and at

sentencing, petitioner “argued to the district court

* * * that the evidence was insufficient to sustain his

conviction because Darge’s testimony was unreliable.”

Pet. App. 7a. The court rejected that argument each

time. Ibid. (citation omitted).

The district court sentenced petitioner to a mandatory life sentence on the murder-for-hire count, and a

consecutive (non-mandatory) life sentence on the Section 924(j) count, to be followed by five years of supervised release. Judgment 2-3; Pet. App. 7a. Separately,

the district court sentenced Darge to 30 years of imprisonment, Reyes to 25 years of imprisonment, Minaya to

15 years of imprisonment, and Rivera to two years of

imprisonment, on the charges to which they had pleaded

guilty. Pet. App. 7a; see id. at 5a n.1.

4. The court of appeals affirmed. 648 Fed. Appx. 56.

The court rejected petitioner’s argument that the evidence was insufficient to convict him because Darge’s

testimony was uncorroborated. Id. at 60. This Court

denied a petition for a writ of certiorari. 583 U.S. 925.

5. In 2017, petitioner filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. 2255, pressing claims other than his asserted innocence. D. Ct.

Doc. 217. The district court denied the motion. 17-cv-

8

4806 D. Ct. Doc. 6. The court of appeals affirmed. 757

Fed. Appx. 52. This Court denied a petition for a writ

of certiorari. 140 S. Ct. 337.

In 2020, the court of appeals authorized petitioner to

file a second Section 2255 motion to raise a claim that

his Section 924(j) conviction should be vacated in light

of United States v. Davis, 588 U.S. 445 (2019), which

held that the definition of crime of violence in 18 U.S.C.

924(c)(3)(B) is unconstitutionally vague. 20-1130 C.A.

Order. The district court granted the motion and vacated petitioner’s life sentence for the Section 924(j) offense, leaving undisturbed his mandatory life sentence

for the murder-for-hire conspiracy. D. Ct. Doc. 245.

6. In 2021, petitioner filed a motion for a sentence

reduction under 18 U.S.C. 3582(c)(1)(A). D. Ct. Doc.

248; D. Ct. Doc. 257. The district court granted the motion and reduced petitioner’s life sentence to a timeserved sentence of roughly 11 years. Pet. App. 28a-39a.

The district court accepted petitioner’s claim that

“extraordinary and compelling reasons” warranted a

sentence reduction. See 18 U.S.C. 3582(c)(1)(A)(i). The

court based its decision largely on its view that there was

“reason to question the verdict.” Pet. App. 36a (capitalization omitted). The court acknowledged that “there is

factual support for the jury’s verdict and the verdict has

been affirmed,” but stated that “a certain disquiet remains.” Id. at 36a. The court wondered whether Darge

had “sacrifice[d]” petitioner “to save his brother” and it

speculated that “[a] more effective cross-examination”

of Darge “might have changed the verdict.” Ibid. The

court also pointed, inter alia, to the fact that the Darge

and his brother had fled to the Dominican Republic

immediately after the murders, whereas petitioner

had remained in the United States, and to potential

9

discrepancies in the evidence as to how many shots

Darge and petitioner each fired. Ibid. The court further suggested that the government’s decision to charge

Rivera (the getaway driver) with a drug offense rather

than the murder-for-hire conspiracy might have indicated that it lacked confidence in Darge’s testimony. Id.

at 37a. The court stated that “[t]he sum of all this

causes me to be unsure that [petitioner] was Darge’s

back-up, or that he was a member of the conspiracy to

kill Cuellar and Flores, or that he shot either or both of

the two.” Ibid.

In addition, the district court took the view that petitioner’s statutorily required term of imprisonment

was disparately lengthy compared to the sentences imposed on his coconspirators. Pet. App. 37a. Although

petitioner received the only term of imprisonment allowed for the offense for which he was convicted, the

court stated that “the enactment of the First Step Act

enables me to consider this disparity as part of the extraordinary and compelling circumstances that justify a

lower sentence for [petitioner].” Id. at 38a. In the

court’s view, a time-served sentence of about 11 years

would reduce the disparity between petitioner and his

coconspirators and would be sufficient but not greater

than necessary to achieve the sentencing objectives set

forth in Section 3553(a). Ibid.

7. The court of appeals reversed. Pet. App. 1a-25a.

With respect to the sentencing-disparity rationale,

the court determined that “[u]nder the circumstances

of this case,” the difference between petitioner’s sentence and those of his coconspirators was not an extraordinary and compelling reason to reduce his sentence. Pet. App. 14a. The court explained that unlike

his co-conspirators, petitioner did not plead guilty or

10

cooperate with the government, and “[i]t 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.” Id. at 14a-15a.

The court of appeals declined, however, to “foreclose

the possibility that significant sentencing disparities,

even between a defendant who went to trial and * * *

co-defendant[s] who pleaded guilty and cooperated,

might” in some cases warrant a finding of extraordinary

and compelling reasons to grant a sentencing reduction.

Pet. App. 16a n.4. It explained that “[t]he case at bar

simply does not involve any such circumstances.” Ibid.

With respect to the possible-innocence rationale, the

court of appeals explained that petitioner’s claim was

not properly channeled through a motion for a Section

3582(c)(1)(A) sentence reduction. Pet. App. 17a-25a.

The court explained that the statute governing postconviction review for federal prisoners, 28 U.S.C. 2255,

is more specific in scope than Section 3582(c)(1)(A) and

includes explicit restrictions on the timing of petitions

and the permissibility of serial motions that are not present in 18 U.S.C. 3582(c)(1)(A). Pet. App. 18a.

The court of appeals observed that if Congress had

intended for prisoners to circumvent the strictures of

Section 2255 by challenging the validity of a conviction

through a Section 3582(c)(1)(A) sentence-reduction motion, it would have said so expressly. Pet. App. 18a-19a.

The court explained that because challenges to the validity of a conviction must be brought under Section

2255, they cannot qualify as extraordinary and compelling reasons under Section 3582(c)(1)(A). Id. at 19a.

And the court observed that it was joining a “near-

11

unanimous consensus” among the courts of appeals on

the issue. Id. at 21a; see id. at 21a-22a (citing cases).

ARGUMENT

Petitioner contends (Pet. 11-23) that an asserted basis “to question the jury’s verdict,” and the difference

between his statutorily required sentence following

trial and his coconspirators’ sentences for different

crimes following guilty pleas, can serve as “ ‘extraordinary and compelling’ ” reasons for a sentence reduction

under Section 3582(c)(1)(A). Pet. 4. That contention

lacks merit and does not warrant this Court’s review.

Petitioner overstates the extent of relevant disagreement in the circuits, and the Sentencing Commission recently issued an amended policy statement that undermines the practical significance of any preexisting disagreement. This Court has recently and repeatedly denied petitions for writs of certiorari that presented similar issues.1 It should follow the same course here.

1. The court of appeals correctly rejected petitioner’s contention that his asserted “potential innocence” and sentencing disparities between petitioner

and his coconspirators can constitute “ ‘extraordinary

and compelling’ ” reasons for a sentence reduction under Section 3582(c)(1)(A). Pet. App. 11a (citation omitted); see id. at 11a-25a.

a. The overarching principle of federal sentencing

law is that a “federal court generally ‘may not modify a

See, e.g., Wesley v. United States, 144 S. Ct. 2649 (2024) (No. 236384); Ferguson v. United States, 144 S. Ct. 1007 (2024) (No. 221216); West v. United States, 144 S. Ct. 1010 (2024) (No. 23-5698);

McCall v. United States, 143 S. Ct. 2506 (2023) (No. 22-7210); Gibbs

v. United States, 143 S. Ct. 1796 (2023) (No. 22-5894); King v. United

States, 143 S. Ct. 1784 (2023) (No. 22-5878); Fraction v. United

States, 143 S. Ct. 1784 (2023) (No. 22-5859).

1

12

term of imprisonment once it has been imposed.’ ” Dillon v. United States, 560 U.S. 817, 819 (2010) (quoting

18 U.S.C. 3582(c)). Section 3582(c)(1)(A) provides a limited “except[ion]” to that rule. 18 U.S.C. 3582(c).

To disturb the finality of a federal sentence under

that provision, the district court typically must identify

“extraordinary and compelling reasons” for doing so.

18 U.S.C. 3582(c)(1)(A)(i); see 18 U.S.C. 3582(c)(1)(A)(ii)

(providing specific statutory criteria for reducing the

sentence of certain elderly prisoners who have already

served lengthy terms). Petitioner here claims (Pet. 1617) that his “potential innocence,” either alone or in

combination with the lower sentences received by his

coconspirators, constitute such “extraordinary and compelling” reasons. Pet. 16. But those are neither an “extraordinary” nor “compelling” reasons for a sentence

reduction under Section 3582(c)(1)(A).

Consistent with the “ ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary, contemporary, common

meaning . . . at the time Congress enacted the statute,’ ”

Wisconsin Cent. Ltd. v. United States, 585 U.S. 274, 284

(2018) (citation omitted), the word “ ‘extraordinary’ ”

should be understood “to mean ‘most unusual,’ ‘far from

common,’ and ‘having little or no precedent,’ ” United

States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022) (en

banc) (quoting Webster’s Third New International Dictionary of the English Language 807 (1971) (Webster’s)), cert. denied, 143 S. Ct. 2506 (2023). There is

“nothing ‘extraordinary’ ” about a challenge to the trial

or sentencing proceedings, because such challenges

“are the ordinary business of the legal system, and their

consequences should be addressed by direct appeal or

collateral review under 28 U.S.C. § 2255.” United

13

States v. King, 40 F.4th 594, 595 (7th Cir. 2022), cert.

denied, 143 S. Ct. 1784 (2023); see, e.g., Pet. App. 16a

(citing authority for the proposition that lower sentences for cooperating defendants are common and explicitly contemplated by statute and the Sentencing

Guidelines).

Such challenges likewise cannot constitute a “compelling” reason for a Section 3582(c)(1)(A) sentence reduction. When Congress enacted the pertinent language

in Sentencing Reform Act of 1984, “[c]ompelling” meant

“forcing, impelling, driving.” McCall, 56 F.4th at 1055

(quoting Webster’s 463); see Oxford Dictionary of the

English Language 355 (2010) (similar current definition). Thus, for a reason to be “compelling” under Section 3582(c)(1)(A), it must provide a “powerful and convincing” reason to disturb the finality of a federal sentence. United States v. Jenkins, 50 F.4th 1185, 1197

(D.C. Cir. 2022) (citation omitted). “But given the availability of direct appeal and collateral review under section 2255 of title 28,” there is no powerful and convincing reason to allow prisoners to challenge the validity of

a conviction or sentence under Section 3582(c)(1)(A).

Id. at 1200.

To the contrary, Section 2255 is the “remedial vehicle” Congress “specifically designed for federal prisoners’ collateral attacks on their sentences.” Jones v.

Hendrix, 599 U.S. 465, 473 (2023). Treating purported

doubts about the validity of a conviction or sentence as

an “ ‘extraordinary and compelling’ ” reason for a sentence reduction would permit defendants to “avoid the

restrictions of the post-conviction relief statute by resorting to a request for compassionate release instead.”

United States v. Crandall, 25 F.4th 582, 586 (8th Cir.),

cert. denied, 142 S. Ct. 2781 (2022). And it “would

14

wholly frustrate explicit congressional intent to hold

that [defendants] could evade” those restrictions “by

the simple expedient of putting a different label on their

pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489-490

(1973).

Accordingly, the types of claims petitioner raises

here cannot serve as “extraordinary and compelling reasons” for a sentence reduction either in isolation or as part

of a package of such “reasons.” 18 U.S.C. 3582(c)(1)(A)(i).

Whether considered alone or in combination with other

asserted factors, asserted doubts about the validity of a

conviction or the propriety of a sentence are “legally impermissible” considerations for purposes of determining whether an extraordinary and compelling reason exists. Jenkins, 50 F.4th at 1202 (citation omitted).

b. Petitioner’s contrary arguments lack merit. Petitioner appears to contend that Section 3582(c)(1)(A) in

fact grants district courts unlimited, or near-unlimited,

discretion to decide what constitutes an extraordinary

and compelling reason to reduce a sentence, with the

only limitation being that the decision cannot be based

on rehabilitation alone. Pet. i, 16-18 (citing 28 U.S.C.

994(t)). That contention disregards the express textual

requirement that the reason for a reduction be both “extraordinary and compelling.” 18 U.S.C. 3582(c)(1)(A)(i).

As explained above, the asserted invalidity of a conviction or sentence is “neither.” Jenkins, 50 F.4th at 1200.

Petitioner is incorrect in asserting (Pet. 13-15) that

the decision below conflicts with this Court’s decision in

Concepcion v. United States, 597 U.S. 481 (2022). In

Concepcion, the Court considered the scope of a district

court’s discretion under Section 404 of the First Step

Act, which provides an explicit statutory mechanism for

a court to revisit the sentence of a defendant convicted

15

of a crack-cocaine offense “the statutory penalties for

which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” First Step Act § 404(a), 132 Stat.

5222; see § 404(b), 132 Stat. 5222; Concepcion, 597 U.S.

at 495. The Court explained that, in adjudicating a motion under Section 404 of the First Step Act, a district

court “may consider other intervening changes” of law

or fact, beyond the changes made by those sections of

the Fair Sentencing Act. Concepcion, 597 U.S. at 486.

But while Section 404 of the First Step Act directly authorizes sentence reductions for a specifically defined

subset of previously sentenced drug offenders, Section

3582(c)(1)(A)(i) contains a threshold requirement that a

district court identify “extraordinary and compelling

reasons” warranting a sentence reduction. 18 U.S.C.

3582(c)(1)(A)(i); see Concepcion, 597 U.S. at 495.

Petitioner also argues (Pet. 21-22) that the district

court’s decision to grant a Section 3582(c)(1)(A) sentence reduction in his case is not an attack on the validity of his conviction or sentence, and thus would not be

an end-run around Section 2255, because the district

court recognized that the jury’s verdict was valid and

lawful. See Pet. App. 37a. That case-specific argument

does not provide a sound basis for certiorari, see Sup.

Ct. R. 10, and is, moreover, conceptually mistaken. Petitioner notes (Pet. 22) that his claim that his conviction

and sentence were “unjust” would not be a viable claim

under Section 2255. But as the court of appeals explained, “[t]he fact that [petitioner’s claim] would not

have succeeded in that posture does not permit [petitioner] to channel that claim into a section 3582 motion

instead.” Pet. App. 24a. “To the contrary,” the court

stated, “this is precisely what the habeas regime prevents.” Ibid.

16

Allowing a prisoner to seek a sentence reduction under Section 3582(c)(1)(A) on the theory that the prisoner could not prevail under Section 2255 would be a

substantial end-run around the limitations on collateral

review. Petitioner’s motion for a sentence reduction, in

essence, just repackages two unavailing arguments for

challenging his sentence and underlying conviction under Section 2255. Petitioner could not prevail on a claim

that he might have been innocent when the jury, based

on sufficient evidence, found otherwise. Nor could he

prevail on a claim of unlawful sentence disparity in his

statutorily required sentence. He cannot now combine

and recharacterize those two nonviable claims into a viable basis for a sentence reduction. The absence of a

viable argument under Section 2255 is neither “extraordinary” nor “compelling,” and Section 3582(c)(1)(A) is

not a catchall for attempting to vindicate otherwise nonactionable challenges to the original judgment. 2

2. Petitioner asserts (Pet. 16-21) that the courts of

appeals are divided on whether a claim like his can constitute an extraordinary and compelling reason for a

sentence reduction under Section 3582(c)(1)(A). But

To the extent that petitioner suggests (Pet. 16-17) that the court

of appeals categorically held that sentencing disparities could not be

considered as part of the “extraordinary and compelling” analysis,

that suggestion is misplaced. The court in fact reasoned that “[u]nder

the circumstances of this case,” the sentencing disparity was neither

extraordinary nor compelling because petitioner’s coconspirators

pleaded guilty to other crimes and cooperated with the government,

whereas petitioner went to trial and did not cooperate. Pet. App.

14a-15a. The court thus left open the possibility that sentencing disparities could warrant a finding of extraordinary and compelling

reasons to grant a sentence reduction, but it determined that “[t]he

case at bar simply does not involve any such circumstances.” Id. at

16a n.4.

2

17

petitioner overstates the disagreement in the courts of

appeals, and a recent amendment to Sentencing Guidelines § 1B1.13 undercuts the prospective significance of

any disagreement.

a. As the court of appeals here observed (Pet. App.

21a-22a), most of the courts of appeals that have considered the question have determined that a claim like petitioner’s cannot constitute an extraordinary and compelling reason for a sentence reduction under Section

3582(c)(1)(A). See id. at 17a-25a; United States v. Ferguson, 55 F.4th 262, 270-272 (4th Cir. 2022), cert. denied, 144 S. Ct. 1007 (2024); United States v. Escajeda,

58 F.4th 184, 188 (5th Cir. 2023); United States v. West,

70 F.4th 341, 346-347 (6th Cir. 2023), cert. denied, 144

S. Ct. 1010 (2024); United States v. Von Vader, 58 F.4th

369, 371 (7th Cir.), cert. denied, 144 S. Ct. 399 (2023);

Crandall, 25 F.4th at 586 (8th Cir.); United States v.

Wesley, 60 F.4th 1277, 1283-1286 (10th Cir. 2023), cert.

denied, 144 S. Ct. 2649 (2024); Jenkins, 50 F.4th at 12001204 (D.C. Cir.); see also Pet. 20 (acknowledging Fifth

and Tenth Circuit decisions).

Petitioner errs in asserting (Pet. 18-21) that two

other circuits have adopted a different approach. Although the First Circuit has taken the view that an asserted trial error can form part of an individualized assessment of whether extraordinary and compelling reasons exist in a particular defendant’s case, see United

States v. Trenkler, 47 F.4th 42, 48-49 (2022), petitioner

incorrectly categorizes (Pet. 19-20) the Ninth Circuit as

having adopted that view as well. In the decision petitioner cites, United States v. Roper, 72 F.4th 1097, 1102

(2023) (cited at Pet. 19-20), the Ninth Circuit stated that

nonretroactive changes in sentencing law that postdate

the defendant’s sentencing and create disparities with

18

similarly situated defendants can form part of an individualized determination of whether extraordinary and

compelling reasons exist for reducing a preexisting sentence. Ibid. But petitioner does not allege any postsentencing change in the law in this case.

Indeed, in Roper, the Ninth Circuit declined to resolve the issue petitioner raises here, emphasizing that

the defendant did “not claim that his original sentence

violated the Constitution or federal law” or “seek ‘to

correct sentencing errors.’ ” 72 F.4th at 1102 (citation

omitted). Petitioner—who clearly is attacking his original judgment on grounds that were available but rejected at the time the conviction and sentence were

entered—thus cannot show that the result in his case

would be different in the Ninth Circuit.

b. At all events, the Sentencing Commission’s recent

amendment to Sentencing Guidelines § 1B1.13, which

took effect on November 1, 2023, after petitioner filed

the motion at issue here, supersedes any disagreement

in the circuits. The amendment revised Section 1B1.13

to “extend[] the applicability of the policy statement to

defendant-filed motions.” 88 Fed. Reg. 28,256 (May 3,

2023). The amendment also revised Section 1B1.13 to

“expand[] the list of specified extraordinary and compelling reasons that can warrant sentence reductions.”

Ibid. Even as expanded, however, that list does not include the type of reasons asserted here. See Sentencing

Guidelines § 1B1.13(b).

Under Section 3582(c)(1)(A), any sentence reduction

must be “consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C.

3582(c)(1)(A). Because the Commission has now issued

an amended policy statement applicable to defendantfiled motions, and because that amended policy statement

19

does not permit reliance on the asserted invalidity of a

conviction or sentence in the determination of whether

extraordinary and compelling reasons for a sentence reduction exist, any disagreement in the circuits on the

question presented lacks prospective significance. Even

in those circuits that petitioner views as having adopted

his position on the question presented under thencurrent law, district courts will now be limited by the

amended policy statement’s description of what may be

considered extraordinary and compelling reasons and

therefore may not rely on the type of reasons petitioner

asserts here. See United States v. Ruvalcaba, 26 F.4th

14, 23-24 (1st Cir. 2022) (acknowledging that “[i]f and

when the Sentencing Commission issues updated guidance applicable to prisoner-initiated motions,” district

courts “will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance”); United States v. Chen, 48

F.4th 1092, 1098 (9th Cir. 2022) (acknowledging that

district courts “are bound by” applicable policy statements).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

ANTOINETTE T. BACON

ANN O’CONNELL ADAMS

Attorneys

FEBRUARY 2025