Law360 Featured Article- Fernandez v. United States

This article is a republish of a Law360 preview on the upcoming compassionate release case before the United States Supreme Court. Evergreen Attorneys are proud to represent federal compassionate release clients all across the United States.

You can learn more about our compassionate release services here: https://evergreenattorneys.com/legal-procedure/compassionate-release/

If you need a compassionate release attorney, call Evergreen Attorneys at (303) 948-1489 today. The article below was written by our founding attorney, Zachary Newland, as a recognized national leader in compassionate release cases.

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By Zachary Newland
Originally published on Law360 (November 6, 2025, 3:22 PM EST)

On Nov. 12, the U.S. Supreme Court will hear oral argument in Fernandez v. U.S.,[1] a case set to test the interplay of two important postconviction statutes: Title 18 of the U.S. Code, Section 3582(c)(1)(A), involving compassionate release; and Title 28 of the U.S. Code, Section 2255, involving motions to vacate sentences.[2]

Specifically, Fernandez asks if defendants may use reasons to support a compassionate release under Section 3582(c)(1)(A) that could traditionally be raised under a Section 2255 motion to vacate a sentence. This is important, because there are many more procedural restrictions placed on when, why and how a defendant can file a motion to vacate under Section 2255 than on motions for compassionate release under Section 3582(c)(1) (A).

Terms of Debate: Compassionate Release vs. Motion to Vacate

The phrase “compassionate release” is often used to describe motions filed pursuant to Section 3582(c)(1)(A). However, the phrase does not actually appear in the federal statutes. Instead, it is the colloquial catchall for motions to reduce sentence based on “extraordinary and compelling reasons” under the authority granted by Section 3582(c)(1)(A).

At the heart of Fernandez is what facts a court may consider as extraordinary and compelling when deciding a compassionate release motion.

Conversely, defendants may also file motions to vacate their sentence pursuant to Section 2255. [3] That provision calls for the filing of motions to “vacate, set aside, or correct” sentences issued by federal courts.

Both compassionate release motions and Section 2255 motions to vacate are post-conviction remedies — meaning both procedural devices may be filed by federal criminal defendants after their sentences are imposed. And both Section 2255 motions and compassionate release motions are available to federal criminal defendants outside of any right to file a direct appeal to the U.S.
circuit courts.

Fernandez Background Facts

In 2000, Joe Fernandez was hired by his cousin, Patrick Darge, as a backup shooter in a scheme to murder two Mexican drug cartel members who came to New York to collect on a drug debt.[4] A New York drug kingpin, Jeffrey Minaya, had hired Darge to carry out the murders rather than pay for cocaine supplied to the kingpin by the cartel.[5]

Darge hired Fernandez as the backup shooter and another co-defendant, Luis Rivera, as the getaway driver. Darge and Fernandez approached the cartel members as they waited for an elevator at a predetermined place. What happened next was the subject of much dispute at trial.

According to the government, Darge approached and shot the first cartel member in the back of the head. Darge testified that he tried to shoot the second victim, but his gun jammed. According to Darge, he ran to the getaway car where the driver was waiting.[6] He testified that Fernandez remained in the lobby and fired 14 shots, hitting both victims.

The case was cold for 11 years. Eventually, Fernandez was indicted on one count of participating in a murder-for-hire conspiracy that resulted in death,[7] 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.[8]

Unlike Darge, Rivera and Minaya, who all pled guilty, Fernandez maintained his innocence and went to trial. Darge was the only witness who testified to having firsthand knowledge of Fernandez’s involvement in the shooting. Darge’s testimony was particularly problematic. He admitted that he had previously lied to the government for his personal benefit in another case where he was a cooperating witness.[9]

The jury still convicted Fernandez on both counts. He was sentenced to a mandatory life sentence on count one and a consecutive, nonmandatory life sentence on count two. The other co-defendants received sentences ranging from two to 30 years.[10]

Fernandez appealed his conviction, but the U.S. Court of Appeals for the Second Circuit affirmed. Fernandez later filed a second Section 2255 motion under the Supreme Court’s 2019 decision in U.S. v. Davis, arguing that his nonmandatory life sentence was unconstitutionally vague.[11]

Based on that motion, the U.S. District Court for the Southern District of New York vacated the second count and left in place only the mandatory life sentence on the murder-for-hire conviction.[12] All the while, Fernandez maintained his innocence throughout the court proceedings.

Fernandez Seeks Compassionate Release

In 2021, Fernandez sought compassionate release from prison pursuant to Section 3582(c)(1)(A). Fernandez argued that his case presented four separate categories of extraordinary and compelling reasons that warranted a sentence reduction: (1) his potential innocence based on Darge’s not-credible testimony, (2) the large discrepancy between the sentence Fernandez received and those handed down to the other co-conspirators who pled guilty, (3) the harsh conditions of confinement due to the COVID-19 pandemic,[13] and (4) his rehabilitation while in prison.[14]

The district court ultimately granted a sentence reduction to time served for Fernandez based on his potential innocence and the considerable sentencing disparity in the case. It was not clear from the record whether or not the district court relied on the rehabilitation in making its reduction.

The district court “based its ruling, in part, on ‘strong concerns’ about” the strength of the evidence underlying Fernandez’s conviction. The judge ultimately said that although the validity of the conviction itself was not undermined, the judge felt “‘disquiet’ and ‘doubt that the jury’s verdict was correct'” based on a number of considerations, including inconsistent trial evidence, and that Fernandez led a law-abiding, nonviolent life in the 11 years between the murders and his arrest.[15]

The district court explained that the significant disparities between Fernandez and the other codefendants also supported a reduction. Fernandez was the only person to proceed to trial, which led to the court being required to impose a mandatory life sentence without discretion.

The very serious questions about Fernandez’s innocence, when taken together with the serious disparity in sentences handed down to Fernandez and his co-defendants, amounted to extraordinary and compelling reasons to justify a sentence reduction.[16] After considering the appropriate sentencing factors under Section 3553(a), the district court determined that a sentence of time served was appropriate. The government timely appealed.

Second Circuit: No Compassionate Release Warranted

The Second Circuit ultimately reversed the decision of the district court. According to the Second Circuit, Fernandez’s compassionate release motion was, in substance, an attack on the validity of his underlying conviction itself. The Second Circuit held that these types of challenges must be brought under the federal habeas statute in Section 2255 proceedings.

The Second Circuit did not stop there, however. According to the appeals court, it was also an error to consider the sentencing disparities of Fernandez’s co-defendants who did not go to trial. Absent what it called “unusual circumstances,” the court held that a sentencing disparity among cooperators and someone who goes to trial can never be extraordinary and compelling.[17]

What’s at Stake in Fernandez

What categories or types of information can be considered extraordinary and compelling reasons for sentence reductions? That has been hotly contested in recent years across the country. Prior to the passage of the First Step Act in 2018, federal criminal defendants had no right to file a motion for compassionate release. Only the Federal Bureau of Prisons could file these motions, which, unsurprisingly, it rarely saw fit to do.

That all changed with the First Step Act. Today, people in federal prison need only present their request to the warden of their prison, wait 30 days and then proceed directly to ask the district court to reduce their sentence. As a result, the U.S. Department of Justice has vigorously litigated in favor of cabining the discretion of sentencing courts across the country to grant these compassionate release motions.

In Fernandez, the DOJ is advocating a position that any claim or fact that could otherwise have been brought in a Section 2255 motion cannot be considered as an extraordinary and compelling reason under Section 3582(c)(1)(A).

It is worth noting that there are many more restrictions on how and why defendants may seek habeas relief under Section 2255.

This is known as the “habeas funneling” or “habeas channeling” principle: the idea that courts try to send as many claims for postconviction relief through the gauntlet of federal habeas as possible. Although habeas is an ancient and powerful writ, the modern statutory version after the Antiterrorism and Effective Death Penalty Act was passed in 1996 is very restrictive to federal criminal defendants.[18]

For example, generally speaking, federal prisoners may only file one Section 2255 motion. After a first Section 2255 motion is filed, federal prisoners must seek permission to file a second or successive motion from the U.S. court of appeals prior to even submitting a second motion in the district court.[19]

Section 2255 motions must be filed within one year of a conviction becoming final in order to be considered timely. In contrast, there is no time requirement for filing a compassionate release motion under Section 3582(c)(1)(A).

Additionally, there is no automatic right to file an appeal if a Section 2255 motion is denied. Instead, a defendant first has to seek permission in the form of a certificate of appealability from either the district court or the court of appeals to even initiate an appeal. In contrast, every defendant has a right to appeal the denial of their Section 3582(c)(1)(A) motion in each case to the court of appeals.

Section 2255 motions are controlled by specific rules that apply to habeas cases, as well as the Federal Rules of Civil Procedure. This means that sometimes, Section 2255 motions are dismissed merely for failing to adhere to the right forms or rules that govern Section 2255 proceedings.[20]

Section 3582(c)(1)(A) motions, on the other hand, must merely comply with the background principles of the Federal Rules of Criminal Procedure. They do not have a specified form, they do not have specialized rules, and they are more straightforward.

Section 2255 motions are subject to claims of procedural default and other law-of-the-case doctrine. This means that, not infrequently, a defendant may have a valid substantive claim, but lose on the merits of that claim in the Section 2255 proceeding because of procedural barriers. Typically, these same rules do not bind a judge in deciding whether circumstances are extraordinary and compelling under Section 3582(c)(1)(A).

Ultimately, the DOJ is primarily interested in the finality of convictions. This undergirds the principle of habeas funneling and the government’s position in Fernandez. In contrast, the position advocated by Fernandez is more consistent with the view that compassionate release should operate as a second-look safety valve. These second-look procedural devices are often premised on the idea that judges should be allowed a measure of discretion when their hands would otherwise be tied.

Sentencing reform advocates say that such safety valves are even more important when sentencing judges are faced with harsh mandatory minimums that remove all discretion based on individual facts. This was precisely the backdrop of the First Step Act, according to reform advocates. The express premise of Congress in amending the compassionate release statute was to increase its use and transparency.

According to Fernandez, actual innocence alone would not be enough of an extraordinary and compelling reason to support a compassionate release claim. However, Fernandez’s lawyers take the position that there is nothing in the text of Section 3582(c)(1)(A) that otherwise limits a district court from considering the weakness of the government’s evidence when considering
compassionate release.

Fernandez claims that any attempts to tell district courts wholesale that they cannot consider specific types of information as extraordinary and compelling would be an atextual rewriting of Section 3582(c)(1)(A).

Predictions for Fernandez

It is difficult to predict how the Supreme Court will decide Fernandez. Postconviction cases often scramble the typical ideological lines that prevail in other areas of law. The Supreme Court has, in general, shown disfavor toward expanding the remedies available in postconviction law in recent years.

Although Fernandez has raised the rule of lenity as a fallback position, it is doubtful that a majority opinion would support Fernandez’s winning on that ground. The rule of lenity has been coming back into favor as a rule of statutory construction in recent years. Justice Neil Gorsuch regularly pursues the rule of lenity in his decisions and concurrences. However, it is rarely used as a majority opinion basis since four additional justices also need to endorse the approach.

If the court were to side with Fernandez, it would free the hand of sentencing courts to consider a broader category of factors when considering compassionate release. In essence, it would allow sentencing courts more discretion to reduce sentences and act as a safety valve in individual cases.

There are currently over 155,000 people incarcerated in the Federal Bureau of Prisons. Although Fernandez presents a question of statutory interpretation and habeas background principles, it is still vitally important to each of those 155,000 people serving federal prison sentences.

Time will tell if the Supreme Court is inclined to uphold or limit the remedy of compassionate release.

 

Zachary L. Newland is the founding partner at Evergreen Attorneys PLLC.

[1] Fernandez v. United States, 145 S. Ct. 2731 (2025).

[2] The same day, the court will also hear oral argument in Rutherford v. United States, another case implicating the First Step Act.

[3] 28 U.S.C. Section 2255 (a).

[4] Facts are taken from the Second Circuit opinion. United States v. Fernandez, 104 F.4th 420 (2d Cir. 2024), cert. granted in part, 145 S. Ct. 2731 (2025).

[5] Id.

[6] Id. at 424.

[7] In violation of 18 U.S.C. Section 1958.

[8] In violation of 18 U.S.C. §§924(j)(1) and (2).

[9] Id. Darge admitted that he previously lied about (1) his involvement in two murders (including one of the Mexican cartel murders in Fernandez’s case), (2) his history of credit card fraud, (3) the extent of his drug dealing operations, (4) his brother Alain Darge’s involvement in the drug dealing, and (5) Alain Darge’s history of “shooting people.”

[10] Id. at 425. Darge was sentenced to 30 years; Reyes (who brought the victims to the elevator and gave the sign to shoot) received a sentence of 25 years; Minaya received a sentence of 15 years; and Rivera, the getaway driver was sentenced to two years.

[11] Fernandez’s first Section 2255 motion alleging jury instruction error filed in 2017 was previously denied.

[12] Id.

[13] See “Incarcerated in a Pandemic: How COVID-19 Exacerbated the ‘Pains of Imprisonment’,” by Miltonette Craig, available at https://pmc.ncbi.nlm.nih.gov/articles/PMC10375228/.

[14] Fernandez, at 425.

[15] At least six separate considerations were identified:

(1) Patrick Darge and his brother Alain Darge had fled to the Dominican Republic immediately after the two murders while Fernandez had not;

(2) in the 11 years between the murders and his arrest Fernandez lived a law-abiding life and earned a honest living with no record of violence;

(3) Patrick Darge had lied to the government in the past and had motive to lie again as a witness against Fernandez;

(4) the trial evidence was inconsistent and the ballistics evidence controverted Darge’s testimony;

(5) a more effective cross-examination of Patrick Darge would have exposed his desire to protect his brother Alain (as the possible true backup shooter) and given another motive to lie; and

(6) the choice of the government to not charge Rivera in the conspiracy despite Darge’s testimony directly supporting his involvement as getaway driver from which the court inferred that the government itself doubted Darge’s reliability. Id. at 426.

[16] Id.

[17] Id. at 428.

[18] See John Oliver, Wrongful Convictions: Last Week Tonight With John Oliver, available at https://www.youtube.com/watch?v=kpYYdCzTpps (describing the difficulties of AEDPA deference and hurdles).

[19] See 28 U.S.C. Section 2255(h)(1) or (2) (authorizing second or successive filings only for newly discovered evidence or new rule of constitutional law from SCOTUS that is retroactive).

[20] https://www.uscourts.gov/forms-rules/forms/motion-vacate-set-aside-sentence-motion-under-28-usc-ss-2255.