United States v. Rodriguez

• Court: Court of Appeals for the Second Circuit
• Decided: April 19, 2023
• Docket: 22-93
• Status: Unpublished

Opinion

22-93 United States v. Rodriguez

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of April, two thousand twenty three.

PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-93

OMAR RODRIGUEZ,

Defendant-Appellant. _________________________________________

FOR DEFENDANT-APPELLANT: BARCLAY T. JOHNSON, Assistant Federal Public Defender (Michael L. Desautels, Federal Public Defender, on the brief), Office of The Federal Public Defender, Burlington, VT.

FOR APPELLEE: CORINNE M. SMITH, Assistant United States Attorney (Nikolas P. Kerest, United States Attorney, Gregory L. Waples, Assistant United States Attorney, on the brief), United States Attorney’s Office, Burlington, VT.

Appeal from a judgment of the United States District Court for the District

of Vermont (Reiss, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment appealed from, entered on

January 4, 2022, is AFFIRMED.

Defendant-Appellant Omar Rodriguez appeals from a judgment of the

United States District Court for the District of Vermont (Reiss, J.), denying his

motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We assume

the parties’ familiarity with the underlying facts, procedural history, and

arguments on appeal, to which we refer only as necessary to explain our decision

to affirm.

In July 2013, Rodriguez pled guilty to one count of kidnapping under 18

U.S.C. § 1201(a), and one count of use of a firearm during a crime of violence

2 under § 924(c). During his sentencing hearing, sentencing Judge Murtha heard

expert testimony concerning Rodriguez’s numerous medical conditions,

including diabetes, obesity, depression, and end-stage renal disease, and their

impact on his likely life expectancy. In recognition of Rodriguez’s significant

medical problems, and while acknowledging Rodriguez’s offense was

“extremely serious,” Judge Murtha sentenced Rodriguez to 262 months’

imprisonment—five years below the minimum guidelines sentence range. J.

App’x 144. Following the Supreme Court’s decision in Sessions v. Dimaya, 138 S.

Ct. 1204 (2018), the district court vacated the § 924(c) count and, after analyzing

the § 3553(a) factors, reduced Rodriguez’s sentence by four years.

In June 2020, Rodriguez filed a motion for compassionate release in which

he argued that his numerous medical conditions, his heightened risk for COVID-

19, his inadequate medical care, the harsh conditions of confinement, and his

extensive rehabilitation constituted “extraordinary and compelling reasons

warrant[ing] . . . a reduction” in his sentence. 18 U.S.C. § 3582(c)(1)(A)(i). After

two hearings, the district court denied Rodriguez’s motion, finding that

Rodriguez had not shown “extraordinary and compelling circumstances” and

concluding that even if the court found extraordinary and compelling

circumstances, sentence reduction was not warranted under the 18 U.S.C. §

3 3553(a) sentencing factors due to the “callous, heinous, [and] violent” nature of

Rodriguez’s crime. J. App’x 448.

“A district court has broad discretion in considering a motion for a

sentence reduction,” United States v. Amato, 48 F.4th 61, 65 (2d Cir. 2022), and we

accordingly review the denial of such a motion for abuse of discretion, United

States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020). 1 A district court exceeds its

discretion when its ruling “rests on an error of law, a clearly erroneous finding of

fact, or otherwise cannot be located within the range of permissible decisions.”

United States v. Parnell, 959 F.3d 537, 539 (2d Cir. 2020). A choice among

permissible views of the evidence cannot be clearly erroneous; instead, factual

findings are clearly erroneous only when we are “left with the definite and firm

conviction that a mistake has been committed.” United States v. Technodyne LLC,

753 F.3d 368, 386 (2d Cir. 2014).

Rodriguez argues that the district court’s finding that he had not shown

extraordinary and compelling circumstances, and its § 3553 analysis, were

compromised by clearly erroneous factual findings that: (1) Rodriguez had not

recently had prolonged hospitalizations; (2) Rodriguez was receiving adequate

1 In quotations from caselaw and the parties’ briefing, this opinion omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.

4 medical care by the Bureau of Prisons (BOP); (3) Rodriguez is not “terminal”; (4)

Rodriguez would not be more likely to receive a kidney transplant in the

community; and (5) his expert had testified that the BOP could address his

medical care.

For the reasons stated below, we conclude that the district court’s factual

findings were not clearly erroneous.

1. Recent Hospitalizations

The district court did not clearly err in stating, “I could not see evidence of

any hospitalizations in 2021 or 2020. If they occurred, there are no discharge

summaries from them, and they were not prolonged.” J. App’x 446:14˗17.

Rodriguez points to evidence that he was taken to the hospital numerous times

during those years, and sometimes admitted. But the district court’s statement

related to “prolonged” inpatient hospitalizations, not outpatient visits. J. App’x

446. The records Rodriguez cites are generally consistent with the district court’s

statement that he had no recent prolonged hospitalizations.

The only exception is evidence that Rodriguez stayed several nights at the

hospital following the amputation of one of his toes in 2020. The district court

acknowledged the toe amputation during the December 9, 2020 hearing on

Rodriguez’s motion. Given that the district court was aware of the toe

5 amputation and characterized Rodriguez’s toe condition as stable after the

amputation, we cannot conclude that its statement that it was unaware of any

“prolonged” hospitalizations in 2020 or 2021 was clearly erroneous.

2. Adequacy of Treatment

The district court’s finding that “[h]e is being adequately treated by the

BOP” is not clearly erroneous. J. App’x 446:18. This finding is amply supported

by Rodriguez’s expert. When asked whether it would be easier to manage

Rodriguez’s conditions in prison or in the community, his expert testified that

there were competing factors on each side. She ultimately testified that

Rodriguez would be better served in the outpatient community setting, but

noted that in prison Rodriguez “obviously [has] access to care,” he will get his

care “regardless of the weather or other factors, and he’s got caregivers at the

ready.” J. App’x 409. Although Rodriguez’s expert testified that community

treatment would be preferrable, nowhere did she testify that the treatment he

was receiving was inadequate, and the district court could reasonably infer from

her testimony that his care while incarcerated is adequate.

Evidence that Rodriguez had to have his toe amputated does not render

the district court’s finding erroneous as a matter of law. Rodriguez suggests that

the BOP was slow to recognize the seriousness of his injury and to pursue

6 treatments. But Rodriguez’s expert testified that his toe loss was a result of

vascular insufficiency, and that vascular surgeons had evaluated him to see if

any interventions could be taken to improve the blood flow in his feet. On this

record, we cannot conclude Rodriguez’s need for a toe amputation shows that

the district court clearly erred in concluding that his overall care was adequate.

Likewise, evidence that Rodriguez’s dialysis was sub-optimal and that he

would have more treatment options in the community does not compel us to

reject the district court’s finding. Rodriguez’s own expert testified that it “can be

quite difficult” to meet the guidelines with respect to which of Rodriguez’s

measures were often not optimal. J. App’x 412:3. And, although his expert

testified that he might have access to home dialysis in the community, she also

testified that a number of the challenges to the efficacy of Rodriguez’s dialysis

are a function of his medical condition. For example, Rodriguez “has a number

of problems with his vascular access,” which leads to incomplete or missed

treatments. J. App’x 406:19. Additionally, Rodriguez does not always receive

optimal treatments because of his fistula problems, blood clotting, the ability to

sit still, and body size.

In the face of this evidence, we cannot conclude the district court clearly

erred in finding that Rodriguez receives adequate medical treatment in custody.

7 “This court is not allowed to second-guess the factfinder’s credibility

assessments, and where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” United States v.

Williams, 943 F.3d 606, 610 (2d Cir. 2019).

3. Non-Terminal Prognosis

The district court did not clearly err in finding that Rodriguez’s expert

witness “said he is not terminal.” J. App’x 445:6˗9. The expert expressly testified

that “[Rodriguez is] not terminally ill.” J. App’x 421:2.

Rodriguez argues that his expert’s testimony that he “is on a downward

slide that will pretty much make him not eligible for a transplant from a physical

standpoint within . . . a couple of years” shows that he is, in fact, “terminal”—a

term that was never defined. J. App’x 421:2˗5. Given the expert’s direct

statement that Rodriguez is not terminal, this other testimony does not compel a

contrary conclusion. See Williams, 943 F.3d at 610.

4. Likelihood of Transplant in the Community

The district court did not clearly err when it found that Rodriguez’s expert

“did not endorse the idea that [Rodriguez] would be more likely to get a

transplant in the community as opposed to while incarcerated.” J. App’x 447.

The expert testified that she thought Rodriguez would do better at getting into

8 the shape necessary for a transplant in the community, but even that was “hard

to say” because it would “fall on him” to be compliant with treatment. J. App’x

424.

Nor did the district court err in failing to conclude that Rodriguez would

be more likely to get a transplant in the community. Given the evidence of

Rodriguez’s prior challenges in complying with his treatment while in the

community, as well as evidence that Rodriguez had been screened for a

transplant at the BOP every two years, even after having been permanently

removed from a transplant list while he was in the community due to

noncompliance, the court was not compelled to find that he would be more likely

to qualify for a transplant if he was released.

5. Expert’s Prior Testimony on BOP Treatment Capability

Finally, we reject Rodriguez’s challenge to the district court’s finding that

at Rodriguez’s initial sentencing, his expert “opined that the BOP could address

his medical care.” J. App’x 445. He contends that the expert testified only that

the BOP could provide dialysis and did not address his full medical condition.

At his sentencing, after his expert testified about his myriad medical

issues, the court asked whether the BOP facilities in Massachusetts and Illinois

have the “facilities necessary to treat somebody with Mr. Rodriguez’s

9 conditions.” J. App’x 114˗15. The expert said, “Well, that’s my understanding

that both of these facilities can provide care for people with end stage renal

disease. That is dialysis.” Id. 115. The expert reaffirmed this testimony at the

compassionate release hearing.

In the compassionate release ruling, the district court found that the

sentencing judge “was well aware of Mr. Rodriguez’s medical condition at the

time of the sentencing,” and that Rodriguez’s expert had “opined that the BOP

could address his medical care but that she believed his life expectancy was

approximately ten years.” J. App’x 445.

This finding was not clearly erroneous. In testifying at sentencing about

the BOP’s capabilities, the expert responded to a question about the BOP’s ability

to address Rodriguez’s “medical conditions,” after she had testified about those

conditions. J. App’x 114˗15. The court was not compelled to find that the

expert’s testimony at sentencing was solely focused on Rodriguez’s end-stage

renal disease.

* * *

For the above reasons, we conclude that the district court did not base its

decision denying Rodriguez’s compassionate release motion on clearly erroneous

factual findings. We have considered Rodriguez’s remaining arguments and

10 conclude that they are without merit. Accordingly, we AFFIRM the district

court’s judgment.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court