19-323-cr
United States v. Jose Fernandez

                                       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 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 21st day of May, two thousand twenty.

PRESENT:            AMALYA L. KEARSE,
                    DENNIS JACOBS,
                    JOSÉ A. CABRANES,
                                 Circuit Judges,


UNITED STATES OF AMERICA,

                                  Appellee,                  19-323-cr

                                  v.

JOSE FERNANDEZ, ALSO KNOWN AS JOSE DELEKY,
ALSO KNOWN AS JOSE FERNANDEZ DELEKY, ALSO
KNOWN AS NANDO, ALSO KNOWN AS CUBA, ALSO
KNOWN AS DON MARTIN,

                                  Defendant-Appellant,

LUIS CEDENO, ALSO KNOWN AS MARTIN GONZALEZ,
ALSO KNOWN AS LUIS MANGUAL, ALSO KNOWN AS
COLOMBIA, DAYSI L. SANTOS, ALSO KNOWN AS
LAURA, ALSO KNOWN AS LAURA D., ALSO KNOWN AS
LAURA DRUGS.

                                  Defendants.




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FOR APPELLEE:                                                Artie McConnell and Susan Corkery,
                                                             Assistant United States Attorneys for
                                                             Richard P. Donoghue, United States
                                                             Attorney for the Eastern District of New
                                                             York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                     Steven Y. Yurowitz, New York, NY.

        Appeal from a January 23, 2019 judgment of the United States District Court for the Eastern
District of New York (LaShann DeArcy Hall, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Defendant-Appellant Jose Fernandez (“Fernandez”), appeals from a January 23, 2019
judgment of the District Court sentencing Fernandez principally to a term of 114 months’
imprisonment for narcotics conspiracy in violation of 21 U.S.C. §§ 963 and 960. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

         At Fernandez’s initial sentencing for the underlying offense, the District Court (John
Gleeson, then-Judge) sentenced Fernandez to 120 months’ imprisonment, which the District Court
believed to be the mandatory minimum. Fernandez appealed that sentence, arguing that the
mandatory minimum imposed by the District Court did not apply because Fernandez, who pleaded
guilty, did not allocate to a drug quantity needed to trigger that mandatory minimum; the
Government agreed with this position. See United States v. Cedeno, 705 F. App’x 36, 37 (2d Cir. 2017)
(summary order). We vacated Fernandez’s sentence and remanded for resentencing under 21 U.S.C.
§ 960(b)(3), “the indeterminate drug quantity provision.” Id. On remand, the case was reassigned to
Judge Hall, who sentenced Fernandez to 114 months’ imprisonment.

         In Fernandez’s original sentencing, then-Judge Gleeson had adopted as his Guidelines-range
starting point 168-210 months, which was the Government’s nonbinding, erroneous estimate prior
to Fernandez’s plea of guilty—and which the Government adhered to as its own recommendation at
that sentencing despite the error, rather than the 235-292-month range calculated in Fernandez’s
presentence report (“PSR”). On the remand for resentencing, an updated PSR concluded that
Fernandez’s Guidelines range of imprisonment was 210-262 months. On this appeal, Fernandez
argues that the District Court on remand was bound, by the law-of-the-case doctrine, to use the 168-
210 range that had been adopted by then-Judge Gleeson, rather than 210-262 months, as its starting
point; he argues that if the District Court had used 168-210 months, its variance might well have



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been to a point lower than 114 months. Given Fernandez’s position at resentencing, his present
contention is either waived or subject to no more than plain-error review.

        Pursuant to our remand, the District Court was to sentence Fernandez under Section
960(b)(3), which, for a defendant in Fernandez’s circumstances, authorized a prison term of up to 20
years. An updated PSR was prepared; Fernandez does not contend—and we see no indication in the
record—that he objected to having the PSR updated. The District Court accepted the updated
PSR’s conclusion that the Guidelines-recommended range of imprisonment was 210-262 months,
and asked whether there was any objection; both sides said they had none. See App’x 99-100. And
although Fernandez contends on this appeal that the District Court was required to utilize the 168-
210 range that had been adopted by then-Judge Gleeson for the original sentencing, in the
sentencing hearing on remand Fernandez’s counsel stated that the District Court was not “in any
way bound by Judge Gleeson.” App’x 101. The District Court adhered to our prior mandate and
imposed a sentence under Section 960(b)(3); and we accordingly reject Fernandez’s contention that
the District Court erred, much less plainly erred, in imposing the new sentence.

        We likewise disagree with Fernandez’s argument that the District Court was bound by the
Government’s penalty sheet estimate as a baseline for his resentencing. As noted by the
Government, the penalty sheet states that it is “not a plea agreement,” that it is intended “to advise”
Fernandez, and that “[t]he Guidelines calculations set forth herein are only estimates and are not
binding on the government, the Probation Department or the Court.” Gov’t App’x 1-2. This penalty
sheet by its own unambiguous terms is binding on neither the Government nor the District Court.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Fernandez on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the January 23, 2019 judgment of the
District Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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