United States v. Rodriguez

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
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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. §
33553(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.
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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
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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
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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.
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“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
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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
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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
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conclude that they are without merit. Accordingly, we AFFIRM the district
court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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