USA v. Busch et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
DECISION AND ORDER
v. 	09-CR-331-A
22-CV-419-A
ISMAEL LOPEZ,
Defendant.
INTRODUCTION
Before this Court is Petitioner Ismael Lopez’s pro se motion seeking to vacate
and set aside his sentence pursuant to 28 U.S.C. § 2255. Dkt. 2392.1 For the
reasons which follow, Lopez’s motion is denied.
BACKGROUND
The reader is presumed to be familiar with the procedural history of this case.
Briefly stated, Lopez was alleged to be a member of the notorious 10th Street Gang,
a violent criminal enterprise that engaged in violence and facilitated the flow of
narcotics in and around Buffalo, New York, for over a decade. Prior to charging
Lopez, the government received authorization and direction from the Attorney
General not to seek the death penalty against Lopez. Dkt. 2397-1, p.2. On
February 2, 2012, Lopez was charged in a multi-defendant, multi-count indictment.
1 References herein, unless otherwise indicated, are to filings contained on the docket in
Case # 09-CR-331-A.
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Dkt. 408. None of the counts alleged any of the statutory death-penalty aggravating
factors necessary to allow the Government to seek the death penalty. Id.
Following a jury trial, Lopez was convicted as charged of: one count of
conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act
(“RICO”) with special sentencing factors charging the aiding and abetting of two
murders (“murder enhancements”), in violation of 18 U.S.C § 1962(d); two counts of
murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (“VCAR-
murder”); one count of conspiracy to possess with intent to distribute narcotics
(“narcotics-conspiracy”), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846;
and one count of possession of firearms in furtherance of a drug-trafficking crime
(“firearms-possession”), in violation of 18 U.S.C. §§ 924(c)(1) and 2. Dkt. 2196.
Lopez was sentenced to concurrent terms of life imprisonment for each of his
RICO, VCAR murder, and narcotics conspiracy convictions and to a consecutive
term of imprisonment of 5 years on his firearms-possession conviction. Id. Lopez’s
convictions and sentence were affirmed on direct appeal, see, United States v.
Smith, 823 F. App'x. 34 (2d Cir. 2020), and on June 7, 2021, his request for
certiorari was denied. See, Lopez v. United States, 141 S.Ct. 2739 (2021).
On June 2, 2022, timely2 filed the instant motion to vacate his conviction
pursuant to 28 U.S.C. § 2255, “on the grounds of equity and ineffective assistance of
counsel.” Dkt. 2392.
2 A § 2255 petition is timely if it is filed within one-year from the denial of a writ of
certiorari. See, Rosa v. United States, 785 F.3d 856, 857 (2d Cir. 2015).
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FACTS
After different attorneys briefly represented Lopez at his arraignment and
detention hearings, attorney Maurice J. Verrillo, Esq. (hereinafter “Verrillo”), was, in
August of 2012, assigned by the Court to represent Lopez. See, Dkt. Entry, dated
8/7/2012. Verrillo represented Lopez throughout the remainder of the proceedings
in both this Court and before the Second Circuit. Notably, despite Verrillo’s
longstanding representation of Lopez, it was not until nearly a full decade after
Verrillo began his representation that Lopez—in the instant § 2255 petition—first
expressed any complaints or concerns about Verrillo’s representation of him.
Pretrial Proceedings
During the pre-trial phase of the case, Verrillo filed and joined in voluminous
pre-trial motions challenging virtually every aspect of the government’s case. In
October 2012, Verrillo filed an extensive motion—64 pages including exhibits—
seeking dismissal of the indictment, suppression of physical evidence and
statements, disclosure of information including informant and witness identities and
statements. Dkt. 614. In November of 2012, Verrillo filed a motion joining in a variety
of other motions filed by four other co-defendants, Dkt. 669, along with an affidavit
from Lopez in support of his previously filed omnibus motion. Dt. 681. In January
2013, Verrillo filed another batch of motions seeking exclusion of identification
evidence, a Wade hearing, preclusion of evidence, disclosure, dismissal of charges,
severance, and other motions in limine. Dkt. 730.
On February 8, 2013, an evidentiary hearing was held on Verrillo’s motions
regarding Lopez’s Fifth Amendment claim that his statement should be suppressed
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and his Fourth Amendment claim seeking the suppression of certain evidence
recovered during a search of a vehicle. Dkt. 793. During the hearing, Verrillo
conducted extensive voir dire, cross-examination, and recross examination of the
law enforcement witnesses called by the government. See, Dkt . 793, pp. 18-25, 27-
28, and pp. 42-76. Following the hearing, Verrillo filed a post-hearing brief in
support of the Lopez’s motion to suppress. Dkt. 889.
After Magistrate Judge Hugh B. Scott (“Judge Scott”) issued a Report and
Recommendation (“R&R”) which recommended denial of Lopez’s motions, Verrillo
filed objections with this Court. Dkt. 1029. Verrillo subsequently argued those
objections before this Court. Dkt. 1218. This Court eventually denied Lopez’s
objections to the R&R and the case was set for trial.
Prior to jury selection, Verrillo filed extensive trial submissions and motions,
which included the following: proposed jury questions, Dkt. 1403; proposed jury
instructions, Dkt. 1405; a witness list, Dkt. 1406; proposed voir dire, Dkt. 1408; a
motion to preclude evidence the government could introduce at trial including
preclusion of witnesses, identification testimony, photographs of the deceased
victims, and for the defendant to have his hands-free during trial, Dkt. 1432; an alibi
notice, Dkt. 1434-35; an exhibit list, Dkt. 1433; and an attorney declaration in further
support of Lopez’s request to preclude evidence and to prohibit the government from
presenting evidence with any variation from the allegations in the indictment. See,
Dkt. 1448.
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Plea Discussions
In this prosecution, the only pretrial plea dispositions secured by those 10th
Street gang members who, like Lopez, were charged in the murders of Brandon
MacDonald and Darinell Young, were with those who agreed to cooperate. Those
who refused to cooperate, namely, Lopez, and his codefendants Jonathan Delgado,
Matthew Smith, and Domenico Anastasio, proceeded to trial. As made clear by an
affidavit filed by AUSA Joseph Tripi, the lead prosecutor in this case, Lopez was
never tendered a plea offer by the government. Dkt. 2397-2.
The Trial
“During its roughly five-week course, the jury heard testimony from more than
50 witnesses, including ten members of the 10th Street Gang who had earlier
pleaded guilty and cooperated with the government.” United States v. Delgado, 972
F.3d 63, 67–68 (2d Cir. 2020). On his direct appeal, Lopez challenged the
sufficiency of the evidence against him, but that effort was rejected by the Second
Circuit. United States v. Smith, 823 F. App'x. at 38-39. In that regard, the Court
observed that evidence at trial established “that Lopez knew that the plan was to kill
rival gang members, and Lopez intentionally aided his codefendants by transporting
them to the location when they were fully armed and ready, willing, and able to shoot
and kill [MacDonald and Young].” Id., p. 38. Such evidence further established that
“Lopez acted with the general awareness to increase his status in the gang.” Id.
Furthermore, “[t]rial testimony established Lopez's guilt as a drug supplier who sold
marijuana from his house. For example, there was testimony that one drug supplier
sold Lopez more than 100 pounds of marijuana and that another gang member
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bought more than 60 pounds of marijuana from Lopez.” Id., p. 39. Finally, regarding
the gun count, “[t]rial testimony established that Lopez brought a firearm to the 10th
Street Park to provide protection for the gang while selling drugs there.” Id.
Despite the significant evidence against Lopez, Verrillo vigorously cross-
examined government witnesses. Moreover, at trial Verrillo presented a defense
case in support of the defendant’s alibi defense. Specifically, Verrillo called Lopez’s
mother, Francisca Rodriguez, and his sister, Luz Hernandez, to establish that Lopez
was home the night of the murders and that he did not sell drugs or possess a gun.
Their testimony also sought to establish that Lopez was not permitted to drive the
red Ford Explorer registered to his father after 10 p.m.—in furtherance of the
defense effort to cause the jury to infer that Lopez would not have been able to use
the vehicle to drive his cohorts to commit the murders. Furthermore, Verrillo and the
other three (3) defense lawyers vigorously challenged the government’s proof during
summation, focusing heavily on the veracity of the government’s cooperating
witnesses.
Defendant’s Post-trial Motions
After the jury returned a verdict convicting all defendants of all counts, Verrillo
filed post-trial Rule 29 and 33 motions on Lopez’s behalf. Dkt. 1590. Verrillo also
filed a reply to the government’s response in opposition to Lopez’s post-trial
motions, Dkt. 1664, and argued vigorously before this Court in support of Lopez’s
Rule 29 and 33 motions. Dkt. 1747. Subsequently, Verrillo filed a second Rule 33
motion on Lopez’s behalf, seeking further disclosure and claiming that newly
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discovered evidence warranted a new trial. Dkt. 2092. This Court denied all of
Lopez’s post-trial motions. Dkt. 2165.
Sentencing
Prior to sentencing, Verrillo filed a sentencing statement on the Lopez’s behalf
objecting to substantial portions of the Pre-Trial Sentence Report (PSR). Dkt. 2166.
Verrillo also filed an extensive sentencing statement and exhibits along with a
motion for a downward departure arguing that that the mandatory life sentences
applicable to Lopez were excessive under the Eighth Amendment and violated Due
Process and Equal Protection under the Fifth and Sixth Amendments of the Untied
States Constitution. Dkt. 2167. Verrillo’s objections and motion were denied when
this Court imposed its sentence on January 30, 2018. Dkt. 2184 & 2196. Verrillo
filed a timely Notice of Appeal. Dkt. 2190.
Appeal and Second Circuit Summary Order
On November 8, 2018, Verrillo filed a brief with the Second Circuit Court of
Appeals in support of Lopez’s appeal seeking to vacate his convictions and
sentence. See , Second Circuit Docket #18-369, Dkt. 106. On appeal, Verrillo
argued: that the evidence was legally insufficient as to all counts of conviction; that
the sentence of life imprisonment was harsh and excessive punishment under the
Eighth Amendment; and that the District Court erred in denying motions for a post-
trial hearing related to purported exculpatory evidence. Id.
The Second Circuit rejected Lopez’s arguments on appeal by Summary Order
on August 18, 2020. Dkt. 2339; see United States v. Smith, 823 F. App'x. 34, supra.
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After the Supreme Court denied Lopez’s request for a writ of certiorari, Lopez filed
this pro se petition.
DISCUSSION
At the outset, this Court observes that Lopez is proceeding pro se. Therefore,
his submissions must be “liberally construed in his favor,” Simmons v. Abruzzo, 49
F.3d 83, 87 (2d Cir. 1995), and “read to raise the strongest arguments that they
suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quotation mark
omitted). Nevertheless, Lopez still bears the burden of proving his claims by a
preponderance of the evidence. Triana v. United States, 205 F.3d 36, 40 (2d Cir.
2000). “[C]onclusory assertions and hearsay statements will not suffice” to meet this
burden.” United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987). Nor is a court
required to credit factual assertions that are “contradicted by the record in the
underlying proceeding.” Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).
I. 	Lopez’s §2255 Claim
Collateral relief, such as that sought by Lopez, is available only for a
constitutional error “that constitutes ‘a fundamental defect which inherently results in
a complete miscarriage of justice.’” United States v. Bokun, 73 F.3d 8, 12 (2d Cir.
1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). As the Second
Circuit has explained, “[t]he reasons for narrowly limiting the relief permitted under §
2255 – a respect for the finality of criminal sentences, the efficient allocation of
judicial resources, and an aversion to retrying issues years after the underlying
events took place – are ‘well known and basic to our adversary system of justice.’”
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Bokun, 73 F.3d at 12 (quoting United States v. Addonizio, 442 U.S. 178, 184
(1979)).
A § 2255 motion may not be employed to relitigate an issue that was raised
and considered on direct appeal. Cabrera v. United States, 972 F.2d 23, 25 (2d
Cir.1992) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir.1986) (per
curiam)); see also Schlup v. Delo, 513 U.S. 298, 318-319 (1995) (“[A] habeas court
may not ordinarily reach the merits of successive claims ...absent a showing of
cause and prejudice.”) (citations and footnote omitted). “The mandate rule prevents
re-litigation in the district court not only of matters expressly decided by the appellate
court, but also precludes re-litigation of issues impliedly resolved by the appellate
court's mandate.” Yick Man Mui v. United States, 614 F.3d 50, 53 (citation omitted).
“To determine whether an issue may be reconsidered on remand, a district court
“should look to both the specific dictates of the remand order as well as the broader
spirit of the mandate.” Id.
In his petition, Lopez raises a variety of claims to support his contention that
Verrillo’s representation of him amounted to a violation of his Sixth Amendment right
to the effective assistance of counsel.
A. Ineffective Assistance of Counsel
A petitioner claiming ineffective assistance of counsel “must show that (1)
counsel's performance was objectively deficient, and (2) petitioner was actually
prejudiced as a result.” Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012)
(citing Strickland v. Washington, 466 U.S. at 687–88, 692–93 (1984)). The burden of
showing ineffective assistance is “a heavy one because, at the first step of analysis,
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[a court] must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance.” Id. (cleaned up).
“The determinative question at this step is not whether counsel ‘deviated from
best practices or most common custom,’ but whether his ‘representation amounted to
incompetence 	under 	prevailing 	professional 	norms.’” 	Id. 	at 	129–30 	(quoting
Harrington v. Richter, 562 U.S. 86, 105 (2011)). The standard for evaluating the
adequacy of counsel's representation is “a most deferential one,” Harrington, 562 U.S.
at 105, because “counsel is strongly presumed to have rendered adequate assistance
and 	made 	all 	significant 	decisions 	in 	the 	exercise 	of 	reasonable 	professional
judgment.” United States v. Thomas, 608 F.App'x. 36, 38 (2d Cir. 2015) (quoting
Strickland, 466 U.S. at 690).
To give appropriate deference to counsel's independent decision-making,
Courts “indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” Parisi, 529 F.3d at 141 (quoting
Strickland, 466 U.S. at 689). Courts are cautioned against “look[ing] back and
project[ing] ex post knowledge of consequences on the attorney's ex ante selection
of one path among the many available to him[,]” id., and must instead “consider the
circumstances counsel faced at the time of the relevant conduct and ... evaluate the
conduct from counsel's point of view.” Davis v. Greiner, 428 F.3d 81, 88 (2d Cir.
2005).
Should 	defendant 	clear 	this 	first 	hurdle 	by 	demonstrating 	ineffective
performance by counsel, prevailing on a § 2255 petition then requires demonstrating
actual prejudice from identified errors. Harrington, 689 F.3d at 129 (citing Strickland,
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466 U.S. at 668, 687–88, 692–93). That is, Lopez must show “a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have
been different,” Strickland, 466 U.S. at 694, not merely that an error “had some
conceivable effect on the outcome.” Strickland, 466 U.S. at 693. “A reasonable
probability is a probability sufficient to 	undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Here, regarding the first Strickland prong, none of the claimed errors cited by
Lopez are sufficient—either individually or collectively—to “overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.” Bell v. Miller, 500 F.3d 149, 156 (2d Cir. 2007) (quoting Strickland, 466 U.S.
at 689). 	Moreover, even if he was able to point to an error by Verrillo, he cannot
demonstrate prejudice. Accordingly, his claims do not warrant relief.3
1. Failure to Communicate a Plea Offer
While Lopez first claims that he “was not sufficiently advised of a plea offer
extended by the government prior to trial preparation in this matter by counsel,” see,
Dkt. 2392, p. 6, the record before this Court establishes that, in fact, no plea offer was
ever extended to Lopez by the government because, in part at least, Lopez refused
to cooperate with the government. Dkt. 2397-2 (“[a]ny plea offer would have required
Ismael Lopez to admit his role in the murders of Brandon MacDonald and Darinell
3 To the extent that Lopez’s papers suggest that he received ineffective assistance of
counsel because he was not appointed “learned counsel,” see, Dkt. 2392, pp. 6-7, such
claim lacks merit, since the Second Circuit has stated that a defendant is not entitled to
be represented by two attorneys in situations, as here, in which the government files
notice of its intent not to seek the death penalty. United States v. Douglas, 525 F.3d
225, 236 (2d Cir. 2008).
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Young, and to cooperate with the government.”). 	To establish a Sixth Amendment
violation, the defendant must establish that his attorney in fact failed to communicate
a plea offer or failed to provide adequate advice about a plea offer and his sentencing
exposure. United States v. Gordon, 156 F.3d 376, 380 (2d Cir.1998); Boria v. Keane,
99 F.3d 492, 496-98 (2d Cir.1996). 	Verrillo can hardly be faulted for failing to
communicate a non-existent plea offer.
Additionally, on January 17, 2013, Verrillo filed a motion seeking expanded
discovery in light of the Supreme Court’s decisions in Missouri v. Frye, 566 U.S. 134
(2012) and Lafler v. Cooper, 566 U.S. 156 (2012). See Dkt. 730, p. 4 (“In Frye, the
issue was failure to communicate an offer. In Lafler, ineffective assistance was
determined based upon bad advice given the defendant by his attorney.”). Thus, the
record demonstrates that Verrillo was well-aware his obligations relative to any plea
offer—had such an offer ever been made.
Finally, nowhere in his motion does Lopez even allege that he was willing to
cooperate. It is not ineffective assistance where a petitioner cannot demonstrate how
the outcome of the proceeding would have been different. Hurel Guerrero v. United
States, 186 F.3d 275, 282 (2d Cir.1999).
2. Failure to Object
Lopez next asserts, while largely failing to provide specific examples, that
Verrillo’s representation was deficient because he failed to make proper objections
during trial. Dkt. 2392, p. 6. 	Notwithstanding such conclusory contention, this Court
notes that Verrillo lodged numerous objections during trial and joined in objections of
his co-defendants. He challenged virtually every aspect of the government’s case and
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included his efforts: to preclude testimony of potential government witnesses, and to
preclude the government from introducing photos of the deceased victims during trial.
Dkt. 1432. 	Prior to trial, Verrillo sought to suppress damaging evidence against Lopez
derived from a search and Lopez’s own statements. Dkt. 538. 	Verrillo also filed
additional motions seeking: to exclude identification evidence; for a Wade hearing; for
preclusion of evidence; for disclosure; to dismiss charges; for severance; along with
other motions in limine. Dkt. 730. An evidentiary hearing was held on Verrillo’s motion,
Dkt. 791, and during that hearing, Verrillo cross-examined government witnesses.
Following the hearing, Verrillo filed a post-hearing brief in support of the Lopez’s
motion to suppress. Dkt 889.
Having 	sought 	and 	failed 	prior 	to 	trial 	to 	suppress 	and/or 	preclude 	the
admission of the highly inculpatory evidence against Taylor—including Taylor’s own
statements, identification testimony, and autopsy photographs—all of which were the
subject of unsuccessful pretrial efforts to suppress or preclude—Verrillo’s failure to
register a futile objection to the admission of such evidence in front of the jury can
hardly be characterized as ineffectiveness. Moreover, by providing notice of and
proceeding with an alibi defense regarding the murders, which represented the most
serious charges that carried the greatest statutory mandatory minimum terms of
imprisonment, Verrillo chose a strategy which, though ultimately unsuccessful, was
cogent and well thought out. 	“Actions or omissions by counsel that ‘might be
considered sound trial strategy’ do not constitute ineffective assistance.” United States
v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 689).
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3. Lopez Was Not Shackled in View of the Jury
Lopez next claims that he was shackled throughout the trial, that Verrillo was
ineffective in seeking to prevent it, and that he was prejudiced because the jurors
would have inferred that he was dangerous and presumed guilty. Dkt. 2392, p. 10.
Contrary to Lopez’s assertion, however, per the practice of this Court, Lopez’s
hands were not shackled during trial, he was not dressed in jail clothes during trial,
and he and his co-defendants on trial, were moved in and out of the courtroom outside
of the presence of the jury. 	Further, as per its routine practice, the Court utilized
bunting around the defense tables which shielded the legs of all the defendants on
trial, including Lopez, from view of the jury. Lopez fails to allege that any jurors
observed any shackles. 	Moreover, prior to trial, Verrillo filed a motion specifically
requesting that Lopez’s hands be free—which they were—during the trial. Dkt. 1432.
For 	these 	reasons, 	Lopez’s 	claim 	of 	a 	constitutional 	violation 	and 	ineffective
assistance of counsel lack merit.
4. Sentencing
Lopez’s claim that Verrillo was ineffective at sentencing also fails. As noted, in
addition to arguing the factors set forth at 18 U.S.C. § 3553(a), Verrillo also argued
to both the District Court, at sentencing, see Dkt. 2166 and 2167, and to the Second
Circuit, on appeal, see, United States v. Smith, 823 F. App'x. at 39, that the
mandatory life sentences constituted harsh and excessive punishment under the
Eighth Amendment. In rejecting the argument raised by both Verrillo, on behalf of
Lopez, and another attorney on behalf of codefendant Smith, the Second Circuit
stated:
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Defendants’ age-based challenges to their mandatory life sentences
are foreclosed by our recent decision in United States v. Sierra, 933
F.3d 95, 97 (2d Cir. 2019) (“Since the Supreme Court has chosen to
draw the constitutional line at the age of 18 for mandatory minimum life
sentences, the defendants’ age-based Eighth Amendment challenges
to their sentences must fail.” (citation omitted)). We are “bound by the
decisions of prior panels until such time as they are overruled either by
an en banc panel of our Court or by the Supreme Court.” United States
v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). Smith and Lopez were
both over eighteen years old at the time of the VCAR-count murders,
which carry a mandatory-minimum sentence of life imprisonment.
Accordingly, we affirm their sentences.
United States v. Smith, 823 F. App'x. 34 at 39.
Since Lopez is serving the mandatory minimum sentence, any ineffective
assistance claim predicated on his sentence necessarily fails. Wilson v. United
States, No. 04-CR-1016 (NGG), 2023 WL 6385799, at *8 (E.D.N.Y. Sept. 29,
2023)(“[petitioner] cannot show prejudice from any ineffective assistance of counsel
in the penalty phase, as he is currently serving the mandatory minimum sentence”),
appeal dismissed, No. 23-7918, 2024 WL 2805549 (2d Cir. Apr. 11, 2024),
reconsideration en banc denied, No. 23-7918, 2024 WL 2805548 (2d Cir. May 31,
2024); see also United States v. Sharpley, 399 F.3d 123, 124 (2d Cir. 2005) (finding
no prejudice in sentencing when the sentence received was the mandatory
minimum).
For these reasons, the Court concludes that Lopez’s various claims
predicated upon his assertion that he received ineffective assistance of counsel all
lack merit.
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I. 	Lopez’s Motion for Compassionate Release
In addition to his claim of ineffective assistance of counsel, Lopez also claims
entitlement to a “limited sentencing reduction” based upon the compassionate release
statue, 18 U.S.C. § 3582(c)(2) and Guideline Amendment 782. Dkt. 2392, pp. 13-18.
For the reasons which follow, this Court rejects Lopez’s request for compassionate
release and/or resentencing.
“A court may not modify a term of imprisonment once it has been imposed
except pursuant to statute.” United States v. Gotti, 433 F. Supp. 3d 613, 614
(S.D.N.Y. 2020)). The First Step Act, which modified 18 U.S.C. § 3582(c), allows the
Court to modify a sentence upon a motion of either: (i) the Director of the Bureau of
Prisons [BOP], or (ii) the defendant “after the defendant has fully exhausted all
administrative rights to appeal a failure of the [BOP] to 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.” 18 U.S.C. § 3582(c)(1)(A).
Once exhaustion is established, courts have discretion under the First Step
Act to grant compassionate release when (1) there are “extraordinary and
compelling reasons” that warrant a sentence reduction, (2) the sentence reduction is
“consistent with applicable policy statements issued by the Sentencing
Commission,” and (3) the sentence reduction “is supported by the factors set forth in
18 U.S.C. § 3553(a).” United States v. Canales, No. 16-CR-0212, 2020 WL
2319294, at *2 (S.D.N.Y. May 9, 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). “If any
one requirement is not satisfied, the district court may deny the motion without
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considering the remaining requirements. United States v. Hunter, No. 21-1773, 2022
WL 2288688, at *1 (2d Cir. June 24, 2022) (citing United States v. Keitt, 21 F.4th 67,
72-73 (2d Cir. 2021) (per curiam)). The defendant bears the burden of proving that
he is entitled to compassionate release. See United States v. Earlsey, 568 F. Supp.
3d 298, 301 (W.D.N.Y. 2021).
Lopez’s motion makes no reference to any effort by him to seek, much less
exhaust, the available remedy of applying for release to the warden of the facility
where he is incarcerated, nor indication what any such application was denied or
ignored. 18 U.S.C. § 3582(c)(1)(A). Because Lopez has not exhausted his remedy,
his motion will be denied.
Even had Lopez exhausted his remedy, the Court, on the record before it,
sees no basis for granting the motion. “Section 3582(c)(2) provides that a
sentencing court may reduce a defendant's term of imprisonment if the sentence
was based on a Guidelines range that was subsequently lowered by the Sentencing
Commission.” United States v. Kupa, 768 F. App'x. 53, 54 (2d Cir. 2019) (summary
order) (citing 18 U.S.C. § 3582(c)(2)); see also United States v. Gil-Reyes, 671 F.
App'x. 20, 21 (2d Cir. 2016) (summary order) (citing United States v. Borden, 564
F.3d 100, 103–04 (2d Cir. 2009)) (“Under § 3582(c)(2), a district court may reduce a
defendant's sentence only if it was based on a sentencing range that the Sentencing
Commission subsequently lowered and the reduction would be consistent with
applicable Guidelines policy statements.”).
Here, Lopez cites Amendment 782 as providing the basis for a reduction in
his Guidelines range. Dkt. 2392, p. 13. However, Amendment 782 of the Sentencing
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Guidelines lowered the penalties for most drug offenses by reducing many of the
offense levels in the Drug Quantity Table in 2D1.1 by two levels. See United States
v. Valencia-Lopez, No. 05-CR-841 (NGG), 2018 WL 7290831, at *2 (E.D.N.Y. June
19, 2018), aff'd, 792 F. App'x. 846 (2d Cir. 2019). Amendment 788 of the Guidelines
states that Amendment 782 may be applied retroactively to lower the sentence of a
“defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered.” See id.; 18 U.S.C. §
3582(c)(2).
Because Lopez’s guidelines were determined based upon the murders and
gun possession charges for which he was convicted, the mandatory life sentence
plus 5-years imposed by the Court, represented the statutory mandatory minimum
term he faced on the offenses for which he was convicted. Moreover, his Guidelines
for the RICO, VCAR, and gun offense—the offenses which ultimately determined the
sentences imposed by this Court—have not changed since the time of his
sentencing in 2018. Accordingly, Lopez is not entitled to resentencing on the
grounds he presently seeks. See Dillon v. United States, 560 U.S. 817, 826 (2010);
United States v. Jarvis, 883 F.3d 18, 21-22 (2d Cir. 2018) (“a sentence reduction is
not authorized if an amendment to the Guidelines range is applicable to the
defendant, but the amendment does not have the effect of lowering the defendant's
applicable guideline range because of the operation of another guideline or statutory
provision.” [alterations and quotations omitted]).
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CONCLUSION
For the foregoing reasons, Lopez’s § 2255 motion (Dkt. 147) is DENIED. No
certificate of appealability shall issue because Lopez has not shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see 28 U.S.C.
§ 2253(c)(2) (“A certificate of appealability may issue ... only if the applicant has
made a substantial showing of the denial of a constitutional right.”).
IT IS SO ORDERED.
s/Richard J. Arcara______
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: April 22, 2025
Case 1:09-cr-00331-RJA-HBS Document 2503 Filed 04/22/25 Page 19 of 19