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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