United States v. Rengifo

• Decision Date: 29 October 2021
• Docket Number: 09-cr-109 (JSR)
• Citation: 569 F.Supp.3d 180
• Parties: UNITED STATES of America v. Alejandro Palacios RENGIFO, Defendant.
• Court: U.S. District Court — Southern District of New York

569 F.Supp.3d 180

UNITED STATES of America

v.Alejandro Palacios RENGIFO, Defendant.

09-cr-109 (JSR)

United States District Court, S.D. New York.

Signed October 29, 2021

Jeffrey Alan Brown, Rebecca Monck Ricigliano, United States Attorney's Office, New York, NY, for United States of America.

OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.:

Before the Court is the motion of defendant Alejandro Palacios Rengifo for sentence modification under 18 U.S.C. § 3582(c), commonly known as the "compassionate release" statute. On October 24, 2011, this Court sentenced Rengifo to 180 months’ imprisonment and 3 years’ supervised release following his conviction for substantive and conspiratorial hostage-taking charges in a bench trial on stipulated facts. Rengifo is scheduled to be released on December 31, 2022, which would mean that he will have served 12 years and 22 days in U.S. prison. At that time, he is expected to remain in immigration detention, pending his likely deportation to Colombia.

Rengifo was both a perpetrator and a victim of violence committed by the Fuerzas Armadas Revolucionarias de Colombia ("FARC"), a Marxist-Leninist guerilla group that was engaged in a violent conflict with the Colombian government from 1964 through 2016. During the conflict, the FARC financed its operations through various illegal activities, including narcotics production and trafficking, kidnapping for ransom, extortion, and illegal gold mining.¹ Approximately 220,000 Colombians are thought to have died in the armed conflict through 2012, 81 percent of them civilians, and more than 8 million Colombians have registered with the Colombian government as conflict victims.² In 2016 the FARC and the Colombian government signed a comprehensive peace agreement, which received crucial support from the United States government, a longtime patron of the Colombian government. For the FARC as an organization, the peace accords led to disarmament and a transition into a Colombian political party. For FARC guerillas, the 2016 peace accords were intended to lead to demobilization and social reintegration through a new, transitional justice system.

As part of the deal, the Colombian government guaranteed that no FARC members would be extradited to the United States for crimes committed before December 1, 2016, when the peace accord took effect. The U.S. government -- which had a longstanding policy of aggressively prosecuting extradited FARC members for a wide array of criminal activities directed at the United States -- acquiesced in the extradition ban as part of President Barack Obama's policy of promoting the Colombian peace process.

Rengifo was a child soldier conscripted into the FARC in or around 1998 at age 13, when he was kidnapped from his rural village in the jungle near the Colombia-Panama border. Rengifo was then subjected to years of isolation, harsh treatment, and indoctrination. His FARC commanders provided repeated warnings and demonstrations that the FARC would seek to kill guerillas who tried to escape.

For approximately 10 months between 2008 and 2009, Rengifo was ordered to serve as one of the armed guards of a U.S. citizen kidnapped for ransom and held hostage in a makeshift jungle camp near the Colombia-Panama border. Rengifo had no role in the initial kidnapping and sought repeatedly to be relieved of guard duty. In 2009, Rengifo escaped from the FARC with several others, turned himself in to the Colombian government, and entered an amnesty program for reintegration of former FARC guerillas. At the time, the amnesty program permitted criminal prosecution and extradition of FARC members who had participated in kidnapping and other crimes against humanity. After the FARC's former hostage identified Rengifo in a photo book, the Colombian government located Rengifo in a demobilization camp and extradited him to face trial in this Court.

Rengifo, now 35 years old, moves this Court for modification of his sentence. See ECF 162 ("Mot.") Rengifo argues that there are several factors that together establish that "extraordinary and compelling reasons warrant" modification of his sentence. 18 U.S.C. § 3582(c)(1)(A)(i). These include his youth at the time of the offense and his demonstrated rehabilitation, his ill family members, the harsh conditions of confinement implemented to control the spread of COVID-19 in prison, and the change in the law produced by the 2016 peace accords between Colombia and the FARC. The Government opposes Rengifo's motion. While it "acknowledges that the defendant has a commendable prison record," the Government contends that none of the issues Rengifo has raised establishes, separately or together, the "extraordinary and compelling reasons" required for sentence modification under section 3582(c).

After carefully considering the parties’ papers and thoughtful presentations at oral argument, the Court holds that there are extraordinary and compelling reasons warranting Rengifo's early release. The Court therefore grants Rengifo's motion for sentence modification for the reasons set forth below. Rengifo's custodial sentence is hereby reduced to time served and his sentence of 3 years’ supervised release is vacated. If Rengifo is to be deported, the Court recommends that the Government move as expeditiously as possible to return Rengifo to Colombia.

I. Factual Background

A. Rengifo's Upbringing

Alejandro Palacios Rengifo was born in or about 1985 in a remote, impoverished region of Colombia near the Panamanian border. Pre-Sentence Report ("PSR") ¶ 60.³ He had seven brothers and five sisters; the family lived without electricity or running water and often went hungry. Id. ¶¶ 61-62. Rengifo's father allegedly died of hunger. Id. ¶ 62. Rengifo never learned to read or write, and he saw his parents only intermittently, since they had to travel some distance to work in the fields. Id. ¶¶ 63, 72. In the late 1990s, guerrillas from the FARC and soldiers from paramilitary units began operating in the area of Rengifo's village, threatening residents and causing many to flee. Id. ¶¶ 65-66. In or around 1998, when Rengifo was 13 and his parents were out working in the fields, armed FARC guerrillas entered Rengifo's village, kidnapped him, and conscripted him into the FARC upon threat of death if he refused. Id. He was told that he would be killed if he ever tried to escape the FARC. Rengifo's family later fled the village, communicating with Rengifo every few years by phone. But the defendant only saw his family again after he was finally able to flee the FARC in 2009. Id. ¶ 67.

Meanwhile, Rengifo became a child soldier in the FARC's "57^th Front," which operated in Colombia's Chocó Department, on the border with Panama. PSR ¶ 15. At the time, the 57^th Front was involved in cocaine trafficking and hostage-taking to fund FARC activities and trafficking of supplies and armaments to supply itself and other components of the FARC. Id. The FARC commanders indoctrinated Rengifo in a culture of violence and guerrilla warfare while holding him and other child conscripts at the bottom of a strict hierarchy. These "conscripts" were forbidden to have contact with the outside world, and were disciplined with harsh punishments, including manual labor. Mot. 6.

B. The Kidnapping of Padrón

The 57^th Front engaged in a pattern of kidnapping and ransom as part of its efforts to finance the FARC.⁴ The kidnappers included, among others, Julio Enrique Lemos-Moreno, who was one of Rengifo's commanders in the 57^th Front, and a co-commander, Luis Fernando Mora-Pestana.⁵ In 2008, Mora-Pestana and a corrupt Panamanian police officer named Roque Orobio Lobon set about identifying potential people to kidnap and ransom. Victim Cecilio Juan Padrón, an American citizen, was identified for kidnapping in late March 2008, and the kidnapping was set for April 2008. PSR ¶ 17. Lobon and other corrupt Panamanian police officers, acting under orders from Mora-Pestana and Lemos-Moreno, kidnapped Padrón on April 4, 2008 following a traffic stop, and they proceeded to smuggle him to a remote beach south of Panama City. PSR ¶¶ 19, 37. Another member of the 57^th Front, Edilberto Berrio Ortiz and other 57^th Front guerrillas were at the beach and took custody of Padrón, paid the initial kidnappers, and transported Padrón to a makeshift camp in the jungle. PSR ¶ 20.

Rengifo entered the story at the jungle camp. There, Rengifo, along with Berrio Ortiz, another co-conspirator named Anderson Chamapuro Dogirama, and three other 57^th Front fighters, were ordered to guard Padrón and prevent his escape until the ransom was paid. Id. This period of detention lasted from approximately April 4, 2008 to February 2009. During this time, Rengifo and the others formed an armed squadron holding Padrón in captivity and threatening to kill him if he escaped. Id. ¶ 21. Other co-conspirators spoke to Padrón's family in Miami and threatened to injure or kill him unless a $16 million ransom was paid. Id. ¶¶ 21-22. Padrón's family ultimately negotiated a $3 million ransom, which was paid to the FARC on February 20, 2009 to secure Padrón's February 23, 2009 release. Id. ¶ 23.

In his presentence interview, Rengifo acknowledged his role as Padrón's guard but insisted that he did not volunteer for the role; he was ordered by his commanders to do it. Id. ¶ 37. Rengifo stated that he could not disobey the order and feared being killed if he did not comply. Id. Rengifo also said that he asked his commanders "four or five times" to be relieved of his guard duty, and that he became friendly with Padrón despite being ordered not to communicate so much with him. Id. ¶ 38. Rengifo stated that both he and Padrón cried at various times while sharing their life stories and talking about their families. Id.

C. Rengifo's Escape from the FARC

At one point, after speaking on the phone with his family, Rengifo learned that his mother needed money for a necessary eye surgery. Id. ¶ 39. Rengifo asked Mora-Pestana for...