NEWARK, N.J. (AP) — A botched bank heist that led to the accidental death of an FBI agent earned convicted robber Francisco Herrera-Genao a 117-year prison sentence.
Now, the New Jersey convict, imprisoned since 2007, could be free in as soon as four years because of legislation signed by former President Donald Trump.
Last June, a federal judge reduced Herrera-Genao's sentence to 22 years, citing provisions in the First Step Act, a 2018 law that eliminated mandatory sentences for some crimes involving firearms. If the sentence stands, he would be eligible for release in Jan. 2026, according to the Bureau of Prisons website.
The judge's ruling brought an immediate appeal from the U.S. attorney’s office in Newark that will be heard in coming months by a a federal appeals court in Philadelphia. The Society of Former Special Agents of the FBI called the judge's decision to reduce the sentence “astounding."
“Herrara-Genao should serve the sentence that was fully justified for an extremely violent criminal,” the society’s president, Dennis Lormel, told The Associated Press in an email. “This chipping away at valid sentences is corrosive to the judicial system and puts the public at extreme risk.”
Herrara-Genao's lawyers did not respond to requests for comment.
A former warehouse worker known as “Fongi," Herrera-Genao was 22 when he and three accomplices went on a robbery spree that culminated in a confrontation with law enforcement at a PNC Bank in Readington, in western New Jersey, on April 5, 2007.
In the chaos, FBI Special Agent Barry Lee Bush, 52, was fatally shot by another agent. The married father of two was the first FBI agent killed in the line of duty in New Jersey.
A jury convicted Herrera-Genao and accomplices Efrain Lynn and Wilfredo Berrios on counts including conspiracy, armed bank robbery and weapons offenses in late 2008. The fourth man, getaway driver Michael Cruz, pleaded guilty and cooperated with authorities. Trial testimony revealed that Herrera-Genao brandished and fired his gun at several robberies, including one where he fired into a glass partition, sending glass fragments into a teller’s face.
None of the four was charged with Bush’s death, but when she sentenced Herrera-Genao, U.S. District Judge Anne Thompson was required under existing federal law to tack on one 10-year sentence and four 25-year sentences, to be served consecutively, for possessing and using a firearm during multiple robberies.
Nine years later, the First Step Act ended this practice, called sentence stacking, by changing the law so the 25-year mandatory consecutive sentences could only be triggered by a conviction in a previous case, not by multiple convictions in the same case.
The act does not allow that provision to be applied to cases that occurred before the act was passed. In reducing his sentence, Thompson sidestepped that by considering the length of Herrera-Genao's sentence as an “extraordinary and compelling factor” in his application for compassionate release, along with his rehabilitation in prison and his age at the time of the crimes.
The merging of the sentence stacking and compassionate release provisions is an interpretation of the law that has split federal appeals courts around the country, with panels in the Sixth, Seventh and Third circuits rejecting it and panels in the Fourth and Tenth circuits agreeing with it.
“This would be a big deal” if Thompson’s ruling is upheld, said Daniel Suleiman, a Washington, D.C.-based defense attorney and former federal prosecutor who has represented clients in cases involving the First Step Act.
“One overarching goal of the First Step Act was to try and reduce the federal prison population and also cure what were perceived injustices in the overall sentencing regime,” he said. But, he added, “it seems to me like this is a pretty creative reading of the act. She gave him a more lenient sentence than he would have gotten under the First Step Act, and I think that does raise some questions.”
Depending on how the 3rd U.S. Circuit Court of Appeals in Philadelphia decides the matter, it could wind up before the Supreme Court. This month, the high court declined to hear a similar appeal from a man serving 66 years for two armed bank robberies and one attempted robbery in Indiana.
The U.S. attorney's office declined to comment on the case. Attorneys representing Berrios, who is also appealing his 85-year sentence under the First Step Act, did not return messages. Through the retired FBI agents’ association, the Bush family did not respond to a request for comment.