United States v. Cardoza , 790 F.3d 247 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2145
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY CARDOZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
William S. Maddox on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
June 23, 2015
Per Curiam. Anthony Cardoza entered a guilty plea on a
drug trafficking offense and received a sentence of 72 months at
a sentencing hearing on September 17, 2013. Cardoza raises an
ineffective assistance of counsel claim challenging his
conviction. Cardoza also contends that his case should be
immediately remanded for resentencing because of a recent
retroactive amendment to the sentencing guidelines.
Cardoza's ineffective assistance of counsel claim
asserts a number of alleged errors his lawyer committed. But this
claim, as is often the case with such claims, involves fact-
specific issues ill-suited for resolution on direct appeal. See
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) ("We have
held with a regularity bordering on the monotonous that fact-
specific claims of ineffective assistance cannot make their debut
on direct review of criminal convictions, but, rather, must
originally be presented to, and acted upon by, the trial court.").
We therefore "dismiss the claim without prejudice to its
reassertion," if the defendant so chooses, in a collateral
proceeding. United States v. Ofray-Campos, 534 F.3d 1, 34 (1st
Cir. 2008).
Cardoza also separately challenges the sentence imposed
by the District Court. After Cardoza was sentenced, the U.S.
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Sentencing Commission passed Amendment 782 to the sentencing
guidelines. See United States Sentencing Commission, Guidelines
Manual, App. C Supp., Amendment 782 (Nov. 1, 2014). That amendment
lowers the "base offense level" for most drug offenses, see id.,and has been made retroactive by the Sentencing Commission, see
U.S.S.G. 11 § 1B1.10(d). Cardoza argues that this amendment
entitles him to a sentence reduction, and he seeks an immediate
remand for re-sentencing. The government does not oppose the
requested reduction but it contends that no such remand is
necessary since Cardoza is not eligible for release until November
1, 2015, at the earliest.
While Cardoza's appeal was pending, however, the
District Court purported to grant sua sponte an order modifying
the sentence on the basis of the amendment to the guidelines under
18 U.S.C § 3582(c)(2). That order, issued on April 29, 2015,
purported to reduce Cardoza's term of imprisonment to 58 months.
Neither Cardoza nor the government informed us of this development,
which we were made aware of after the District Court provided a
supplement to the record to the clerk of the Court of Appeals.
As we just recently made clear, a district court does
not have jurisdiction to enter a sentence modification order under
§ 3582(c)(2) while an appeal of that sentence is pending. United
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States v. Maldonado-Rios, ___ F.3d ___, 2015 WL 3652600, at *2
(1st Cir. June 15, 2015) ("Because [defendant's] appeal was pending
at the time the District Court ruled on his motion to modify the
sentence under § 3582(c)(2), we hold that the District Court lacked
jurisdiction to enter the order reducing the sentence."). That
does not mean, however, that we need to resolve whether Cardoza is
entitled to the immediate remand for resentencing that he seeks.
And that is because, as we explained in Maldonado-Rios, Federal
Rule of Appellate Procedure 12.1 offers us an alternative and more
efficient means of proceeding in a case where a district court has
purported to issue a modification order that would -- if valid --
potentially moot the portion of the appeal that concerns the
sentence. See id.
That rule permits a district court faced with a motion
that it "lacks authority to grant because of an appeal that has
been docketed and is pending" to "state[] . . . that it would grant
the motion." Fed. R. App. P. 12.1(a). The movant must then
"promptly notify" the Court of Appeals' clerk of the district
court's ruling. Id. This Court can then, if it chooses, "remand
for further proceedings but retain jurisdiction." Fed. R. App. P.
12.1(b).
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Here, as in Maldonado-Rios, the District Court did not
"actually issue an indicative ruling." 2015 WL 3652600, at *3.
But it could "hardly have more clearly stated" what it would do if
faced with a § 3582(c) motion. Id. We will therefore treat the
District Court's April 29, 2015 order as if it were an indicative
ruling under Rule 12.1. And, having done so, we retain
jurisdiction and remand this case to the District Court so that it
may enter an order modifying Cardoza's sentence as it has indicated
it believes is warranted. Once the District Court enters its
modification order, the government and the defendant shall notify
this Court within 14 days as to whether there is any reason why
the appeal should not then be dismissed.
So ordered.
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