United States v. Almonte-Reyes , 814 F.3d 24 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 13-1934
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    HERIBERTO ALMONTE-REYES,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]
    Before
    Lynch, Circuit Judge,
    Souter,* Associate Justice,
    and Stahl, Circuit Judge.
    Raymond E. Gillespie for appellant.
    Tiffany V. Monrose, Assistant United States Attorney, with
    whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
    Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
    Appellate Division, were on brief, for appellee.
    February 18, 2016
    *    Hon. David H. Souter, Associate Justice (Ret.) of the
    Supreme Court of the United States, sitting by designation.
    LYNCH, Circuit Judge.          In this case of first impression
    in this circuit, we face a question the Supreme Court expressly
    left open in Setser v. United States, 
    132 S. Ct. 1463
    (2012):
    whether a federal sentence may be ordered to be consecutive to
    another federal sentence that is anticipated but not yet imposed.
    We    conclude       that     it    may   not.        We     reverse   and    remand   for
    resentencing.
    I.
    On October 4, 2012, Heriberto Almonte-Reyes pleaded
    guilty in the District of Puerto Rico to conspiracy to import a
    hundred      grams     or   more     of   heroin,      in    violation   of     21   U.S.C.
    §§ 952(a), 960(a)(1), (b)(2)(A), 963.                       In the plea agreement, the
    parties jointly recommended a sentence between 102 and 120 months
    of imprisonment.            The parties also recognized that Almonte-Reyes
    had pending criminal charges in the Northern District of Georgia,
    and        they     jointly        expressed        their     "intent,       desire,   and
    recommendation that the sentence in this case and the sentence in
    [the Northern District of Georgia case] run concurrently."1
    1   The indictment in the Northern District of Georgia
    charged   Almonte-Reyes   and   seventeen   co-conspirators   with
    conspiracy to commit money laundering and conspiracy to distribute
    controlled substances.    Indictment, United States v. Almonte-
    Reyes, No. 09-cr-00025 (N.D. Ga. Jan. 21, 2009), ECF No. 1. The
    duration of the conspiracies alleged in the Northern District of
    Georgia indictment overlap with the term of the conspiracy alleged
    in the District of Puerto Rico indictment. Beyond that, however,
    the record does not make clear the exact relationship between the
    two cases.
    - 2 -
    On July 1, 2013, the district court in Puerto Rico
    sentenced Almonte-Reyes to 120 months of imprisonment, "to be
    served consecutively to any term to be imposed in a pending case."
    (emphasis added).       Almonte-Reyes did not object to the consecutive
    nature of the sentence at the time of sentencing.
    On    July   5,    2013,   Almonte-Reyes     filed   a   motion   for
    reconsideration seeking to eliminate the part of the sentence
    ordering   his   term    of   imprisonment    to   be   consecutive    to    the
    anticipated Northern District of Georgia sentence.              He argued that
    such a consecutive sentence went beyond the district court's
    sentencing authority under 18 U.S.C. § 3584(a). The district court
    denied the motion.       This appeal followed.
    On December 19, 2013, Almonte-Reyes pleaded guilty in
    the Northern District of Georgia to one count of conspiracy to
    commit money laundering.         Guilty Plea and Plea Agreement, United
    States v. Almonte-Reyes, No. 09-cr-00025 (N.D. Ga. Dec. 19, 2013),
    ECF No. 500.     On October 17, 2014, after the filing of the briefs
    in this appeal, the Northern District of Georgia sentenced Almonte-
    Reyes to 87 months of imprisonment to be served concurrently with
    the sentence at issue here.           Transcript of Sentencing Hearing,
    Almonte-Reyes, No. 09-cr-00025 (N.D. Ga. Oct. 17, 2014), ECF No.
    568.
    The government had argued in its initial briefing that
    the imposition of the later federal sentence would moot the case.
    - 3 -
    Doubtful, we ordered the parties to make supplemental filings on
    the issue of mootness.        In their supplemental filings, Almonte-
    Reyes took the position that the appeal was not moot, while the
    government maintained that it was.
    II.
    To start, we reject the government's argument that this
    appeal is mooted by the imposition of the sentence in the Northern
    District of Georgia.
    The government argues that once the Northern District of
    Georgia imposed a concurrent sentence, the consecutive nature of
    the sentence imposed by the District of Puerto Rico ceased to have
    effect.    The reason, the government says, is that the decision of
    the Northern District of Georgia controls because its sentence
    came later in time.        For that proposition, the government cites
    Odekirk v. Ryan, 
    85 F.2d 313
    , 315 (6th Cir. 1936) ("Where . . .
    sentences are imposed by different courts, the intention of the
    court     imposing   the   second    or     later   sentence    is     .    .     .
    controlling . . . .").
    But, the government argues, that the District of Puerto
    Rico's    consecutive   sentencing    decision      was   superseded   by       the
    Northern District of Georgia's later-in-time sentence does not
    mean that the District of Puerto Rico's sentence was legally
    impermissible at the time it was imposed.            Rather, the government
    suggests, we should consider this a situation where developments
    - 4 -
    that take place after an initial sentencing require the adjustment
    of a sentence.        Certain mechanisms are available to prisoners for
    adjustment of a sentence, the government says, and Almonte-Reyes
    should seek relief through those means rather than challenging the
    lawfulness of the initial sentence.             Specifically, the government
    points to 18 U.S.C. § 3582(c)(1)(A), which allows a district court
    to reduce a prison term "upon motion of the Director of the Bureau
    of Prisons . . . if it finds that . . . extraordinary and compelling
    reasons warrant such a reduction"; 28 C.F.R. § 542.10, the Bureau
    of Prisons' Administrative Remedy Program; or, alternatively,
    judicial action under 28 U.S.C. § 2241, a writ of habeas corpus.
    In essence, the government concedes that Almonte-Reyes should
    serve concurrent sentences but urges us to leave the matter for
    the Bureau of Prisons or a future district court to resolve.
    This case is not mooted by the possibility that Almonte-
    Reyes       might    succeed   in   adjusting    his   sentence   through   the
    alternative mechanisms suggested by the government.               For one, we
    do not know the Bureau of Prisons' position on this issue, so it
    is not a foregone conclusion that Almonte-Reyes will be considered
    eligible       for    relief   through   those     alternative    mechanisms.2
    2 The first two alternative mechanisms proposed by the
    government both rely on acquiescence by the Bureau of Prisons.
    While a writ of habeas corpus does not rely on such acquiescence
    by the Bureau of Prisons, it cannot be that the possibility of
    future success on habeas would moot Almonte-Reyes's direct appeal
    of his sentence.
    - 5 -
    Moreover, Almonte-Reyes argues that the District of Puerto Rico's
    sentence was legally impermissible at the time it was imposed, and
    that question must be subject to judicial determination in this
    direct appeal.
    We proceed to determine whether the District of Puerto
    Rico acted within its legal authority when it specified Almonte-
    Reyes's sentence to be consecutive to an anticipated but not-yet-
    imposed federal sentence.3   Our review is de novo as it involves a
    question of statutory interpretation.4    United States v. Vidal-
    3    There is one more antecedent issue raised in the parties'
    briefs, but we can quickly dispense of it. Almonte-Reyes's plea
    agreement contained a waiver-of-appeal clause that both parties
    agree does not bar this appeal. We agree that because the district
    court's imposition of a consecutive sentence ran counter to the
    parties' joint recommendation, Almonte-Reyes's claim falls outside
    the scope of the waiver of appeal. See United States v. Santiago-
    Burgos, 
    750 F.3d 19
    , 23–24 (1st Cir. 2014); United States v.
    Maldonado-Escarfullery, 
    689 F.3d 94
    , 97 n.2 (1st Cir. 2012).
    4    Almonte-Reyes concedes that he did not make a
    contemporaneous objection to the consecutive nature of his
    sentence. Although he claims that he nonetheless preserved the
    issue by raising it in a timely motion for reconsideration, circuit
    precedent forecloses that claim.      See, e.g., Dillon v. Select
    Portfolio Servicing, 
    630 F.3d 75
    , 80 (1st Cir. 2011); Iverson v.
    City of Bos., 
    452 F.3d 94
    , 104 (1st Cir. 2006).
    While Almonte-Reyes's failure to preserve the objection
    would ordinarily result in plain error review, the government has
    failed to request application of a plain error standard. We have
    often declined to apply a plain error standard when the government
    fails to invoke it, and we do the same here. See, e.g., United
    States v. Soto-Rivera, No. 14-1216, 
    2016 WL 279364
    , at *3 (1st
    Cir. Jan. 22, 2016); United States v. Paulino-Guzman, 
    807 F.3d 447
    , 450 n.5 (1st Cir. 2015); United States v. Encarnación-Ruiz,
    
    787 F.3d 581
    , 586 (1st Cir. 2015).
    - 6 -
    Reyes, 
    562 F.3d 43
    , 48 (1st Cir. 2009).        The relevant statute
    provides:
    If multiple terms of imprisonment are imposed
    on a defendant at the same time, or if a term
    of imprisonment is imposed on a defendant who
    is already subject to an undischarged term of
    imprisonment, the terms may run concurrently
    or consecutively, except that the terms may
    not run consecutively for an attempt and for
    another offense that was the sole objective of
    the attempt. Multiple terms of imprisonment
    imposed at the same time run concurrently
    unless the court orders or the statute
    mandates   that   the   terms   are   to   run
    consecutively. Multiple terms of imprisonment
    imposed at different times run consecutively
    unless the court orders that the terms are to
    run concurrently.
    18 U.S.C. § 3584(a).
    In Setser, the Supreme Court addressed the question of
    whether § 3584(a) allows the imposition of a federal sentence
    consecutive to an anticipated state sentence.     The Court began by
    noting that § 3584(a) is silent on that question:
    [Section 3584(a),] which says when concurrent
    and consecutive sentences may be imposed, and
    specifies which of those dispositions will be
    assumed in absence of indication by the
    sentencing judge, does not cover the situation
    here.   It addresses only "multiple terms of
    imprisonment . . . imposed . . . at the same
    time" and "a term of imprisonment . . . imposed
    on a defendant who is already subject to an
    undischarged term of imprisonment." Here the
    state sentence is not imposed at the same time
    as the federal sentence, and the defendant was
    not already subject to that state sentence.
    - 7 -
    
    Setser, 132 S. Ct. at 1467
    (alterations in original) (citation
    omitted) (quoting 18 U.S.C. § 3584(a)).             The Court then rejected
    the defendant's expressio unius argument that the district court's
    power to impose a consecutive sentence was limited to the two
    listed   situations.        
    Id. at 1469.
       Rather,   the   Court   noted,
    "[s]ection 3584 . . . is framed not as a conferral of authority
    but as a limitation of authority that already exists."              
    Id. The Court
       found    the     prior   existence    of   consecutive   sentencing
    authority    in    "the     common-law    background   against    which   the
    statutes . . . were enacted," 
    id. at 1468
    (alteration in original)
    (quoting New Orleans Pub. Serv., Inc. v. Council of City of New
    Orleans, 
    491 U.S. 350
    , 359 (1989)), under which "[j]udges have
    long been understood to have discretion to select whether the
    sentences they impose will run concurrently or consecutively with
    respect to other sentences that they impose, or that have been
    imposed in other proceedings, including state proceedings," 
    id. The Court
    therefore concluded that § 3584(a) "le[ft] room for the
    exercise of judicial discretion in the situations not covered."
    
    Id. at 1470.
    The Supreme Court suggested that the same logic may not
    apply when the anticipated sentence is federal, although it did
    not ultimately decide the question:
    Setser notes that the text of § 3584(a) does
    not distinguish between state and federal
    sentences. If a district court can enter a
    - 8 -
    consecutive sentencing order in advance of an
    anticipated state sentence, he asks, what is
    to stop it from issuing such an order in
    advance of an anticipated federal sentence?
    It could be argued that § 3584(a) impliedly
    prohibits such an order because it gives that
    decision to the federal court that sentences
    the defendant when the other sentence is
    "already" imposed -- and does not speak (of
    course) to what a state court must do when a
    sentence has already been imposed.         It
    suffices to say, however, that this question
    is not before us.
    
    Id. at 1471
    n.4.
    We adopt the distinction suggested in Setser's footnote
    four.   The Supreme Court's reasoning in Setser began with the
    premise that § 3584(a) is silent on whether a federal court can
    impose a sentence that is consecutive to an anticipated state
    sentence. The statute is not similarly silent when the anticipated
    sentence is federal.   Section 3584(a) says that when a term of
    imprisonment has "already" been imposed, a federal court has the
    power to sentence concurrently or consecutively, and the sentence
    is presumed to be consecutive unless the court orders otherwise.
    By giving such discretion to the later federal sentencing court,
    "§ 3584(a) impliedly prohibits" an earlier federal court from
    making that decision with respect to a future federal sentence.
    
    Id. In so
    concluding, we agree with the two other courts of
    appeals that have decided, following Setser, that a district court
    does not have the power to impose a sentence consecutive to an
    - 9 -
    anticipated      but       not-yet-determined       federal    sentence.        United
    States v. Obey, 
    790 F.3d 545
    , 549 (4th Cir. 2015); United States
    v. Montes-Ruiz, 
    745 F.3d 1286
    , 1290–93 (9th Cir. 2014).
    Not only is this conclusion the best reading of the text
    of the statute, but it is also consistent with other considerations
    noted by the Supreme Court in Setser.                    First, Setser recognized
    the    tradition      of    judicial     discretion      to   determine     whether   a
    sentence runs concurrently or 
    consecutively. 132 S. Ct. at 1468
    .
    While the government's position superficially allows discretion
    for    the    first    sentencing        court,     it   eliminates    or    severely
    constrains discretion for the second sentencing court.                      The later
    sentencing court is put under the pressure of either ignoring its
    own judgment or contradicting another district court.                        We think
    Congress could not have intended that result.                     See 
    Montes-Ruiz, 745 F.3d at 1292
    (citing United States v. Quintana-Gomez, 
    521 F.3d 495
    , 497–98 (5th Cir. 2008)).                 Moreover, under the government's
    position, if the two federal courts disagree (as here), the
    question ends up having to be resolved by the Bureau of Prisons,
    whose choice of how to implement the sentence will necessarily
    fail    to    accord       with    one   of   the   federal    judges'      decisions.
    Resolution of the issue by the Bureau of Prisons would run counter
    to     "our   tradition       of    judicial    sentencing,      and   .    .   .   the
    accompanying desideratum that sentencing not be left to employees
    - 10 -
    of the same Department of Justice that conducts the prosecution."
    
    Setser, 132 S. Ct. at 1471
    –72.5
    Second, the outcome we reach is consistent with the
    principle, recognized by the Setser Court as "undoubtedly true,"
    that "when it comes to sentencing, later is always better because
    the decisionmaker has more information."          
    Id. at 1471
    .6
    Third,   the   Court   in   Setser    faced   dual   sovereignty
    concerns not present here because both sentences are federal.           
    Id. at 1471
    . While Setser concluded that respect for state sovereignty
    supported      the     exercise         of   concurrent-vs.-consecutive
    decisionmaking authority by an earlier sentencing federal court,
    the   situation   before   us   implicates   no    such   dual   sovereignty
    concerns.    Id.; see also 
    Quintana-Gomez, 521 F.3d at 497
    (pre-
    Setser case using dual sovereignty as basis for distinguishing
    5   We recognize the Setser dissent's suggestion that it
    would not be "constitutionally surprising" for the Bureau of
    Prisons to play a part alongside judges in sentencing. 
    Setser, 132 S. Ct. at 1477
    (Breyer, J., dissenting) (citing Mistretta v.
    United States, 
    488 U.S. 361
    , 364 (1989)). However, we are bound
    by the majority, which took issue with the idea of leaving the
    question to the Bureau of Prisons. 
    Id. at 1471
    –72 & n.5 (majority
    opinion).
    6   The dissenting members of the Setser Court would agree
    with us on this point. See 
    Setser, 132 S. Ct. at 1476
    (Breyer,
    J., dissenting) (expressing concern that "the [earlier] sentencing
    judge normally does not yet know enough about what will happen in
    the sentencing-proceeding-yet-to-come" to fairly decide whether
    the sentences should be concurrent or consecutive).
    - 11 -
    between federal court's authority to sentence consecutively to
    anticipated state and federal sentences).
    In sum, we conclude that, under 18 U.S.C. § 3584(a), a
    federal sentencing court does not have the authority to determine
    that a sentence should be consecutive to a federal sentence that
    has not yet been imposed.
    III.
    We reverse and remand.   On remand, the district court is
    instructed to strike the portion of the sentence specifying the
    term of imprisonment "to be served consecutively to any term to be
    imposed in a pending case."
    - 12 -