United States v. Mercado-Flores , 872 F.3d 25 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1859
UNITED STATES OF AMERICA,
Appellant,
v.
JORGE MERCADO-FLORES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
John P. Taddei, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Rosa E. Rodríguez-Vélez, United States
Attorney, and Nelson J. Pérez-Sosa, Assistant United States
Attorney, were on brief, for appellant.
Lisa Aidlin for appellee.
September 22, 2017
SELYA, Circuit Judge. A district court has broad
authority over the sentencing phase of a criminal case. But once
a sentence is imposed and a final judgment of conviction enters,
that authority terminates save only for a few narrowly
circumscribed exceptions. Here, the district court, after
imposing a sentence and entering final judgment, attempted to undo
its handiwork. The government appeals. Concluding that the
district court lacked jurisdiction to revisit the sentence, we
vacate the order appealed from and direct that the sentence be
reinstated.
I. BACKGROUND
The facts giving rise to the arrest and conviction of
defendant-appellee Jorge Mercado-Flores are uncontroversial. In
2013, the defendant (then twenty-eight years of age) drove a
fourteen-year-old girl to a beach in Puerto Rico for the purpose
of engaging in sexual intercourse. After the defendant was caught
red-handed, federal authorities charged him under 18 U.S.C.
§ 2423(a), which criminalizes the transportation of a minor within
a United States "commonwealth, territory or possession" with the
intent to engage in criminal sexual activity. This statute carries
a ten-year mandatory minimum sentence. See 18 U.S.C. § 2423(a).
The defendant resisted the indictment. Facing the
prospect of a steep mandatory minimum sentence, he pursued
negotiations with the government. As a result, the parties entered
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into a plea agreement, which contemplated that the government would
dismiss the original indictment in exchange for the defendant's
guilty plea to a one-count information charging him with violating
18 U.S.C. § 2421(a). This statute, which carries no mandatory
minimum sentence, criminalizes the transportation of an individual
"in interstate or foreign commerce, or in any Territory or
Possession of the United States," intending for that individual to
"engage in . . . any sexual activity for which any person can be
charged with a criminal offense." Id. In Puerto Rico, it is a
criminal offense to engage in sexual intercourse with a person
under the age of 16. See P.R. Laws Ann. tit. 33, § 4770(a).
In due course, the government filed the information, and
the district court accepted the defendant's guilty plea. On May
11, 2015, the court sentenced the defendant to a 57-month term of
immurement and dismissed the original indictment. The court
promptly entered a judgment of conviction.1
After the imposition of the sentence, the district court
voiced a concern that 18 U.S.C. § 2421 might not apply in Puerto
Rico because Puerto Rico is not a "Territory or Possession of the
1From this point forward, we use the shorthand "sentence" to
describe both the sentence and the concomitant judgment of
conviction. In addition, we note that the judgment in this case
was amended to correct a clerical error on May 22, 2015, but that
tweak has no impact on when the time limit under Rule 35(a) started
to run. See Fed. R. Crim. P. 35(c) (defining "sentencing" for
purposes of Rule 35 as the oral announcement of the sentence); see
also United States v. Fahm, 13 F.3d 447, 453 (1st Cir. 1994).
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United States." The court added that it would reserve judgment on
this "jurisdictional matter." If Puerto Rico is not a "Territory
or Possession of the United States" within the purview of 18 U.S.C.
§ 2421(a), the court reasoned, the indictment would be nugatory
and the court would have no jurisdiction over the case. The court
went on to say that it would issue an opinion "as to whether the
statute applies or not" within 30 days. It is luminously clear
that the court was acting sua sponte: neither the government nor
the defendant challenged the sentence or moved to vitiate the
guilty plea.
On June 4, 2015 — twenty-four days after imposition of
the sentence — the district court filed a rescript concluding that
Puerto Rico is not a "Territory or Possession of the United States"
but, rather, enjoys sui generis status as a commonwealth. As such,
the court opined, section 2421(a) "does not apply to a purely
intrastate criminal act committed within the Commonwealth of
Puerto Rico." Continuing to act sua sponte, the court vacated the
sentence and dismissed the case. When the government moved for
reconsideration, the district court held firm and issued two
supplementary opinions reiterating its interpretation of 18 U.S.C.
§ 2421(a).2
2 Earlier case law, unimpeached at the time of the original
indictment, indicated that section 2421(a) applied to crimes
committed wholly within Puerto Rico. See Crespo v. United States,
151 F.2d 44, 45 (1st Cir. 1945). The district court's contrary
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The government responded in two ways. First, it re-
indicted the defendant under 18 U.S.C. § 2423(a), a statute that,
by its terms, is not susceptible to the jurisdictional lacuna that
troubled the district court. Section 2423(a), unlike section
2421(a), criminalizes the transportation of a minor with the intent
to engage in criminal sexual activity "in any commonwealth,
territory or possession of the United States." 18 U.S.C. § 2423(a)
(emphasis supplied). Second, the government filed a timely notice
of appeal challenging the district court's vacation of the earlier
sentence. That appeal is presently before us, and the case arising
from the re-indictment has been stayed pending its disposition.
Whether the new indictment is barred on double jeopardy grounds is
a serious question, see Ricketts v. Adamson, 483 U.S. 1, 8 (1987)
("We may assume that jeopardy attached at least when respondent
was sentenced . . . on his plea of guilty . . . ."); see also
United States v. Vinyard, 539 F.3d 589, 592 (7th Cir. 2008)
(explaining that "jeopardy attached in [the defendant's] first
proceeding once the court pronounced its sentence"), which is not
before us.
reasoning resembles that later articulated by a panel of this
court. See United States v. Maldonado-Burgos, 844 F.3d 339, 350
(1st Cir. 2016), rehearing en banc denied by an equally divided
court, ___ F.3d ___, ___ (1st Cir. 2017) [No. 15-2145].
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II. ANALYSIS
This appeal turns on whether the district court had
jurisdiction to revisit the defendant's sentence more than three
weeks after its imposition. We approach this question mindful
that an appellate court has an unflagging obligation "to satisfy
itself . . . of the subject-matter jurisdiction of the trial court
before proceeding further." United States v. Martínez-Hernández,
818 F.3d 39, 49 (1st Cir. 2016) (quoting Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 142 (1st Cir. 2007)). Even where, as
here, no jurisdictional issue was broached in the district court,
we "have an affirmative obligation to examine jurisdictional
concerns." Irving v. United States, 162 F.3d 154, 160 (1st Cir.
1998). This obligation grows out of a frank recognition that,
"[i]n the absence of jurisdiction, a court is powerless to act."
Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., 362 F.3d 136,
138 (1st Cir. 2004).
Whether the district court had subject-matter
jurisdiction is a purely legal issue. Thus, our review of the
jurisdictional question raised in this appeal is de novo. See
Morales Feliciano v. Rullán, 378 F.3d 42, 49 (1st Cir. 2004).
We begin with bedrock. Subject to only a handful of
narrowly circumscribed exceptions, a district court has no
jurisdiction to vacate, alter, or revise a sentence previously
imposed. See Dillon v. United States, 560 U.S. 817, 819 (2010)
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(noting that "[a] federal court generally may not modify a term of
imprisonment once it has been imposed" (internal quotation marks
omitted)); see also United States v. Griffin, 524 F.3d 71, 84 (1st
Cir. 2008). When — as in this case — a judgment of conviction is
entered upon imposition of a sentence, that sentence is a final
judgment and, therefore, may only be modified by the sentencing
court in certain limited circumstances. See Dillon, 560 U.S. at
824. Because a district court (apart from collateral proceedings
such as habeas corpus or coram nobis) has no inherent power to
modify a sentence after it has been imposed, those limited
circumstances "stem[] solely from . . . positive law." United
States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014).
In this instance, the district court did not identify
the source of its perceived authority to vacate the defendant's
sentence. After examining all the potential sources, we conclude
that, in the circumstances of this case, no provision of positive
law empowers a district court to vacate a sentence, sua sponte,
more than three weeks after imposing it.
Outside the context of a collateral challenge, there is
only a single statute that bears upon the district court's
jurisdiction to tamper with a previously imposed sentence of
imprisonment. That statute, 18 U.S.C. § 3582(b), provides in
pertinent part that "a judgment of conviction that includes
. . . a sentence constitutes a final judgment." The exceptions to
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this statutory imperative are few and far between. The principal
exception is contained in section 3582(c), which states that a
sentencing "court may not modify a term of imprisonment once it
has been imposed" except, as relevant here, "to the extent
. . . expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure."3 There is no statute that offers
comfort to the district court's sua sponte exercise of jurisdiction
here.
Nor is Rule 35 a promising source of authority. The
relevant subsection states that "[w]ithin 14 days after
sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error." Fed. R. Crim. P.
35(a). Because Rule 35(a) constitutes a limitation on a sentencing
court's substantive authority, we have held that it is
jurisdictional in nature. See Griffin, 524 F.3d at 84.
Consequently, we have interpreted Rule 35(a)'s fourteen-day
temporal window "as imposing a jurisdictional limit on the district
court's ability to correct a sentence." Id. at 83. If the
3
The omitted portions of the statute refer to the fact that
a sentence also may be modified in two other ways. First, a
sentence may be modified at the request of the Director of the
Bureau of Prisons (under certain circumstances). See 18 U.S.C.
§ 3582(c)(1)(A). Second, a sentence may be modified in instances
in which a defendant has been sentenced based on a sentencing range
that has since been lowered by the Sentencing Commission. Id.§ 3582(c)(2). These exceptions are irrelevant to the case at hand,
and we need not discuss them.
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fourteen-day period "expires with no ruling from the district
court, the district judge's jurisdiction to alter the sentence is
extinguished." United States v. Gonzalez-Rodriguez, 777 F.3d 37,
42 (1st Cir. 2015).
Here, the temporal window closed before the district
court acted. The court entered its order of vacation a full
twenty-four days after imposing the sentence. By that time, the
court had lost its jurisdiction to revise the sentence under Rule
35(a).4
We have examined two other Criminal Rules that might be
thought to confer the needed authority on the district court. As
we explain below, neither of them rescues the district court's sua
sponte vacation of the defendant's sentence.
 Federal Rule of Criminal Procedure 11 authorizes a
district court to set aside a guilty plea in certain
circumstances. See Fed. R. Crim. P. 11. However, once
the district court has sentenced the defendant, it lacks
4 For the sake of completeness, we note that, in all events,
the district court's action was not the type of correction that
Rule 35(a) envisions. The sentence was not tainted by any
"arithmetical, technical, or other clear error." And the rule was
never intended to afford a sentencing court the "opportunity
. . . simply to change its mind about the appropriateness of a
sentence." Gonzalez-Rodriguez, 777 F.3d at 42 (quoting Fed. R.
Crim. P. 35 advisory committee's notes to 1991 amendments); see
United States v. Sevilla-Oyola, 770 F.3d 1, 11 (1st Cir. 2014)
(explaining that Rule 35(a) does not "enable a judge to fix errors
committed . . . during proceedings prior to the imposition of
sentence" (emphasis in original)).
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jurisdiction (except in a collateral proceeding) to
consider a defendant's arguments about the validity of
his guilty plea. See Fed. R. Crim. P. 11(e); Martínez-
Hernández, 818 F.3d at 47-48; United States v. Ruiz-del
Valle, 8 F.3d 98, 102 (1st Cir. 1993); see also Wilkins
v. United States, 754 F.3d 24, 27-28 (1st Cir. 2014)
(recognizing that after a court imposes a sentence,
collateral attack and direct appeal are the only
mechanisms available to vitiate a guilty plea); In re
Ellis, 356 F.3d 1198, 1200 (9th Cir. 2004) (en banc)
(similar). Put simply, Rule 11 functions as a mandatory
prohibition on the district court's jurisdiction,
outside the collateral attack context, to set aside a
guilty plea after the entry of judgment.
 Federal Rule of Criminal Procedure 33 empowers a
district court in a criminal case to "vacate any judgment
and grant a new trial." But that power is limited to
cases — unlike this one — in which there was a trial in
the first place. See Fed. R. Crim. P. 33(a); United
States v. Graciani, 61 F.3d 70, 78 (1st Cir. 1995). In
any event, Rule 33 allows a judgment to be vacated only
"upon the defendant's motion" — and here, the defendant
never filed such a motion.
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In this case, all roads lead to Rome. The district court
already had imposed a sentence, more than three weeks had elapsed,
and the defendant had not sought either to withdraw his guilty
plea or to vacate the imposed sentence (indeed, he urges us to
reinstate the sentence). Given those facts, the district court
was not at liberty, sua sponte, to annul the sentence. See United
States v. Patterson, 381 F.3d 859, 865 (9th Cir. 2004). Having
accepted the defendant's plea, conducted a full sentencing
hearing, and imposed a sentence, the court lost any jurisdiction
to change its mind. See Gonzalez-Rodriguez, 777 F.3d at 42;
Griffin, 524 F.3d at 84.
One loose end remains: the district court announced at
the disposition hearing that it was reserving judgment on the
question of whether the statute under which the defendant had been
charged applies in Puerto Rico. The court, however, cited no
authority empowering it to make such a reservation — and we are
aware of none.
The practice that the district court employed —
sentencing the defendant, yet purporting to withhold a decision on
a dispositive issue in the case — would, if sanctioned, sow the
seeds of chaos and confusion. If such reservations were
permissible, both the government and the defendant would be in
limbo; the "virtues of . . . finality," Blackledge v. Allison, 431
U.S. 63, 71 (1977), would be lost; and the judiciary's "historic
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respect for the finality of the judgment of a committing court,"
Schneckloth v. Bustamonte, 412 U.S. 218, 257 (1973) (Powell, J.,
concurring), would become a distant memory.
If the criminal justice system is to function
appropriately, the imposition of a sentence must carry with it an
"expectation of finality and tranquility" for the defendant, the
government, and the public. United States v. Santiago Soto, 825
F.2d 616, 620 (1st Cir. 1987). Allowing a district court to
sentence a defendant while at the same time reserving a merits-
related issue for subsequent decision would undermine this
expectation. The district court's purported reservation was,
therefore, a nullity.
Let us be perfectly clear. We do not question the
district court's intentions: we recognize that the court,
glimpsing a legal problem that it believed had eluded detection,
took steps to remedy what it perceived to be an injustice. But in
the law as in life, the end rarely justifies the means; and a court
— even one prompted by the best of intentions — is powerless to
act in the absence of jurisdiction.
III. CONCLUSION
Congress has given courts and parties tools for
challenging a conviction and sentence that were imposed in error.
A court may reject a plea agreement or postpone a sentencing
hearing sine die until it has had an opportunity to resolve all
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relevant issues. If the defendant is dissatisfied with the outcome
of the proceeding, he may file a direct appeal of his sentence or
may attack it collaterally by petitioning for post-conviction
relief under 28 U.S.C. § 2255. But the district court, acting sua
sponte, lacks jurisdiction to vacate a defendant's sentence simply
because the court has come to conclude, more than three weeks
later, that the government has grounded the charge against the
defendant on an inapposite statute.5 Following the imposition of
sentence and the expiration of the time allotted under Rule 35(a),
it is up to the defendant to decide whether to stand by his guilty
plea, and no provision of positive law allows the district court
to usurp the defendant's choice. See In re Ellis, 356 F.3d at
1200; cf. Vinyard, 539 F.3d at 595 (granting writ of mandamus to
set aside district court's sua sponte vacation of plea and sentence
because district court "effectively usurped a choice that was the
defendant's to make").
5 Our holding in United States v. Carrasquillo-Peñaloza, 826
F.3d 590 (1st Cir. 2016), made pellucid that a challenge to the
statute of conviction is "nonjurisdictional" and can be waived by
the defendant's failure to raise it in a timely fashion. Id. at
593 (dismissing appeal and affirming conviction over defendant's
argument that application of 18 U.S.C. § 2423(a) to him exceeded
congressional authority). By his actions in this case, the
defendant has plainly waived any challenge to the applicability of
18 U.S.C. § 2421(a).
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We need go no further. For the reasons elucidated above,
the order voiding the sentence and dismissing the original case is
vacated, and the sentence shall forthwith be reinstated by the
district court.
So Ordered.
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