United States v. Grimon ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 11-10367; 11-10389 SEP 12, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:10-cr-10026-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO GRIMON,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 12, 2011)
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Ernesto Grimon appeals his 33-month sentence, imposed after he pleaded
guilty to conspiring to possess oxycodone with intent to distribute, in violation of
21 U.S.C. § 846, and counterfeiting, in violation of 18 U.S.C. § 471. On appeal,
Grimon argues that the district court misunderstood its authority to order that his
federal sentence run concurrently with his undischarged state sentences.1
The imposition of a consecutive, rather than concurrent, sentence is an issue
of law subject to plenary review. United States v. Ballard, 6 F.3d 1502, 1505
(11th Cir. 1993). A district court may order that a federal sentence run
concurrently with an undischarged state sentence. See United States v. Fuentes,
107 F.3d 1515, 1519 n.6 (11th Cir. 1997); see also 18 U.S.C. § 3584(a); U.S.S.G.
§ 5G1.3(c). Ordinarily, the district court’s misapprehension of its legal authority
to impose a particular sentence is reversible error. See United States v. McDaniel,
338 F.3d 1287, 1288 (11th Cir. 2003) (per curiam). But we will not vacate a
sentence where the district court explains that it would have imposed the same
sentence had it fully understood its legal authority. See United States v. Dulcio,
441 F.3d 1269, 1277 (11th Cir. 2006) (per curiam) (district court’s imposition of
1
Grimon also argues that his sentence is procedurally and substantively unreasonable.
Because we agree that the district court misunderstood its authority to impose a concurrent
sentence and that its error was not harmless, we do not reach Grimon’s reasonableness
arguments.
2
sentence under mandatory Guidelines scheme was harmless error where it
provided alternative reasoning for its sentence).
Our review of a transcript of the sentencing hearing reflects that the district
court was unsure about its authority to order that Grimon’s federal sentence run
concurrently with his undischarged state sentences. After questioning its authority
to do so, the district court indicated that it would not necessarily impose a
concurrent sentence even if it had the authority, and it later indicated that a
concurrent sentence may not have been appropriate in light of Grimon’s criminal
history. The district judge also expressed some doubt about whether a concurrent
sentence would be carried out by the Bureau of Prisons. We find these statements
to be equivocal and ambiguous, and thus do not clearly indicate that the district
court would have imposed the same sentence had it been fully aware of its
authority to do so. Consequently, the district court’s misapprehension was not
harmless error, and we vacate Grimon’s sentence and remand for resentencing.
VACATED AND REMANDED.
3