United States v. Chris Repp ( 2021 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50248
Plaintiff-Appellee, D.C. Nos.
2:12-cr-00722-TJH-5
v. 2:12-cr-00722-TJH
CHRIS REPP, AKA Christopher Sanders,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Submitted February 17, 2021*
Pasadena, California
Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and Dana
L. Christensen,** District Judge.
Opinion by Judge Tallman
May an inmate currently serving time on one federal sentence expedite the
resolution of a newly lodged detainer to answer for a supervised release violation
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
in another federal district that was triggered by his commission of the crime for
which he is currently incarcerated? Chris Repp appeals from the district court’s
order denying his motion for issuance of a writ of habeas corpus ad prosequendum
directed to his current custodian, the Warden of FCI Phoenix, to transport him to
Los Angeles for his initial appearance there on an arrest warrant for violating
conditions of supervised release, proceedings for which a detainer has now been
lodged against him with the prison. Repp is currently serving a custodial sentence
for federal crimes he committed in the Eastern District of Arkansas while on
supervised release from an earlier federal conviction in the Central District of
California. Because the denial of Repp’s motion is not a final or appealable
collateral order, we lack jurisdiction over this appeal and must dismiss it.
I
In 2013, Repp pled guilty in the Central District of California to one count of
conspiracy to commit Hobbs Act robbery and one count of possession of a firearm
in furtherance of a crime of violence. After a successful motion to vacate the
firearm conviction, he was resentenced on November 22, 2017, to time served and
a three-year term of supervised release.
In September 2018, while still subject to his California supervised release
conditions, Repp was indicted for participating in a conspiracy to distribute
narcotics in the Eastern District of Arkansas. He pled guilty to one count of use of
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a communication facility to commit a drug-trafficking crime and was sentenced to
37 months’ imprisonment and a one-year term of supervised release. In October
2018, the U.S. Probation Office petitioned the district court in the Central District
of California for a warrant alleging violations of Repp’s California conditions of
supervised release, which prohibited him from engaging in criminal activity while
on supervision. An arrest warrant issued, and, because Repp remains in U.S.
Bureau of Prisons custody serving his Arkansas sentence, the warrant was lodged
as a custodial detainer against him.
Because the Interstate Agreement on Detainers Act, 18 U.S.C. App. 2 § 2,
does not apply here, see United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir.
1985), in March 2020, Repp, proceeding pro se, filed an ex parte motion, styled as
a petition for a writ of habeas corpus ad prosequendum, seeking to be brought
forthwith to the Central District of California to commence proceedings on the
California supervised release petition while still serving his Arkansas federal
sentence. After appointing counsel to represent Repp, the district court denied
Repp’s motion. Repp timely appealed.
II
We begin with a threshold consideration of our jurisdiction. We have
jurisdiction to consider appeals of final orders issued by federal district courts. 28
U.S.C. § 1291. Under the collateral order doctrine, we may also consider “a
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narrow class of decisions that do not terminate the litigation, but must, in the
interest of achieving a healthy legal system, nonetheless be treated as final.” Digit.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal citations
and quotation marks omitted).
Repp asserts that the district court’s order denying his motion is a final
appealable order. It is unclear whether Repp’s motion is more appropriately
characterized as a petition for writ of habeas corpus ad prosequendum, as it was
captioned when proceeding pro se below, or as a motion to expedite the supervised
release hearing date, as he now characterizes the motion on appeal. Regardless of
how Repp characterizes his motion though, the district court’s order is not a final
order or a collateral order that would support appellate review at this time.
“A ruling is final for purposes of § 1291 if it (1) is a full adjudication of the
issues, and (2) clearly evidences the judge’s intention that it be the court’s final act
in the matter.” Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432,
433 (9th Cir. 1997) (citation and internal quotation marks omitted). We appreciate
that Repp hopes to resolve the supervised release violation so that he might be able
to serve any additional sentence concurrently with the undischarged portion of his
Arkansas sentence. But there is no entitlement to that relief under any authority of
which we are aware. Denial of Repp’s request to expedite commencement of his
California supervised release proceedings, however characterized, presents neither
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a full adjudication of the issues nor the court’s final act in the matter. Repp will be
entitled to commence his supervised release proceedings in California upon
completion of his Arkansas custodial sentence.
The order Repp seeks here is a precursor to contesting the alleged supervised
release violation which led to the arrest warrant and the pending detainer. It does
not fall within the rubric of collateral orders which are “effectively unreviewable
on appeal from a final judgment.” Flanagan v. United States, 465 U.S. 259, 265
(1984) (citation omitted). Collateral orders involve “an asserted right the legal and
practical value of which would be destroyed if it were not vindicated before trial.”
United States v. MacDonald, 435 U.S. 850, 860 (1978). Repp’s request to expedite
his hearing date does not involve such a right. Repp may raise his procedural
delay arguments to the California federal court once his California supervised
release proceedings have commenced. We perceive no meaningful harm to Repp
from the denial of his request to expedite pending his completion of his Arkansas
custodial sentence, and we express no opinion on the validity of his delay
argument.
DISMISSED. The pending motion to expedite (ECF No. 17) is DENIED
AS MOOT. Each party to bear its own costs.
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