United States v. Chris Repp

987 F.3d 1245

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2021
• Docket: 20-50248
• Status: Published

Opinion

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

2 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

3 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

4 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.