United States v. Saldana

• Court: Court of Appeals for the First Circuit
• Decided: April 3, 1997
• Docket: 96-1371
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1371



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                   MODESTO SALDANA,



                                Defendant, Appellant.



                                 ____________________



                                     ERRATA SHEET



            The opinion of this Court, issued on March 31, 1997, is amended

        as follows:



            On page 10, line 5 of 3rd full paragraph, replace "consecutive"

        with "concurrent".



UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1371



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                   MODESTO SALDANA,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Reginald C. Lindsay, U.S. District Judge]
                                              ___________________

                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                                 ____________________



            Diana L. Maldonado, Federal Defender Office, for appellant.
            __________________

            John  M. Griffin,  Assistant  United States  Attorney,  with  whom
            ________________

        Donald K. Stern, United States  Attorney, was on brief for  the United
        _______________

        States.


____________________



                                    March 31, 1997

                                 ____________________



BOUDIN,  Circuit  Judge.    Modesto Saldana  appeals  to
                          ______________



            contest his  prison  sentence.    He  argues  that  delay  in



            prosecuting him caused prejudice that should have been offset



            by a downward departure.  The government, as usual, says that



            a refusal to  depart is not reviewable and, in any event, was



            not  error.  The merits of the case are straightforward; what



            is  more difficult  is to  bring some  order to  a recurring,



            inherently confusing issue created  by an overlap between the



            question of our  authority to  review and the  merits of  the



            case.



                                          I.



                 Saldana,  a  citizen  of  the  Dominican  Republic,  was



            convicted  in January 1991 of  a drug offense  in state court



            and  given probation.   In  August and  October 1991,  he was



            arrested by local authorities and charged with two additional



            drug offenses committed while still on probation.  But he was



            thereafter deported  in October  1991 before being  tried for



            the newly charged crimes.  



                 Thereafter,  Saldana reentered the United States without



            permission from the Attorney  General.  In April 1993  he was



            arrested and drugs were found on his person, giving rise to a



            fourth state drug charge.  Following state court proceedings,



            he was sentenced to  30 months in state prison  as punishment



            for four  different offenses:  the January 1991  offense, for



            which probation was revoked; the two later 1991 offenses; and



            the April 1993 offense.



The  Immigration and  Naturalization  Service  lodged  a



            detainer against Saldana at the time of his arrest.  In March



            1994, it appears that federal agents interviewed him while he



            was serving his state sentence.  He was not, however, charged



            with the federal  offense at  that time.   Saldana served  20



            months of  his 30-month state  sentence and  was released  in



            December 1994.



                 Shortly afterwards,  he was indicted by  a federal grand



            jury and  charged with  reentering the United  States without



            permission after having been deported on account of a serious



            drug  offense.    8  U.S.C.      1326(a),  1326(b)(2).    The



            indictment was  well within the  limitations period.   See 18
                                                                   ___



            U.S.C.    3282.  Saldana pled guilty to this charge in August



            1995.  He  was sentenced  by the district  court in  February



            1996 to 70 months' imprisonment.



                 The   sentence  was  the   minimum  allowed  within  the



            guideline range (70 to 87 months) as computed by the district



            court.  The computation  reflected a base offense level  of 8



            for illegal reentry, U.S.S.G.    2L1.2(a), adjusted upward by



            16 levels because Saldana had been deported for an aggravated



            felony, id.   2L1.2(b)(2), and reduced by 3 levels due to his
                    ___



            acceptance  of  responsibility,  id.      3E1.1.    Saldana's
                                             ___



            criminal history  category (V) reflected the  four prior drug



            convictions,  three of  which  occurred after  his arrest  in



            April 1993.


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At sentencing Saldana argued that if he had been charged



            with  the  federal  offense  while still  serving  his  state



            sentence,  the  federal  sentence  would,  under  U.S.S.G.   



            5G1.3(c), have been  set to run  concurrently with the  state



            sentence.   That provision gives the  district court latitude



            to  make a new sentence concurrent to or consecutive with one



            already  being served;  and,  as it  stood  prior to  a  1995



            amendment,  the  section's  application  note 3  contained  a



            comment that  might  have supported  a  concurrent  sentence.



            U.S.S.G.   5G1.3, comment. n.3 (Nov. 1994).1  



                 Concurrency  would have effectively  subtracted from the



            federal sentence any  time served on the  state sentence; and



            Saldana asked  the district court to achieve  the same result



            through  a  downward  departure.   With  less  basis  in  the



            guidelines,  he  also argued  that  this  hypothetical single



            sentencing would also  have resulted in a much lower criminal



            history  score.2    Taking  this lower  score  together  with



                                
            ____________________



                 1The comment,  since repealed,  U.S.S.G. App.  C, Amend.

            535 (Nov. 1995), suggested that the federal court compute the

            sentence  as if the offenses had been the subject of a single

            federal  sentence.    This  would help  Saldana  because  the

            guidelines ignore  less serious crimes sentenced  at the same

            time  as a more serious one where the offense level disparity

            is quite large.  U.S.S.G.   3D1.4.



                 2His imaginative  theory was that the  three latest drug

            offenses  would  not  have  been   prior  convictions  adding
                                               _____

            automatically  to his score if  he had been  sentenced at the

            same time for those offenses and the reentry offense.  But if

            the  criminal history  score  were computed  in this  lenient

            fashion,  it  would  arguably  have  underrepresented  actual

            criminal history, warranting an upward departure.  U.S.S.G.  



                                         -4-
                                         -4-



concurrency, Saldana argued that his  proper federal sentence



            should be 21 to 31 months.  



                 In explaining its refusal  to depart, the district court



            said that departures were possible when the case fell outside



            the "heartland" of the guidelines; that the heartland "has to



            do  with  the nature  of  the offense  or the  nature  of the



            offender";  that  nothing  about  the  offense  here  or  the



            defendant made this "an unusual  out of the heartland  case";



            and that the court  would be more sympathetic to  a departure



            request  if  the  government  had  deliberately  delayed  the



            prosecution for improper reasons.  The court then said:



                      There is nothing in  this case to suggest that

                 there  was any deliberate  misconduct or deliberate

                 omission on the  part of the  Government.  While  I

                 recognize that  this is  not a  case  in which  due

                 process  is claimed,  the due  process argument  is

                 being made, it seems  to me that if a  departure is

                 going  to be made where there  is nothing about the

                 offender   and  nothing  about   the  offense  that

                 suggests  the case [is]  outside of  the heartland,

                 that there should be something to suggest more than

                 mere delay, mere passage of time to  make this case

                 suitable  for  a   heartland  downward   departure.

                 Accordingly as  I said, I will not grant the motion

                 for downward departure.



                 Saldana now  appeals,  arguing that  the district  court



            misunderstood its  authority to depart.   The government says



            that we  have no  jurisdiction to hear  the appeal.   It also



            says  that  the  district  court did  not  misunderstand  its



            authority and that its refusal to depart was sound.  Finally,


____________________



            4A1.3.



                                         -5-
                                         -5-



it says  that Saldana  has misconstrued section  5G1.3(c) and



            that the sentence would have had to be consecutive even if it



            had been imposed during the term of the state sentence.



                                         II.



                 The jurisdictional argument made  by the government  has



            become a recurring distraction.  Under 18 U.S.C.   3742(a), a



            defendant may appeal from his sentence, inter alia, if it was
                                                    __________



            imposed "in violation of law" or by "an incorrect application



            of  the sentencing  guidelines";  but the  defendant may  not



            appeal from a  sentence within the  guideline range if  there



            was no  legal error and the  only claim is that  the district



            court acted unreasonably in declining  to depart.  See United
                                                               ___ ______



            States v. Tucker, 892 F.2d 8, 10 (1st Cir. 1989).
            ______    ______



                 Where the district court refuses  to depart because of a



            misunderstanding as to the law, the legal error is reviewable



            under one or both of the  two quoted rubrics.  United  States
                                                           ______________



            v. Romolo, 937 F.2d  20, 23 (1st Cir. 1991).   But confusion,
               ______



            and  many "jurisdictional" objections, have resulted from the



            overlap  between  the  jurisdictional issue  and  the merits.



            Read  literally, 18 U.S.C.    3742(a) might  suggest that the



            authority to review a  "violation" or "incorrect application"



            vanishes when  the appellate court decides  that the district



            court did not commit a legal error.  
                      ___



                 A  more sensible  reading  of the  statute  is that  the



            defendant has a  right to appeal to present a  claim of legal
                                                           _____


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                                         -6-



error, or  at least a  colorable claim.   The balance  of the



            statute bears  out this reading.   It says that  the court on



            review shall determine whether there  was such a legal error,



            shall remand if  there was such  an error, and if  not "shall



            affirm" the  sentence.  18 U.S.C.   3742(f).  It does not say



            "shall  dismiss the appeal."   See Romolo, 937  F.2d at 22-23
                                           ___ ______



            (stating  that appellate  jurisdiction  exists  if  defendant



            "advances a `purely legal' issue").



                 Plainly Saldana  is  claiming that  the  district  court



            committed two legal errors:   by saying or implying  (1) that



            departures can be based  only upon the nature of  the offense



            or the  nature of the  offender and (2) that  a departure for



            government  delay can only be based on misconduct.  These are



            colorable readings of the district court opinion.  And, taken



            alone,  the  first  proposition  is  wrong,  and  the  second



            arguably  so.  Why, then,  is the government  arguing that we



            have no jurisdiction to hear the appeal?



                 The answer,  perhaps, is partly  habit and a  refusal to



            leave out any possible argument, especially  one framed as an



            attack on "jurisdiction."  But partly it is our own fault for



            failing to follow a consistent course.  Compare, e.g., United
                                                    _______  ____  ______



            States  v.  Morrison, 46  F.3d  127, 132-33  (1st  Cir. 1995)
            ______      ________



            (dismissing appeal),  with United  States v. Romero,  32 F.3d
                                  ____ ______________    ______



            641, 654  (1st Cir. 1994) (affirming  sentence).  Henceforth,



            where the defendant colorably claims that a refusal to depart


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                                         -7-



rests upon a  legal error--and so  alleges that the  sentence
                                               _______



            was  imposed  in   violation  of  law  or  by   an  incorrect



            application of  the guidelines--the government  might wish to



            save  time by  focusing on  the question  of whether  a legal



            error  occurred.   Cf.  Bell v.  Hood,  327 U.S.  678, 681-83
                               ___  ____     ____



            (1946)  (jurisdiction may  be  assumed  to determine  whether



            complaint states a federal claim).    



                 We do not mean to say that  the so-called jurisdictional



            objection is always inapt.   It would be perfectly  valid if,



            as rarely happens, the  defendant's only claim on  appeal was



            that,  although  the   district  court  had   understood  its



            authority, it  abused its discretion in  declining to depart.



            And  if the  latter claim is  advanced along with  a claim of



            legal error, the government is within its rights to remind us



            that  the abuse of discretion claim is not subject to review.



            See Tucker, 892 F.2d at 9-10.
            ___ ______



                                         III.



                 In turning  now to the  merits, the question  is whether



            the district court did misunderstand its authority to depart.



            What  the  district  court  thought  was  the  scope  of  its
                                        _______



            authority is perhaps a  question of fact, but it  is one that



            we  must  answer  ourselves,  by   reviewing  the  sentencing



            transcript.  Whether the district court's belief was mistaken



            is plainly a legal question  that we review de novo.   United
                                                        _______    ______



            States v. Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).
            ______    ___________


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The first proposition  attributed to the district  court



            by  Saldana, and claimed to  be error, is  that the guideline



            heartland is defined by  the nature of the defendant  and the



            nature  of the offense, and  that departures are  to be based



            upon  the same  two variables.   The  district court  did use



            approximately these words.  Taken at face value, they are not



            a complete statement of the possible bases for departure.



                 True, many  of the  possible factors that  could provide



            grounds for  departure relate to  the nature of  the offense,



            and  others  relate  to  the  defendant.3     But  these  two



            categories  do not exhaust  all possibilities.   Merely as an



            example, United States v. Koon, 116 S. Ct. 2035, 2053 (1996),
                     _____________    ____



            approved a departure based partly upon the prosecution of the



            same conduct by a second sovereign.



                 But, of course, whatever the district court said, it did



            not  mean  that   departures  could  only  be  based  on  the
                                                 ____



            defendant's conduct  or the  defendant.  We  know this--quite



            apart from common sense--because the district court explained



            that it would have  considered a departure in this  very case



            if the defendant's  sentence had been increased because  of a



            delay caused by prosecution  misconduct, a variable unrelated



            to the defendant's circumstances or to his own conduct.



                                
            ____________________



                 3See, e.g., United States v. Pierro, 32 F.3d 611, 619-20
                  ___  ____  _____________    ______

            (1st  Cir.  1994)  (claim  that "conduct"  fell  outside  the

            heartland),  cert.  denied, 115  S.  Ct.  919 (1995);  United
                         _____________                             ______

            States v. Rivera, 994 F.2d 942, 952-53 (1st Cir. 1993) (claim
            ______    ______

            of heavy family responsibilities).



                                         -9-
                                         -9-



Obviously what the district court meant  to say was that



            departures  are   most   often  based   upon   some   special



            characteristic  of  the defendant  or  the  offense and  that



            nothing unusual in  these respects was  presented here.   The
                            __________________



            court  then  addressed  the  single  feature  here  that  was



            arguably different  from the typical case,  namely, the delay



            in prosecution; and, far from ruling delay out as a potential



            departure factor, the court  then considered when delay might



            be the  basis for a  departure.  In  sum, the first  claim of



            error rests on a quotation out of context.



                 The  second claim of error is a closer question, but not



            by much.  The district court could be taken to have said that



            it  would  consider  delay  in  prosecution  as  a  basis for



            departure, assuming prejudice, only  if the delay were caused



            by  government  misconduct reflecting  bad  faith.   This  is



            certainly a permissible  reading of the court's words, if one



            juxtaposes   the  court's   statement   that  there   was  no



            "deliberate  misconduct" here  with its  subsequent statement



            that "there should  be something  to suggest  more than  mere



            delay."



                 If  the district court meant that only a bad faith delay



            could support departure downward, it  arguably overstated the



            law.  Under the  guidelines, a delay in prosecution  can have



            various  adverse effects  on  the defendant's  sentence;  for



            example,  apart from  the lost  opportunity for  a concurrent


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sentence, it  can drastically  affect criminal history  if in



            the meantime the defendant is convicted of other crimes.  See
                                                                      ___



            U.S.S.G.   4A1.1.  Or, a mitigating circumstance--which might



            otherwise affect sentencing--might disappear.  See U.S.S.G.  
                                                           ___



            5K2.0.



                 It  seems to  us  possible that  someone  with time  and



            ingenuity  could construct a case where a careless or even an



            innocent  delay produced  sentencing consequences  so unusual



            and unfair that a departure would be permissible.  Certainly,



            the Ninth Circuit  thought this  was so in  United States  v.
                                                        _____________



            Martinez,  77  F.3d  332, 336-37  (1996).    But  it is  also
            ________



            unlikely that  the district  court really  meant to  rule out



            this  remote   possibility,  and  it  is   certain  that  the



            possibility is irrelevant to the present case.



                 After  all, what the district court  said is true almost
                                                                   ______



            all of the  time: deliberate tampering to increase a sentence



            would   be  a   concern,  but   the  ordinary   accidents  of



            acceleration or  delay are  part of  the  fabric of  criminal



            proceedings.  Indeed, several  of our decisions rejecting due



            process claims  that delay  caused sentencing  prejudice have



            emphasized that the delay was not aimed at manipulation.  See
                                                                      ___



            United  States v. McCoy, 977  F.2d 706, 711  (1st Cir. 1992);
            ______________    _____



            Acha v.  United States, 910 F.2d 28, 32 (1st Cir. 1990).  And
            ____     _____________



            in the  present  case,  the  delay was  neither  extreme  nor



            implicitly sinister.


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District  judges normally  deliver  their  decisions  on



            sentencing from the  bench, just after, and sometimes  in the



            course of,  the presentation  of numerous arguments  and even



            evidence  as to  the permissible  range and  proper sentence.



            These often  spontaneous remarks  are addressed primarily  to



            the case at hand and are unlikely to be a perfect or complete



            statement of all of  the surrounding law.  What  the district



            judge said  here  was entirely  adequate as  directed to  the



            present case.



                 Accordingly,  we have  no  occasion to  consider whether



            Saldana  could or  would  have received  a partly  concurrent



            sentence if the federal sentencing  had occurred while he was



            still in state  prison.   The question is  laborious even  to



            describe  in full  because it  is complicated  by changes  in



            guideline commentary  and a possible  ex post facto  claim if
                                                  _____________



            the current version  were applied to Saldana.  Resolution can



            await a case where the issue could affect the result.



                 Affirmed.
                 _________


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