United States v. Saldana

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which probation was revoked; the two later 1991 offenses; and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

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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.

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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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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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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).

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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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