United States Court of Appeals
For the First Circuit
No. 00-1429
No. 00-1513
UNITED STATES OF AMERICA,
Appellee/Cross-Appellant,
v.
GUILLERMO MALDONADO,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lipez, Circuit Judges.
Mark B. Laroche, by appointment of the court, for defendant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Kenneth P.
Madden, Assistant United States Attorney, were on consolidated
brief for the United States.
February 23, 2001
BOUDIN, Circuit Judge. The question is whether a
district court may depart downward to save taxpayers the expense
of imprisoning a defendant who is likely to be deported after
completing his sentence. In this instance, Guillermo Maldonado
(who says his real name is Miguel Angel Soto) pled guilty, in
August 1997, to federal charges of possession with intent to
distribute cocaine and heroin. 21 U.S.C. § 841(a)(1)(1994). In
March 1998, Maldonado was sentenced to 210 months in prison, the
minimum prescribed by the Sentencing Guidelines as computed by
the district court.
Maldonado's counsel filed a timely notice of appeal but
did not pursue the appeal, and this court dismissed the appeal
for want of prosecution in July 1998. Maldonado then filed a
section 2255 petition, 28 U.S.C. § 2255 (Supp. II 1996),
alleging ineffectiveness of counsel in allowing the appeal to
lapse; and, with the government's agreement, the district court
granted the petition and ordered resentencing to permit
Maldonado to take a direct appeal. See Bonneau v. United
States, 961 F.2d 17, 23 (1st Cir. 1992). However, the court did
not mechanically impose the same sentence, as it could have
done.
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Instead, on the day of the resentencing hearing (March
20, 2000), Maldonado filed a motion seeking a downward departure
based on evidence of rehabilitation. U.S.S.G. § 5K2.0.
Attached were copies of a high school equivalency diploma and
certificates evidencing completion of a number of courses
Maldonado had taken in 1998 and 1999 while in prison. The
government opposed the downward departure, saying that the
evidence did not show extraordinary post-sentencing
rehabilitation. Maldonado's counsel argued in favor of the
departure, adding that a downward departure might also address
a concern mentioned by the court at the first sentencing,
namely, that taxpayers would be paying for 17 years of
imprisonment.
The district court then sentenced Maldonado to 120
months' imprisonment, a downward departure of 90 months,
stating:
What troubles me about these cases is that
210 months in federal prison for someone
who's going to be deported is a waste of
taxpayer money, some $20,000 a year just to
keep him in federal prison. Recently, I
have been departing downward when the
sentence of a deportable felon is in the
higher ranges because of the concern I have
for the taxpayers paying for someone in a
federal prison when that person will be
deported. Obviously the defendant has been
doing some things to help himself while he's
in prison, and that's commendable. But the
real reason I'm going to depart downward
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here is because I don't want the taxpayers
to pay for him unnecessarily.
Maldonado now appeals, arguing that the guideline
calculation originally adopted by the district court (and
effectively reaffirmed on resentencing) was mistaken in several
respects, and that Maldonado's guilty plea was defective. The
government cross-appeals, arguing that the district court had no
authority to consider a downward departure after the
resentencing and, in any event, erred in granting the departure
on the basis of expense to the taxpayer.
We start with the government's appeal. Its first claim
is that the district court had no right after granting the
section 2255 motion to do anything more than to reimpose the
original sentence. The government is correct that reimposing
the original sentence without more would remedy the assumed
constitutional defect, so the district court could have declined
to reexamine the sentence. See United States v. Torres-Otero,
232 F.3d 24, 30-31 (1st Cir. 2000). The more difficult question
is whether, as the government now urges, the district court was
forbidden from sentencing the defendant afresh and imposing a
different sentence.
The government first argues that the plain language of
section 2255 requires that the "error" to which the petition is
addressed must fit in one of the pigeonholes in the first
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sentence of section 2255.1 Perhaps so; but if this is the case,
the petition--which the government agreed should be granted--can
be taken to claim that the sentence was "otherwise subject to
collateral attack" because the negligence of counsel thwarted an
appeal from the original conviction. Cf. Bonneau, 961 F.2d at
23. On this premise, section 2255 gave the district court power
"to vacate, set aside or correct the sentence." 28 U.S.C. §
2255.
Nothing in the statute's language resolves the question
whether the district court in such a situation is precluded from
calculating the proper sentence anew. The choice resembles that
presented where, on direct appeal, a court of appeals sets aside
a sentence for some defect in the calculation but neither
explicitly nor implicitly limits the district court in the scope
of its resentencing. Once again, the district court is not
ordinarily required to go beyond correcting the error identified
by the court of appeals, e.g., United States v. Rivera-
Maldonado, 124 F. Supp. 2d 788, 791 (D.P.R. 2000), but that does
not answer the question whether it may do so if it wishes.
1
Namely, that the sentence was unlawful or the court was
without jurisdiction to impose it, or "that the sentence was in
excess of the maximum authorized by law, or is otherwise subject
to collateral attack . . . ." 28 U.S.C. § 2255.
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In both situations, it is a windfall to a defendant if
in resentencing the district court goes beyond correction of the
original error and gives the defendant a lower sentence by
virtue of a new calculation on an unrelated aspect of the
sentence. The tension is between an idiosyncratic benefit for
one defendant not available to others and a desire to sentence
properly even if this involves giving the lucky defendant a
break. Since circumstances vary, one might well think that this
is a choice that should be left to the district judge unless
Congress or an appellate court directs otherwise. Cf. Torres-
Otero, 232 F.2d at 30; United States v. Rodriguez, 112 F.3d 26,
29 (1st Cir.), cert. denied, 522 U.S. 895 (1997).
The government points out that there are severe
restrictions on the district court's right to revisit a sentence
previously imposed. See 18 U.S.C. § 3582(c) (1994 & Supp. II
1996) (retroactive application of guideline changes limited);
Fed. R. Crim. P. 35 (seven-day limit on correction errors; one-
year limit on substantial assistance reductions). This is quite
true where a sentence has become final; but we are concerned
with a resentencing where the original sentence was invalidated.
The issue here is not whether there will be a resentencing--
section 2255 permits it, as does a remand, see Fed. R. Crim. P.
35(a)--but rather of its permissible scope.
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The government suggests that existing precedent
prohibits de novo resentencing, but we read the authorities
differently. The more common case--that of a remand for
resentencing after an appeal--is handled variously in different
circuits. In some, it appears the district judge may go beyond
correcting the error but is not required to do so. E.g., United
States v. Whren, 111 F.3d 956, 958-60 (D.C. Cir. 1997), cert.
denied, 522 U.S. 1119 (1998).2 But it is hard to find an appeals
court forbidding de novo resentencing, unless the mandate has
affirmatively restricted the remand, e.g., United States v.
Parker, 101 F.3d 527, 528 (7th Cir. 1996); cf. Fed. R. Crim. P.
35(a)(1).
Criminal procedure, like the rest of life, is filled
with situations in which fortuities work to the benefit or
disadvantage of a prosecutor or defendant. For example, where
a retrial is ordered because of some mistake in the
instructions, witnesses may have died in the interval or new
ones been discovered, so that the evidence at the new trial is
quite different, sometimes favoring the prosecution and
sometimes the defense. Section 2255 being silent, it seems to
2In two cases, somewhat surprisingly, the Second Circuit has
required resentencing de novo. United States v. Harris, 209
F.3d 156, 162-63 (2d Cir. 2000); Soto v. United States, 185 F.3d
48, 54 (2d Cir. 1999).
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us that the best approach is to retain some flexibility. See
United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997), cert.
denied, 522 U.S. 1083 (1998).
Although the district court was thus free to consider
a downward departure for any legitimate reason, we think that it
erred in granting a departure on the grounds given. The court
said that it was "a waste of taxpayer money" to impose a lengthy
prison term on "someone who's going to be deported." The court
did not say why, perhaps deeming it to be obvious. It is not;
there are several possibilities, and the most likely turn out to
depend very much on particular circumstances.
One rationale is that deportation is additional
punishment added on to the term of imprisonment. If so, one
might think that adequate deterrence of drug crimes by aliens,
where deportation is quite likely, is provided by threatening
aliens with a shorter sentence. The argument assumes, however,
that the alien knows before committing the crime that
deportation will follow if he is caught and convicted and,
further, that he knows that deportation will be highly
disadvantageous to him. One might expect these factors to vary
from case to case, and the absence of either defeats the
argument.
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Alternatively, and perhaps more likely, the district
court may have been assuming that deportation would at least
protect the public against future crimes by the defendant after
his shortened term of imprisonment. But even if the interest of
foreign citizens is disregarded, the premise that the deported
alien is gone for good is somewhat doubtful. American borders
remain fairly porous. There are already many prosecutions for
illegal reentry after deportation, e.g., United States v. Luna-
Diaz, 222 F.3d 1, 2 (1st Cir. 2000), and, even more troubling,
for criminal acts committed after illegal entry following
deportation, e.g., United States v. Cuevas, 75 F.3d 778, 779
(1st Cir. 1996).
Strictly speaking, nothing in the guidelines addresses-
-let alone forbids--consideration of the general approach taken
by the district court or shows that the Sentencing Commission
considered and rejected it. Cf. United States v. Alvarez-
Cardenas, 902 F.2d 734, 737 (9th Cir. 1990). In fact, in
"extraordinary" cases, the guidelines themselves indicate that
expense may be considered, U.S.S.G. § 5H1.1 ("elderly and
infirm"); id. § 5H1.4 ("extraordinary physical impairment"); and
while hedging the matter, some courts have said that
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deportability might, in some situations and for varying reasons,
be pertinent to a decision to depart.3
This juxtaposition of the "general" with the
"extraordinary" is the key to our own problem. Although the
Commission did not proscribe the district court's approach
("[r]ecently, I have been departing downward when . . ."), it
obviously knew that deportable aliens commit crimes, that drug
sentences are lengthy and that prisons are expensive. It is
thus hard to avoid treating the Commission's failure to provide
a discount as equivalent to rejecting a discount as a matter of
course. Cf. United States v. Clase-Espinal, 115 F.3d 1054,
1057-59 (1st Cir.), cert. denied, 522 U.S. 957 (1997).
In short, a deportable alien who commits a crime is
still within the "heartland" of the guidelines, absent something
more. See United States v. Garay, 235 F.3d 230, 233-34 (5th
Cir. 2000); United States v. Farouil, 124 F.3d 838, 847 (7th
Cir. 1997). If deportability, expense, or some combination of
the two justifies a departure, it would have to be based on
case-specific findings that made the case unusual. Cf. United
3 See, e.g., United States v. Tejeda, 146 F.3d 84, 88 (2d
Cir. 1998) (per curiam); United States v. Farouil, 124 F.3d 838,
847 (7th Cir. 1997) (cited with approval in United States v.
DeBeir, 186 F.3d 561, 569 (4th Cir. 1999)); United States
v. Restrepo, 999 F.2d 640, 644 (2d Cir.), cert. denied, 510 U.S.
954 (1993); cf. also United States v. Smith, 27 F.3d 649, 655
(D.C. Cir. 1994).
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States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997). Under Koons
v. United States, 518 U.S. 81, 96 (1996), the Sentencing
Commission's silence might give the district court latitude in
the extraordinary case; but the common facts of a long sentence
and likely deportation are not by themselves extraordinary.
Accord United States v. Tejeda, 146 F.3d 84, 88 (2d Cir. 1998)
(per curiam). And that is all that was present here.
Because the departure was impermissible, we must remand
for resentencing. The district judge did not formally rule on
Maldonado's original request for a downward departure based on
post-sentence rehabilitation. In the past, this circuit and
others have held that a district court may depart downward in
resentencing because of extraordinary circumstances reflecting
rehabilitation after an earlier (now vacated) sentence for the
same crime. See United States v. Bradstreet, 207 F.3d 76, 78
(1st Cir. 2000).4
The Commission has recently precluded this practice
precisely because it does give previously sentenced prisoners a
4
Accord United States v. Rudolph, 190 F.3d 720, 723 (6th
Cir. 1999); United States v. Green, 152 F.3d 1202, 1207 (9th
Cir. 1998); United States v. Rhodes, 145 F.3d 1375, 1379 (D.C.
Cir. 1998); United States v. Sally, 116 F.3d 76, 80 (3d Cir.
1997); United States v. Core, 125 F.3d 74, 75 (2d Cir. 1997),
cert. denied, 522 U.S. 1067 (1998). But see United States v.
Sims, 174 F.3d 911, 912-13 (8th Cir. 1999); Rhodes, 145 F.3d at
1384 (Silberman, J., dissenting).
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windfall. U.S.S.G. § 5K2.19 (Appendix X, amendment 602,
effective November 1, 2000). This is a judgment that the
Commission is entitled to make, but we ordinarily employ the
guidelines in effect at sentencing only where they are as
lenient as those in effect at the time of the offense; when the
guidelines have been made more severe in the interim, the
version in effect at the time of the crime is normally used, as
a matter of policy and to avoid any hint of ex post facto
increase in penalty. See United States v. Harotunian, 920 F.2d
1040, 1041-42 (1st Cir. 1990).
Here, the Commission's's more recent change does not
persuade us that we erred in our original decision, Bradstreet,
207 F.3d at 78--to allow departures for extraordinary post-
sentence rehabilitation--but only that the guidelines have been
changed prospectively. Thus, on remand, Maldonado may argue to
the district judge that such a departure is justified. It is
far from clear that anything urged by Maldonado constituted
extraordinary circumstances; but we decline to anticipate the
issue since it has not been briefed by either side and may never
be presented to us.
Finally, Maldonado says that his original guilty plea
was rendered ineffective by defects in the colloquy and that his
original guideline sentence was miscomputed. As to the guilty
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plea, there was no effort before or at either of the sentencings
to withdraw the plea, which means that review even on direct
appeal is limited to plain error, United States v. Gandia-
Maysonet, 227 F.3d 1, 5 (1st Cir. 2000). The gist of the claim
of error, which is not well developed, concerns the government's
charge that Maldonado possessed heroin that was found in a car
in a rolled up T-shirt.
At the plea colloquy, the government proffered that a
police officer had seen Maldonado place the T-shirt in the car
and shortly after the police stopped the car, discovered two
packages of heroin in the T-shirt. When these facts were
adduced at the plea hearing, Maldonado agreed with this summary
of evidence, objecting only to the characterization of cocaine
later found in his apartment as crack. Although counsel says
that the court should have explained the alleged facts further
because they were filtered through an interpreter, there is no
indication that they were inadequately explained or that
Maldonado misunderstood.
Maldonado also objects to the sentencing calculations
on several grounds: to the inclusion of the drugs found in the
T-shirt, to treating as crack cocaine some of the drugs later
found in his apartment, to the addition of two levels for
obstruction of justice for giving a false name to the Probation
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Department and lying to the court, U.S.S.G. § 3C1.1, and to the
failure to give Maldonado a two-level reduction for acceptance
of responsibility, id. § 3E1.1(a). The government's able brief
refutes each of these claims in detail.
The sentence is vacated and the matter remanded to the
district court for resentencing in accordance with this opinion.
It is so ordered.
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