United States Court of Appeals
For the First Circuit
No. 00-2274
UNITED STATES,
Appellee,
v.
CARLOS RAMIREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Lynch, Circuit Judges.
Joseph C. Laws, Jr., Federal Public Defender, and Yasmin A.
Irizarry, Assistant Federal Public Defender, for appellant.
Lena Watkins, Trial Attorney, U.S. Department of Justice, for
appellee.
June 12, 2001
LYNCH, Circuit Judge. Carlos Ramirez pled guilty to
marijuana distribution, 21 U.S.C. §§ 841 and 846, and associated
money laundering charges, 18 U.S.C. § 1956(h). Ramirez was
sentenced to five years, the statutory mandatory minimum. His
plea agreement acknowledged that minimum. He had, at the time of
federal sentencing, already served six months of a nine-month
California state sentence relating to the same marijuana
transaction; he had been released early in California for good
behavior.
At issue in this sentencing appeal is whether the
district court had discretion to grant a six month "credit"
against the federal sentence to account for the state time
served. Ramirez was arrested on federal charges on the day of
his release from state prison. The district court concluded
that it was barred from granting Ramirez credit for his state
sentence, and that the only mechanism available to Ramirez was
to request credit through the Attorney General under the
procedures set forth in 18 U.S.C. § 3585.1 Ramirez challenges
1
18 U.S.C. § 3585 provides: "A defendant shall be given
credit toward the service of a term of imprisonment for any
time he has spent in official detention prior to the date the
sentence commences -- (1) as a result of the offense for which
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that determination, arguing that 18 U.S.C. § 3585 is
inapplicable by its terms and therefore the court must find some
other way to do justice and give him credit.
The government argues that: (1) Ramirez has waived his
right to appeal by signing a plea agreement that generally
waived the right to appeal his sentence provided it was within
the guidelines range; and (2) there was, on the merits, no
authority which permitted the district court to provide the
credit requested.
Waiver of Appeal
In the plea agreement, Ramirez expressly waived the
right to appeal his sentence "unless the court impose[d] a
custodial sentence greater than the high end of the guideline
range and (of [the] statutory minimum term, if applicable)
recommended by the government." Ordinarily we would reach the
waiver issue first. Under the circumstances of this case, we
the sentence was imposed; or (2) as a result of any other
charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed;
that has not been credited against another sentence." The
parties both argue that the district court was wrong to
believe that Ramirez could get credit under § 3585. We do not
reach the issue here.
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believe it more prudent not to resolve the waiver issue. At
Ramirez's change of plea hearing, the magistrate judge did not
inquire whether the waiver of appeal was knowing and voluntary.
Further, when asked by the magistrate judge to outline the plea
agreement, the government said nothing about the waiver of
appellate rights. The magistrate judge also advised Ramirez:
"You have a right to appeal sentences that are high or low, you
always have the right to appeal." (emphasis added). The
government then failed to offer a correction to the Magistrate
Judge’s statement. Because of the problematic nature of these
events, we turn to the merits.
Credit for State Sentence
The district court's interpretation of the guidelines
as a matter of law is reviewed de novo. United States v.
Caraballo, 200 F.3d 20, 24 (1st Cir. 1999). Determinations of
fact are reviewed for clear error. United States v. Santos
Batista, 239 F.3d 16, 21 (1st Cir. 2001).
Ramirez argues, based on commentary to U.S.S.G. §
5G1.3(b), that the district court should have credited his six
month sentence for the related offense toward the statutory
mandatory minimum sentence. For sentencing guidelines cases,
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U.S.S.G. § 5G1.3(b) requires that when an undischarged term of
imprisonment "'resulted from offense(s) that have been fully
taken into account in the determination of the offense level for
the instant offense,' the new sentence must run concurrently
with the undischarged term." United States v. Austin, 239 F.3d
1, 5 (1st Cir. 2001) (quoting U.S.S.G. § 5G1.3(b)). Further,
the guidelines commentary advises a sentencing court imposing a
concurrent sentence pursuant to section 5G1.3(b) to adjust the
sentence for the instant offense by crediting any period of
imprisonment already served for the underlying conduct "if the
court determines that period of imprisonment will not be
credited to the federal sentence by the Bureau of Prisons."
U.S.S.G. § 5G1.3 cmt. n.2. Section 5G1.3 was designed to
prevent duplicative punishment by coordinating sentences, in
certain circumstances, for related crimes. See Austin, 239 F.3d
at 5.
There are two problems with Ramirez's reliance on
section 5G1.3(b) and its commentary. First, the sentence
involved here is a statutory mandatory minimum sentence, not a
guidelines sentence, and so caselaw concerning the granting of
credit for guidelines purposes does not necessarily govern.
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Except in limited circumstances,2 sentencing guidelines cannot
be employed to impose a sentence below an applicable statutory
mandatory minimum. Melendez v. United States, 518 U.S. 120,
126-27 (1996).
Some courts of appeal have nonetheless applied § 5G1.3
and Application Note 2 to cases involving statutory mandatory
minimum sentences, crediting a defendant for time served in an
undischarged, concurrent term of imprisonment, so long as the
total of the time served and the reduced federal sentence equals
or exceeds the statutory mandatory minimum period. See, e.g.,
United States v. Ross, 219 F.3d 592, 594-95 (7th Cir. 2000);
United States v. Drake, 49 F.3d 1438, 1440-41 (9th Cir. 1995);
United States v. Kiefer, 20 F.3d 874, 876-77 (8th Cir. 1994).3
2
A district court has authority to impose a sentence
below the statutory minimum if the government files a motion
acknowledging defendant's substantial assistance, 18 U.S.C. §
3553(e), or if a defendant provides complete information
pursuant to the "safety valve" provision, 18 U.S.C. § 3553(f).
Melendez v. United States, 518 U.S. 120, 126-27 (1996).
Ramirez declined to avail himself of the safety valve, see
infra.
3
Some statutes provide that mandatory minimum
sentences shall not run concurrently with any other sentence.
See, e.g., 18 U.S.C. § 924(a)(4). The statute at issue here
does not contain such language.
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The theory is that the federal mandatory minimum statute does
not specify any particular way in which that minimum term is to
be achieved. This court has not ruled on the issue. And we
need not reach it here, as Ramirez's argument faces a different,
and ultimately insurmountable, hurdle.
Ramirez's second problem is that even if an analogy to
the guidelines were accepted, it would do Ramirez no good. The
issue here involves the giving of credit when the defendant has
already completed his state sentence for the related conduct.
Application note 2 to § 5G1.3 allows for a credit adjustment
"[w]hen a sentence is imposed pursuant to subsection (b)." And
the concurrent sentencing requirement of § 5G1.3(b), in turn, is
only triggered when there is an undischarged term of
imprisonment at the time of sentencing. See United States v.
Rizzo, 121 F.3d 794, 800 (1st Cir. 1997). A defendant's
eligibility for credit is derivative of his eligibility for a
concurrent sentence. As a result, even if we extended the
principle of § 5G1.3 to this case, Ramirez would not be entitled
to credit because his state sentence was not undischarged
(rather, it was discharged) at the time he was sentenced on the
federal counts. See United States v. Cofske, 157 F.3d 1, 1-2
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(1st Cir. 1998) (per curiam) (defendant not entitled to credit
under § 5G1.3 for discharged state prison term, despite
undischarged term of probation); Rizzo, 121 F.3d at 800 (§ 5G1.3
does not apply where term of imprisonment for prior conviction
was discharged before sentencing for new indictment).
Our sister circuit courts have also held that § 5G1.3
is inapplicable to a discharged term of imprisonment. See,
e.g., United States v. Turnipseed, 159 F.3d 383, 386-87 (9th
Cir. 1998); United States v. McHan, 101 F.3d 1027, 1040 (4th
Cir. 1996); United States v. Ogg, 992 F.2d 265, 266 (10th Cir.
1993). As held by the Second Circuit:
[T]he predicate is that the defendant's
prior prison term remains "undischarged."
There is no provision, either in the
[Sentencing Reform] Act or in the
Guidelines, stating that the court may order
that the sentence it imposes be deemed to
have been served concurrently with a prior
prison term that has been fully discharged.
If the defendant has completed his state
prison term before the federal sentence is
imposed, § 5G1.3 does not apply, and his
federal prison term cannot be imposed
concurrently.
United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998)
(emphasis added); cf. United States v. Parkinson, 44 F.3d 6, 8
(1st Cir. 1994) ("Section 5G1.3 is designed to achieve an
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incremental punishment for a defendant who, at the time of
sentencing for the instant offense, is subject to an
undischarged term of imprisonment."). By the time Ramirez was
sentenced on the federal counts on August 28, 2000, a full year
had passed since his state sentence was discharged.
Ramirez makes a second argument that the district court
must have sentencing discretion because the government
compromised his ability to seek credit under § 5G1.3 by waiting
to arrest him until the day he discharged his state sentence.4
This is like the argument presented by the defendant in Rizzo,
supra, who accused the government of delaying his federal
indictment until he had served his state sentence so as to
render him ineligible for a concurrent sentence. This court has
recognized that deliberate government manipulation of some
sentencing factors might give a defendant grounds for relief,
but it has set a high threshold. "[D]eliberate tampering to
4
The district court's statement at sentencing, that
the court could have given Ramirez credit for time served had
Ramirez been arrested while serving his state sentence, may
reflect a misunderstanding about when the concurrency
principle of § 5G1.3 is triggered. The trigger date for
whether the state sentence is "undischarged" is the date of
the federal sentencing, not the date of arrest on federal
charges. See, e.g., Labeille-Soto, 163 F.3d at 99.
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increase a sentence would be a concern, but the ordinary
accidents of acceleration or delay are part of the fabric of
criminal proceedings." United States v. Saldana, 109 F.3d 100,
104 (1st Cir. 1997). Ramirez does not come close.
In sum, even if we were to apply guidelines analysis
to a statutory mandatory minimum sentence case, it does not help
Ramirez. The only avenue for relief available to Ramirez in the
district court from the applicable statutory mandatory minimum
sentence was to provide the government "all information and
evidence" he had about the offenses at issue, 18 U.S.C. §
3553(f) (the "safety valve" provision). But Ramirez declined to
do so.
The judgment of the district court is affirmed.
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