United States Court of Appeals
For the First Circuit
No. 08-1499
UNITED STATES OF AMERICA,
Appellee,
v.
ROLANDO SANTIAGO-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Irma R. Valldejuli on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Thomas F.
Klumper, Assistant United States Attorney, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.
February 5, 2010
SELYA, Circuit Judge. Defendant-appellant Rolando
Santiago-Rivera challenges as unreasonable the sentence imposed upon
him in connection with the revocation of a term of supervised
release. The circumstances of this case are unusual and the
question presented -- which involves the extent to which a federal
judge may shape a sentence for a violation of supervised release to
affect an unrelated state sentence -- is one of first impression.
After careful consideration of this conundrum, we conclude that the
district court committed a procedural error by relying upon an
impermissible factor in fashioning its sentence. Accordingly, we
vacate the appellant's sentence and remand for further proceedings.
I. BACKGROUND
In the United States District Court for the District of
Puerto Rico, the appellant entered a plea of guilty, on February 21,
2006, to a charge of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The court
sentenced him to serve a 30-month incarcerative term, to be followed
by a three-year period of supervised release.
While the firearms case was pending in federal court, the
appellant was tried and convicted for a double murder in the Puerto
Rico trial court. That court sentenced him to serve a 99-year term
of imprisonment, to be followed by a five-year consecutive term of
imprisonment.
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The appellant was released from federal prison on June
11, 2007. On October 3 of that year, a federal probation officer
requested a warrant for the appellant's arrest, stating that the
appellant had violated the general condition that he report to the
probation officer within 72 hours of his release from the custody
of the federal Bureau of Prisons (BOP).
II. REVOCATION HEARING
At the revocation hearing, the appellant admitted the
violation and the government requested a 12-month prison sentence.
This recommendation came within the applicable advisory guideline
range, which called for 6-12 months of imprisonment. The district
court accepted the government's recommendation as to the
suitability of a 12-month period of immurement but tacked on a two-
year term of supervised release. It explained its rationale in
clear terms:
The Court recommends to the Bureau of
Prisons that Mr. Santiago be turned over to
the state authorities so that he may continue
serving the time that he has to do in state
court and that a detainer be lodged in the
state court so that, subsequently, this
federal sentence is served.
Basically, the reason I do this is because
I am skeptical on the state system, the way
that they calculate the sentences. And who
knows, he may be out of prison in a very
reasonable future date and, therefore, this
federal sentence would start to apply.
Defense counsel argued against the sentence on the ground that:
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[W]ith supervised release term pending, he
will not get any credit or benefits, because
he will have the detainer for the supervised
release term. So no benefits will be given to
him. And that means that he might have to
serve the whole 30, 40, 50 years, maybe the
whole 99 years, under the new penal code of
Puerto Rico, without any benefits because of
the detainer pending.
The court repeated its reasoning and made pellucid its intention to
affect the state sentence:
COURT: Well, he has a 99-year sentence, plus a
consecutive five-year sentence. And but for
the detainer, he could be out in eight years.
That's what you're saying.
* * *
That's why I am sentencing the way I'm
sentencing him.
It appears from BOP records that the appellant already
has served the 12-month sentence of imprisonment. The record on
appeal and the parties' briefs provide no information as to whether
the BOP followed the recommendation to lodge a detainer in the
commonwealth court to ensure that the supervised release portion of
the revocation sentence would be served after the appellant's
release (if one occurred) from the Puerto Rico prison system.
III. DISCUSSION
Two well-established principles of law cabin our inquiry.
To begin, a non-binding recommendation by a district court to the
BOP is not a reviewable order. United States v. Meléndez, 279 F.3d
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16, 18 (1st Cir. 2002). Therefore, we do not focus on the district
court's recommendation to the BOP anent the lodging of a detainer.
The next principle is that a revocation sentence is
reviewed for abuse of discretion under 18 U.S.C. § 3583(e)(3).
United States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005). A
material mistake of law is, perforce, an abuse of discretion.
United States v. Caraballo, 552 F.3d 6, 8-9 (1st Cir. 2008).
The appellant does not challenge the length of the prison
sentence imposed upon revocation of supervised release; instead, he
challenges only the imposition of yet another term of supervised
release. Under the advisory sentencing guidelines, a reviewing
court must look at both the procedural and the substantive
propriety of a challenged sentence. See, e.g., United States v.
Carrasco-De-Jesus, 589 F.3d 22, 26 (1st Cir. 2009). If a concern
that a state will fail adequately to punish a defendant on an
unrelated charge is an impermissible sentencing factor, the
sentence must be vacated as a matter of law.1
The relevant statute, 18 U.S.C. § 3583(e)(3), permits
imposition of a term of imprisonment upon revocation of a term of
supervised release; a different subsection of the statute, 18
U.S.C. § 3583(h), permits a term of supervised release to be
imposed in addition to the term of imprisonment. As subsection (h)
1
In this context, Puerto Rico is the functional equivalent of
a state. Cf. United States v. Acosta-Martinez, 252 F.3d 13, 19 n.5
(1st Cir. 2001).
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does not list the factors to be considered in imposing a term of
supervised release as part of a revocation sentence, it is a
reasonable inference that the factors are the same as those to be
considered in imposing an initial term of supervised release. See
18 U.S.C. § 3583(c), cross-referencing to 18 U.S.C. § 3553(a)
(listing factors to be considered in imposing a sentence).
The factors to be considered under 18 U.S.C. § 3583(c)
include the nature and circumstances of the offense; the history
and characteristics of the offender; the need to afford adequate
deterrence; the need to protect the public from further crimes; the
need to provide the offender with training, care, or treatment; the
guidelines and any pertinent policy statement(s); the need to avoid
unwarranted sentencing disparity; and the need to effect
restitution. These statutes provide guidance -- but not absolute
certitude -- as to what factors should be considered.
It is clear from the transcript of the sentencing hearing
in the case at hand that most of the enumerated factors were not
considered. The district court did consider the advisory guideline
range to the extent that the sentence did not exceed it.
Nonetheless, Chapter Seven of the guidelines expresses the
Sentencing Commission's view that sentences upon revocation of
supervised release are intended to punish the breach of trust that
the violation represents. Here, the nature of the violation -- a
breach of trust signified by failure to report -- was not even
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mentioned by the sentencing court. Instead, the focus of the
hearing was strictly and solely on condign punishment for the
appellant's murder case. Had the murders been committed during the
original period of supervised release, these crimes would
appropriately have factored into the revocation sentence. But, the
murders were committed before the appellant was imprisoned on the
federal firearms charge and, a fortiori, before the imposition of
the first supervised release term occurred. Thus, the revocation
of supervised release bore no conceivable relationship to the
murders, and vice-versa.
As we noted above, this case presents a question of first
impression. Most likely, the paucity of cases on point stands as
a testament to the fact that the federal district courts, when
faced with the need to sentence a defendant upon revocation of
supervised release, seldom rely upon impermissible factors in
reaching sentencing decisions. We have, however, found a handful
of cases addressing impermissible sentencing factors.
The most notable is United States v. Velasquez Velaquez,
524 F.3d 1248 (11th Cir. 2008). There, the court of appeals noted
that it was appropriate to "review de novo, as a question of law,
whether a factor considered by the district court in sentencing a
defendant is impermissible." Id. at 1252. A sentence imposed upon
revocation of supervised release was vacated on the ground that the
district court was motivated to lengthen the sentence by its
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disapproval of the fact that an immigration judge had released
Velasquez on bond pending his appeal of the denial of his request
for asylum. Id.
By way of analogy, sentences also have been vacated when
a district court stumbles over the concept of "disparity." The
decisions in United States v. Williams, 524 F.3d 209 (2d Cir.
2008), United States v. Jeremiah, 446 F.3d 805 (8th Cir. 2006), and
United States v. Clark, 434 F.3d 684 (4th Cir. 2006), all involved
sentences for substantive offenses rather than sentences imposed
upon revocation of supervised release. In each case, the court of
appeals held that it was procedural error for a district court to
consider the disparity between federal sentences and local
sentences for similar offenses. Williams, 524 F.3d at 215,
Jeremiah, 446 F.3d at 808, and Clark, 434 F.3d at 686. Cf. United
States v. Snyder, 136 F.3d 65, 69 (1st Cir. 1998)(under then
mandatory guidelines, federal/state sentencing disparity
impermissible basis for downward departure). The courts in
Williams, Jeremiah, and Clark agree that the advisory guidelines
are there to aid district courts in achieving a level of nationwide
consistency in federal sentencing, a goal to which consistency
between federal and state sentencing has to be subordinated.
The district court in the case at bar went beyond
considering the disparity between federal and state sentences.
Rather, the district court explicitly fashioned a federal sentence
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in order to influence the manner in which a sentence imposed by a
local court was implemented. The murders for which the appellant
was convicted and sentenced in the Puerto Rico trial court were
unrelated to either the federal firearms offense (the offense of
conviction) or the appellant's violation of the conditions of his
term of supervised release.2
There are two loose ends. First, we reject the
government's assertion that the appellant's claim of sentencing
error was either forfeited or waived because he argued too
generally in the district court. It is sufficient that the
appellant objected to the sentence on the precise contention that
the court's proposed course of action would impermissibly affect
his state sentence. Second, the government for its part has
forfeited any argument that the district court's bevue did not
prejudice the appellant.
IV. CONCLUSION
We need go no further. For the reasons elucidated above,
we conclude that the district court committed procedural error by
2
Although it does not affect the outcome of this appeal, we
note that the court, the assistant United States attorney, and
defense counsel all lacked reliable information regarding the
question of how the Commonwealth of Puerto Rico would implement the
sentence imposed by its court. They variously estimated that the
appellant might serve eight years, 40 years, or 99 years; among
other things, it was not clear whether the appellant had been
sentenced as a minor, or whether, under the Commonwealth's new
penal code, the lodging of a detainer would affect the credits and
benefits afforded him during his state incarceration. Many
ambiguities pervade other aspects of the record.
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selecting a sentence for the sole purpose of controlling the
running of an unrelated local sentence.
This leaves the question of a remedy. In the unusual
circumstances of this case, we think that the appropriate remedy is
to vacate the sentence (which, after all, was based at least in
part on an impermissible sentencing factor) and to remand the case
for further proceedings, including resentencing, consistent with
this opinion. We take no view as to the appropriate sentence to be
imposed on remand; our concern here is with procedural error.
So ordered.
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