United States Court of Appeals
For the First Circuit
No. 14-1357
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE E. MALDONADO-RIOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
Camille Lizarríbar-Buxó and Lizarríbar Law Office, on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
June 15, 2105
Per Curiam. This appeal requires us to make clear the
procedure that a district court should follow when a defendant
moves to modify a sentence during the pendency of an appeal of
that sentence. As we explain, in a case like this, that procedure
is set forth in Federal Rule of Appellate Procedure 12.1, which
provides for the use of an indicative ruling by the district court
in such circumstance. Here, however, lacking any direct guidance
from this Court as to the procedure it should follow, the District
Court did not issue an indicative ruling but instead simply issued
a modification order. We hold that the District Court lacked
jurisdiction to issue that order while this appeal was pending.
We thus remand the case in accordance with the procedure that Rule
12.1 sets forth so that the District Court may enter the
modification order.
I.
In December of 2013, the appellant, Jorge E. Maldonado-
Rios, pled guilty to possession with intent to distribute more
than five kilograms of cocaine. That offense carries a statutory
minimum sentence of 120 months' imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(ii). At the time of Maldonado's sentencing, the
sentencing guidelines recommended a higher sentence, of 135 to 168
months. Consistent with those guidelines, the District Court
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imposed a sentence of 135 months. Maldonado then appealed. He
argued that the District Court had committed procedural error by
inadequately explaining its reasons for choosing a 135-month
sentence rather than the 120-month mandatory minimum.
While Maldonado's appeal was pending, the U.S.
Sentencing Commission passed Amendment 782 to the sentencing
guidelines. See United States Sentencing Commission, Guidelines
Manual, App. C Supp., Amendment 782 (Nov. 1, 2014). That amendment
lowered by two levels the "base offense level" -- the baseline
from which recommended sentencing ranges are calculated under the
guidelines -- for most drug offenses. See id. The Sentencing
Commission made that amendment retroactive. See U.S.S.G.
§ 1B1.10(d).
As a result, in November of 2014, Maldonado moved to
have the District Court modify his sentence under 18 U.S.C
§ 3582(c)(2). That statute allows a district court to reduce a
defendant's sentence that was "based on a sentencing range that
has subsequently been lowered by the Sentencing Commission" in a
retroactive amendment. 18 U.S.C. § 3582(c)(2). Several months
later, on February 25, 2015, the government informed the District
Court that it agreed that Maldonado's sentence should be reduced
to the 120-month mandatory minimum in consequence of Amendment
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782. And then, on March 31, 2015, the District Court issued an
order that purported to reduce Maldonado's sentence to the 120-
month minimum, even though this appeal was still pending.
Neither Maldonado nor the government informed this Court
of those developments in the District Court. We became aware of
them only from a review of the District Court's public docket.
II.
Because Maldonado's appeal was pending at the time the
District Court ruled on his motion to modify the sentence under
§ 3582(c)(2), we hold that the District Court lacked jurisdiction
to enter the order reducing the sentence. See United States v.
Torres-Oliveras, 583 F.3d 37, 44 (1st Cir. 2009) (explaining the
"general rule that . . . 'a notice of appeal . . . divests the
district court of its control over those aspects of the case
involved in the appeal'" (quoting Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982))); United States v. Distasio,
820 F.2d 20, 23 (1st Cir. 1987) ("[A] docketed notice of appeal
suspends the sentencing court's power to modify a defendant's
sentence."). For while we have not previously held that a district
court lacks the power to order a sentence modification under 18
U.S.C. § 3582(c) while an appeal of that sentence is pending, see
Torres-Oliveras, 583 F.3d at 44, we have held that a district court
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lacks jurisdiction to do so under Federal Rule of Criminal
Procedure 35(b), see Distasio, 820 F.2d at 23-24. And we see no
basis for distinguishing between these two types of modifications
for jurisdictional purposes.
Moreover, while we have noted that there are "limited
exceptions" to the "general rule" that an appeal ends a district
court's jurisdiction, Torres-Oliveras, 583 F.3d at 44, those
exceptions relate to district court orders that concern matters
unrelated to the "substance of the decision" being appealed, 16A
Charles A. Wright, et al., Federal Practice & Procedure § 3949.1,
at 59 (4th ed. 2008); see also United States v. Ortega, 859 F.2d
327, 334-35 (5th Cir. 1988).1 Those exceptions are thus not
applicable here, given the nature of the District Court's order.
That the District Court lacked the power to issue the
March 31 order -- which otherwise would give Maldonado the relief
he seeks and thus seemingly moot this appeal -- does not mean that
we must proceed to the merits of the appeal. Instead, Federal
Rule of Appellate Procedure 12.1 offers us an alternative, and
1 Ortega upheld a district court's jurisdiction to modify a
sentence despite a pending appeal under the then-in-force version
of Fed. R. Crim. P. 35(a), which allowed courts to "correct an
illegal sentence at any time." 859 F.2d at 334 n.11 (quoting Fed.
R. Crim. P. 35(a)).
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more efficient, means of proceeding. In fact, the Advisory
Committee Notes to Rule 12.1 expressly anticipate that Rule's use
for "motions under 18 U.S.C. § 3582(c)" made during the pendency
of an appeal. Fed. R. App. P. Rule 12.1 advisory committee's note.
Rule 12.1 states that a district court faced with a
motion that it "lacks authority to grant because of an appeal that
has been docketed and is pending" may "state[] either that it would
grant the motion or that the motion raises a substantial issue."
Fed. R. App. P. 12.1(a). And, the Rule further provides, the
movant must then "promptly notify" the Court of Appeals' clerk of
the district court's ruling. Id. This Court then has the option
of "remand[ing] for further proceedings but retain[ing]
jurisdiction," dismissing the appeal, or continuing to hear the
appeal. Fed. R. App. P. 12.1(b).
This procedure makes much practical sense. It is both
the procedure that the District Court -- and the parties -- should
have followed in this case, and the one that district courts and
parties should follow in like cases in the future. The Rule 12.1
procedure ensures that the district court and the appellate court
are not simultaneously analyzing the same issue. The procedure
also avoids the confusion that may result if the appellate court
issues an order inconsistent with the relief that the defendant
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believes the district court has already provided. And, finally,
the procedure provides an efficient means of resolving an issue on
appeal that the district court is willing to render moot.
Of course, in this case, the District Court did not
actually issue an indicative ruling. But the District Court could
hardly have more clearly stated "that it would grant the motion,"
as Rule 12.1 requires, given that the District Court purported to
grant the requested relief directly. Thus, to facilitate the
operation of the procedure that Rule 12.1 contemplates, we will
treat the District Court's March 31, 2015, order as though it were
an indicative ruling under Rule 12.1.
Having done so, in accord with the procedure set forth
in Rule 12.1, we retain jurisdiction and remand this case to the
District Court. That way it may enter an order modifying
Maldonado's sentence, as that court has indicated Amendment 782 to
the sentencing guidelines warrants. Once the District Court enters
its modification order, the government and the defendant shall
notify this Court within 14 days as to whether the pending appeal
may be dismissed. If either party does not believe that the appeal
should be dismissed, that party shall state its reasons fully in
its notice to this Court.
So ordered.
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