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which probation was revoked; the two later 1991 offenses; and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