United States v. Ramirez

          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.

                                   -4-
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.

                                 -6-
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.

                              -7-
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

                                  -8-
(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

                                    -9-
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.

                                     -10-
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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