United States v. Ortiz , 741 F.3d 288 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2190
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Selya, Stahl and Lipez,
Circuit Judges.
Hector L. Ramos-Vega, Assistant Federal Public Defender,
Supervisor, Appeals Division, with whom Hector E. Guzman, Jr.,
Federal Public Defender, and Patricia A. Garrity, Assistant Federal
Public Defender, were on brief, for appellant.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
January 27, 2014
SELYA, Circuit Judge. Federal Rule of Criminal Procedure
35(a) permits the filing of a post-judgment motion to correct a
sentence within 14 days of its imposition. But what happens when
a defendant's timely notice of appeal follows such a motion but
predates any action on the motion by the district court? It is an
open question in this circuit whether that notice of appeal,
unamended, suffices to allow appellate review of an ensuing denial
of the Rule 35(a) motion. We hold that the original notice of
appeal, unamended, does not create appellate jurisdiction to review
the district court's subsequent disposition of the Rule 35(a)
motion. In order to test the post-appeal denial of Rule 35(a)
relief, the defendant must either amend his original notice of
appeal or file a new notice of appeal.
It is trite but true that he who wins the battle does not
always win the war. So it is here: although we lack jurisdiction
to review the allegedly incorrect denial of Rule 35(a) relief, we
nonetheless have jurisdiction to review the defendant's separate
claim of procedural error in the imposition of the sentence itself.
Exercising that jurisdiction, we conclude that the district court
committed plain error in its imposition of the sentence.
Accordingly, we vacate the sentence and remand for resentencing.
Because this appeal follows a guilty plea, the plea
agreement, change-of-plea colloquy, unchallenged portions of the
presentence investigation report (PSI Report), and transcript of
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the disposition hearing define the factual contours of our
analysis. See United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st
Cir. 2013).
We scroll back to April 29, 2011, when defendant-
appellant Christian Ortiz failed to appear in a local Puerto Rican
court for sentencing in a drug-possession case. The court,
undeterred by the defendant's disappearing act, sentenced him in
absentia to serve a two-year term of immurement. The court did not
stop there: it also issued a warrant for the defendant's arrest and
found him guilty, on the spot, of the crime of contempt of court.
For nearly six months thereafter, the defendant eluded
capture. The long arm of the law eventually ensnared him, and he
was arrested with a stash of ammunition in his possession. The
scene then shifted to a federal forum: a grand jury sitting in the
District of Puerto Rico returned an indictment against the
defendant that charged him with possession of ammunition by a
convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Within a
matter of months, the defendant executed a plea agreement and
entered a guilty plea.
In due course, the probation department prepared the PSI
Report, which recommended a guideline sentencing range (GSR) of 21
to 27 months. This recommendation contemplated a total offense
level of 12 and a criminal history category of IV. Included in the
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underlying criminal history score were two points for the
defendant's in absentia contempt conviction.
The district court convened the disposition hearing on
August 29, 2012. Defense counsel argued that the contempt
conviction had been imposed in violation of Puerto Rico laws
requiring that, prior to conviction, a defendant be given notice
and an opportunity to be heard. See P.R. Laws Ann. tit. 34, App.
II, R. 242(b). The district court refused to lower the GSR on this
basis. It then concluded that the defendant's actions warranted "a
small variance" from the GSR and imposed a 36-month incarcerative
sentence.
Thirteen days later, defense counsel filed a "Motion To
Reconsider Judgment and Sentence." Having ascertained that the
Commonwealth court had vacated the contempt conviction prior to the
federal court disposition hearing, counsel prayed for a lesser
sentence based on a revised GSR. The motion papers explained that
subtracting the two criminal history points attributable to the
dismissed contempt conviction would result in a criminal history
category of III (not IV) and a GSR of 15 to 21 months.
The next day, defense counsel filed the instant notice of
appeal. It described the matter appealed as "the Judgment and
Sentence entered against [the defendant] on August 30, 2012."
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A month elapsed before the district court denied the
defendant's post-judgment motion.1 At that point, the defendant
neither filed a further notice of appeal nor amended the original
notice to include the district court's more recent order.
During the briefing phase of this appeal, the parties
proceeded as though both the sentence and the post-judgment order
were before us. At oral argument, we questioned our jurisdiction
over the latter order and directed the submission of supplemental
briefs. Those briefs were duly filed.
Against this backdrop, we first inquire into the extent
of our jurisdiction. To conduct this inquiry, we must determine
the character of the defendant's post-judgment motion. Ascertaining
a motion's character depends upon its substance, not its
appellation. See United States v. Moran, 393 F.3d 1, 9 (1st Cir.
2004); United States v. Morillo, 8 F.3d 864, 867 (1st Cir. 1993).
Viewed through the lens of substance, the raiment of
Federal Rule of Criminal Procedure 35(a) perfectly suits the
motion. That rule allows a district court to "correct a sentence
that resulted from arithmetical, technical, or other clear error"
within 14 days of the pronouncement of the sentence. Fed. R. Crim.
1
Contrary to the government's importunings, the notice of
appeal did not divest the district court of authority to rule on
the post-judgment motion. The post-judgment motion was the
functional equivalent of a Rule 35(a) motion, see text infra, and
Federal Rule of Appellate Procedure 4(b)(5) permits a district
court to adjudicate a Rule 35(a) motion even after the filing of a
notice of appeal.
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P. 35(a), (c). Here, the defendant filed the post-judgment motion
within the prescribed time frame. Moreover, the motion sought to
correct a clear error: the inclusion of a dismissed conviction in
computing the defendant's criminal history score. This is a
paradigmatic example of the type of bevue that Rule 35(a) was
designed to address. See, e.g., Morillo, 8 F.3d at 868. Elevating
substance over form, we conclude that the post-judgment motion
should be treated as a motion under Rule 35(a).
So characterized, the district court had authority to
rule on the post-judgment motion despite the earlier filing of the
defendant's notice of appeal. See Fed. R. App. P. 4(b)(5); see
also supra note 1. Nevertheless, the district court's order
denying the motion is not properly before us. We explain briefly.
It is common ground that our review of a district court's
order is circumscribed by the filed notice of appeal. This notice
must "designate the judgment, order, or part thereof being
appealed." Fed. R. App. P. 3(c)(1)(B). Rule 3's designation
requirement is mandatory, jurisdictional, and not susceptible to
waiver. See Constructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins.
Co., 467 F.3d 38, 43 (1st Cir. 2006). It follows that a "party's
failure to designate a particular order for appeal ordinarily
defeats a later attempt to dispute that order in the court of
appeals." Shelby v. Superformance Int'l, Inc., 435 F.3d 42, 45
(1st Cir. 2006).
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To be sure, there is some play in the joints. See
Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 3 (1st Cir. 2002)
(explaining that notices of appeal are to be construed liberally in
the context of the record as a whole). In the last analysis,
however, Rule 3's core dictates "must still be satisfied, and 'non-
compliance is fatal to an appeal.'" In re Spookyworld, Inc., 346
F.3d 1, 6 (1st Cir. 2003) (quoting Smith v. Barry, 502 U.S. 244,
248 (1992)); accord United States v. Velez Carrero, 140 F.3d 327,
330 (1st Cir. 1998). When all is said and done, an inquiry into
compliance with Rule 3(c)(1)(B) asks whether a particular notice of
appeal, as informed by the case record in its entirety,
sufficiently manifests an intent to appeal the order in question.
See Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 26-27 (1st
Cir. 2012).
In the case at hand, nothing about the defendant's notice
of appeal manifests an intention to contest the outcome of the Rule
35(a) motion — an outcome that remained uncertain on the day the
notice was filed. The notice designated for appeal only the
district court's "Judgment and Sentence entered against [the
defendant] on August 30, 2012" and omitted any mention of the Rule
35(a) motion, let alone any mention of a disposition of that
motion. Nor did the defendant anticipatorily signal an intent to
contest the outcome of the post-judgment motion once the district
court disposed of it.
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This is not to say that the defendant was powerless to
incorporate the denial of his Rule 35(a) motion into his appeal.
For one thing, he could have amended his pending notice of appeal
to cover the subsequent ruling. See, e.g., Constructora Andrade
Gutiérrez, 467 F.3d at 44. For another thing, he could have filed
a second (supplemental) notice of appeal directed exclusively to
that ruling. But the defendant pursued neither of these easily
available alternatives. Under such circumstances, we are without
jurisdiction to review the district court's denial of Rule 35(a)
relief.2 See, e.g., United States v. Cartwright, 413 F.3d 1295,
1299-1300 (11th Cir. 2005) (per curiam).
Our determination that we lack jurisdiction to review the
district court's denial of the defendant's Rule 35(a) motion does
not end the matter. We do have jurisdiction, under the filed
2
In an attempt to convert dross into gold, the defendant
invites us to consider his post-judgment motion as a motion for
reconsideration, simpliciter. We decline this invitation: motions
for reconsideration in criminal cases are not specifically
authorized either by statute or by rule. See United States v.
Rollins, 607 F.3d 500, 502 (7th Cir. 2010). To the extent that
such motions are viable at all, they rely on the "traditional and
virtually unquestioned practice" of district courts exercising
their inherent authority to revisit their own orders. United
States v. Dieter, 429 U.S. 6, 8 n.3 (1976) (per curiam) (internal
quotation marks omitted). However, for motions — like this one —
that fall squarely within the purview of Rule 35(a), a district
court's authority to grant relief stems solely from that rule's
positive law, not from any inherent power. See United States v.
Griffin, 524 F.3d 71, 83 (1st Cir. 2008); United States v. Fahm, 13
F.3d 447, 453 (1st Cir. 1994). "[T]here is simply no such thing as
a 'motion to reconsider' an otherwise final sentence
. . . ." United States v. Dotz, 455 F.3d 644, 648 (6th Cir. 2006).
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notice of appeal, to review the sentence itself. See 18 U.S.C.
§ 3742(a). Even so, there is a rub: while the defendant argued at
sentencing that his contempt conviction was invalid and unworthy of
inclusion in his criminal history score, the touchstone of his
current argument — the Commonwealth court's vacation of the
contempt conviction — was not brought to the district court's
attention at that time.
The defendant's failure, at the disposition hearing, to
articulate his best argument in support of disregarding the
contempt conviction affects our standard of review. By leaving the
district court in the dark as to that argument, the defendant
forfeited it. But forfeited arguments are not entirely
unreviewable; rather, forfeited arguments may be reviewed for plain
error. See United States v. Dávila-González, 595 F.3d 42, 47 (1st
Cir. 2010). We proceed accordingly.
The plain error standard, though rigorous, is not
insurmountable. Review thereunder "entails four showings: (1) that
an error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001).
The government concedes that the first two elements of
this standard are satisfied, and it is easy to see why. The
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dismissed contempt conviction, which the defendant had argued was
contrary to Puerto Rico law, manifestly should not have been
included in computing the defendant's criminal history score. See,
e.g., Mateo v. United States, 398 F.3d 126, 136 (1st Cir. 2005)
(explaining that convictions reversed for errors of law should not
be counted under the federal sentencing guidelines); USSG §4A1.2,
comment. (n.6) (excluding reversed, vacated, or invalidated
convictions from criminal history computation). In addition, the
inappropriateness of including a vacated conviction in the
computation of a defendant's criminal history score is readily
evident.3
We think it equally clear that the third element of the
plain error standard is satisfied. In a sentencing appeal, the
plain error standard imposes upon the appealing defendant the
burden of showing a reasonable likelihood "that, but for the error,
the district court would have imposed a different, more favorable
sentence." United States v. Turbides-Leonardo, 468 F.3d 34, 39
(1st Cir. 2006). The defendant has carried this burden here.
3
This conclusion is unaffected by the fact that the district
court did not know, at the time of sentencing, that the contempt
conviction had been vacated. Judicial review for plain error is
retrospective; an inquiring court must ask whether, given what is
known at the time of direct appellate review, the district court's
hypothetical rejection of the forfeited argument would have
constituted clear and obvious error. See, e.g., Henderson v.
United States, 133 S. Ct. 1121, 1124-25 (2013).
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At the disposition hearing, the district court indicated
that it would "do a small variance" from the GSR of 21 to 27 months
and "raise th[e sentence] to 36 months." In all likelihood, the
court considered its variance from the GSR "small" due to the ratio
between the sentence and the top of the GSR. Eliminating the
contempt conviction would have the effect of lowering the top of
the GSR from 27 months to 21 months, which would substantially
increase the sentence-to-GSR ratio. We think it doubtful that the
district court, working with a properly calibrated GSR, would still
have considered a nine-month variance "small." After all, a nine-
month variance from a GSR of 21 to 27 months extended the term of
imprisonment by only 33-1/3% over the top of the range, whereas a
nine-month variance from a GSR of 15 to 21 months would extend the
term of imprisonment by nearly 50% over the top of the range.
Given this arithmetic, we deem it reasonably likely that correcting
the error in the criminal history score calculation would have
yielded a more lenient sentence.4
In an effort to dodge this bullet, the government tries
to hide behind the district court's unflattering description of the
4
There are, of course, other ways to look at the question of
prejudice. We do not canvass them because, in this instance, all
roads lead to Rome. We do, however, illustrate the point by noting
that the 36-month sentence represented a 33-1/3% increase over the
top of the erroneously calculated GSR; yet such a sentence would
extend the defendant's term of imprisonment by more than 70% over
the top of the correct GSR. This illustration offers yet another
reason to believe that shrinking the GSR will likely lead to a
lower sentence.
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defendant's conduct. It strives to convince us that those
aggravating factors, not the parameters of the GSR, formed the
impetus for the 36-month sentence. We are not persuaded. Although
the aggravating factors doubtless sparked the district court's
decision to vary upward from the GSR, there is every reason to
believe that the court used the GSR as an anchoring point from
which to vary. Here, then, a calculation error that artificially
increases the GSR is unlikely to be harmless. See United States v.
Fagans, 406 F.3d 138, 141 (2d Cir. 2005) (explaining that an
incorrectly calculated GSR often taints "a non-Guidelines sentence,
which may have been explicitly selected with what was thought to be
the applicable Guidelines range as a frame of reference").
In this regard, the government's reliance on our decision
in United States v. Tavares, 705 F.3d 4 (1st Cir.), cert. denied,
134 S. Ct. 450 (2013), is mislaid. There, the district court was
confronted with two conflicting GSR calculations and explicitly
stated that its sentence did not depend on the choice between them.
See id. at 24. Nothing comparable occurred in this case; the
record contains no suggestion that the court considered the
dimensions of the GSR to be irrelevant. We have explained before,
and today reaffirm, that a sentencing court's decision to vary from
the guidelines does not — absent a clear statement by the court to
the contrary — diminish the potential of the GSR to influence the
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sentence actually imposed. See United States v. McGhee, 651 F.3d
153, 159 (1st Cir. 2011).
The fourth element of the plain error standard need not
detain us. A sentence grounded in part upon a criminal history
score that includes a vacated conviction would seriously impair the
fairness and public perception of judicial proceedings. Due
process "guarantees every defendant a right to be sentenced upon
information which is not false or materially incorrect." United
States v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993) (internal
quotation marks omitted). Where, as here, such erroneous
information materially influences the sentencing calculus, the
error threatens the basic integrity of the sentencing process.
See, e.g., United States v. González-Castillo, 562 F.3d 80, 83-84
(1st Cir. 2009).
We need go no further. For the reasons elucidated above,
the defendant's sentence is vacated and the matter is remanded for
resentencing.
Vacated and Remanded.
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